Federal Civil Practice

Dist. Ct. did not err in denying defendant’s motion to compel arbitration of instant breach of contract claim based on arbitration clause. Record showed that: (1) defendant originally moved to dismiss plaintiff’s complaint on other grounds; (2) Dist. Ct. dismissed complaint on jurisdictional grounds; (3) when plaintiff re-filed lawsuit, defendant filed second motion to dismiss based, among other things, on ground that provision in contract made arbitration exclusive forum for instant claim; and (4) plaintiff withdrew portion of motion to dismiss alleging dismissal based on arbitration clause, before filing instant motion to compel arbitration one month later. Dist. Ct. could properly find that defendant had waived its right to arbitrate by expressly withdrawing its arbitration demand in second motion to dismiss. Fact that defendant claimed that plaintiff had pressured it to withdraw arbitration demand by threatening to seek sanctions against defendant did not require different result.

Dist. Ct. did not err in granting defendants-prison officials’ motion for summary judgment in plaintiff-prisoner’s section 1983 action, alleging that defendants violated his First Amendment rights by transferring him to different prison facility in retaliation for plaintiff have filed lawsuit and grievance regarding alleged poor conditions of prison and its lunches, as well as having provided statements to local newspaper about alleged poor medical care at prison. While plaintiff had engaged in protected speech, plaintiff failed to show that his transfer was motivated by fact that he had engaged in said speech, as opposed to substance of his complaints, where he presented no evidence that his difficulties with prison’s medical provider, as well as cold conditions and lunch program at prison could not be improved by transfer to different prison, as articulated by defendants. As such, plaintiff could not overcome significant deference owed to defendants’ non-retaliatory justification for instant transfer. Also, plaintiff failed to establish that transfer was adverse act, where: (1) plaintiff was transferred to same type of facility, (2) defendants did not transfer plaintiff into life-threatening situation; and (3) plaintiff could only establish minor differences in policies and conditions between both facilities.

Dist. Ct. did not err in denying plaintiff’s Rule 60(b)(6) motion seeking to reopen lawsuit alleging that defendant had negligently omitted adult suicide risk in label on drug (paroxetine) that played role in suicide death of plaintiff’s decedent, where Ct. of Appeals had previously found that said lawsuit was preempted by federal law governing contents of labels for paroxetine. While plaintiff argued that recent decision in Albrecht, 139 U.S. 1668, constituted change in law with respect to clear evidence standard for impossibility preemption defense for prescription drug labels so as to warrant reopening of case, Ct. of Appeals found that Albrecht merely clarified prior case law on impossibility standard. Moreover, Ct. found that result in earlier appeal would be same under Albrecht, where: (1) prior to instant suicide, defendant had disclosed to FDA relevant data under its desired adult suicide warning; (2) FDA unanimously rejected defendant’s proffered Paxil/paroxetine-specific warning when it mandated that all SSRIs carry uniform class-wide warning label; and (3) plaintiff failed to show that defendant had acquired new evidence after FDA ruling that would have justified change in label. Ct. further found that plaintiff’s filing of Rule 60(b)(6) motion and instant appeal of Dist. Ct's order were not frivolous.

Dist. Ct. did not err in granting defendant’s Rule 12(c) motion for judgment on pleadings in plaintiff’s action alleging that defendant’s request for attorneys’ fees in state-court action violated Fair Debt Collection Practices Act (FDCPA) on ground that request for attorneys’ fees constituted unfair debt collection practice. Dist. Ct. could properly find that request for attorneys’ fees was not “debt” as defined under FDCPA, where said request did not arise out of any consensual consumer transaction as defined under FDCPA, but rather arose out of  plaintiff’s alleged wrongdoings as condominium association board member at issue in underlying state-court action. Fact that plaintiff had purchased condominium that allowed him to be on condominium association board did not require different result, since fee request was based on his actions as board member and not purchase of his condominium.

Dist. Ct. did not err in dismissing on Rooker-Feldman doctrine grounds plaintiff’s lawsuit alleging that defendants-state-court judge and others had conspired to introduce into evidence forged documents during state-court trial that resulted in entry of foreclosure judgment and judicial sale of plaintiffs’ property. Dist. Ct. could properly find that plaintiffs’ injuries in instant case stemmed from prior state-court’s foreclosure judgment, and that plaintiffs could not use instant federal action to set aside order of foreclosure or monetary judgment entered against them, where plaintiffs essentially would require Dist. Ct. to evaluate state-court judgment. Fact that state court foreclosure judgment was not final order did not require different result, where plaintiffs had satisfied state-court judgment by time of filing of instant lawsuit.

