author: RIPPLE, Circuit Judge. .HAMILTON, Circuit Judge,

text:
    WEST BEND MUTUAL INSURANCE COMPANY, Plaintiff-Appellant, v. Paul W. SCHUMACHER, et al., Defendants-Appellees.
    No. 14-2731
    United States Court of Appeals, Seventh Circuit.
    Argued October 30, 2015
    Decided December 21, 2016

      Tei-ry E. Johnson, Attorney, Peterson, Johnson & Murray, S.C., Milwaukee, WI, Timothy J. Pike, Attorney, A, Libertyville, IL, for Plaintiff-Appellant.
    Christopher Louis Gallinari, Attorney, Flaherty & Youngerman, P.C, Chicago, IL, for Defendants-Appellees.
    Before POSNER, RIPPLE, and HAMILTON, Circuit Judges.
   RIPPLE, Circuit Judge.

In 2013, West Bend Mutual Insurance Co. (“West Bend”) brought this legal malpractice action against its former counsel, Paul Schumacher, and his law firm, Roddy, Leahy, Guill & Ziema, Ltd. (“RLGZ”). The gravamen of the complaint is Mr. Schu-macher’s alleged performance in defending a workers’ compensation claim in 2005 and 2006. The district court dismissed the second amended complaint on the defendant’s 12(b)(6) motion and terminated the case. In the district court’s view, the complaint failed to set forth with sufficient specificity a cause of action for legal malpractice. We agree; the complaint fails to state plausibly the causation and harm elements required under Illinois legal malpractice law. Accordingly, we affirm the judgment of the district court.

I

BACKGROUND

West Bend first filed a legal malpractice action based on the performance of Mr. Schumacher and RLGZ in the underlying workers’ compensation matter in 2008. The parties later agreed to a dismissal of that claim and entered into a tolling agreement pending the resolution of several other tangentially related actions, including one for medical malpractice.

Following the resolution of those claims, West Bend brought the present action in the United States District Court for the Northern District of Illinois in July 2013, and filed an amended complaint in December 2013. After each of these filings, the defendants moved to dismiss. The district court granted each of the, motions, concluding that the allegations were too speculative or vague. In each case, however, the court also granted leave to amend.

A.

The allegations of the Second Amended Complaint are central to our task. We therefore begin with a rendition of its contents.

In December 2005, West Bend retained RLGZ to provide legal representation with respect to a workers’ compensation claim filed by John Marzano against West Bend’s insured, Nelson Insulation. The substance of Marzano’s claim is not described. Mr. Schumacher was the attorney with principal responsibility for defending against the Marzano claim. After several continuances, including one requested by Mr. Schumacher, the Illinois Workers’ Compensation Commission (“IWCC”) scheduled a hearing on the matter for August 23, 2006.

According to the complaint, Marzano supported his claim with the deposition of his treating physician, Dr. Sheinkop. He also had undergone an independent medical examination by Dr. Nelson, who provided a written report. This report indicated that Dr. Nelson’s testimony would be favorable to West Bend and would counter Dr. Sheinkop’s opinion. In his preparation for the scheduled August hearing, Mr. Schumacher did not speak to or depose Dr. Nelson. Instead, without seeking the approval of West Bend, he agreed with Marzano’s counsel to put a redacted version of Dr. Nelson’s report in evidence. Mr. Schumacher also did not speak to any other witnesses or potential witnesses until the day before the scheduled hearing; he then learned that a witness with relevant testimony was out of town and would not be available to testify the following day.

Prior to the hearing, Mr. Schumacher possessed other information .that was beneficial to West Bend’s .defense, including that Marzano worked a full day on the day of the alleged incident, that he continued to work for two additional weeks until he was laid off, and that his own' treating physician could not find any change in the condition of his knee following theincidént. Mr. Schumacher disclosed all of this information, favorable to his client, to Marza-no’s counsel prior to the hearing.

Documents also indicated that Marzano had not reported the incident until after he was laid off and had retained an attorney. But Mr. Schumacher did not investigate Marzano’s contrary statements and did not verify them with Marzano’s former supervisor, to whom the incident report allegedly had been made.

On, the day of the IWCC hearing, Mr. Schumacher did not request a continuance or a bifurcated proceeding to allow for the presentation of additional evidence. Instead, “without [West BendJ’s knowledge or agreement,” Mr. “Schumacher made the representation to counsel for [Marzano] that [West Bend] would accept liability of the workers’ compensation claim” and the arbitrator was “advised of that position.” West Bend claims that it “was forced to accept that agreement pending further investigation of other litigation options.”

The complaint further alleges that, as a result of Mr. “Schumacher’s unauthorized actions and representations to [West Bend], [West Bend] was forced to. make significant payments, including temporary total disability [(“TTD”)] benefits and medical-expenses, with little or no likelihood of recovery.” To “justify his concession of compensability, defendant Schu-macher overemphasized” to his client “the potential for penalties to [West Bend] if the hearing had gone forward.” Mr. Schu-macher “continued to counsel [West Bend] against getting the case reopened to present its defenses as. he believed the case was indefensible.”

According to the complaint, West Bend alleged that Mr. Schumacher breached duties to. West Bend by virtue of “(a) his unauthorized stipulation concerning com-pensability; (b) his failure to adequately investigate the claim or claimant’s preexi[s]ting medical condition; (c) his subsequent representations to [West Bend] regarding their litigation options!;] and (d) his failure to adequately advise [West Bend] of material facts and legal options prior to hearing.” The specific allegations also concerned Mr. Schumacher’s failure to depose Dr. Nelson, his disclosure to Mar-zano’s counsel of information beneficial to West Bend, and his failure to discover and remedy the unavailability of a relevant witness for the hearing.

All of these, West Bend alleged, resulted in its being “forced to accept a disadvantageous position which greatly compromised its ability to defend the claim.” It also was “forced to pay additional sums and eventually chose to reach a disputed settlement in order to mitigate its exposure”:

[although [West Bend] technically had the option of contesting the compensa-bility of the claim or filing a motion to terminate benefits after retaining new counsel, those options were not practical as plaintiff had been paying benefits for some time and the Commission was unlikely to und[o] or reverse such payments. In other words, [West Bend]’s payment of benefits up to that point severely prejudiced its capability to reverse the concession by defendant Schu-macher.

’ The complaint further alleged that even if the Commission had determined that West Bend was not liable, it was “extremely unlikely” that it would require repayment of prior benefits, and, if it did, “collection of those funds would have been difficult if not impossible.”

B.

In its July 18, 2014 order' granting the motion to dismiss the Second Amended Complaint, the district court determined that, with respect to the bulk of West Bend’s allegations about Mr. Schumacher’s performance—including the failure to depose Dr. Nelson, the failure to contact witnesses prior to the hearing, and the disclosure of certain facts to Marzano’s counsel—West Bend’s complaint “does not ... explain how any of these alleged acts and omissions harmed' its defense.” With respect to the allegation that Mr. Schu-macher had represented that West Bend would accept liability, the district court stated:

Though Plaintiff alleges that the representation “forced [it] to ... pay[ ] ... temporary total disability benefits and medical expenses, with little or no likelihood of recovery” and “to reach a disputed settlement in order to mitigate its exposure”, these assertions, are legally and factually unsupported. As a matter of law, paying benefits pending resolution of a claim does not preclude an employer from contesting liability. Moreover, plaintiff admits that it could have contested the claim, despite the representation. In short, because plaintiff does not and cannot allege that defendants’ representation was the cause of any damages it may have suffered, the representation cannot support a malpractice claim.

The court therefore granted the motion, and, because it had concluded that West Bend had failed to state a claim in three successive complaints, it terminated the case.

West Bend now appeals.

