Valpo Law Blog

Analysis of current legal issues and cases in the Seventh Circuit Court of Appeals

Category: Civil Procedure (page 1 of 2)

Online Gambling Lawsuit Flops Under the Illinois Loss Recovery Act

Azariah Pic

Azariah Jelks
Juris Doctor Candidate, 2016
Valparaiso University Law

Gambling losers Casey Sonnenberg and Daniel Fahrner, continued their losing streak after the Seventh Circuit ruled they could not recoup their gambling losses from online gambling websites in Fahrner v. Tiltware, LLC. The two Illinois men each lost at least $50 on various online gambling sites including one operated by the defendant, Tiltware, LLC.

Gambling is a crime under Illinois law, but the state allows gamblers to recover their losses in a civil suit against the winner under the Illinois Loss Recovery Act (ILRA). The statute of limitations under the act is six months, but if parties do not file a timely lawsuit, third parties may bring a claim on their behalf. In this case, the mothers of the two men sued the website operator after Sonnenberg and Fahrner failed to sue within the statute of limitations period.

The trial court originally dismissed the suit in 2015, after the plaintiffs failed to specify exactly how much money was lost and who the winner of the money was. Naming the website operator as the winner proved to be an unsuccessful argument with the Seventh Circuit, as the court reasoned that operating the site and taking some of the money as a website maintenance fee was not enough for the defendant to be classified as a winner. The Court opined, “A winner would be a person whom a player had played with and lost to.”

The plaintiffs also attempted to convince the court to build a civil cause of action into the criminal statute that would targets operators of illegal gambling sites. However, the Seventh Circuit noted that the full range of criminal penalties available under the law suggested legislators likely did not intend for that type of action to exist. In addition, the court discussed the disastrous legal and economic consequences the civil remedy could have on the gambling industry by inviting a flood of lawsuits from gamblers.

According to the court, creating legal remedies for gambling losses is not a proper deterrent against gambling because gamblers are aware of the risk of losing at the outset. Judge Posner, the author of the opinion, made sure to wrap up his analysis in true Posner fashion by ending with a facetious quote in reference to gambling losers, “I’d rather have won, but $50 wasn’t too high a price to pay for a night of gambling, and en route to losing $50 I did after all win some nice pots and get compliments from the guys I was playing with.”

Several cases arising under the ILRA have been dismissed, partially for failing to name a specific winner or loser, as in Langone v. FanDuel, a case involving a fantasy sports website.  Other states also have similar versions of the Loss Recovery Act. Although Sonnenberg and Fahrner cannot seem to win in or outside the courtroom, this case is certainly a win for the gambling industry. The Seventh Circuit’s ruling effectively insulates gambling website owners and operators from liability under the ILRA, further protecting the industry from being sued into oblivion. It may also be precedent for the growing strain of fantasy sports ILRA cases in the jurisdiction, and influential case law in other states with Loss Recovery Acts.

Justice Is Never Free… In Regard to Attorney’s Fees


By: Jeremy M. Schmidt
J.D. Candidate, 2017
Valparaiso University School of Law

Goesel v. Boley International (H.K.) Ltd., et al., is a very unfortunate case involving a minor child that suffered a life changing injury resulting from a negligently designed and produced toy robot. This case never made it to trial because the two parties settled the day before the trial was set to start.

Goesel, who was five years old at the time of the incident, was playing with a toy robot that was designed and produced by Boley International (Boley). The toy robot shattered which lead to pieces of the robot piercing Goesel’s right eye lens. This injury resulted in irreversible damage, and caused him great pain and suffering. Goesel’s parents hired the law firm of William, Bax & Saltzman to sue Boley for the damage they caused to their son.

This case came before the Seventh Circuit on appeal because of a disagreement between Goesel’s counsel and the presiding judge on how much the attorney’s fees would be. The parties settled on the amount of $687,500 to be paid to Goesel by Boley for the injury he sustained. Personal injury cases are, traditionally, taken on by attorneys on a contingency fee basis. This means that the attorney will only get paid if the plaintiff were to win the case. If the plaintiff were to lose the case, then the attorney will not get paid for the services provided. This is exactly the type of arrangement that was agreed upon in this case. The retainer agreement stipulated that if Goesel won the case then the firm would receive one-third (1/3) of the settlement, and all litigation expenses were to be paid by Goesel from the settlement. This type of retainer is common practice for firms that take on personal injury cases.

