Latest 4 Cases: Kirk v. Clark Equipment Co. (Civil Procedure), Marcure v. Lynn (Civil Procedure), Nelson v. City of Chicago (Civil Rights)

Constitutional Problems With the Kentucky Proposal (Supported by Mitch McConnell) to Change the Way U.S. Senate Vacancies Are Filled

VIKRAM DAVID AMAR

In this second of a series of columns, Illinois Law dean and professor Vikram David Amar comments on the Kentucky proposal to change the way U.S. Senate vacancies are filled. Dean Amar argues that the Seventeenth Amendment precludes such a proposal, which would allow the state legislature to substantively constrain the governor’s choices in making a temporary appointment.

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Kirk v. Clark Equipment Co.

Docket: 20-2983

Opinion Date: March 25, 2021

Judge: Joel Martin Flaum

Areas of Law: Civil Procedure, Personal Injury, Products Liability

Sterling purchased the Loader new in 2008 from a dealership; it was equipped with a 62-inch bucket and components that increased the Loader’s rated operating capacity (ROC—maximum load) to 1,420 lbs. Kirk regularly used the Loader to scoop up material and move it up a concrete ramp with an approximate 30-degree incline. Kirk claims that on May 12, 2015, while going up the ramp, the Loader began to wobble and tip forward as he raised its lift arms. In an effort to stabilize himself, Kirk braced his foot on the console. His foot slipped out of the cab and he brought the lift-arm down on it. Kirk suffered a permanent leg disability, loss of his job, and medical expenses totaling $433,000. In a strict liability claim against the Loader’s manufacturer, Clark, Kirk’s only expert witness, Pacheco, opined that the Loader was “unreasonably dangerous for its intended and foreseeable use” and that its “design providing for the use of the [62-inch] bucket … made it highly likely" that the bucket would be loaded in excess of"the ROC. The district court granted Clark summary judgment, concluding that Pacheco’s opinions did not meet the Rule 702 and “Daubert” standards. The Seventh Circuit affirmed. A court’s determination that an expert possesses the requisite qualifications does not, alone, provide a sufficient basis for admissibility. The court acted within its discretion in finding Pacheco's evidence in support of his opinion unreliable. Pacheco's causation opinion rested on speculation that the weight of the load exceeded the ROC but Pacheco did not know the weight of the load at the time of the accident.

Marcure v. Lynn

Docket: 19-2978

Opinion Date: March 25, 2021

Judge: St. Eve

Areas of Law: Civil Procedure

Marcure sued police officers and others. Before the officers moved to dismiss, Marcure filed notice of an address change from Arizona to Illinois. The court mailed notices, including notices of the motion to dismiss, to the Illinois address; these notices were returned as undeliverable. Based on the returned documents, the court ordered Marcure to show cause why his case should not be dismissed due to his failure to keep the court apprised of his address. Marcure provided notice of a post-office box days later and filed a response to the officers’ motion, nearly a month late and lacking a signature. The court excused the late filing but warned that it would strike the response under FRCP 11(a) if Marcure did not correct the signature deficiency within six days. Marcure filed timely, signed responses to the prosecutors' motions to dismiss but did not correct his unsigned response to the officers’ motion. One week after the deadline to correct that response, the court struck Marcure’s response, then dismissed the claims against the officers solely because their motion was unopposed. The Seventh Circuit reversed. While Rule 11(a) requires striking unsigned pleadings, Rule 12(b)(6) requires courts to address the merits of motions to dismiss and any local rule to the contrary is invalid under Rule 83(a)(1). The rule places the burden on the movant to show entitlement to dismissal; courts must address the merits of Rule 12(b)(6) motions even when they are unopposed.

Nelson v. City of Chicago

Docket: 20-1279

Opinion Date: March 25, 2021

Judge: HAMILTON

Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

Chicago Officer Nelson responded to a report of an armed robbery in a high-crime area; she alleges that the radio dispatcher ignored her repeated emergency calls for information and assistance. Shift sergeant Bucki was responsible for listening to the radio transmissions and contacting the dispatcher if that person failed to respond. Nelson alleges that Bucki did not intervene when the dispatcher ignored her requests for help. Bucki later denied wrongdoing and refused to investigate why the dispatcher ignored Nelson. In her incident report, Nelson complained about the dispatcher’s failure to respond; months later, she discovered that Sergeant Boffo had edited the report to remove her complaints. Nelson developed PTSD, which she alleges was aggravated by the stress of learning that Boffo had edited her report. She has been unable to work, but remains employed by the police department and receives disability benefits. Nelson filed charges of race and sex discrimination with the EEOC and Illinois Department of Human Rights. The Seventh Circuit affirmed the dismissal of her claims under the Americans with Disabilities Act and 42 U.S.C. 1983, alleging violations of her substantive due process rights by failing to protect her from danger and her procedural due process rights by causing her PTSD and depriving her of a property interest in her job. There was no conscience-shocking abuse of government power nor any affirmative action on by Bucki.

Bartlett v. City of Chicago

Dockets: 19-3183, 19-3180

Opinion Date: March 25, 2021

Judge: Kenneth Francis Ripple

Areas of Law: Labor & Employment Law

Current and former members of the Chicago Police Department’s Special Weapons and Tactics (SWAT) Unit brought a purported class action, alleging violations of the Fair Labor Standards Act (FLSA), 29 U.S.C. 216(b), the Illinois Minimum Wage Law, and the Illinois Wage Payment and Collection Act. They claim that when they take their SWAT equipment home to maintain a constant state of readiness, they must store some of that equipment inside their residences; it cannot be left in their vehicles. The department claimed that they have the option of leaving the equipment at headquarters, upon request. The operators sought compensation for the off-duty time required to transport, load, unload, and store their gear. The Seventh Circuit affirmed summary judgment for Chicago. The activity of transporting, loading, and unloading equipment to and from residences, and securing equipment inside residences is not integral and indispensable to the operators’ principal activity. A “principal activity” commences an employee’s workday; once started, that “workday” continues until the conclusion of the employee’s final principal activity of the day. The Portal-to-Portal Act does not apply to a worker’s “preliminary activity” or “post-liminary activity.” The requirement that certain equipment not be left in the vehicle but stored in the residence is only a reasonable directive that officers take precautions necessary to ensure safety and is far removed from the operators’ principal activity of handling critical incidents.