II

DISCUSSION

A.

We begin by setting out the principles that must govern our assessment of the Second Amended Complaint.'

1.

We review a district court’s dismissal under Rule 12(b)(6) de novo. Bible v. United Student Aid Funds, Inc., 799 F.3d 633, 639 (7th Cir. 2015). We, like the district court, must “accept as true all factual allegations in the amended com.plaint- and draw all permissible inferences in [the plaintiffj’s favor.” Id.- A complaint will survive a 12(b)(6) motion if, after the court disregards any portions that are “no more than conclusions,” it “contain[s] sufficient factual matter, accepted as true, to Estate a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678, 129 S.Ct. 1937. “ ‘-Plausibility’ is not a synonym for ‘probability’ in this context, but it asks for ‘more than a sheer possibility that a defendant has acted unlawfully.’ ” Bible, 799 F.3d at 639 (quoting Olson v. Champaign Cty., 784 F.3d 1093, 1099 (7th Cir. 2015)). After Twombly and Iqbal, a plaintiff seeking to survive a motion to dismiss must “plead some facts that suggest a right to relief that is beyond the speculative level.” In re marchFIRST Inc., 589 F.3d 901, 905 (7th Cir. 2009) (internal quotation marks omitted). That is, “[w]hile a plaintiff -need not plead detailed factual allegations to survive a motion to dismiss, she still must provide more than mere labels and conclusions or a formulaic recitation of the elements of a cause of action for her complaint to be considered adequate.” Bell v. City of Chicago, 835 F.3d 736, 738 (7th Cir. 2016) (internal quotation marks omitted).

We .have interpreted the standard announced by the Supreme Court as requiring that “the plaintiff ... give enough details about the subject-matter of the case to present a story that holds together. In other words, the court will ask itself could these things have happened, not did they happen.” Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010) (emphasis in original). In the end, “the plausibility determination is -⅛ context-specific task that requires the reviewing court to draw on its judicial .experience and common sense.’ ” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937).

2.

Because federal jurisdiction over this action is premised on diversity of citizenship, see 28 U.S.C. § 1332, we must look to the law of the state in which the district court sits to determine the applicable governing law. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79-80, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), The parties agree that Illinois law governs the elements of this legal malpractice action. The Supreme Court of Illinois has stated succinctly that a cause of action for legal malpractice includes the following elements: (1) the existence of an attorney-client relationship that establishes a duty on. the part of the attorney, (2) a negligent act or omission constituting a breach of that duty, (3) proximate cause of injury, and (4) actual damages. See Sexton v. Smith, 112 ILL.2d 187, 97 Ill.Dec. 411, 492 N.E.2d 1284, 1286-87 (1986).

Illinois courts have described the State’s legal malpractice cause of action as following a case-within-a-case model:

A legal malpractice suit is by its nature dependent upon a predicate lawsuit. Thus, a legal malpractice claim presents a case within a case. [N]o malpractice exists unless counsel’s negligence has resulted in the’loss of an underlying cause of action, or the loss of a meritorious defense if the attorney was defending in the underlying suit.

Nelson v. Quarles & Brady, LLP, 375 Ill.Dec. 561, 997 N.E.2d 872, 880 (Ill. App. Ct. 2013) (alteration in original) (emphasis in original) (citations omitted) (internal quotation marks omitted). Therefore, in assessing the sufficiency of a complaint of legal malpractice we must focus on the underlying claim. See Claire Assocs. by Livaditis v. Pontikes, 151 Ill.App.3d 116, 104 Ill.Dec. 526, 502 N.E.2d 1186, 1190 (1986). The plaintiff must set forth a plausible statement not only that a breach of duty occurred but that the breach caused the plaintiff to lose a valid claim or defense in the underlying action and that, absent that loss, the underlying claim “would have been successful.” Fabricare Equip. Credit Corp. v. Bell, Boyd & Lloyd, 328 Ill.App.3d 784, 263 Ill.Dec. 19, 767 N.E.2d 470, 474 (2002). “These elements effectively demand that the malpractice plaintiff present two cases, one showing that her attorney-performed negligently, and a second or predicate ‘case within a case’ showing, that she had a meritorious claim [or- defense] that she lost due to her attorney’s negligence.” Mihailovich v. Laatsch, 359 F.3d 892, 904-05 (7th Cir. 2004).

B.

Having stated the principles that govern our inquiry, we now apply these principles to the particular circumstances of this case.

There is no dispute that West Bend has described adequately the duty element in its malpractice claim. Nor is there any disagreement about the adequacy of West Bend’s narrative with respect to the alleged, attorney conduct constituting a breach of that duty. In that respect, West Bend alleges that Mr. Schumacher, having assumed responsibility for the defense of the claim, failed to prepare adequately for the hearing, revealed inappropriately the defense theory of the case to Marzano’s counsel, and then, without authorization, conceded liability for Marzano’s workers’ compensation claim.

The allegations with respect to causation and damages present, however, significant concerns. At the outset, we note that the treatment by the Second Amended Complaint of the underlying workers’ compensation claim, which, as we have explained, is central to an assessment of causation and damages, is markedly different from the treatment of Mr. Schumacher’s alleged litigation conduct. While the complaint- describes the conduct in some-detail, it describes the underlying workers’ compensation claim in rather summary fashion. Specifically, while the complaint identifies the injured party as John Mar-zano, it tells us nothing about his claimed injury or his claim against his employer. Instead, it summarily states that “[p]rior. to August 2006, there existed certain factual defenses and a medical causation defense to the Marzano claim.”

West Bend’s brief on appeal invites our attention to paragraph 25 of the Second Amended Complaint as “setfting] forth [its] factual allegations concerning defendants’ breach of duty, proximate cause and damages.” That paragraph of the complaint contains an abbreviated description of Mr. Schumacher’s claimed errors, but, with respect to the crucial elements of causation and damages, says only that West Bend “was forced to accept a disadvantageous position which greatly compromised its ability to defend the claim.” This same sort of general language appears in paragraph 28; there West Bend refers to a loss of “valuable factual and legal defenses that would have eliminated or substantially reduced any liability of [West Bend] to the claimant.” These allegations are conclusory assertions and certainly do not set forth a plausible description of a lost defense that, absent Mr. Schumacher’s alleged neglect, would have assured West Bend’s success on the underlying claim. Iqbal, 556 U.S. at 678-79, 129 S.Ct. 1937.

West Bend has not invited our attention to any other factual allegations which'detail the “valuable factual and legal defenses” lost because of Mr. Schumacher’s litigation conduct. In its appellate brief, West Bend does assert that it “is prepared to' offer evidence that, had defendants not committed the breaches from the standard of care, the Marzano claim would likely have gone in an entirely different direction,” and indeed, that “there is a strong likelihood [that] West Bend could have either won the entire case or significantly reduced the amount of money it ultimately paid.” But again, even now, it does not tell us what these defenses are or how they would have produced near or total success in workers’ compensation proceedings.

The complaint’s description of Mr. Schu-macher’s conduct does include an allegation that, prior to the date of the scheduled workers’ compensation hearing,

defendant Schumacher possessed other documentation and information to support a denial of compensabil[i]ty [of the Marzano claim], including: (a) the claimant’s completion of the day’s work on the- day of the alleged incident; (b) the fact that the claimant continued to work following the alleged incident for an .additional two weeks until he was laid off on September 28, 2005; and (c) the fact that the claimant’s own treating physician, Dr. Sheinkop, could not find any change in the condition of his knee after the alleged incident, as it had already been determined that the claimant was in need of knee replacement surgery.

