Articles Posted in Federal Court Procedure

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The plaintiffs in two copyright infringement cases assigned to U.S. District Court Judge Gregory H. Woods in the Southern District of New York want to use email to serve summons on dozens of defendants located in the People’s Republic of China.

Woods was concerned about the validity of email service, which U.S. District Court Judge Joan B. Gottschall considered in Luxottica Group v. Partnerships & Unincorporated Associations identified on Schedule “A,” 391 F.Supp.3d 816 (N.D. Ill. 2019). The judge asked for help from a professor and director of Hong Yen Chang Center for Chinese Legal Studies at Columbia University Law School, for “disinterested legal advice regarding whether a foreign plaintiff may, under relevant Chinese law, properly serve via email a defendant located in the People’s Republic of China.”

A pre-internet treaty, the 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“treaty”) was designed to simplify and standardize the serving process abroad. Each member nation of the Hague Convention is supposed to designate a central authority to receive service of process.

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The plaintiff, William Kleronomos, filed a two-count complaint against William Sackmaster, claiming negligence in causing a 2014 vehicular crash in Chicago. Sackmaster’s employer, Aim Transfer & Storage, was also sued for vicarious liability. Kleronomos uncovered evidence in discovery that Sackmaster allegedly failed “multiple drug tests,” caused several other crashes, was rehired after being fired for “chronic drug use” and had repeatedly “blacked out on the road.”

But the defendant, Aim, argued that the set of new claims Kleronomos pursued against it in 2019 for compensatory and punitive damages, based on alleged willful and wanton misconduct in hiring Sackmaster (Count III of that Amended Complaint), letting him drive its truck (Count IV), and retaining him as an employee (Count V), were barred by the statute of limitations.

The relation back statute did not apply, according to Aim, because Kleronomos’s “employment claims are separate and distinct from the original negligence claims.”

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United Parcel Service (UPS) has conceded it could not sue Material Handling Services (MHS) for contribution under the Illinois Joint Tortfeasor Contribution Act. This case stems from an incident involving Raichid Rafik, a UPS employee who was struck on the head by a 10-lb. metal disc that fell from an overhead package handling system.

Rafik sued MHS for negligence in designing and installing the warehouse machinery and UPS for spoliation in choosing not to preserve the evidence he needed to identify and sue the shipper for negligent packaging. UPS filed a cross-claim against MHS for subrogation, equitable and statutory.

UPS reasoned it was entitled to equitable subrogation and statutory subrogation under 740 ILCS 100/2(f) of the Illinois Contribution Act because (1) the damage it potentially owed for spoliation was equal to what Rafik could have recovered from the shipper, and (2) the shipper could have pursued a contribution claim against MHS.

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In 2005, a van containing six family members slipped off the edge of an Illinois roadway. In the rollover crash, everyone was hurt and one passenger died. The crash occurred in a construction zone. A guardrail had been removed and was not replaced. All lines had not been repainted on the repaved road, and pieces of asphalt laid on the shoulder.

In the lawsuit against the construction companies, the defendant attorneys told the plaintiffs that the two companies were operating as a joint venture with a $1 million liability insurance policy. The parties settled for $1 million. The plaintiffs signed a release of all claims, which stated that plaintiffs agreed that they were not relying on any statements by any parties’ attorneys. Four years later, the plaintiffs discovered that the companies in fact carried separate liability policies.

The U.S. District Court for the Northern District of Illinois ruled as a matter of law that the failure to identify the individual policies violated Federal Rule of Civil Procedure 26. The undisclosed policies would have covered plaintiffs’ claim, and no joint venture agreement existed under Illinois law; therefore, joint venture exclusions and the individual policies were inapplicable.

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In the wrongful death case for Lee Lindemann, filed on behalf of the Estate of Sue Ann Lindemann, the U.S. District Court ruled that estoppel blocked National Fire & Marine Insurance Co. from invoking a “declining balance” provision in its insurance policy. This was done to reduce its $1 million liability limit to $600,000, by subtracting the $400,000 National paid to the defense expenses during the two years of litigation.