The seventh circuit decided that Goesel’s counsel was entitled to all of the attorney’s fees under the retainer agreement, which was reasonable, and that the trial judge was wrong in the ruling. The seventh circuit awarded the attorney’s fees saying that they were reasonable. The fees ended up being about 58% of the settlement leaving Goesel with only about 42% of the settlement. Opinions will be different on whether or not this amount was fair; however, the key principle to remember is that there is an expectation (and an obligation) for an attorney to work endless hours to get the best result for their clients. Therefore, they not be compensated reasonably and fairly.


In Search of Asylum

By: Duke Truong
J.D. Candidate, 2017
Valparaiso University School of Law

Lishou Wang, a native and citizen of China, used to farm in a village in the eastern province of Shandong.  In 1988, he and his wife bore a child.  Shortly thereafter, China’s officials ordered an intrauterine device (IUD) implanted in his wife.  Five years later, Wang’s wife got pregnant again because the IUD fell out, and the officials forced an abortion.  In 2000, his wife again gave birth.  Again, government officials showed up at their house and threatened to sterilize either him or his wife.  Outraged, Wang fought against the official’s orders.

Wang recalled being kicked to the floor and hit with batons until he passed out.  He woke up in the hospital and felt excruciating pain from a fractured foot.  Government officials surgically inserted “Norplant” into his wife’s arm while Wang remained hospitalized.

In 2009, Lishou Wang entered the United States on a business visitor’s visa for three months and overstayed.  Wang applied for asylum and withholding of removal over a year after the visa expired.  In his search for asylum, Wang alleged that China’s officials tried to prosecute him for resisting birth control demands.

At the asylum hearing, Wang testified through an interpreter.  The decision hinged on Wang’s inconsistent statements.  He testified that China’s officials forced tubal ligation, a form of sterilization, and implanted Norplant in his wife, a form of contraceptive.  The court interpreter misinterpreted “Norplant” for “tubal ligation.”  The National Institute of Justice (IJ) said that the two procedures were so “markedly different” that it is impossible to confuse the two in any way.  The IJ reasoned that even if Wang had told the truth, he “could not establish past persecution because he had resisted only an implant, not a forced abortion or sterilization.”  The IJ, under 8 U.S.C. § 1227(a)(1)(B), ordered Wang’s removal for overstaying his visa.

The Board of Immigration Appeals (Board) affirmed the IJ’s findings and Wang petitioned for judicial review.  On August 4, 2015, the United States Court of Appeals for the Seventh Circuit heard arguments in Lishou Wang v. Loretta E. Lynch.  The IJ mistook Wang’s innocent confusion between the two birth control procedures to incorrectly conclude that it never occurred.  The IJ did not have enough evidence to reject Wang’s honest mistake to discredit his inconsistent testimony about what procedure was forced on his wife.

The Seventh Circuit rejected the IJ’s holding because the statute protects those who were punished for opposing the population control program.  According to 8 U.S.C. § 1101(a)(42), Wang only had to show that he resisted a coercive population control program to establish relief said the Seventh Circuit because it “is not limited to only forced abortions and sterilizations.”  On October 26, 2015, the three judge panel remanded the case to the Board for further proceedings.

Court interpreters play a key role in the democratic process.  Many non-native English speakers rely on court interpreters to guide them through the legal system.  A court interpreter’s error can result in the law being misapplied.  Many are discouraged to utilize the courts because they do not speak fluent English nor understand the legal process.  Court interpreters are key players in the courts and their assistance is highly valued.  Like attorneys, court interpreters must show great attention to detail because one wrong interpretation can cost a case.

Child Custody Battle From Over the Border

<> on April 1, 2014 in Nogales, Arizona.

By: Macey Albert
J.D. Candidate, 2017
Valparaiso University School of Law

We all know child custody gets ugly within the United States, but what happens when it becomes tug-a-war between U.S. jurisdiction and jurisdiction outside of the U.S.? Judge Ripple wrote the opinion for a three- judge panel to better understand this battle in Ortiz v. Martinez.