It also asserts that an unspecified “witness with relevant testimony” was not available to testify and complains that Mr. Schu-macher did not request a continuance. It continues by faulting Mr. Schumacher for “reveal[ing] all of this documentation and information—all the key theories of [West Bend]’s defense—to counsel for claimant, which severely compromised [West Bend’s] ability to continue to defend the workers’ compensation claim.” We are given no description, however, as to whether or how this evidence would have produced a successful outcome for West Bend.

With respect to the allegation that Mr. Schumacher had stipulated improperly to the compensability of the claim, West Bend at least makes the allegation that it was required to pay substantial amounts of money because of the stipulation. But it makes no concrete allegation that its final liability in this matter would have been any different if the stipulation had not occurred.

The Second Amended Complaint therefore leaves us to speculate as to whether and how West Bend would have prevailed on the underlying claim in the absence of the missteps of which it now'accuses its former attorney. But, as our colleague in the district court recognized throughout West Bend’s several attempts to improve the complaint, a plaintiff “must plead some facts that suggest a right to relief that is beyond the speculative level.” In re march-FIRST Inc., 589 F.3d at 905 (internal quotation marks omitted). The district court correctly concluded that the allegations that deal with the substance of the underlying compensation claim and defense fall short of that standard because they provide no plausible description as to how the attorney’s negligence, if it occurred, was the cause of harm to West Bend. Even when evaluated as a whole, the complaint fails to describe, in even the most rudimentary of ways, “that but for [Mr. Schumacher’s] negligence, the plaintiff would have been successful in th[e] underlying” workers’ compensation action. Tri-G, Inc. v. Burke, Bosselman & Weaver, 222 Ill.2d 218, 305 Ill.Dec. 584, 856 N.E.2d 389, 395 (2006). West Bend simply has failed to allege plausibly, despite multiple amendments, that it lost actual, specific, meritorious defenses in the Marzano claim because of Mr. Schumacher’s conduct.

Conclusion

The Second Amended Complaint fails to plead adequately a claim for legal malpractice under Illinois law. Specifically, it fails to allege plausibly that the outcome of the underlying action would have been more favorable to West Bend, had it not been for Mr. Schumacher’s alleged litigation conduct. We therefore affirm the judgment of the district court.

AFFIRMED

.HAMILTON, Circuit Judge,

dissenting.

The majority accurately describes the general legal principles that apply to póst-Iqbal federal pleading and to legal malpractice claims in- Illinois. I must respectfully dissent, however, from the majority’s application of those principles. The majority applies the post-Iqbal pleading. standards so stringently as to reinstate, in effect if not in name, the obsolete code pleading regime replaced by the Federal Rules of Civil Procedure in 1938. See generally Arthur R. Miller, From Conley to Twombly to Iqbal. A Double Play on The Federal Rules of Civil Procedure, 60 Duke L.J. 1 (2010). The majority’s application is so stringent that it runs afoul even of Iqbal itself. I would reverse the dismissal of the action.

The majority acknowledges that plaintiff has alleged sufficiently that defendant Schumacher owed it a duty of professional care and breached that duty. Ante, at 676-77. Those points are clearly correct. Schu-macher conceded his client’s liability for the claimant’s worker’s compensation claim without his client’s consent, He also did so without having taken basic 'steps to learn the relevant facts. At this stage of this federal case, we must assume these allegations .are true.

The majority tells us that what, is missing is “a plausible description. of a lost defense that, absent Mr. Schumacher’s alleged neglect, would have assured West Bend’s success on the underlying claim.” Ante at 678, citing Iqbal. I must respectfully disagree. The path of an available defense was quite clear. In the operative complaint and its briefs to' the district court and this court, West Bend makes specific'factual allegations showing a solid defense on the merits. The claimant sought compensation for a workplace injury to his knee. The complaint alleged that at the time Schumacher conceded liability without his client’s consent; he knew the following:

• the claimant completed work on the day of his alleged injury.
• after the alleged injury, the claimant continued to work another two weeks, until he was laid off.
• before the alleged workplace knee injury, the claimant’s physician had already determined that the claimant needed knee replacement surgery.
• the claimant’s own treating physician could not find any change in condition in the claimant’s knee after the alleged workplace knee injury.
• available documents indicated that the claimant did not report the alleged workplace injury when it supposedly happened or even until well after'he was laid off and had retained an attorney.

See Second Amended Cplt. ¶¶15, 17; Dkt. No. 77 at 4' (Mem. in Opp. to Motion to Dismiss); Appellant’s Br. at 5. Those factual allegations surely provide “a plausible description of a lost defense”: there was no workplace injury at all, or certainly not one that required surgery that the claimant’s own physician had already said he needed before the alleged injury.

The majority acknowledges these allegations, ante at 678, but complains that we “are given no description as to whether or how this evidence would have produced a successful outcome for West Bend,” and that we are left to “speculate as to whether and how West Bend would have prevailed on the underlying claim....” Ante at 679.

There is nothing speculative about the defenses that Schumacher abandoned for his client by conceding liability. They are easy to see. If in fact the claimant had already been told that he needed a knee replacement, or if in fact the claimed workplace injury was not reported at the time and did not prevent the claimant from continuing to work both that day and for weeks afterward, a trier of fact could find as a matter of fact that there simply was no compensable workplace injury.

West Bend may or may not be able to prove its allegations, but these allegations go far beyond “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937, citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955. From West Bend’s detailed factual allegations, a judge can easily draw on her “experience and common sense,” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937, to conclude that West Bend has alleged plausibly that Schumacher’s breaches of his professional duty injured West Bend and support a claim for legal malpractice.

In parsing the complaint the majority has focused on the general language in the complaint, criticized it for being “concluso-ry,” and then overlooked the supporting details. In my view the complaint is far more detailed than necessary, but it is surely at least sufficient. See, eg., Runnion v. Girl Scouts of Greater Chicago and Northwest Indiana, 786 F.3d 510, 517-18 (7th Cir. 2015) (reversing dismissal), citing Johnson v. City of Shelby, 574 U.S. -, 135 S.Ct. 346, 190 L.Ed.2d 309 (2014) (summarily reversing appellate dismissal on the pleadings); see also Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (summarily reversing dismissal on pleadings for supposed failure to alleged injury and causation).

As the Supreme Court explained in Johnson, five years after Iqbal was decided: “Petitioners stated simply, concisely, and directly events that, they alleged, entitled them to damages from the [defendant]. Having informed the [defendant] of the factual basis for their complaint, they were required to do no more to stave off threshold dismissal for want of an adequate statement of their claim.” 574 U.S. at -, 135 S.Ct. at 347.

Finally, one of defendants’ causation arguments deserves some specific attention. Defendants argue that the complaint and Illinois law of workers’ compensation show that West Bend remained free, after replacing Schumacher, to contest its liability on the claim. The defense theory is that Schumacher’s breaches of professional duty could not have been proximate causes of West Bend’s alleged losses. Appellees’ Br. at 30-33.

This defense theory cannot be accepted on the pleadings for any of four independently sufficient reasons. First, as defendants conceded at oral argument, in reviewing only the pleadings, we must assume that Schumacher’s concession of liability applied to the entire case, not just to interim payments at the early stages- of the case. Second, even if the unauthorized concession was limited to the interim payments, West Bend has alleged that the concession caused it to make substantial interim payments that it could not recover. Third, even if West Bend retained the theoretical ability to contest liability after the unauthorized concession, it has alleged that it lost that ability to do so as a practical matter given the realities of the workers’ compensation system. Fourth, West Bend claims that Schumacher himself - advised it against taking exactly the course that Schumacher now claims that West Bend should have pursued.

I cannot judge from the pleadings West Bend’s prospects for ultimate success, but it has surely alleged a plausible claim that should proceed past the pleading stage. I respectfully dissent.

      . R.71 at 4.