National’s policy covered Dr. Erick Falconer in this wrongful death case and another defendant, Western Healthcare. In May 2013, the answer that Falconer’s attorney submitted to “Interrogatory 9,” said he was insured under a National policy that had a $1 million liability limit.

But when responding to her request for a copy of the insurance policy, Dr. Falconer’s attorneys reportedly took a shortcut: they referred back to this interrogatory answer. This maneuver meant the litigants didn’t see the policy provision that ordinarily would have reduced the liability limit by the amount of defense expenditures.

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Daniel Dumrauf was a director with Medix Staffing Solutions Inc., a Chicago-based staffing agency. Dumrauf, who worked at Medix’s Scottsdale, AZ, office, had an employment agreement containing a noncompete clause that restricted him from any affiliation “with the ownership, management, operation or control” of any business in competition with Medix either directly or indirectly.

The noncompete clause had an 18-month lifespan and covered a 50-mile radius.

On Aug. 10, 2017, he resigned from his position with Medix and informed the company he would be taking a position with ProLink, a direct competitor of Medix. In his resignation correspondence, Dumrauf noted that 90% of his activity with ProLink would be done in Ohio and Kentucky.

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Perry Odom was seriously injured when a semi-trailer collapsed on him at his job.

His employer was Penske Logistics. However, this employer did not own the trailer; his employer’s sole shareholder, Penske Truck Leasing, was the owner.

Odom and his wife brought a lawsuit against Penske Truck Leasing through a personal injury action filed in the U.S. Federal District Court. The district court judge dismissed the Odoms’ complaint, reasoning that under state law, the Workers’ Compensation Act applied to shield the employer’s stockholders from employee claims arising out of a workplace injury.

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The U.S. Court of Appeals for the 7th Circuit in Chicago addressed the issue of the need for expert testimony on causation when the issue is beyond the understanding of laypersons.

The product liability claim here involved the allegation of a defective intrauterine device (IUD) that broke when it was removed from the plaintiff’s uterus, leaving a fragment of it behind.

Cheryl Dalton sued Teva North America, the manufacturer and distributor of the ParaGard, the IUD.

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The defendant in this federal lawsuit owned two homes. One was in California and the other was in Wisconsin. Craig Cunningham filed a lawsuit against Michael Montes and tried to serve Montes at his Wisconsin address. No one came to the door. The process server called Montes; he refused to provide his current location. After an ex parte submission by Cunningham, the U.S. District Court judge authorized service by publication.

Cunningham published notice in periodicals that circulate only in the Midwest. When Montes did not answer the complaint, the district court entered a default.

After learning of the lawsuit from a defendant in another of Cunningham’s lawsuits, Montes asked the court to set aside the default. The judge declined, stating that Montes had persistently tried to evade service in both California and Wisconsin. The judge then entered judgment for more than $175,000. Montes appealed.

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Cedric Smith sued the United States government under the Federal Tort Claims Act (FTCA), 28 U.S.C. Section 2671 et seq., claiming injuries from a fall off of a broken metal stool in a secured attorney-client interview room at the U.S. District Court in Rock Island, Ill.

Smith’s lawsuit relied on the doctrine of res ipsa loquitur (“the thing speaks for itself”), claiming that when he sat on the stool, it tilted backward, causing him to fall, hit his head and suffer permanent injuries.

The district court judge granted summary judgment for the federal government finding that the Smith evidence was insufficient to create an inference of negligence because others could have broken the stool or Smith could just have fallen from an undamaged stool in the absence of negligence on the part of anyone.  The U.S. Court of Appeals for the 7th Circuit in Chicago reversed the granting of the summary judgment motion in an opinion written by Judge Ilana Diamond Rovner, holding that Smith’s evidence was sufficient to create a jury question as to whether the government was negligent.

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