Mr. Ortiz and Ms. Martinez lived together with their two children, A.O, a seven year old, and L.O, a sixteen-year-old boy. They all lived together in Mexico City. On August, the couple purchased round-trip tickets to Chicago to visit Martinez’s family. Ortiz was scheduled to return to Mexico on the 13th, and the rest of the family on the 20th. Ortiz retuned, but Martinez and the children did not. She informed Ortiz that her and the children would not be returning. Keeping the children in the United States would secure the safety of the children. In particular secure the safety of, A.O., from being sexually molested and emotionally abused by Ortiz.

Ortiz filed action under conditions of the Hague Convention seeking the return of the two children to Mexico. Martinez asserted that Ortiz had acquiesced to her retention of the children in the United States, permitting the district court to deny the return of the children under Article 13(a). Ms. Martinez claimed she had a claim under Article (b) because the children faced “grave risk” of harm if returned. She lastly presumed that the return would contravene with laws of the State of Illinois, the U.S. Constitution, and fundamental principles of human rights. Later, Martinez invoked Article 13, expressing L.O.’s desire to remain in the United States.

Dr. Machabanski, a psychologist, was appointed by the court to evaluate the children. The district court held a three-day hearing. It heard testimony from Martinez, Ortiz, and family members, and a camera interview was conducted for the two children. The court heard substantial evidence supporting the claim that Mr. Ortiz had sexually abused A.O. Martinez, including inappropriate touching of their daughter in the vaginal area. The doctor first told her that the rashes were diaper rashes and a cream was prescribed; however, the rashes reappeared. Martinez first perceived inappropriate contact when A.O. was three years old in the bathroom, where A.O. was naked and against the wall and Ortiz on his knees, naked in front of her.

A.O. corroborated this testimony explaining with gestures, and words. Dr. Machabanski testified that A.O. exhibited behavior consistent with having being sexual abused and she portrayed negative emotional toward her father, Ortiz, during playtime. The court dismissed the best wishes of the child defense, and independently found that L.O. was old enough and mature enough to make his own decision.

The Seventh Circuit reviewed the lower courts factual finding for clear error and its conclusion that those facts established a grave risk of harm de novo. The Court found that Mr. Ortiz’s evidence lacked credibility. Their reasoning was that Martinez wanted to flee to the states because he was having an affair, and brainwashed A.O. to testify. The Court found that the claim that Ortiz sexually abused his daughter meets the clear and convincing standard. The evidence of sexual abuse was substantial and thus met the grave risk exception.

Surveillance Cameras At Work: Invasion of Privacy?

By: Haley Holmberg
J.D. Candidate, 2017
Valparaiso University School of Law

A peeping Tom or just a supervisor doing his job? The Seventh Circuit Court of Appeals reviewed Gustafson v. Adkins to establish whether the defendants had a valid reason behind their actions and were protected by qualified immunity or whether they should be held accountable.

Renee Gustafson worked at Jesse Brown Veterans Affairs (“VA”) Medical Center in Chicago as a police lieutenant supervisor. During this time, the VA didn’t have a designated area for female officers to change so they often changed in an active supervisors’ office. In May 2007, Thomas instructed Adkins to install a hidden camera in the office to identify supervisors who slept on duty. Adkins informed Thomas about the illegality, but was instructed to install the camera anyway. The images were sent to Thomas’s office for viewing. The camera was discovered two years later and had caught images of Gustafson and other females changing. Gustafson filed suit against Thomas and Adkins alleging her privacy had been invaded and she had been the victim of an unconstitutional search under the 4th Amendment.

Adkins argues Gustafson’s claim of 4th Amendment violation is precluded by the Civil Service Reform Act (“CSRA”) and the Federal Employees’ Compensation Act (“FECA”). The CSRA establishes a framework for evaluating adverse personnel actions against federal employees and may preempt federal claims that fall within its scope. However, Adkins’s conduct does not fall within the scope and cannot be considered to have been done for “disciplinary or corrective action” as there is little evidence that the camera was being used for this purpose. Further, case law on the matter suggests Adkins’s conduct is “closer to a warrantless search outside the scope of the CSRA.”  “The FECA provides the exclusive remedy against the United States or an instrumentality thereof to compensate a federal employee for a work-related injury defined as injury by accident and disease proximately caused by the employment.” The FECA does not bar a federal employee’s suit against individual co-employees. Given the silence on co-employee suits and the difficulty of defining Adkins actions as accidental, therefore matters of the suit are not determinative based on the FECA.