      . Id. at 5.

      . Id.

      . id.

      . Id.

        . Id.

      . Id.

      . Id.

      9. Id. at 5-6.

      . Id. at 6.

      . R.80 at 3.

      12. Id. at 3-4 (alterations in original) (citations omitted).

      . Most cases identify the loss of a meritorious claim or defense as a part of the element of proximate causation. However, some frame it as part of the element of damages. See, e.g., Bartholomew v. Crockett, 131 Ill.App.3d 456, 86 Ill.Dec. 656, 475 N.E.2d 1035, 1041 (1985) (”[D]amage is an element of a professional malpractice claim that is not presumed, [and plaintiff] bears the burden of pleading and proving that damages resulted. This burden entails establishing that ‘but for’ the attorneys’ negligence, the client would have successfully defended or prosecuted the underlying suit.”).

      . Cf. Fox v. Seiden, 382 Ill.App.3d 288, 320 Ill.Dec. 592, 887 N.E.2d 736, 746 (2008) (noting that, to satisfy the element of proximate causation in a legal malpractice action, "the plaintiff must plead sufficient facts to establish that ‘but for’ the negligence of the attorney, the client would have successfully defended the underlying suit” (emphasis added)); Ignarski v. Norbut, 271 Ill.App.3d 522, 207 Ill.Dec. 829, 648 N.E.2d 285, 289 (1995) (holding that the plaintiff's burden to plead a case within a case was not satisfied where the pleadings did not “plead ultimate facts establishing” its entitlement to relief on its predicate claim).

      .The briefs and the oral argument included significant argument about what precisely Mr. Schumacher conceded. West Bend asserts that he conceded liability on the whole claim. The defendants assert that he simply agreed to pay TTD benefits and the question of final liability remained open until 2010. They ask the court to notice the terms of the eventual settlement agreement reached in the case, which state that no admission of liability has been made by the employer. In their view, we can notice this document as a public record and disregard the contrary allegation, despite our general obligation to take the allegations of the complaint as true under Rule 12(b)(6). We decline to resolve this dispute because for the reasons stated below, we find that the claim, even as alleged, is insufficient to survive dismissal.

      . R.71 at 2 (emphasis added),

      . Appellant’s Br. 18.

      . R.71 at 5 (emphasis added).

      . Id. at 6 (emphasis added).

      . Appellant’s Br. 19.

      . We have held that "[w]e may consider new factual allegations raised for the first time on appeal provided they are consistent with the complaint.” Smoke Shop, LLC v. United States, 761 F.3d 779, 785. (7th Cir. 2014) (internal quotation marks omitted); see also Hrubec v. Nat'l R.R. Passenger Corp., 981 F.2d 962, 963-64 (7th Cir. 1992) (noting that new facts may be added by affidavit or brief, even an appellate brief). Moreover, we have applied the rule even where a party has amended the complaint in the district court in an attempt to remedy deficiencies. See generally Smoke Shop, LLC, 761 F.3d 779; Highsmith v. Chrysler Credit Corp., 18 F.3d 434, 439-40 (7th Cir. 1994) (finding new allegations raised on appeal and not included in previously amended pleadings sufficient to defeat dismissal).

      22. R.71 at 3-4.

      . Id. at 3.

      . Id. at 4. We note in passing that the alleged harmful "disclosures” of facts all reference facts clearly already known to the claimant, i.e., that he continued working for a time and that his physician had made a prior diagnosis.

      . Given these allegations, I do not understand the majority's assertion that "even now [West Bend] does not tell us what these defenses are or how they would have produced near or total success in workers’ compensation proceedings.” Ante at 678. At the pleading stage, what further detail is needed?


source: Caselaw Access Project

author: SHADID, Chief District Court Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jose J. URENA, Defendant-Appellant.
    No. 15-3663
    United States Court of Appeals, Seventh Circuit.
    Argued December 5, 2016
    Decided December 22, 2016

      David E. Bindi, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL, for Plaintiff-Appellee.
    John T. Kennedy, Attorney, Evanston, IL, for Defendant-Appellant.
    Before EASTERBROOK and ROVNER, Circuit Judges, and SHADID, Chief District Court Judge.

       Of the Central District of Illinois, sitting by designation.

   SHADID, Chief District Court Judge.

Jose Urena, who was bom in and is a citizen of Mexico, was indicted on one count of being an alien found in the United States after having been previously deported, in violation of 8 U.S.C. § 1326(a).

The indictment alleged that Urena had been deported and removed from the United States on March 4, 2011, and that he was found in Kane County, Illinois on November 26, 2012, without previously having obtained the express consent of the Secretary of Homeland Security to be admitted into the United States. Urena was convicted at a jury trial held in the Northern District of Illinois and was sentenced to the custody of the Bureau of Prisons for -a period of 100 months, followed by a three-year term of supervised release. Urena was also directed, at the term of his prison sentence, to surrender to an authorized official of the Homeland Security Department for a determination on.the issue of deportability.

Urena appeals raising two issues. First, Urena appeals the District Court’s refusal to exclude evidence of Urena’s seven prior removals under Rule 404(b) of the Federal Rules of Evidence. Second, Urena appeals the District Court’s denial of Urena’s Motion for a Mistrial after the prosecution published to the jury an exhibit that included the fact of Urena’s prior conviction for “Felony Class 4 Cocaine Possession.” The Court will address both issues in turn.

Exclusion of evidence pursuant to Rule 404(b) is reviewed for abuse of discretion. United States v. Curtis, 781 F.3d 904, 907 (7th Cir. 2016).

At trial the government called Erwin Paz, the' Immigration and Customs Enforcement agent who testified as to the contents of Urena’s A’ file. Agent Paz testified that Urena had received a written warning at the time of his removal from the United States on March 4, 2011, and that Urena was not allowed to reenter the United States without the permission from the Department of Homeland Security or the Attorney General. The written warning was admitted at trial as government’s Exhibit 7.

Not having the necessary approval is an element of the offense. 8 U.S.C. § 1326; see also United States v. Rea-Beltran, 457 F.3d 695, 702 (7th Cir. 2006), citing United States v. Torres, 383 F.3d 92, 95 (3d Cir. 2004). (Under 8 U.S.C. § 1326(a), “the government must establish: (1) that the defendant is an alien; (2) that the defendant was deported or removed in accordance with a valid deportation order; and (3) that the defendant has reentered the United States without the permission of the Attorney General.”)

On cross examination, defense counsel questioned Agent Paz whether government’s Exhibit 7 was in English. Agent Paz answered that the oral statements were communicated to Urena in English. On redirect, Agent Paz testified he spoke with Urena in English.

Outside the presence of the jury the government argued the door had been opened as to Urena’s ability to understand English and sought introduction of . evidence that Urena had been removed from the United- States on seven previous occasions.

The defense objected to the admission, and instead offered to stipulate that Urena spoke English. The District Court found the defense’s proposed solution did not completely take care of the problem, finding the issue raised as a result of the defense’s questioning “is not how well Ure-na understood English. It’s whether he understood that he was not to return to the United States.”

After a Rule 404(b) analysis the District Court allowed evidence of Urena’s seven prior removals, finding “the only conceivable purpose of asking that question was to suggest that the defendant didn’t know he couldn’t come back,” and further finding “the government was entitled to the curative steps.”

We agree with the District Court’s analysis.

In United States v. Gomez, 763 F.3d 845 (7th Cir. 2014) (en banc), the Court clarified the law governing exclusion of other acts evidence under Rule 404(b). Such evidence is not admissible to prove character, or propensity to act in a certain way, but it is admissible for other purposes, including when offered in a criminal case to prove knowledge. Its relevance for a proper purpose must be clear through a propensity-free chain of reasoning. Gomez, 763 F.3d at 860.