Dist. Ct. erred in dismissing for failure to prosecute plaintiff-prisoner’s section 1983 action alleging deficient health care/conditions of confinement, as well as use of excessive force, where plaintiff had failed to comply with one deadline calling for filing of third-amended complaint. Record showed that plaintiff had history of mental illness, and that plaintiff had asked Dist. Ct. three times for appointment of counsel. With respect to third request for appointed counsel, Dist. Ct. improperly directed plaintiff to personally ask proposed counsel to represent him, and Dist. Ct. otherwise failed to consider plaintiff’s competency to represent himself in light of his mental illness and complexity of medical evidence at issue in his lawsuit. As such, Dist. Ct.’s denial of request for appointed counsel failed to meet “reasonableness standard.” Moreover, appointment of counsel would have significantly changed outcome of case, where said counsel could have complied with Dist. Ct.’s pleading requirements. Also, dismissal based on failure to meet one deadline was harsh, where plaintiff had twice attempted to file proper amended complaint, and where plaintiff at same time was requesting appointment of counsel.

Dist. Ct. denied defendants’ motion for recusal under 28 USC section 455(a), even though defendants alleged that Dist. Ct.’s daughter was employed at public interest entity, under circumstances where plaintiff’s law firm provided funds for same public interest entity and donated lawyer time to said entity for legal cases undertaken by entity. Defendants thereafter sought review of said denial via petition for writ of mandamus filed in Ct. of Appeals. Ct. of Appeals noted that mandamus petition had been traditional means to seek recusal of Dist. Ct. judge under section 455(a) after recusal motion had been denied by Dist. Ct., but that after Fowler, 829 F.3d 788 (2016), party can seek review of denial of recusal motion through appeal of final judgment. As to merits of recusal question, Ct. of Appeals found that there was no reasonable basis to question Dist. Ct.‘s impartiality with respect to its consideration of issues in underlying section 1983 action alleging that defendants violated plaintiff’s constitutional rights arising out of plaintiff’s eventual acquittal in murder trial, where: (1) there was no evidence of judge shopping when underlying case was filed before different Dist. Ct. judge; (2) defendants made no suggestion of any apparent partiality when case was reassigned to instant Dist. Ct. judge; and (3) record showed that Dist. Ct.’s daughter has been screened from involvement in cases before instant Dist. Ct. judge. Ct. further rejected notion that daughter’s employment with public interest entity, by itself, created appearance of impropriety in eyes of objective observer. It also found that Dist. Ct.’s attendance at fundraiser for “Innocence Project” during which plaintiff in underlying lawsuit was cited did not require recusal of Dist. Ct. judge.

Dist. Ct. did not err in finding that defendant’s policy limiting prisoners to three books per cell, when plaintiff-prisoner had 30 books in his cell, did not violate plaintiff’s First Amendment rights, where: (1) defendants allowed plaintiff to read as many books as he wanted; and (2) instant limitation represented valid penal interest of curtailing labor intensive search of contraband capable of being hidden in books. However, Dist. Ct. erred in granting defendant’s motion for summary judgment with respect to plaintiff’s claim that defendants violated his due process right when they destroyed excess books without his permission and without asking him which three books he wished to retain. In this respect, defendants failed to establish that books are “contraband” that would support defendants’ decision to destroy excess books without notice. As such, remand was required to allow plaintiff to establish that defendants had policy of destroying excess book and to determine what choices were offered to plaintiff when guards discovered excess books.

Dist. Ct. did not err in granting plaintiff’s motion for summary judgment in plaintiff-class action alleging that defendants violated Telephone Consumer Protection Act (TCPA) by sending fax advertisement to 11,422 different numbers from recently acquired customer list without having obtained customers’ permission to do so. Defendants conceded that fax was advertisement that lacked any disclaimer explaining how to opt out of future faxes, and thus defendants could not rely on safe-harbor provisions of TCPA to avoid liability. Moreover, defendants could not avoid liability based on prior express permission send fax advertisements, where affidavits from customers on list stated only that it generally gave permission to seller of customer list to send fax advertisements, that said customers would have given permission to send fax advertisements, or that customers had agreed to receive product information from seller of customer list, since defendants needed to show that permission to send fax advertisements was given prior to sending of fax. Ct. further found that seller of customer list could not transfer to another entity any customer permission to send fax advertisements. Also, Dist. Ct. could properly calculate statutory damages without conducting evidentiary hearing where, as here, there was no dispute with respect to number of fax advertisements sent by defendants.

Ct. of Appeals lacked jurisdiction over defendant’s appeal of Dist. Ct. order finding that defendants must arbitrate any dispute with plaintiff before National Futures Association (NFA), as opposed to FINRA, pursuant to agreement signed by both parties. Instant order in plaintiff’s action seeking declaratory judgment to require defendants to arbitrate their disputes before NFA, was not final and appealable pursuant to section 1291 of Judicial Code, where Dist. Ct. had yet to resolve arbitration venue, grounds for any permanent injunction, time needed for defendants to comply with arbitration order and attorney’s fees. Ct. rejected defendants’ argument that order was appealable under 9 USC sections 16(a)(2) and (a)(3) as “injunction against arbitration” or under 28 USC section 1292(a)(1) as order granting injunction, where record showed that Dist. Ct. did not enter any injunction. Moreover, Ct. likened instant Dist, Ct. order to entry of pro-arbitration decision that was coupled with stay of remainder of case, which was unappealable under Moglia, 546 F.3d 835, in absence of section 1292(b) certification.