Weekly Case Digests May 26, 2020 May 29, 2020.

Byline: Rick Benedict

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: William Lund v. City of Rockford, Illinois, et al.,

Case No.: 19-1945

Officials: EASTERBROOK, ROVNER, and SCUDDER, Circuit Judges.

Focus: Malicious Prosecution Claim

William Lund, a reporter, was arrested in Rockford, Illinois after discovering a police-run prostitution sting operation in the course of his news-gathering activities. He sued the City and several officers for retaliatory arrest, malicious prosecution and several other alleged invasions of his rights under federal and state law. The district court granted summary judgment for the defendants. While Lund's case was pending, the Supreme Court issued its decision in Nieves v. Bartlett, 139 S. Ct. 1715 (2019), which instructs that, in most cases, probable cause to arrest defeats a claim of retaliatory arrest. Because the police had probable cause to arrest Lund, Nieves controls, and we affirm the grant of summary judgment for the defendants.

Affirmed

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7th Circuit Court of Appeals

Case Name: Skyrise Construction Group, LLC, v. Annex Construction, LLC,

Case No.: 19-1461

Officials: RIPPLE, ROVNER, and BRENNAN, Circuit Judges.

Focus: Consumer Fraud Negligent Misrepresentation

Skyrise Construction Group, LLC, a subcontractor, sued Annex Construction, LLC, a general contractor, for breach of contract, promissory estoppel, negligent misrepresentation, violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1 et seq., and violation of the Wisconsin Deceptive Trade Practices Act, Wis. Stat. 100.18. The district court granted summary judgment in favor of the defendants on all claims. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Kenneth Mayle v. State of Illinois, et al.

Case No.: 19-1691

Officials: KANNE, ROVNER, and HAMILTON, Circuit Judges.

Focus: Court Error Abuse of Discretion

For the second time, Kenneth Mayle has sued the State of Illinois to challenge state laws prohibiting bigamy, adultery, and fornication. The district court dismissed this second suit, in part on issue preclusion and in part for lack of standing. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Juan Carlos Perez

Case No.: 18-3156

Officials: KANNE, HAMILTON, and BARRETT, Circuit Judges.

Focus: Sentencing Guidelines

In December 2016, law enforcement officers facilitated a controlled buy of heroin from Juan Perez- someone the officers suspected was a high-level drug dealer in the Beloit, Wisconsin area. The controlled buy was recorded: Perez sold 98 grams of heroin to a police informant. Based on that transaction alone, Perez was charged with, and pled guilty to, distributing heroin. At Perez's sentencing hearing, the district judge expressed concern that the guidelines range of 3341 months' imprisonment presented in Perez's presentence investigation report ("PSR") did not reflect the full scope of his involvement in drug trafficking. This concern stemmed from the PSR's description of Perez's conduct suggesting that he was responsible for distributing large quantities of heroin, methamphetamine, and cocaine.

Unsatisfied with the disparity between Perez's guidelines range and his conduct described in the PSR, the judge continued the sentencing hearing and directed the government to file a sentencing memorandum. The memorandum was to detail which offense conduct the government could support by a preponderance of the evidence and which offense conduct it could not so support. When the parties and judge reconvened, the government presented witness testimony that elaborated on conduct described in the PSR. The judge used that evidence to calculate a higher guidelines range and impose a 121-month sentence.

Perez appealed his sentence, arguing that the sentencing judge should have disqualified himself because his impartiality might reasonably be questioned. See 28 U.S.C. 455(a). Because Perez has not demonstrated that a reasonable observer would have questioned the judge's impartiality, we affirm the sentence.

Affirmed

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7th Circuit Court of Appeals

Case Name: Leonard D. Fuqua v. United States Postal Service, et al.,

Case No.: 18-2415

Officials: BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Worker's Compensation Claim Subject-matter Jurisdiction

This appeal asks us to consider under which federal employee compensation act a postal worker's claim of emotional distress must be resolved. The Federal Employees' Compensation Act applied to Fuqua's claim, its administrative scheme ran its course, and his claim for emotional distress was denied for lack of evidence. The district court correctly ruled it had no subject matter jurisdiction over his claims under the Federal Tort Claims Act. So we AFFIRM its judgment.