If the proponent satisfies the initial burden, the District Court must then undertake an analysis under Rule 403 of the Federal Rules of Evidence to determine whether the probative value of the evidence is substantially outweighed by the risk of unfair prejudice, taking into account the extent to which the non-propensity purpose is'aütually at issue in the case.

Here, the District Court first found a specific non-propensity purpose for the evidence of prior removals sought to be introduced by the government. Given the cross-examination question from defense counsel, the District Court could properly conclude the defense would include “the fact that [Urena] kept coming back must mean that he didn’t understand that he wasn’t supposed to come back, because if he understood that he wasn’t supposed to come back, he wouldn’t have come back all those times.” Parenthetically, while knowledge is not an element of the offense, defense counsel attempted to raise the issue to at least offer some defense to an otherwise overwhelming case. See, e.g., United States v. Carlos-Colmenares, 253 F.3d 276, 278 (7th Cir. 2001) (“The statute is limited to persons who have previously been deported from the United States. They are persons who were in this country illegally, and obviously knew it when they were deported.”). The proffered evidence was correctly deemed probative of Urena’s knowledge that he could not lawfully reenter the United States without permission. The District Court then found the probative'value of the evidence did not depend on a propensity inference. Urena’s repeated prior removals following reentry established his knowledge.

Finally, the District Court conducted an appropriate Rule 403 analysis, finding the question on cross raised the issue of whether Urena understood the warning he was given at the time of his removal on March 4, 2011. The District Court specifically concluded “[t]he reason that the evidence is not unfairly prejudicial is because of the seed that is now planted in the jury’s mind regarding [Urena] being given this warning in English.” It was not “unfair” when the issue was raised by defense counsel as part of his trial strategy.

Next we turn to government’s Exhibit 18, and the prior conviction for possession of cocaine.

As part of the testimony of Agent Paz, the government presented Exhibit 18, “Record of Sworn Statement of Urena,” dated February 3, 2004. The document contains four pages of form questions and handwritten answers by Urena • created during his 2004 interview. The questions were presented on the form in both English and Spanish.

Question 13 on page 3 of the document asked whether Urena had been convicted of a serious criminal offense. The handwritten answer to the question was “Felony Class 4 Cocaine Possession.”

During the questioning the defense appropriately requested a sidebar. At the sidebar the defense counsel argued the admission of such evidence was “wildly” prejudicial. The defense then moved for a mistrial. The government responded that the exhibit was already in evidence and argued the purpose of the exhibit was to show that Urena was interviewed and urn derstood the questions being asked.

Defendant argues here that the failure of the government to redact before publishing the exhibit constitutes “unfair prejudice,” and suggests the “prosecution felt such unfairly prejudicial irrelevant evidence was necessary to sway the jury to obtain the desired verdict. Otherwise there is no reason for its interjection.” The government responds that the District Court attributed no such motive to the government and argues here that the jury’s exposure to' inadmissible information can be harmless if the properly admitted evidence of guilt is so overwhelming. United States v. Harmon, 721 F.3d 877, 888 (7th Cir. 2013).

Under the circumstances found here, in spite of the government’s attempt to admit what is clearly inadmissible evidence, the District Court properly denied the motion for a mistrial. The District Court was in the best position to find the jury’s attention had not been drawn to the third page of the document. The District Court reasoned that because the court itself had not noticed the information until it was brought to its attention, it doubted the jury had either. The District Court also commented the document was only presented for a short period of time. The District Court then properly ordered question 13 redacted from the Exhibit. The likelihood of an error resulting in an unfair trial is reduced when the district court acts promptly to prevent further damage, and the prosecution is prevented from further reliance on the erroneously admitted information. Greer v. Miller, 483 U.S. 756, 764-766, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987). The District Court’s prompt and corrective action prevented an unfair trial.

AFFIRMED

      . Individual alien case files (A-files) became the official file for all immigration records created or consolidated after April 1, 1944. 8 C.F.R. § 103.39.


author: ROVNER, CircuitJudge.

text:
    Riley J. WILSON, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. CAREER EDUCATION CORPORATION, Defendant-Appellee.
    No. 16-1063
    United States Court of Appeals, Seventh Circuit.
    Argued September 23, 2016
    Decided December 22, 2016

      Douglas Micko, Attorney, Teske Micko Katz Kitzér & Rochel, PLLP, Minneapolis, MN, for Plaintiff-Appellant.
    Sari M. Alamuddin, Meredith Riccio, Attorneys, Morgan, Lewis & Bockius LLP, Chicago, IL, Ailyson Newton Ho, Attorney, Morgan, Lewis & Bockius LLP, Dallas, TX, Judd Edward Stone, II, Attorney, Morgan Lewis & Bockius, Washington, DC, for Defendant-Appellee.
    Before RIPPLE, ROVNER, and SYKES, Circuit Judges.
   ROVNER, CircuitJudge.

Riley Wilson sued Career Education Corporation (CEC) alleging that CEC owed him the payment of bonuses for students that he had recruited, as an admissions representative, to CEC’s culinary arts college. This is the second appeal by Wilson in this cáse. Wilson initially argued that he was entitled to the bonuses under numerous legal theories, including that: (1) CEC breached its employment contract with him by failing to pay the bonuses; (2) CEC was unjustly enriched; and (3) CEC violated an implied covenant of good faith and fair dealing that is implicit in the contract. In his first appeal to this court, we upheld the.dismissal of the claim on the first two grounds, but a majority held that the complaint survived dismissal on the claim that CEC violated the implied covenant of good faith and fair dealing. Wilson v. Career Educ. Corp., 729 F.3d 665 (7th Cir. 2013) (Wilson I). We remanded for further proceedings on that claim.

The facts underlying the case are set forth in detail in our earlier opinion, and will only be briefly summarized here. Wilson worked for CEC as an admissions representative recruiting students to enroll in CEC’s culinary arts college. Under the incentive compensation provision in his contract (called the Plan) with CEC, Wilson was entitled to a bonus for each student that he recruited above a definite threshold who either completed a full course or a year of study. If a representative was terminated, he was entitled only to bonuses already earned, which would not include students “in the pipeline” who had enrolled but had not yet completed a full course or a year of study as of the date of the representative’s termination. Moreover, the Plan explicitly reserved to CEC the right to “terminate or amend the terms of-this Plan at any time, for regulatory compliance purposes or any other reason that CEC determines, in its sole discretion.” Accordingly, Wilson would have been entitled to a. bonus only as to recruited students above his minimum threshold who completed the full course or a year of study, during a time at which he remained employed, and at a time in which CEC had not exercised its discretion to terminate the Plan before those conditions were met.

In October 2010, the Education Department released regulations that would become effective in July 2011, that would prohibit institutions such as CEC which were participating in Title IV student financial aid programs from providing bonuses based directly or indirectly on securing enrollment. Accordingly, as of July 2011, CEC would be prohibited from paying bonuses under the Plan. CEC did not wait until July 2011 to cease the payment of bonuses, however. Instead, after internal discussions, CEC decided to pay only bonuses that were earned as of February 28, 2011, thereby depriving Wilson of bonuses that were in the pipeline at that time. In place of the incentive compensation structure, CEC implemented a revised compensation program. That program provided to every currently employed admissions representative a raise in base salary of at least the total of 3% plus 75% of his or her previous two years’ bonuses. Some representatives received higher compensation under the revised plan, while others fared worse. Wilson sued on behalf of himself and others similarly situated; the only claim still remaining is his claim that the decision to terminate the bonus payments in February 2011 constituted a breach of the implied covenant of good faith and fan-dealing.

