Federal Civil Practice

Dist. Ct. erred in denying defendant-police officer’s motion for summary judgment alleging qualified immunity in section 1983 action alleging that defendant used excessive force in shooting plaintiff’s decedent during incident in which decedent threatened to fire warning shot at defendant and other officers and then pointed gun at said officers. While Dist. Ct. concluded that question existed as to whether defendant used greater force than was reasonable because he did not take cover or wait for less-lethal option before shooting decedent, Dist. Ct. should have granted defendant’s summary judgment motion, where record showed that defendant was merely defending himself and other officers once decedent pointed gun at them. Also, Fourth Amendment did not require that defendant seek cover or seek less deadly methods to deal with decedent prior to shooting him under instant circumstances.

Dist. Ct. did not err in entering judgment in defendant’s favor in section 1983 action in which plaintiff-stepfather alleged that defendant-stepdaughter and executor of her mother’s estate allocated too much of settlement proceeds to herself via damages for emotional distress arising out of fatal accident involving defendant’s mother/plaintiff’s wife, and that defendant conspired with state judges and others who permitted defendant to make said allocation to herself. Dist. Ct. could properly find that if anything went wrong during state court litigation between instant parties, proper step for plaintiff was to ask rendering state court to modify its judgment to correct any error. As such, plaintiff could not seek recourse via instant section 1983 action either because of claim preclusion principals or because certain aspect of Rooker-Feldman doctrine precludes actions that characterize alleged errors committed during course of state litigation as federal constitutional torts. Plaintiff also failed to address portions of Dist. Ct.’s decision that were made in favor of defendant.

Dist. Ct. did not err in dismissing plaintiff-transgender male’s action alleging that Indiana statute that required that he (as successful asylum applicant) produce proof of U.S. citizenship in order to change his name to conform to his gender identity violated his 1^st and 14^th Amendment rights. 11^th Amendment barred instant action against all three state-official defendants, where plaintiff failed to show that any official was connected with enforcement of instant name-change statute. Fact that defendant-Attorney General possessed duty to support constitutionality of said statute did not require different result. Moreover, while 11^th Amendment did not bar plaintiff’s lawsuit against defendant-county clerk, plaintiff still lacked standing to pursue instant lawsuit against county clerk, where county clerk had no power to grant or deny name-change petitions. (Dissent filed.)

Dist. Ct. did not err in granting defendant-off-duty police officer’s motion for summary judgment in section 1983 action alleging that defendant used excessive force when killing plaintiff’s decedent by shooting him three times in back during incident in which decedent and three others attempted armed robbery of restaurant at time when defendant had been patronizing said restaurant. Defendant could have reasonably used deadly force during said incident, where: (1) four assailants (including decedent, who, although unarmed, served as lookout at door of restaurant) placed lives of defendant and others in restaurant in grave danger; (2) defendant had reason to think that decedent, who advanced toward defendant during decedent's scuffle for gun with another assailant, was armed and dangerous and posed imminent threat of death; and (3) even if decedent was shot in back as he crawled away from defendant, as contended by plaintiff, shooting of decedent by defendant would still have constituted reasonable prevention of decedent’s escape and would have constituted reasonable act in defense of self and others.

Ct. of Appeals disqualified on conflict of interest grounds alien’s law firm in alien’s appeal of Order by U.S. Citizenship and Immigration Services (USCIS) that had denied alien’s application for lawful permanent resident status under EB-5 visa program for aliens who can demonstrate that they have invested capital in “new commercial enterprise” in U.S. Alien argued that issuance of visa was appropriate, where he invested $500,000 to ultimately build and operate memory care facility in Illinois, and USCIS based denial on concern that memory care facility had not been built even though it had been first proposed in 2011. Also, during briefing of case, partner in law firm representing alien had been named in SEC action accusing partner of defrauding 226 aliens, including instant alien, of over $88 million by failing to invest and ultimately squandering said funds. As such, Ct. of Appeals disqualified all three members of law firm, even though associate in said firm actually represented alien, since: (1) self-interest of partner would inhibit associate from alleging that partner’s fraud was reason for failure to build memory care facility and from seeking reconsideration of USCIS decision; (2) partner had divided obligations among various alien investors as to which businesses to fund with limited resources; and (3) there was no chance that associate would upset partner’s position in SEC case.

