Justia Lawyer Rating for Robert D. Kreisman

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Currently under Federal Rules of Civil Procedure Rule 34, a document request cannot be served on an opposing party until the attorneys have met and “conferred as required by Rule 26(f)” with only a few exceptions. When the lawyers meet, “the parties must consider the nature and basis of their claims and defenses and the possibilities of promptly settling or resolving the case; make or arrange for disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan.”

Under the new rules approved by the U.S. Supreme Court on April 29, 2015 as amended and referred to Congress, the rules will become effective on Dec. 1, 2015, parties will be permitted to deliver Rule 34 document request 21 days after service of summons and complaint. Specifically, Rule 26(d)(2) will be added, which provides as follows:

(d) TIMING AND SEQUENCE OF DISCOVERY

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(2) Early Rule 34 Requests.

(A) Time to deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered:

(i) To that party by any other party, and
(ii) By that party to any plaintiff or to any other party that has been served.

(B) When Considered Served. The request is considered to have been served at the first Rule 26(f) conference.

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The U.S. Court of Appeals for the 7th Circuit in Chicago has affirmed a decision by the U.S. district judge who refused to reopen a default judgment. Kyler Moje, a hockey player on the Danville Dashers of the Federal Hockey League, lost an eye to high-sticking during a game against the Akwesasne Warriors. Moje sued Oakley Inc., which made the visor that Moje blamed for offering inadequate protection to his face and eyes. But Moje also sued the Federal Hockey League itself.

Rather than notifying its liability insurer, the Federal Hockey League hired a lawyer based in Syracuse, New York, John LoFaro. A month after the lawsuit started in the U.S. District Court, Oakley’s attorney called Dan Kirnan, the Federal Hockey League president, to ask why it did not file an answer to the complaint filed against it. Kirnan in turn contacted LoFaro, the League attorney. LoFaro told Kirnan that he had filed an answer to the complaint. LoFaro sent the league what he claimed to be a copy of that answer.

However, the court’s docket did not reflect any such court filing made on behalf of the defendants. Moje asked the court to enter a default judgment. LoFaro did not respond to the default motion nor the court entry of the default judgment. The court permitted Moje to claim damages. Four months after the lawsuit was begun, the U.S. District Court entered a final judgment of $800,000 for the damages suffered by Moje against the Federal Hockey League.

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Glen Bellamy, age 50, was driving through an intersection on a green light when his car collided with a tractor-trailer driven by Thomas Godbold. Godbold was employed by Red Classic Transit LLC. It was alleged that Godbold ran a red light, causing this crash with Bellamy’s vehicle and severely injuring him.

Bellamy suffered a traumatic brain injury. He now has difficulty with executive functions such as decision-making, and he has a short-term memory deficit. His past medical expenses paid totaled $1,300,000, and his future medical expenses and life-care costs are estimated at $4.2 million.

Bellamy was a truck driver at the time of the incident and was permanently disabled by this collision. His lost earnings, past and future are estimated to be $776,800.

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Under the Illinois Code of Civil Procedure §2-203.1 “Service by Special Order of Court” is allowed if it is impractical to serve someone (a defendant) at his or her place of abode. In that case, the court can direct a comparable method of service in any manner consistent with the process.

A motion to serve someone under Section 2-203.1 requires the movant to provide an affidavit that includes a specific statement that a “diligent inquiry as to the location of the individual” was made. Failure to make a diligent inquiry can result in improper service.

In the case of Sutton v. Ekong, a default judgment was entered in the amount of $199,998.32 because the defendant had defaulted after allegedly been served properly through the Secretary of State of Illinois. Many attempts had been made on the defendant to serve him with summons at his home and by use of a special process server without success. After failing to appear in court, the plaintiff then served the defendant through the Illinois Secretary of State. The court allowed this after the plaintiff asked the trial court for process of service in that fashion.

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Jimmy Hill was 66 years old and was unloading a truckload of chicks at a farm when an employee of the transportation company J.B. Hunt drove a forklift over Hill’s ankle. Hill underwent surgery to repair the broken ankle and later died of post-operative sepsis. He is survived by his adult son.

Hill’s son sued J.B. Hunt claiming its employee, the forklift driver, chose not to follow the company’s safety policies and safety training. The lawsuit did not include a claim for lost income. The jury’s verdict of $3.4 million found the defendant J.B. Hunt 98% responsible and a non-party 2% liable for Hill’s injuries and untimely death.