A majority held in Wilson I that CEC had the unambiguous right to terminate the contract and to refuse to pay the bonuses for students in the pipeline. Id. at 671. Although CEC retained the right to terminate the contract, we further held that under the implied covenant of good faith and fair dealing, CEC’s discretion to terminate the Plan and refuse to pay the unearned bonuses was limited by the reasonable expectations of the parties. Id. at 673. Accordingly, we held that Wilson could succeed in his claim if he could prove that CEC exercised its discretion in a manner contrary to the reasonable expectations of the parties. Id. at 675 (citing Jordan v. Duff & Phelps, Inc., 815 F.2d 429, 438 (7th Cir. 1987)).

Wilson argued to the district court on remand that cost savings, not the desire to comply with the regulations, was the primary driver in CEC’s decision to terminate the Plan in February 2011. But the district court rejected that argument, holding that the facts did not support it. Among the facts refuting Wilson’s contention, the court identified as most significant that Wilson admitted there were no cost sayings to CEC, and that the alteration in the compensation structure left macro-costs stagnant. The court held that there was no evidence that CEC retained for itself $5 million in bonus payments that were due admissions representatives, as Wilson alleged. Because no reasonable jury could conclude that CEC chose February 28 as the date to end the Plan bonuses in order to retain the bonuses for itself, the court granted CEC’s motion for summary judgment. Wilson now appeals that determination to this court.

As we recognized in Wilson I, an avowedly opportunistic decision to terminate bonuses would not comport with the reasonable expectations of the parties. Id. at 675, citing Jordan v. Duff & Phelps, Inc., 815 F.2d 429, 438 (7th Cir. 1987). Thus, if CEC used the excuse of the impending regulations to prematurely terminate the bonuses in a “money grab” unrelated to any legitimate business expectations, that arbitrary termination of bonuses would violate the objectively reasonable expectations of the parties. The parties could reasonably expect that alterations in the Plan terms would be made in good faith, although the good faith requirement is a limited inquiry:

The element of good faith dealing implied in a contract ‘is not an enforceable legal duty to be nice or to behave decently in a general way.’ [citation omitted] It is not a version of the Golden Rule, to regard the interests of one’s contracting partner the same way you-regard your own. An employer may be thoughtless,, nasty, and mistaken. Avowedly opportunistic conduct has been treated differently, however.

Jordan, 815 F.2d at 438. If CEC-used the impending regulation as an excuse to avoid payments arbitrarily, that would be the type of avowedly opportunistic conduct that would evince a lack of good faith and fair dealing. Thus, “it was reasonable for Wilson to expect that avoiding the three conditions needed for Wilson to earn a bonus on a recruited student would not be the but-for reason for CEC exercising its discretion.” Wilson I, 729 F.3d at 675. Wilson argues that CEC’s decision to terminate the Plan was made in violation of the covenant of good faith and fair dealing in that it was inconsistent with Wilson’s reasonable expectation that CEC would not terminate the Plan early and that CEC acted with improper motivation.

As regards the first argument, Wilson acknowledges that the inquiry is an objective one, with the proper focus on whether the decision was inconsistent with the objectively reasonable expectations. In arguing that this standard was met, Wilson relies on evidence that: CEC had historically paid for all Plan compensation; CEC had never made substantive Plan changes during the period pf performance; CEC promoted the Plan in late 2010 as if it was going to continue paying through 2011; and Wilson was surprised that the Plan was ending early. The last factor rested on Wilson’s testimony that he did not think the Plan would be terminated early and that “it was a big surprise” to him. But the determination as to whether an expectation is reasonable is an objective not a subjective determination. If Wilson’s belief that the Plan would not be terminated or altered was not objectively reasonable, it would not matter that he actually held that belief.

The other arguments essentially amount to a contention that the Plan had never made changes in the past and had given no indication it was about to do so, and therefore any alteration in the Plan defied Wilson’s objectively reasonable expectations. The failure of CEC to alter the Plan terms earlier did not create a reasonable expectation that it would never do so given the language in the contract preserving that right. As we recognized in Wilson /, the contract by its plain language makes clear that bonuses are only actually earned once the student has completed the academic program or one year of study. In short, a reasonable expectation that the Plan will be continued cannot arise solely from CEC’s failure to exercise that option earlier or its failure to provide .six months’ notice of the termination. Nothing in the contract or the dealings between the parties would render such an expectation reasonable.

Moreover, in Wilson I, the majority held that under the plain language of the contract, Wilson could not have reasonably expected that CEC would only terminate the bonuses for good cause because the express terms of the Plan preclude such an expectation. Id. at- 675. We recognized in Wilson I that CEC may have had a number of reasons, including but not limited to regulatory compliance, for terminating the Plan early and refusing- to pay bonuses that otherwise would have been earned before the new regulations became effective. It was not objectively reasonable for Wilson to expect that CEC would never exercise that option, or would do so only by following a certain notice procedure.not required by the Plan, simply because it had failed to exercise the option in the past. Wilson has pointed to no evidence that CEC 'explicitly disavowed any intention to exercise its rights under the Plan in the future, -and in fact the evidence in the record established that Wilson expected that the bonuses would be terminated but he hoped it would happen at a later date. Wilson’s argument that CEC promoted the Plan as if it was going to continue paying cannot create an expectation that the provision will never be changed. Because the bonuses are earned only after a long period of time, the reality is that at any point in' which the bonuses were eliminated, some of the payments would likely be in the pipeline at that time.

Significantly, Wilson does not argue that CEC promoted the recruitment bonus at a time at which it knew it would not pay the bonuses. It is undisputed that throughout the summer and fall of 2010, when the recruitment that would trigger the unpaid bonuses was occurring, there was no consensus among the CEC leadership as to when the Plan should be terminated. The timing of the termination was a topic of debate within CEC, with termination dates ranging from December 2010 to June 2011 proposed. Given the impending regulations, CEC’s employees certainly knew that the bonuses would end, and in fact an interoffice memorandum to its admissions representatives in June 2010— before the start of the third quarter— stated that CEC was reviewing the incentives compensation rules proposed by the Department of Education. In addition, on November 2, 2010, the CEO informed all employees of CEC that the Plan would need to change in order to comply with the Department of Education rules issued on October 29, 2010. Nothing in CEC’s past conduct or its statements to the employees gave them a reasonable expectation that the bonuses would be paid right up to the regulatory deadline. The decision to terminate bonuses as of February 2011 was not made until early December 2010, and was immediately communicated to the admissions representatives. Although Wilson may have reasonably expected that CEC would not- promise a bonus which it intended to withdraw before - payment, there is no allegation of such behavior here. See Trovare Capital Group, LLC v. Simkins Industries, Inc., 794 F.3d 772, 779 (7th Cir. 2015) (can show violation of implied covenant of good faith and fair dealing by demonstrating the party had no intention of completing the deal but continued the sham negotiations). Given the contract language, Wilson could not reasonably expect that bonuses would not be terminated prior to the July 2011 effective date of the regulation.

Wilson additionally argues that he demonstrated that the termination of the bonus was made in bad faith. He asserts that the district court failed to credit his evidence on summary judgment, and “that he provided evidence that the actual reason for CEC’s action was because of its deteriorating financial condition rather than the regulation.