Adkins also claims his motion on summary judgment should have been granted based on qualified immunity. “The doctrine of qualified immunity protects government officials from liability for civil damages when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  In order to determine if Adkins can invoke qualified immunity the court must inquire whether the constitutional right was clearly established at the time of the alleged violation. According to case law, the essential principle is that an employer’s workplace search must be reasonable. “Reasonableness depends upon the circumstances presented in a given situation and upon balancing the public, governmental, and private interests at stake in that situation.” At the time the camera was installed, the right of employees to be free from unreasonable employer searches was already established. Therefore, Adkins did not meet the requirements of qualified immunity.

For the foregoing reasons, the court affirmed the judgment of the district court. This case is a prime example of why we must never just do as we are told, even in employment. To further demonstrate this, refer to Yale University psychology professor Stanley Milgram’s 1961 study on authoritarian obedience. When others are allowed to make decisions for us, it may not always lead to an outcome in our best interest.

Homicide By Strangulation… During Sex


By: Macey Albert
J.D. Candidate, 2017
Valparaiso University School of Law

For one man, a seemingly great night turned into a long journey through the judicial system. In Thomas v. Clements, the Seventh Circuit Court of Appeals reviewed a man’s conviction where he killed his wife after applying too much pressure on her during sex.

Joyce Oliver-Thomas and Oscar Thomas were married. After nine years of marriage, the two divorced; however, Oliver allowed Thomas to continue living in her apartment where the two continued a sexual relationship. On the night of the incident in question, the police received a call from Thomas saying that Oliver was unconscious. When the police arrived Oliver was unresponsive, eyes open, and without any pulse. She was announced dead at the hospital.

Thomas gave two inconstant statements. He first stated that he left the apartment and came back and found Oliver grabbing her neck in a choking manner. He later stated that he left the apartment and began watching a pornographic movie. When he returned he and Oliver had sex, during which they fell off the bed and continued to have sex. He mentioned that at one point while engaging in sexual activity he had his arm around her neck. Thomas was found guilty by the trial court for unintentionally causing Oliver’s death by putting pressure on her neck for too long during sex. The trial court ruled under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and Thomas appealed, alleging that the wrong standard was applied.

To prevail on his claim, Thomas had to first show that his counsel’s performance was deficient, meaning it fell below the objective standard of reasonableness. Thomas argued the defense counsel was deficient in failing to consider and consult with a pathologist who would have reviewed the autopsy report and testified. Dr. Mainland’s (the plaintiff’s expert) pretrial testimony showed that Thomas acted intentionally. This corroborated with the testimony of the plaintiff in which he admitted having his arm around her neck before she died, as well as the counsel choosing not to argue the issue of causation. The combination of these factors gave what seemed to be a reasonable inference of intent. There were no signs of fight or struggle between Thomas and Oliver, however. Therefore,  counsel should have known there was reason to question a finding of intentional homicide. A responsible counsel would have at least contacted an expert to check if the medical findings could be reconciled.

Next, Thomas had to show that there was a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different. The expert mention that strangulation would likely result after four minutes of pressure, meaning there were roughly fifty-five minutes in which Oliver was not being choked to death. All parties admit there was no evidence of external marks on either Thomas or Oliver. Dr. Teas’s testimony in the post-conviction hearing stated that because there were no external bruising on the neck or bone, the necessary injuries of strangulation were missing.

Dr. Teas’s testimony provided that even if Thomas did cause Oliver’s death, it was not intentional. The facts were consistent with an accidental death and sufficient to raise a reasonable doubt; therefore, there was evidence of prejudice for ineffective assistance of counsel purposes. The Seven Circuit  ruled that after reviewing the case de novo the counsel’s performance in relation to a pathologist expert was deficient and that Oliver was prejudiced by counsel’s deficient performance.

The Unlawful Inquisition

By: Jonathan Joseph,  MBA, CPA
J.D. Candidate, 2016
Valparaiso University School of Law

How much information may a judge solicit from a telephonic interview? When does an oral interview become an unlawful interrogation? A recent case decided by the Seventh Circuit attempts to answer these very questions.