The attorneys representing the Hill family were John P. Zelbst and David Butler. For trial the plaintiff engaged the expert services of an internal medicine physician and engineering expert, both of whom testified at the trial.

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Grayco Communications was installing cable at the home of Steven Thomas when a ladder became stuck. Thomas, a retired firefighter, climbed up the ladder to dislodge it. He fell, suffering a compound leg fracture.

As a result of the severe leg fracture, he developed a bone infection that later required a below-the-knee amputation.

In the lawsuit he filed, he alleged that Grayco Communications and its employee chose not to place the ladder in a safe position, properly brace the ladder and otherwise make it safe for Thomas to climb it.

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In a civil rights lawsuit under 42 U.S.C. §1983, Danny Farley hired an attorney who began the process of filing the complaint in the Southern District of Illinois in East St. Louis, Ill. The local rules in the district require that documents be filed electronically through the CM/ECF system. Attorneys must use this system to file documents unless they have received a special exemption.

Under the rules in place at the time, e-filers could not open a new case in CM/ECF on their own. Rather, they had to submit civil cases by e-mail in PDF form to the proper divisional mailbox. Upon receipt, the division clerk would open a new case in the CM/ECF system and inform the attorney that they could proceed in filing further documents.

On March 8, 2011 at 4:15 p.m., an assistant to Farley’s attorney e-mailed the complaint and civil cover sheet to the proper e-mail address. The clerk’s office responded at 5:11 p.m. with a notice stating that a new civil case had been opened, but the complaint was not being filed with the clerk until it was transmitted to the CM/ECF system.

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Daniel Orr died in a motorcycle accident in August 2012. His beneficiaries, who were his daughters, Hailey and Daniell, filed claims seeking benefits payable under a group life insurance policy governed by ERISA. The insurance policy was issued by Union Security Insurance Co. to Orr’s former employer.

The policy provided accidental death and dismemberment benefits to a participant and his or her beneficiaries, subject to certain exclusions, including exclusion on a loss resulting directly or indirectly from intoxication.

In December 2012, Union Security notified the Orr daughters that it had denied their claims on the ground that Orr’s death resulted from his intoxication. The notification explained that autopsy and toxicology reports showed that Orr’s blood alcohol level at the time of the accident was above the legal limit.

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On July 18, 2010 Geraldine Mular was a guest of the home of Dawn Ingram. Mular fell into a backyard pool and was injured. No lawsuit was filed until July 16, 2012, just one day before the statute of limitations would have expired. The lawsuit named Ingram as the defendant.

In the complaint, Mular alleged that Ingram failed to keep “the area around the premises’ pool maintained and properly constructed.” Notably, Mular did not allege that Ingram either constructed the pool or was involved in its design, but she did claim that Ingram had failed to keep the area clear of tripping hazards, failed to provide safe ingress and egress and had allowed the area to become unsafe due to poor maintenance.

In the lawsuit, Ingram’s home was correctly listed as 1694 Van Buren Ave., Des Plaines, Ill. However, the summons that was issued on July 16, 2012 listed Ingram’s residence as 1649 Van Buren Ave., transposing the last two digits of the address. The court noted that “the clerk’s docket does not reflect that the summons was ever placed with the Sheriff for service.”

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The plaintiff Shrempf, Kelly, Napp & Darr, Ltd. was granted summary judgment by the Circuit Court of Madison County for attorney fees and costs they claimed were due pursuant to the Illinois Common Fund Doctrine. The defendants, the Carpenters’ Health and Welfare Trust Fund and the trustees of the Carpenters’ Health and Welfare Trust Fund of St. Louis, appealed.

On May 4, 2006, James Corey Miller was injured when he fell from a ladder. Miller was a participant in the defendants’ Plan. The Plan is a self-funded, multi-employer, Employee Welfare Benefit Plan subject to the provisions of the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §1001, et seq. (ERISA).

The defendants became aware that Miller’s injuries were “sustained due to the act or omission of a third-party when Miller applied for disability benefits because he was no longer able to work.” As part of Miller’s benefit coverage, the Plan was “not obligated to pay any benefits” for an injury or sickness where “a third-party [was] legally liable to make payment or does make payment.”

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