Federal Civil Practice

Dist. Ct. did not abuse its discretion in denying plaintiff’s motion to certify class action in plaintiff’s lawsuit alleging that defendant violated Illinois Right of Publicity Act (IRPA) by including without her permission her username on her Instagram account in third-party business’s web page located on defendant’s website. While plaintiff identified as common question whether individual's Instagram username categorically fell within IRPA’s definition of “identity,” Dist. Ct. could properly deny instant class certification request because IRPA, as applied to instant case, required Dist. Ct. to undergo username-by-username inquiry, such that common questions would not predominate over individual questions. Moreover, IRPA required comparative exercise that depended on both specific individual and specific appropriated attribute in question, which could not be solved categorically. As such, plaintiff could not develop for each class member common prima facie case under identity element of instant IRPA claim, and whether any username served to identify any individual required individual proof beyond category into which attribute fell.

Dist. Ct. did not err in granting defendant-police officer’s motion for summary judgment, after finding that defendant was entitled to qualified immunity in plaintiff’s section 1983 action, alleging that defendant used excessive force during his arrest while plaintiff was handcuffed, under circumstances where, according to plaintiff, defendant kicked him in leg that caused him to fall and suffer compound fracture in his leg. While videotape of arrest did not unambiguously establish what defendant did while attempting to return plaintiff to area near squad car, jury could conclude that defendant had delivered kick, as opposed to leg sweep as defendant had contended. However, defendant was still entitled to qualified immunity, where record showed that: (1) plaintiff was not under control when defendant attempted to use his knee to unbalance plaintiff; and (2) any kick by defendant was properly understood as attempt to regain control of plaintiff, who had previously told defendant that he wanted to run away. As such, while defendant’s attempt to control plaintiff caused plaintiff to incur injury to his leg, such attempt did not lead to liability.

Dist. Ct. did not err in dismissing plaintiffs’ lawsuit seeking to overturn Illinois state law’s ban on political independent expenditure committees from making campaign contributions and from coordinating spending with candidates, even though Illinois Election Code (10 ILCS 5/9-8.5(h), (h-5)) allows individuals and certain entities to contribute to and coordinate with candidates without limits when self-funding or independent expenditures exceed threshold amount. Illinois Election Code never permits independent expenditure committees such as plaintiff to contribute to candidates, and while plaintiffs argued that by excluding independent expenditure committees from making such contributions and coordinating expenditures with candidates, Illinois had violated their First Amendment rights, as well as their protection under Equal Protection Clause when it allows others to do so, Ct. of Appeals found that Illinois could do so under intermediate scrutiny standard, since substantial risk of actual or apparent quid-pro-quo corruption would arise if instant ban would be lifted. Ct. further noted that partial lifting of instant ban would permit individuals to circumvent Illinois’s contribution disclosure regime.

Dist. Ct. erred in dismissing on judicial estoppel grounds plaintiff’s action seeking $530,000 on theories of unjust enrichment and promissory estoppel, where plaintiff asserted that defendant had agreed to pay plaintiff directly for services that plaintiff rendered to third-party, whom defendant had hired to perform same services on behalf of defendant. While Dist. Ct. dismissed instant case because plaintiff had represented in third-party’s bankruptcy proceeding that third-party was sole debtor to plaintiff for claim in instant case, judicial estoppel did not apply, since plaintiff had not prevailed in bankruptcy proceeding by collecting instant debt from third-party’s estate in bankruptcy. Moreover, there is no authority to support Dist. Ct.’s belief that plaintiff’s claim as creditor in third-party’s bankruptcy’s proceeding necessarily abandoned all of plaintiff’s claims against other potentially responsible persons. Too, filing claim in bankruptcy proceeding did not foreclose related claims against non-bankrupt obligors.

Dist. Ct. erred in granting defendant-supervisor’s motion for summary judgment in plaintiff’s section 1983 action, alleging that defendant violated her First Amendment rights by terminating her participation in VISTA program in retaliation for plaintiff publishing book that recounted her experiences as phone-sex operator. Record showed that plaintiff suffered adverse act that was likely to deter protected speech, and that her protected speech was motivating factor in her termination from VISTA program. Moreover, plaintiff’s book qualified as protected speech under “NTEU,” 513 U.S. 454, where speech contained in instant book: (1) was made outside plaintiff’s workplace; (2) involved content unrelated to plaintiff’s govt. employment; and (3) addressed public audience. Fact that plaintiff had eventually identified herself as public employee who wrote book did not require different result. Also, balancing test under Pickering favored finding that book qualified as protected speech, rather than finding that defendant was justified in terminating plaintiff on grounds of fostering efficiencies of public services due to perception that book reflected unfavorably on National Guard. Dist. Ct., though, did not err in granting summary judgment in favor of other individual defendants and United States, where record showed either that said defendants did not play role in plaintiff’s termination or were unaware of contents of plaintiff’s book.

