Federal Civil Practice

Dist. Ct. abused its discretion in finding that plaintiff was not entitled to any attorney fees under 42 USC section 1988(b), after jury found in favor of plaintiff in plaintiff’s section 1983 action alleging that defendants-police officials failed to intervene in unlawful search and used excessive force, where record showed that: (1) plaintiffs rejected defendants’ $200,000 offer to settle case and responded with $3.5 million to settle case; and (2) jury eventually awarded plaintiff $22,000 in compensatory damages and $10,092 in punitive damages. Although ultimate award was considerably less than what plaintiff sought in settlement negotiations, Dist. Ct. could not properly find that jury’s award was either technical or de minimus, where: (1) amount awarded was still considerable; and (2) plaintiff’s primary focus was taking case to trial and obtaining favorable verdict. Moreover, defendants never made proper pre-trial offer of judgment under Rule 68, so none of settlement offers could have satisfied plaintiff’s primary goals.  Fact that Dist. Ct. found that terms of plaintiff’s retainer agreement was contrary to Ill. Rules of Professional Conduct, or that plaintiff’s counsel did not reopen settlement negotiations did not justify denying fee petition out-right. Also, plaintiff’s counsel would be entitled to fees generated after breakdown of settlement negotiations. Too, although Dist. Ct. judge who presided at trial could properly transfer consideration of fee petition to instant Dist. Ct. judge, Dist. Ct. judge who transferred petition should have specified reasons for doing so.

Dist. Ct. erred in denying plaintiff-prisoners’ requests for recruitment of counsel and then granting defendants-prison officials’ motion for summary judgment in section 1983 action alleging that defendants were deliberately indifferent to plaintiff’s risk of suicide that caused plaintiff to incur serious injuries. Record showed that plaintiff sought recruitment of counsel on four separate occasions, to which Dist. Ct., in denying said requests, generally said that plaintiff had appeared to cogently present his case and to communicate his positions. However, beginning with plaintiff’s third request for recruitment of counsel, Dist. Ct. improperly failed to address plaintiff's claims that: (1) recent transfer to different facility frustrated his attempts to locate relevant witnesses; and (2) his mental illness, among other things, prevented him from identifying, collecting and presenting right type of evidence during discovery phase to advance his case. Moreover, plaintiff asserted that he was having difficulty recruiting assistance from other prisoners who had helped plaintiff in past. Also, said failure to address plaintiff’s arguments was prejudicial where, although plaintiff presented some evidence to counter defendants’ summary judgment motion, plaintiff failed to properly cite his evidence to counter defendants’ factual claims.

In section 1983 and 1985 actions filed by plaintiff-litigant in state court divorce proceeding against defendants-two circuit court judges, alleging that defendants took extrajudicial efforts to prejudice presiding judge in divorce matter against plaintiff and in favor of plaintiffs’ wife, Dist. Ct. erred in granting motion to dismiss prior to due date of plaintiff’s response to motion to dismiss. Moreover, Dist. Ct. erred in finding that absolute judicial immunity barred plaintiff’s actions against one defendant, where said defendant was accused of sending improper ex-parte communication to presiding judge that accused plaintiff of being security risk under circumstances, and where said defendant was close friend of plaintiff’s wife, since said defendant’s alleged actions concerned interference in case to which said defendant had not been assigned and over which she had no judicial responsibility. Other defendant, who served as Presiding Judge in court’s Domestic Relations Division, was entitled to judicial immunity, where said defendant was acting in her administrative capacity by responding to letter from plaintiff’s counsel (and serving said response on presiding judge in divorce matter), and where said defendant’s response formed basis of plaintiff’s lawsuit. Too, dismissal of plaintiff’s case against both defendants was proper, where: (1) plaintiff had failed to assert in section 1983 claim that he had suffered any adverse consequences to his parental rights as result of alleged prejudice of presiding judge in divorce matter; and (2) plaintiff had failed to assert in section 1985 claim that defendants targeted him because of his membership in defined class.

Dist. Ct. erred in denying motion by class member seeking to intervene in class action that had been subject to order that had approved proposed settlement, where intervention was for limited purpose of disgorging side settlements that were given to three other class members who had objected to order approving settlement of class action, and who had dismissed their appeals prior to when Appellate Court briefing on said appeals had commenced. While basis for denial in intervention motion was fact that Dist. Ct. had subsequently entered into final order dismissing case with prejudice that was entered following dismissal of three objectors’ appeals, Dist. Ct. should have allowed intervention motion that had been filed under Rule 60(b)(6) to restore matter back to stage of proceedings where Dist. Ct. had retained limited jurisdiction to oversee administration of settlement agreement, since: (1) there was real risk that three objectors had filed objections and had voluntarily dismissed their appeals at expense of other class members; and (2) Dist. Ct.’s dismissal of action with prejudice after three objectors had dismissed their appeals effectively altered term of class settlement that had required Dist. Ct. to monitor said settlement where Dist. Ct. had not given other class members such as intervenor notice or opportunity to weigh in on issue.