After serving a term in an Illinois state prison for a sex crime, the plaintiff was committed to a Treatment and Detention Facility, pursuant to the civil Sexually Violent Persons Commitment Act. He had a job in the facility’s dietary services department, but was fired. He filed suit against four dietary department staff members under 42 U.S.C. 1983. The plaintiff alleged that he was fired in retaliation for previous lawsuits he had brought against staff members. As required by 28 U.S.C. § 1915(e)(2), the district judge screened the complaint at the outset of the case to determine whether it “fail[ed] to state a claim upon which relief may be granted.” The judge found that the lawsuit “contained only conclusory allegations [in which] the plaintiff simply stated he had filed previous lawsuits and assumed people knew about it.” He ruled that the complaint did, indeed, fail to state a claim, and dismissed the suit with prejudice.

The judge had interviewed the plaintiff by telephone. During the interview, which the judge characterized as a “merit review,” no transcript or audio recording was kept. One could characterize the interview as inquisitional in its nature. The term “inquisition” has ominous overtones to those familiar with European medieval religious history, but today, an inquisitorial hearing is defined as “a hearing in open court in which the judge examines the parties to the suit rather than leaving examination to the lawyers, which is adversarial rather than inquisitorial.” In this case, the district judge went beyond the inquisitorial in its modern sense, because he examined the plaintiff in “secrecy being secured by the absence of a transcript, or even a judge’s or reporter’s notes.”

The Seventh Circuit reversed the district judge’s decision, noting that it previously rejected ex parte telephonic interrogation as a method of screening complaints to determine whether they state a claim. The court recognized that there are circumstances that merit telephonic interviews. These  can involve parties who are incarcerated and are done in order to save the time and expense of transporting a prisoner to court. However, these circumstances do not allow for questioning regarding the validity of the case. It is permissible for the judge to interview a pro se detainee plaintiff to determine what the facts of the case are, but not whether the plaintiff’s case is meritorious.

When a judge conducts any questioning of a witness, plaintiff, or defendant, that interview must be recorded and entered into the record. The judge must ensure that a transcript or recording of the interview be made to allow appellate review and prevent a reversal of a case that even the Seventh Circuit felt was weak: “barebones—maybe so thin that it could have been dismissed without further ado.” The court was obligated to take the judge’s error as grounds for reversal.

Citing Williams v. Wahner, the Court did not “mince words” when declaring that the use of ex parte telephonic interrogation as a method of screening complaints to determine whether they state a claim is unlawful. The court said that 28 U.S.C. § 1915A(a), a screening provision similar to § 1915(e)(2), does not contemplate an oral examination of a party by the judge designed to elicit answers that will enable the judge to resolve contestable factual issues. “If the validity of a claim depends on the accuracy of the plaintiff’s factual allegations, and their accuracy can’t be resolved without an oral hearing, it is a matter to be resolved at trial, in conformity with the procedures that govern trials. . . We expect that when this court declares a procedure employed by a district judge, or district judges, of this circuit unlawful, the procedure will be abandoned. Regrettably, not all the district judges have abandoned it.”

If a judge needs additional information from a detainee to determine the merits of a lawsuit going forward, the judge can make a limited appointment of counsel specifically for the purpose of fact-finding and release the attorney after sufficient information has been gathered. That may only involve a single interview or even a telephone call, which would satisfy the judge’s need for information and uphold the lawfulness of the manner in which it was obtained. Inquisitions, however, are unlawful and viewed with prejudice by the Seventh Circuit.

Retaliation Claim for Workplace Discrimination

Retaliation road sign

By: Macey Albert
J.D. Candidate, 2017
Valparaiso University School of Law

Eric Harden sued the Marion County Sherriff Department for retaliation under title Title VII of The Civil Rights Act of 1964. Harden alleged that the Department fired him in retaliation for testifying on behalf of African-American police officers in a race discrimination investigation.  The Court reviewed two issues: evidentiary and retaliation.

A witness accused Lt. Frasier of stealing money from a man Harden arrested. The Department argues that the summary judgment motion  relied on inadmissible hearsay.  Harden wanted to offer the statement of the witness to prove that the Department was aware of—and ignored—another suspect. The evidence offered did not warrant the decision even if the statement was considered.

