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Thursday, April 21, 2005

Ind. Decisions - 7th Circuit posts three today

Note: For those of you who read yesterday's comments, I'm using the Findlaw links today, which I hope are more stable than the 7th Circuit's have proven to be. But that doesn't resolve the thousands of past links the Court's change obliterated.


Before MANION, EVANS, and SYKES, Circuit Judges.
EVANS, Circuit Judge. This appeal concerns whether a federal trial judge had the authority to resolve an attorney lien dispute after the underlying case settled. In December of 2001, Indiana residents John Hill and wife Susan filed a diversity action in federal district court against manufacturers of the drug Heparin. Their complaint alleged that Mr. Hill’s use of Heparin following bypass surgery caused the loss of three limbs. The suit was filed by a Chicago attorney, David Fitzpatrick, only a week after the plaintiffs fired Neal Lewis, an attorney from Orland, Indiana. Lewis did not participate in the lawsuit.

In November of 2003, Lewis filed a lien action in Indiana state court seeking a share of any settlement or damages awarded in the plaintiffs’ federal lawsuit. Lewis alleged in his complaint that the Hills’ decision to dump him as counsel constituted a breach of contract and that Fitzpatrick tortiously interfered with their pact in wresting control over the case. Lewis contends that he put in 18 months of work on the case and deserves a piece of the pie.

The parties in the federal litigation reached settlements in June of 2004. On June 29, Judge Pallmeyer approved the settlement agreements and dismissed all of plaintiffs’ claims with prejudice, noting that the case was “fully and finally resolved.” Her order did not incorporate the settlement agreements nor did it expressly retain jurisdiction to enforce them.

Despite these settlements, the proceedings were far from over. On July 5, Lewis faxed to the defendants a notice of his attorney’s lien, along with a request asking them to withhold payment of the settlement funds until the Indiana proceeding regarding his claim was resolved. On July 8, the plaintiffs filed a “petition to quash and/or adjudicate attorney’s lien,” arguing that the lien should be quashed because Lewis failed to comply with the Illinois Attorneys Lien Act, 770 ILCS 5/1 (2004). The plaintiffs did not identify any authority for the district court to consider this request. The plaintiffs did provide Lewis with notice of the petition but did not serve him with a summons or seek to have him added as a party to the now-dismissed federal lawsuit. The file an amended complaint in order to add the settling drug companies as defendants in that action.

On July 15, the district court granted the plaintiffs’ petition to quash the lien: [omitted] That is all the order said. The court did not specify its authority for entering such an order. {Etc.] * * *

Accordingly, the district court’s orders issued on July 15, August 6, and August 12 are VACATED, and the case is REMANDED2 with instructions for the court to dismiss the plaintiffs’ requests to quash the lien. Costs are awarded to Mr. Lewis.


Before RIPPLE, EVANS, and SYKES, Circuit Judges.
EVANS, Circuit Judge. In 1997, just a month before his 60th birthday, Edward West, an African-American male, was hired by a company called Innovex. Innovex provided pharmaceutical companies, like the defendant Ortho-McNeil Pharmaceutical Corporation (OMPC), with contract sales representatives. Two years later, in 1999, OMPC hired West (and 10 other Innovex employees) as a direct sales representative of the company. OMPC terminated West in July of 2000 for, it claimed, violations of company policies. West thought the termination was caused by his race and age. * * *

The evidence, if true, clearly shows that Pascale was biased. Other evidence shows that he informed Taylor of West’s apparent violation of company rules, that those rules were also violated by others, and that Taylor recommended firing West. It may be a close question whether West—who as we noted was proceeding pro se—was able to link these facts so as to enable a reasonable jury to find discrimination. But because a close question should go in West’s favor, we find the case should have gone to the jury for its determination. On this record, we cannot say that no reasonable jury could find for West.

Accordingly, the judgment of the district court is VACATED and the case is REMANDED for a new trial. Costs are awarded to Mr. West.

USA v. BANKS, RICKEY E. (ND Ill.) [23 pp.]

Before FLAUM, Chief Judge, and COFFEY and KANNE, Circuit Judges.
KANNE, Circuit Judge. In March 2002, a jury convicted Rickey Earl Banks of possession with intent to distribute cocaine in federal district court. Banks was sentenced to 97 months in prison pursuant to the Sentencing Guidelines. He directly appeals the conviction on five different grounds. We review the sentence sua sponte in light of the Supreme Court’s recent decision on the constitutionality of the Sentencing Guidelines. For the reasons stated herein, we affirm the conviction and order a limited remand to the district court to determine whether resentencing is warranted.

Posted by Marcia Oddi on April 21, 2005 01:16 PM
Posted to Ind. (7th Cir.) Decisions