Dist. Ct. erred in denying defendants-city officials’ motion for summary judgment in section 1983 action alleging that defendants violated plaintiff-company and company owner’s First and Fourth Amendment rights, when defendants terminated contract that plaintiffs had with city to supply information technology services in retaliation for owner’s letter accusing city administrator and city Director of Information Technology of “unseemly conduct.” Under Garcetti, 547 U.S. 410, instant letter, which essentially protested co-workers’ alleged misconduct, was not protected by First Amendment. Similarly, owner’s adverse statements made to investigator, as well as owner’s criminal complaint against city official, were not clearly protected by First Amendment, and thus defendants were entitled to qualified immunity as to said statements to extent said statements played role in contract termination. Also, defendants were entitled to qualified immunity with respect to plaintiffs’ Fourth Amendment claim arising out of defendants’ procurement of information that plaintiff was storing on city’s servers, since: (1) Fourth Amendment does not apply to searches made by instant “private” actors; and (2) case authority did not clearly establish that private search is treated as governmental search when public and private actors had only friendship type of relationship. (Partial dissent filed.)

Dist. Ct. did not err in denying plaintiff’s Rule 60(d)(3) motion seeking to set aside Dist. Ct.’s entry of summary judgment in favor of defendant-employer in plaintiff-employee’s defamation action arising out of defendant’s expression of concern to local college about plaintiff’s course materials for class he was teaching, where plaintiff based said motion on claim that defendant had committed fraud on Dist. Ct. by submitting perjured testimony and affidavit in support of underlying summary judgment motion. Denial of motion was appropriate, where: (1) plaintiff had proffered only evidentiary discrepancies that were known at time summary judgment had been granted; and (2) plaintiff advanced no new evidence to support claim that defendant’s lawyers had knowingly committed fraud on court. Also, Dist. Ct. could properly impose Rule 11 sanctions against plaintiff’s counsel for filing instant Rule 60(d)(3) motion, where counsel had failed to present any new evidence of fraud to support instant motion.

Dist. Ct. erred in granting plaintiff’s request for injunctive relief against defendant-state in section 1983 action alleging that 1997 Wisconsin Act 292, which brought unborn children and their mothers within jurisdiction of state juvenile courts if mothers exhibited habitual lack of self-control with respect to alcohol or drugs that raised substantial health risk for their unborn children. While Dist. Ct. found that Act 292 was void for vagueness, it should have granted defendants’ motion to dismiss complaint on mootness grounds, where, prior to Dist. Ct.’s ruling on merits of complaint, plaintiff had moved outside State of Wisconsin and had indicated that she had no intention to return. As such, any threat that plaintiff may be subjected to Act 292 was no longer existent, and plaintiff was no longer in need of any protection from application of Act 292. Also, plaintiff failed to establish any exception to mootness doctrine.

Dist. Ct. did not err in granting defendants’ motion for summary judgment in plaintiff’s Freedom of Information Act (FOIA) claim, alleging that defendants failed to comply with dictates of FOIA, where plaintiff sought documents related to pre-market approval process for certain glucose monitoring system, even though defendant-agency had eventually supplied plaintiff with 8,000 pages of documents. Dist. Ct. could properly dismiss two of defendant’s employees as defendants in instant action, since section 552(a)(4)(B) precludes only “agency” from withholding agency records. Also,

In 2012 action by plaintiff alleging that his accountant and others committed malfeasance in advising and facilitating his participation in Son of BOSS tax shelter that IRS subsequently determined to be not legitimate, Dist. Ct. did not err in granting defendant-bank’s motion to dismiss, where instant action was filed beyond applicable 5-year limitations period. While plaintiff contended that instant action was timely, since it was filed within five years of date IRS issued its notice of tax deficiency based on its disallowance of tax shelter, Ct. of Appeals found that instant action was untimely, where: (1) action normally accrued in 2001, when plaintiff paid bank fees for its role in facilitating tax-shelter-related transfers; (2) limitations period would have expired in 2006, but for any application of discovery rule; and (3) certain events occurring in 2005, such as plaintiff’s awareness of class action against different defendant relating to its role in promoting sham tax shelters, as well as IRS notification on same day that it was auditing plaintiff’s 2001 tax return containing said tax shelter, should have put plaintiff on notice to investigate whether he had claim against bank, so as to trigger limitations period. Dist. Ct. also did not err in dismissing for want of prosecution plaintiff’s claims against two other defendants, where plaintiff waited 16 months to contact said defendants to participate in court-ordered arbitration, and where key witness for one defendant had died during said period.