Affirmed

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7th Circuit Court of Appeals

Case Name: Quincy Bioscience, LLC, v. Ellishbooks, et al.,

Case No.: 19-1799

Officials: WOOD, Chief Judge, and FLAUM and RIPPLE, Circuit Judges.

Focus: Judgment Injunctive Relief

Quincy Bioscience, LLC ("Quincy") filed this civil action against Ellishbooks, related individuals, and entities (collectively "Ellishbooks") alleging claims for trademark infringement, false advertising, dilution, and unfair competition under the Lanham Act, 15 U.S.C. 1114, 1125, as well as claims under Illinois statutory and common law. The operative complaint alleged that Ellishbooks engaged in the unauthorized and unlawful sale of Quincy's products bearing the Prevagen trademark. Ellishbooks did not file a responsive pleading to the complaint. After entry of a default judgment, the district court awarded damages and permanent injunctive relief to Quincy.

Ellishbooks now challenges the district court's judgment on several grounds. These arguments have been waived and, in any event, are meritless. We therefore affirm the judgment of the district court.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals District III

Case Name: MidCounty Bank v. Todd C Bork, et al.

Case No.: 2018AP1877; 2018AP1878

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Court Error Abuse of Discretion

MidCountry Bank appeals an order voiding a sheriff's sale of Todd and Carolyn Bork's home and prohibiting MidCountry from executing a judgment on the Borks' real property for as long as it remains their primary residence. MidCountry argues that the circuit court erred by utilizing its equitable powers to prohibit execution of the Bank's judgment against the Borks' residential property under WIS. STAT. ch. 815 (2017-18). We agree. Accordingly, we reverse the order.

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WI Court of Appeals District III

Case Name: State of Wisconsin v. Kane Michael Robinson

Case No.: 2018AP2079-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Ineffective Assistance of Counsel

Kane Robinson appeals from an amended judgment convicting him of felony murder, as a party to the crime, and from orders denying two postconviction motions. He claims he is entitled to a new trial based upon the ineffective assistance of trial counsel, judicial bias, and in the interest of justice. We reject each of Robinson's claims and affirm.

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WI Court of Appeals District III

Case Name: Dawn M. Petit v. Terrance A. Petit

Case No.: 2018AP2107

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Divorce Child Support

Dawn Petit appeals a divorce judgment dividing the marital estate, establishing monthly child support payments from her former husband, Terrance Petit, and ordering monthly maintenance to Dawn. Dawn argues the circuit court erred when calculating the amounts of child support and monthly maintenance by using what it found to be Terrance's earning capacity rather than crediting evidence regarding Terrance's income in prior years, before a market downturn in his industry. She also argues the court erroneously exercised its discretion when it determined which items comprised the marital estate and the value of certain items, and when it ordered an unequal division of the marital estate that slightly favored Terrance. We reject these arguments and affirm.

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WI Court of Appeals District III

Case Name: Oneida County v. Sunflower Prop II, LLC,

Case No.: 2018AP2366

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Ordinance Interpretation

Sunflower Prop II, LLC, appeals a judgment validating the enforceability of Oneida County's pier ordinance and the County's finding that Sunflower is in violation of that ordinance. Sunflower argues the ordinance is unenforceable because its pier complies with the requirements for a permit exemption under WIS. STAT. 30.12(1g)(f), and a municipality lacks the authority to regulate the construction and location of piers that qualify for that exemption.

We agree with Sunflower that municipal regulations enacted pursuant to WIS. STAT. 30.13(2) cannot be applied to a pier that qualifies for a permit exemption under WIS. STAT. 30.12(1g)(f). Based on the appellate record, however, it is unclear whether Sunflower's pier in fact qualifies for that exemption, specifically the requirement that a pier be "no more than 6 feet wide." See 30.12(1g)(f)1.a. Accordingly, we reverse the judgment and remand for further proceedings. If the circuit court determines that Sunflower's pier satisfies the requirements of 30.12(1g)(f), it is directed to dismiss the citation in accordance with our statutory analysis. If the court determines that Sunflower's pier does not qualify under 30.12(1g)(f), it may conduct further proceedings as are appropriate to resolve the case. The County has filed a cross-appeal regarding the proper interpretation of certain aspects of its ordinance, which we decline to resolve at this time given that our statutory analysis may be dispositive.

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