As we stated, if CEC chose to use the impending regulation and the need to end the bonuses in July as an excuse to terminate it early merely to deprive its employees of their bonuses, without any business necessity or other reason than an intent to exploit the opportunity, such an action could be beyond the reasonable expectation of the parties that the employer would act in good faith and change the Plan only for a legitimate reason. Wilson argues that CEC acted in bad faith because it altered the salary structure in response to its deteriorating economic condition, and not because of the impending regulation. We noted in Wilson I, however, that the mere presence of a reason other than the regulation does not itself render the actions in bad faith. Wilson I, 729 F.3d at 676 (noting that CEC might have had a number of reasons to terminate the Plan early, but thé stated reason raised questions given the timing of the termination). The relevant, question is whether that reason demonstrates bad faith, or is the type of reason that would be beyond the reasonable expectations of the parties;

Wilson argues that he should survive' summary judgment because he provided sufficient evidence that CEC terminated the bonuses because it was facing an economic crisis and eliminated the bonuses to save money. The district court characterized the undisputed evidence as indicating that no money was saved by the changes to the bonuses because the salary structure was changed so that employees received higher base salaries plus salary increases that correlated with 75% of their bonus average for the past two years. The record appears to bear out that conclusion. Even if we accept Wilson’s characterization of the record, however, that CEC acted to cut expenses in response to an economic crisis, that is precisely the type of reason that employees would reasonably expect would result in an alteration of salary. The covenant of good faith and fair dealing requires only that discretion be exercised reasonably with proper motive rather than arbitrarily or capriciously or in a manner inconsistent with reasonable expectations. McCleary v. Wells Fargo Sec., LLC, 390 Ill.Dec. 817, 29 N.E.3d 1087, 1093 (Ill. App. Ct. 2015); Resolution Trust Corp., v. Holtzman, 248 Ill.App.3d 105, 187 Ill.Dec. 827, 618 N.E.2d 418, 424 (1993). A need to address a significant financial crisis is unquestionably a proper—as opposed to arbitrary or capricious—motive for a business.

The contract reserved the right to terminate the Plan and retain unearned bonuses at any time, and it would be objectively unreasonable for Wilson to believe that such discretion would not be exercised where a changing business climate significantly worsened the financial condition of the company. A business that retains the right to alter salaries of a compensation structure cannot be said to have acted in bad faith when it does so in times of a substantial financial downturn.

Wilson himself argues that CEC in fact faced such a financial downturn and that the termination of the bonuses was enacted to cut costs in response to that. In his brief, Wilson asserts that CEC was faced with decreasing student admissions and a concomitant decline in revenues. He states that the second quarter of 2010 reflected-a weaker financial performance, the third quarter was worse, and the downward trend continued into the fourth quarter of 2010. He further states that in the meantime, costs were increasing. He argues that CEC saw where the business was heading, particularly with the growing hostility to for-profit schools, knew that it would face increasing financial pressure, and viewed the termination of the Plan as a way to manage^ those issues. Wilson asserts that whether CEC’s decision to terminate the Plan was entirely cost-savings driven, or because it wanted to be perceived as a good corporate citizen, or because it wanted to synchronize its payment and performance reviews with the other employees, it made that decision in bad faith because it was done at the expense of its employees and redirected those funds to its own corporate interests. But an employer does not act in bad faith when acting in furtherance of legitimate corporate interests that would reasonably have been in the contemplation of the-parties. See McCleary, 390 Ill.Dec. 817, 29 N.E.3d at 1093, quoting RBS Citizens, Nat’l Assoc. v. RTG-Oak Lawn, LLC, 407 Ill.App.3d 183, 347 Ill.Dec. 908, 943 N.E.2d 198, 207 (2011) (the purpose of the duty of good faith and fair dealing “ ‘is to ensure that parties do not take advantage of each other in a way that could not have been contemplated at the time the contract was drafted or do anything that will destroy the other party’s right to receive the benefit of the contract.’ ”). Wilson already lost his breach of contract claim and therefore cannot merely allege that. the bonuses were owed to him and that CEC could not properly retain it. A termination of bonuses to address a financial downturn, or to mitigate the damage to reputation or salary structure caused by the impending regulation, is not an action that can be characterized as being in bad faith or beyond the objectively reasonable expectations. Those are all legitimate business reasons for altering a salary and compensation structure, and a decision based on such reasons could not violate the objectively reasonable expectations of the parties.

We note that the relevant issue here is not whether CEC was forthcoming in stating that the termination of the bonuses in February 2011 was due to the regulations rather than acknowledging that the timing related to its financial peril. Instead, the proper issue is whether CEC eliminated the bonus for an improper motive. We held in Wilson I that the claim could proceed beyond the dismissal stage because the timing of the termination cast doubt on CEC’s claim that the motive was compliance with the regulation. Wilson I, 729 F.3d at 676. Although that timing left open the possibility of an improper motive, Wilson on summary judgment argues that the record reveals the actual motive, which was to address its precipitous financial decline. But having a different motive than the one .expressed to its employees does not violate the contract’s implied duty of good faith and fair dealing. The relevant question is whether that actual motive was improper and whether the termination failed to comport with the parties’ reasonable expectations. Wilson does not argue that CEC in fact did not face financial difficulties, or that an alteration ■ in the salary structure was unnecessary -to . address that problem; to the contrary, Wilson argues that CEC actually faced a serious financial decline. Wilson has failed to argue that the evidence allows a jury to infer an improper motive, as opposed to a proper motive different from the one expressed to its employees. Accordingly, even accepting Wilson’s characterization of the record, the evidence is insufficient to allow a jury to reasonably conclude that CEC breached the implied covenant of good faith and fair dealing.

The decision of the district court granting summary judgment to the defendant is AFFIRMED.


text:
    John Erickson Coahuila HERNANDEZ, Plaintiff-Appellant, v. Irma Benitez CARDOSO, Defendant-Appellee.
    No. 16-3147
    United States Court of Appeals, Seventh Circuit.
    Argued December 7, 2016
    Decided December 22, 2016

      Adam Richard Young, Attorney, Sey-farth Shaw LLP, Chicago, IL, for Plaintiff-Appellant.
    Phillip Brigham, Attorney, Law Office of Phillip Brigham LLC, Chicago, IL, for Defendant-Appellee.
    Before BAUER and FLAUM, Circuit Judges, and SHADID, Chief District Court Judge.

       Of the Central District of Illinois, sitting by designation.

   SHADID, Chief District Court Judge.

Plaintiff-Appellant John Erickson Coa-huila Hernandez (“Hernandez”) and Defendant-Appellee Irma Benitez Cardoso (“Cardoso”) are both citizens of Mexico. They met sometime in 2001 and began cohabitating sometime later that year. They resided in Mexico until December 15, 2014. They are the biological parents of two children: A.E., bom in 2008, and M.S., born in 2002.

Cardoso claims to have left Mexico with A.E. and M.S. in December of 2014 to escape abuse from Hernandez and protect the children. Subsequently, Hernandez learned of Cardoso’s location in Chicago, Illinois, and on July 17, 2015, filed an application with the Mexican Central Authority for the return of A.E. pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter, “the Convention”). The Mexican Central Authority transmitted Hernandez’s Application to the United States.

In August of 2015, Cardoso agreed to return M.S. to Hernandez. Hernandez also requested the return of A.E. but Cardoso refused.

On December 18, 2015, Hernandez filed a Verified Petition for Return of Minor Child to Mexico and Issuance of a Show Cause Order. On February 29, 2016, the District Court held an evidentiary hearing, at which Hernandez, Cardoso and Alma Cardoso, Cardoso’s sister, testified. Following the testimony of all witnesses, the Court sua sponte, and without objection from either party, took testimony from the child, in chambers, and outside the presence of counsel or the parties. After questioning of the child, the District Court allowed both parties until March 14, 2016, to file objections to any questions posed to the child. Neither party filed any such objections.

