The Seventh Circuit recently issued two opinions with interesting evidentiary issues. We wrote about the multiple levels of hearsay in Jordan v. Binns, No. 11-2134 (7th Cir. Apr. 4, 2013), last week. And, this week, the court’s decision in Lees v. Carthage College, No. 11-3061 (7th Cir. Apr. 16, 2013), reversed part of a district court’s decision about the admissibility of an expert’s testimony.
To update our earlier post on this case: The Court took no action on Elmbrook School District’s cert petition in its April 15, 2013 order. The case has been relisted for the April 19, 2013 conference. You can access the Court’s docket for the case here. If the Court decides the petition this time, it will issue its decision on an Orders List released on the following Monday around 8:30 a.m. Central Time.
During its conference this Friday, April 12, the U.S. Supreme Court is expected to consider Elmbrook School District’s petition for a writ of certiorari seeking reversal of a decision issued last summer by the United States Court of Appeals for the Seventh Circuit in Doe v. Elmbrook School District, 687 F.3d 840 (7th Cir. 2012).Continue reading this entry
The Seventh Circuit has a gift for lawyers looking to brush up on the Federal Rules of Evidence. It comes wrapped as last week’s decision in Jordan v. Binns, No. 11-2134 (7th Cir. Apr. 4, 2013), where the court examined multiple levels of hearsay. Given its evocation of a law-school exam, it was fitting that the court heard argument at IU-Bloomington’s law school.
What is “excusable neglect” under Fed. R. Civ. P. 60(b)(1)? The answer is that it depends, but generally it’s not much. That’s the first lesson from the Seventh Circuit’s recent decision in In re Canopy Financial, Inc., No. 12-3239 (7th Cir. Feb. 28, 2013). The second is that what happens in Vegas doesn’t really stay in Vegas — particularly when it’s the consequences of spending over $80,000 of someone else’s money in a few nights at TAO, a Las Vegas nightclub at the Venetian “boast[ing] a 40-foot-long outside terrace with stunning views of the Las Vegas Strip, gorgeous go-go dancers, state-of-the-art audio and lighting systems, and two main rooms each featuring varying music formats” (according to TAO’s website).
In the course of deciding that malpractice cases against patent lawyers belong in state courts (when there is no diversity of citizenship), the United States Supreme Court has issued an important ruling on the scope of “federal question” jurisdiction over claims arising under state law. Gunn v. Minton, No. 11-1118 (Feb. 20, 2013).
The United States Court of Appeals for the Second Circuit, in Communications Network Int’l, Ltd. v. MCI WorldCom Communications, Inc., a 2-1 decision issued on January 24, dismissed an appeal as untimely because the putative appellant’s lawyer failed to update his email address in the district court’s ECF system when he changed firms. There’s an important lesson about diligence for all lawyers in this.
With the Supreme Court’s denial of certiorari on November 26, 2012, in Del Marcelle v. Brown County Corp., No. 12-367, the Seventh Circuit’s inability to resolve the standard by which class-of-one equal-protection claims should be assessed will likely persist for some time. The Seventh Circuit had heard the case en banc to resolve the conflicted case law, hoping to determine whether a class-of-one claim requires pleading malicious or wrongful motivation and to agree on an improved standard, but the en banc court failed in its quest, affirming by an evenly divided court. 680 F.3d 887 (7th Cir. 2012).
In a brief opinion issued yesterday, written by Chief Judge Easterbrook, the Seventh Circuit articulates the rule that a Rule 8(c)(1) affirmative defense cannot be raised by a Rule 12(b)(6) motion. The particular defense at issue here was Indiana’s two-year statute of limitations, which seemed to the district court to block the prisoner-plaintiff’s § 1983 claim against prison administrators for having ignored his medical condition.
Since the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), last year, the lower courts have been sorting out its implications. The case, stated broadly, stands for the proposition that Rule 23(a)(2)’s commonality requirement forecloses class certification in a multi-site or mult-store case, unless the defendant uses a policy common to the sites that is said to violate applicable substantive law.
On February 9, the Seventh Circuit heard en banc the thorny issue of whether conducting a public high school graduation ceremony in a church violates the First Amendment. The panel decision, written by Judge Ripple and joined by Chief Judge Easterbrook, affirmed the Eastern District of Wisconsin’s ruling that holding the ceremonies for Brookfield Central and Brookfield East in the Elmbrook Church sanctuary did not offend the Establishment Clause. Judge Flaum dissented.
Ignoring established precedent from a superior tribunal is one way for a court to earn a sharp rebuke from a higher court. And that is precisely what happened in a consolidated decision today in Marmet Health Care Center, Inc. v. Brown, No. 11-391, and in Clarksburg Nursing Home & Rehabilitation Center LLC v. Marchio, No. 11-394, where the Supreme Court of the United States granted writs of certiorari to the Supreme Court of Appeals of West Virginia, vacated that court’s judgments, and remanded for further proceedings — a practice known as a “GVR,” drawn from the first letter of the three words “grant,” “vacate,” and “remand.”