Title VII  prohibits employers from retaliating against employees from testifying, assisting, or participating in a race discrimination investigation. Retaliation may be established by either direct or indirect methods of proof. The Court limited their inquiry to whether Harden has presented sufficient evidence that his protected activity was a substantial and motivating factor in Harden’s eventual termination.

The plaintiff sought damages against the defendant for retaliation. Therefore, Harden had the burden of proving each of the following elements by a preponderance of the evidence:

  1. The plaintiff engaged in or was engaging in an activity protected under federal law, that is known as activity;
  2. The employer subjected the plaintiff to an adverse employment action, that is known as adverse employment action; and
  3. The plaintiff was subjected to the adverse employment action because of his participation in protected activity.

The defendants conceded the first two elements. This left Harden with the burden establishing that the discrimination that he suffered was caused as a result of the protected activity; meaning, the employer action was at least, in part, motivated by the employee engaging in protected activity.

Harden had to rely on circumstantial evidence to satisfy the element, or a a casual link between his protected activity and the adverse action. There are three categories that go into circumstantial evidence: suspicious timing, ambiguous statements, and other information from which an inference of retaliation intent might be drawn.

Harden offered no evidence that proved that his termination happened at a suspicious time. Harden, next, offered evidence to show a continuous pattern of harassment. The evidence included Lt and the Deputy encouraging workers to discipline Harden for no reason. Even though Harden introduced this evidence, a link between the evidence and his termination was missing.

Harden alleges that the Internal Affairs investigation was unworthy of credence. The investigation concluded that Harden was, ultimately, responsible for the theft. The court did not evaluate whether the stated reasons were inaccurate, but whether the employer honestly believed the reason it has offered to explain the discharge. The investigation consisted of more people being suspected other than Harden. There was a thorough investigation and the investigation offered a legitimate explanation for their conclusion that Harden was the thief.

The Seven Circuit ruled that there was not enough evidence to suggest that the Internal Affairs investigation was a sham or that the relevant decision makers at the Department did not legitimately rely on the investigators’ conclusion in terminating him. Harden argued that he immediately became the primary suspect and the department, which ignored the accusation of another officer. The Court found that there was no evidence in the person who heard the accusation told the investigators during the interview. Because no reasonable jury could find that the Internal Affairs investigation was pretextual, the District court’s ruling was affirmed. Therefore, summary judgment was granted in favor of the Department.

Inconsistent Story Brings Nothing But Trouble and a Frivolous Law Suit


By: Jeremy M. Schmidt
J.D. Candidate, 2017
Valparaiso University School of Law

The Seventh Circuit decided on Afram Boutros v. Avis Rent A Car System, LLC, which serves as an important reminder for all attorneys to carry out their due diligence before filing a suit (or appeal), because they could be sanctioned for filing a frivolous suit or appeal.

Afram Boutros (Boutros) worked for Avis Rent a Car System (Avis) as a courtesy bus driver at the company’s O’Hare Airport location. In May, 2008, Boutros informed a shift manager that a fire extinguisher inexplicably discharged next to the drivers seat of the bus he was driving. Boutros claimed that a passenger had knocked it over, even though it was found there were no passengers aboard. The shift manager told him to take the bus to the mechanic’s area to have them clean the bus, and that if there was no mechanic available to take the bus out of service. The shift manager concluded by instructing Boutros to use a different bus to finish his shift.

During the same shift, Boutros told another shift manager what happened, and the shift manager told him to do the same as the first shift manager instructed. However, Boutros stated that the fire extinguisher fell by itself, and was not knocked over by a passenger this time. Secondly, he stated that the fire extinguisher sprayed him on his pants and his face. Finally, Boutros said that he cleaned the bus by himself because there were no mechanics available.

Avis offered medical assistance to Boutros the night the incident occurred. Boutros declined. The next day Boutros requested immediate medical assistance so Avis sent him to a local clinic. Boutros ended up in an emergency room because he claimed the clinic doctors sent him there with concerns about cancer caused by the chemicals used in making fire extinguishers. It turned out that there were no cancer concerns and the doctors at the clinic did not tell Boutros to go to an emergency room.