Dist. Ct. did not err in granting defendants-police officer’s and City’s motion for summary judgment in plaintiff’s section 1983 action, alleging that she was unlawfully arrested and prosecuted on intimidation charges stemming from incident, during which plaintiff yelled “bald motherf**ker” at defendant-officer while others were attempting to arrest known gang members, as well as wrote Facebook posts that officer believed were threatening to his children and his family. Record showed that officer made his complaint against plaintiff in his role as private citizen who was witness in plaintiff’s arrest and prosecution, and thus there was no evidence to support plaintiff’s claim that officer was acting under “color of law” necessary to support her section 1983 claim. Moreover, plaintiff waived her argument that City failed to adequately train and supervise its officers to deal with citizens using profanity in their presence, where plaintiff failed to raise said argument with Dist. Ct., and plaintiff otherwise failed to present evidence to support said argument.

Dist. Ct. did not err in denying defendant-police detective’s motion for summary judgment asserting that defendant was entitled to qualified immunity in plaintiff’s section 1983 action alleging that defendant denied plaintiff his equal protection rights under class-of-one theory by singling him out for unfavorable treatment that essentially prevented him from registering as sexual offender in different city and otherwise used his official position to harass him out of personal dislike. Record showed that defendant threatened to arrest plaintiff if plaintiff relocated to different city, took steps to prevent defendant’s record from transferring to new city based on defendant’s untrue claim that plaintiff had not relocated to different city and intervened to prevent plaintiff from registering as sexual offender in new city. As such, Dist. Ct. could properly find that there was sufficient evidence to support plaintiff’s allegation that defendant, as state actor, intentionally discriminated against him without any rational basis for said differential treatment by erecting extra-legal barriers designed to prevent plaintiff from complying with sexual offender registration requirements. Moreover, plaintiff was not required to find existence of similarly-situated person, where defendant’s animosity toward plaintiff was readily obvious. (Dissent filed.)

In action seeking to enjoin enforcement of Wisconsin abortion regulations, Dist. Ct. did not err in denying request by Wisconsin Legislature to intervene as matter of right in lawsuit under circumstances where Wisconsin was already represented by Wisconsin Attorney General. Rule 24 has preference for state to have only one legal representative, and Legislature failed to show that Attorney General was inadequate legal representative or otherwise was acting in bad faith or with gross negligence. Moreover, Dist. Ct. did not err in denying Legislature’s request for permissive intervention under Rule 24(b)(1), where Dist. Ct. could properly find that value that Legislature added to representation of Wisconsin was outweighed by practical complications associated with infusion of additional politics into politically-divisive area of law that would needlessly complicate case.

Dist. Ct. erred in denying defendants’ request for attorney fees under Lanham Act, where plaintiff had voluntarily dismissed its trademark infringement action after litigation had progressed for more than one year. While Dist. Ct. used standard that required defendants to show that plaintiff’s claim was “abuse of process” where plaintiff either used claim to extort or inflict disproportionate costs on defendants or brought frivolous claim to obtain external gain, Dist. Ct. should have evaluated fee request under “totality of circumstances” standard set forth in Octane Fitness, LLC, 572 U.S. 545 that looks to substantive strength of plaintiff’s litigation position or to unreasonable manner in which plaintiff’s claim was litigated. As such, remand was required for Dist. Ct. to consider fee request under Octane standard.

Record contained sufficient evidence to support jury’s $970,000 verdict in favor of plaintiff in section 1983 action alleging that defendants-parents of plaintiff, sheriff, county prosecutor and private investigator conspired to deprive plaintiff of custody of her child. At time of plaintiff’s arrest on warrant for alleged issuing of bad check, plaintiff referred to defendant step-father as “fucking asshole” before step-father took plaintiff’s child out of plaintiff’s home so as to refute defendants' claim that she had not objected to placement of her child with her parents. Moreover, defendant-Sheriff barred plaintiff from designating custodian of her child as she had right to do. Also, record showed existence of conspiracy, where plaintiff’s parents conducted numerous meetings with law enforcement about plan to seize child and got officials to agree to execute warrant when plaintiff’s husband would not be at home. Also, Dist. Ct. did not err in barring testimony about plaintiff’s criminal history, her alleged neglect of her child or that her husband was dangerous, since said evidence as to why parents sought custody of plaintiff’s child (who was eventually returned to plaintiff through court order) was irrelevant on issue as to whether defendants had violated plaintiff’s due process rights.