Dist. Ct. erred in denying defendant’s motion to vacate entry of default judgment, where issue remained as to whether plaintiff had made sufficient efforts to serve defendant with copy of complaint. Record showed that process server made one unsuccessful attempt to serve defendant at his Wisconsin home, under circumstances where defendant also maintained home in California. Moreover, Wisconsin law required plaintiff, who knows that defendant has multiple addresses, to attempt to serve defendant at each address, and plaintiff made no attempt to serve defendant at his California home. As such, remand was required for determination as to whether Wisc. statutory requirement that plaintiff show “reasonable diligence” in attempting to serve defendant was satisfied by instant single attempt to serve defendant at his Wisconsin home, and whether plaintiff could otherwise show that defendant was attempting to evade service so as to justify instant service by publication and subsequent entry of default judgment.

Dist. Ct. did not err in entering $3,026,361.60 judgment in favor of plaintiff in action alleging that defendant breached contract to manage plaintiff’s corporate re-branding program that called for replacement of signage at plaintiff’s location, as well as locations of plaintiff’s dealers, where vinyl used in new signs proved to be defective, and where third-party used by defendant to replace original signs eventually reneged on its commitment to replace its own defective signs. Dist. Ct. had jurisdiction to resolve instant contract dispute between instant diverse parties, even though 16 of 260 dealer claims acquired by plaintiff came from dealers who shared their citizenship with defendant, and even though defendant argued that said assigned claims amounted to improper collusion under 28 USC section 1359 to have Dist. Ct. acquire diversity jurisdiction over instant lawsuit. Plaintiff had its own contractual claims against defendant, which constituted main thrust of instant lawsuit, and vast majority of assigned claims came from dealers who did not share their citizenship with either plaintiff or defendant. Also, record supported Dist. Ct.’s finding that defendant had breached instant contract where defendant had failed to either document any warranty given by third-party, as required by contract, or to negotiate best possible warranty, where record reflected that defendant made no effort to negotiate more favorable warranty. Dist. Ct. could also find that defendant’s failure to control third-party’s manufacturing process that produced defective signs constituted breach of party’s contract.

Ct. of Appeals summarily affirmed Dist. Ct.’s judgment in favor of plaintiffs in action alleging that defendant violated Fair Labor Standards Act and certain state statutes by failing to pay them as “employees” as opposed to “independent contractors,” where defendant failed to submit relevant Dist. Ct. findings of fact and conclusions of law that addressed defendant’s contentions on appeal, as required under Rules 30(a) and (b). Defendant’s counsel also violated Rule 30(d) by filing false certification that all necessary Dist. Ct. opinions had been included in documents supplied by defendant. Also, Ct. of Appeals imposed Rule 38 sanctions for defendant’s filing of frivolous appeal, where: (1) arguments provided by defendant on employee classification issue would not have entitled defendant to any relief; and (2) defendant otherwise offered only bare conclusions or irrelevant arguments without addressing Dist. Ct.’s adverse findings.

Dist. Ct. erred in granting one defendant-police officer’s motion for summary judgment in plaintiff Section 1983 action alleging that said defendant used excessive force when he broke plaintiff’s upper arm during process of handcuffing him following plaintiff’s arrest. While Dist. Ct. found that said officer could not have used excessive force where he was merely raising arm behind plaintiff’s back when arm broke, Ct. of Appeals found that material question regarding alleged use of excessive force existed so as to preclude summary judgment, where: (1) manner in which officer maneuvered plaintiff’s arm caused plaintiff’s arm to break; and (2) any force required to break plaintiff’s arm cannot be viewed as objectively reasonable, where plaintiff also alleged that he did not resist or attempt to flee at time of his arrest. Dist. Ct., though, did not err in granting summary judgment for different defendant-officer, where record showed that said officer had no physical contact with plaintiff at time his arm broke.

Dist. Ct. did not err in finding that language in release from $75,000 settlement of subsequent lawsuit between parties also covered $714,814 default judgment entered against defendant in instant lawsuit so as to require dismissal of instant lawsuit. Relevant language of release provided that plaintiff released defendant “from any and all rights, claims…and/or causes of action…whether known or unknown…arising or occurring prior to and including date of the Agreement.” Moreover, although plaintiff contended that release was never intended to cover prior default judgment, Dist. Ct. could properly ignore plaintiff’s proffered extrinsic evidence to support its position, where language in release unambiguously released both default judgment in instant case and judgment in subsequent lawsuit. Fact that default judgment was not specifically mentioned in release did not require different result.