Last September in Minn-Chem, Inc. v. Agrium Incorporated, the Seventh Circuit interpreted the Foreign Trade Antitrust Improvements Act (“FTAIA”), 15 U.S.C. § 6a, in a way that made it more difficult to plead a Sherman Act claim based on alleged anticompetitive behavior that occurred abroad. (The earlier post is here.) Specifically, the decision concluded that absent allegations of anticompetitive conduct that actually targets the U.S. import market, a plaintiff alleging foreign anticompetitive conduct must allege facts that, if proved, demonstrate a direct, substantial, and reasonably foreseeable effect on U.S. domestic or import commerce. Allegations that defendants collusively set sale prices in other countries that were a benchmark for U.S. prices are insufficient if the complaint does not explain how this benchmarking occurred and affected U.S. prices. (For a bit more about the panel decision and a link to its text, see the earlier entry here.)
The court reheard the case en banc on Wednesday, February 8. The bulk of the court’s questions came from Chief Judge Easterbrook and Judges Posner, Wood, and Hamilton. In general the questioning from those judges seemed hostile to the appellants’ view that the FTAIA defeated plaintiffs’ attempt to plead a Sherman Act claim based on allegations that defendants imported anticompetitively priced potash into the U.S. The en banc argument is available here.
In a decision that the Seventh Circuit issued on February 7, Chief Judge Easterbrook uses the occasion of a frivolous appeal from a district court’s judgment enforcing an arbitration clause to make a jurisdictional point and a procedural point. The failure of the winning lawyers to understand the first point nearly cost their client its lower court victory, and their failure to understand the second point did cost it an award of costs on appeal. There are lessons to be learned here.
The United States Supreme Court today held that the government’s placement of a GPS tracking device on a car while it was parked in a public parking lot was a search for Fourth Amendment purposes. The decision, written by Justice Scalia, makes clear that the Fourth Amendment’s protection against government trespass survives the “reasonable expectation of privacy” analysis of Katz v. United States, 389 U. S. 347, 351 (1967). Earlier cases by the Seventh Circuit, United States v. Garcia, 474 F.3d 994 (7th Cir. 2007), and the Wisconsin Court of Appeals in Wisconsin v. Sveum, 2009 WI App 81, aff’d on other grounds, 2010 WI 92, had held that GPS placements were not Fourth Amendment searches.
The Seventh Circuit recently made clear that a district court’s duty to rule on the admissibility of expert testimony requires a meaningful examination into whether a proffered expert’s analysis is methodologically sound. After reversing the plaintiff’s jury verdict as legally deficient, the court in ATA Airlines, Inc. v. Federal Express Corp. addressed the jury’s damages award, ruling that it was based on a fundamentally flawed regression analysis.
The Seventh Circuit today provided a bit more clarity to the standards governing extensions of the time to file a notice of appeal after the expiration of the 30-day deadline. See Fed. R. App. P. 4(a)(5). Plaintiff’s counsel in Sherman v. Quinn missed the 30-day deadline by 3 days. He successfully asked the district court for more time within the subsequent 30-day period in which Rule 4 allows district courts to extend the appeal deadline. In support of the request, he told the district court that the deadline had “‘slipped through the cracks’ due to demands on his time from his ballot-qualified candidacy for Governor of Illinois in the November 2010 general election.” According the Court of Appeals, counsel further pleaded that “the demands of the run ‘completely overwhelmed my capacity to complete all tasks before me’” and he was “‘working without a legal assistant of any kind.’” The Seventh Circuit dismissed the appeal as untimely, ruling that the district court abused its discretion in granting the extension.
How much more than possible is “plausible?” After the Supreme Court’s seminal decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal, a plaintiff must allege enough facts to show a plausible right to relief. What this means in practice has been left to the lower courts and has yielded arguably disparate outcomes. Is the plausibility standard met by allegations that a loan officer “motivated by personal animosity” after not receiving personal guarantees from a bank-customer-corporation’s shareholders acted to put the corporation into receivership, convincing others, including a professional receiver, to share in his animosity and join in a plan to maliciously injure the shareholders in violation of Wis. Stat. 134.01? Judge Crabb thought no, dismissing the claim, in part because it seemed implausible that a professional receiver, who did not know the shareholders, would risk his livelihood to join a malicious scheme to injure them.
It will be impossible ever to think of Gonzalez-Servin v. Ford Motor Co., No. 11-1665 (7th Cir., Nov. 23, 2011), as anything but “the ostrich case,” chiefly because the court includes in its opinion full color pictures of an ostrich with its head in the sand and a lawyer imitating the bird.
The Seventh Circuit issued a decision today that has some significance for any of us interested in appeals from decisions of multi-district litigation transferee courts.
Further illustrating the increased difficulty in pleading potentially burdensome civil claims after Twombly and Iqbal, the Seventh Circuit reversed on interlocutory appeal a plaintiff’s claim that a conspiracy to fix potash prices outside the United States violated federal antitrust law because it influenced the price of potash sold inside the United States. Minn-Chem, Inc. v. Agrium Inc., slip op., No. 10-1712 (Sept. 23, 2011). At issue was whether the claim was barred by the Foreign Trade Antitrust Improvements Act (FTAIA), 15 U.S.C. §6a, which in general bars the application of U.S. antitrust laws to agreements affecting only foreign commerce, but exempts from the bar foreign anticompetitive conduct that either affects U.S. import commerce or “has a direct, substantial, and reasonably foreseeable effect” on U.S. domestic or import commerce.
Show v. Ford Motor Co., slip op., Nos. 10-2428 & 10-2637 (Sep. 19, 2011), issued recently by the Seventh Circuit, provided Chief Judge Easterbrook with the opportunity to explore the question whether the need for expert testimony is one of substantive or procedural law, so that in a diversity case the court should follow state or federal law.