Avis launched an investigation into this incident. Avis interviewed both shift managers that Boutros discussed the incident with. Avis also had the fire extinguisher inspected and it was determined that only 5.5 oz were discharged, which conflicted with Boutros claim that a lot was discharged from the fire extinguisher. Avis determined that there were multiple mechanics available at the time to clean the bus, and that Boutros should have never cleaned it himself. Avis concluded the investigation with firing Boutros for dishonesty and insubordination.

Boutros filed suit alleging that he was fired for his race, which violates Title VII. At the end of the trial, the jury found for Avis on all claims. Boutros fired his attorney, and then hired an attorney who filed the appeal with the seventh circuit. Avis asked the seventh circuit to dismiss the appeal because it was frivolous. The seventh circuit declined to dismiss a case on a procedural error, but instead would rather decide a case on its merits.

Boutros claimed that the lower court erred in the limiting instructions to the jury. The seventh circuit found that there was no error because Boutros agreed to the instructions. Finally, Boutros claimed that the lower court erred in not allowing his motion for a new trial to succeed. The seventh circuit found no error here because this case was found to be frivolous on appeal.

The seventh circuit concluded that the lower court did not error in any of the  rulings during trial, and did not error on any of the post trial motions as well. Additionally, the seventh circuit invoked Rule 38 which requires attorneys show good cause in why sanctions should not be issued for filing a frivolous appeal.

A Miscarriage of Justice

By: Haley Holmberg
J.D. Candidate, 2017
Valparaiso University School of Law

Nobody is perfect. Mistakes happen to the very best of us, including judges. This is precisely why our justice system has a procedure of checks and balances set in place to prevent injustice to the best of its ability. Recently, the Seventh Circuit Court of Appeals dealt with a mistake made by both the defense counsel and trial judge in Reyes v. Dart.

A Cook County Jail pre-trial detainee was attacked and stabbed as a guard stood ten to fifteen feet away and ignored his cries for help. The detainee eventually lost consciousness which was not regained until three days later in the hospital. The attack caused severe nerve damage and a fractured eye socket which may eventually lead to blindness.

The victim-detainee filed suit against the Cook County Sheriff, Thomas Dart, and two of the jail officials claiming they failed to protect him from the attack. He contends that the defendants have culpably failed to create or enforce policies necessary to protect such attacks from occurring.  After filing an answer to the complaint, the next six months entailed the defense lawyer sending a total of five letters to the plaintiff. Each letter demanded the plaintiff sign a release giving the defense counsel access to protected health information maintained by a variety of hospitals. The release was not limited to medical records surrounding the attack that occurred, but rather all medical records would have been accessible from birth forward. Further, the release did not impose limitations on to whom the information could be disclosed.

The letters advised that it was entirely the plaintiff’s decision to sign the release or not, however, failure to sign would be grounds for dismissal of the case because the claim was for physical injuries. Naturally, the plaintiff did not sign the release for medical records. After the fifth letter of release was not replied to, defense counsel moved for dismissal under Federal Rules of Civil Procedure 41(b). The district court dismissed the suit with prejudice.

The Seventh Circuit ruled that the district judge erred in dismissing under 41(b) because there was no failure to comply with any rule or any court order. Nor was the plaintiff’s refusal to sign the release a failure to prosecute the suit. The defense counsel’s dispute with the plaintiff over the medical records was merely a discovery dispute and should have been dealt with as such by filing a motion to compel under Fed. R. Civ. P. 37. As the claim involved physical injuries, an order requiring the plaintiff to submit to a medical examination could have been filed under Fed. R. Civ. P. 35.

Another reason the case should not have been dismissed was because the release specifically stated that the signer may revoke authorization to release of his medical records at any time, which would have empower the plaintiff to refuse to sign in the first place without being punished. For the aforementioned reasons, the Court vacated and remanded the case. Judge Posner instructed the lower court to rule on the plaintiff’s prior motion for recruitment of counsel and inform the defendants’ counsel that the civil rule applicable to his demand for medical records is rule 37, not rule 41(b).

The defense counsel may have been quick to get the case dismissed, however, the counsel’s lack of knowledge concerning the Federal Rules of Civil Procedure only led to the case coming back to haunt him after Judge Posner issued the Seventh Circuit Court of Appeals opinion.

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