Following the evidentiary hearing, the District Court allowed briefing and then entered its Order on July 13, 2016. In its Order, the District Court found that Car-doso testified credibly that Hernandez would hit her in the presence of A.E. with the intention of having.A.E. witness the abuse of his mother. The District Court also specifically noted it observed a significant change in the demeanor of A.E. when the child discussed Hernandez, the domestic violence and the possible return to Hernandez’s custody. The District Court found that Cardoso and AE’s testimony about the domestic violence, taken as true, provides clear and convincing evidence that there is a grave risk of physical or psychological harm to A.E. if he is returned to Hernandez’s custody. This appeal followed.

The Hague Convention “was adopted in 1980 in response to the problem of international child abduction during domestic disputes.” Abbott v. Abbott, 560 U.S. 1, 8, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010). “The United States is a contracting state to .the Convention, and Congress has implemented its provisions through the International Child Abduction Remedies Act (ICARA) ... 42 U.S.C. § 11601 et seq.” 560 U.S. at 5, 130 S.Ct. 1983. As the Court noted in Abbott, “[t]he Convention provides that a child abducted in violation of ‘rights of custody’ must be returned to the child’s country of habitual residence, unless certain exceptions apply. Art. 1 S. Treaty Doc. No. 99-11, at 7.” 560 U.S. at 5, 130 S.Ct. 1983. The intention of the Hague Convention is “to secure the prompt return of children wrongfully removed to or retained in any Contracting State ... to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. Art. 1, Treaty Doc. at 7.” Abbott, 560 U.S. at 7, 130 S.Ct. 1983.

ICARA instructs a person who seeks a child’s return to file a petition in state or federal court and further instructs the court hearing the case to decide it in accordance with the Hague Convention. See 42 U.S.C. §§ 11603(a), (b), (d). The elements to the prima facie cause of action for return are: the child was wrongfully removed or retained; the child was removed from his or her habitual residence; there was a breach of the rights of custody under the law of the child’s habitual residence; the left-behind parent was exercising those custody rights; and the child is under the age of sixteen. If the child in question has been wrongfully removed or retained within the meaning of the Convention, the child shall be promptly returned unless an exception is applicable. See 42 U.S.C. § 11601(a)(4).

The Hague Convention sets forth several affirmative defenses. The affirmative defense relevant to this proceeding is a grave risk of exposure to serious physical or psychological harm. Article 13(b) provides that “when there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, the automatic return required by the Convention should not go forward.” Norinder v. Fuentes, 657 F.3d 526, 533 (7th Cir. 2011). Here, Cardoso admits that Hernandez did not agree that she could permanently relocate the United States with the children.

Because Cardoso did not' dispute that Hernandez established a prima facie case for wrongful removal, the District Court correctly limited its findings to the “grave risk of harm” exception raised by Cardoso.

This Court reviews the District Court’s findings of fact for clear error. Norinder, 657 F.3d at 533. Rule 52(a)(1) of the Federal Rules of Civil Procedure requires the judge to “find the facts specially and state conclusions of law separately” when (s)he is the trier of fact.

The issue presented for review is whether the District Court erred in concluding that Cardoso proved, by clear and convincing evidence, that there is a grave risk of physical or psychological harm to A.E. if he is returned to Mexico. Not surprisingly, the parties provide different factual backgrounds.

Hernandez claims error occurred by the District Court’s reliance on (1) incidents of Coahuila’s corporal punishment of A.E. with a belt when Cardoso admitted she has done the same thing; (2) incidents of alleged spousal abuse by Coahuila when the only' specific incident alleged occurred in 2004; and (3) A.E.’s “changed demeanor” in discussing these issues ex parte with the Court. In addition, Hernandez argues that Cardoso admitted she voluntarily returned M.S. to Hernandez’s care and presented no evidence that he posed a danger to their daughter.

Cardoso claims a continuous pattern of abuse at the hands of Hernandez, beginning shortly after the birth of M.S. in 2002, when Cardoso claims she learned that Hernandez was already married. Cardoso claims that in March of 2004 Hernandez slapped, kicked and beat her with a wooden board in front of M.S., after which he proceeded to rape her. She testified that he would “always do that [rape her] when he would hit” her because “to him it was like make me happy.”

She further testified that Hernandez would engage in the abuse in the presence of the children. If Cardoso tried to ensure the children not witness the violence, Hernandez would insist that the children remain and observe the abuse.

The District Court found that both Hernandez and Cardoso used physical discipline of the children, but the parties’ dispute whose discipline was more forceful. Hernandez testified that he would spank the children with an open hand and described Cardoso’s physical discipline as “more harsh” because she would pull her daughter’s hair and “really fight with her,” Cardoso testified that she would spank the children with her. hand-or with a shoe. She objected to the way Hernandez disciplined the children, because it was “too much” and he would “hit them very hard” with a belt. Hernandez denied ever using a belt to discipline the children.

The District Court questioned A.E. in camera during the evidentiary hearing held on February 29, 2016., A.E. testified that Hernandez would hit him with a belt if he misbehaved “really bad.” He further testified that he saw Hernandez hit Cardo-so with a belt and with his hands and saw him give Cardoso a black eye. A.E. said he was “a little bit” afraid of Hernandez.

The District Judge was in the best position to observe the demeanor of the witnesses and, determine credibility, and her credibility determinations are entitled to deference unless they are clearly erroneous. “Under the clear error standard, we will not overturn the district court’s factual findings unless, after reviewing all the evidence, we are ‘left with [a] definite and firm conviction that a mistake has been [made].’ ” Ortiz v. Martinez, 789 F.3d 722, 728 (7th Cir. 2015). “In other words, a district court’s credibility findings are ‘binding on appeal' unless', the [court] has chosen to credit exceedingly improbable testimony.’ ” Id. at 729. Furthermore, “[discrepancies arising from impeachment, inconsistent prior statements, or the existence of a motive do not render witness testimony legally incredible.” Id.

The District Judge determined that Cardoso’s testimony that Hernandez abused her repeatedly and in the presence of the children was credible, despite the fact that she allowed her daughter to return to Mexico to live with Hernandez and provided inconsistent testimony about whether Hernandez knew she would leave Mexico with the children. Cardoso’s testimony about the abuse was corroborated by A.E., who testified of Hernandez’s physical abuse toward Cardoso and himself. With the deference given to the District Court, the Court finds there was no error in the lower court’s credibility determination.

Moreover, the District Court’s application of the facts in this case to the Article 13(b) “grave risk” standard was appropriate. We have previously held that “repeated physical and psychological abuse of a child’s mother by the child’s father, in the presence of the child (especially a very young child, as in this case), is likely to create a risk of psychological harm to the child.” Khan v. Fatima, 680 F.3d 781, 787 (7th Cir. 2012). The District Court recognized it had to consider “risk in the father’s behavior toward the mother in the child’s presence” in its analysis. Id. This Court having found the District Court’s credibility determination was sound, finds that the factual findings made by the lower court support the conclusion that there was a “grave risk” of physical or psychological harm to A.E. if he was returned to Hernandez’s custody.

The District Judge’s opinion indicates that she considered all the evidence, which included the facts and credibility of the witnesses, before concluding that the risk of harm to the child was grave.

AFFIRMED


author: ROVNER,. Circuit Judge.

text:
    Nathaniel JACKSON, Plaintiff-Appellant, v. Lieutenant David WILLIS, et al., Defendants-Appellees.
    No. 14-3226
    United States Court of Appeals, Seventh Circuit.
    Argued November 8, 2016
    Decided December 27, 2016

      Daniel Robert Kelley, Attorney, Faegre Baker Daniels LLP, Indianapolis, IN, for Plaintiff-Appellant.
    Christina T. Hansen, Attorney, Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendants-Appel-lees.
    Before WOOD, Chief Judge, and POSNER and ROVNER, Circuit Judges.
   ROVNER,. Circuit Judge.

Nathaniel Jackson, an inmate in the custody of the Illinois Department of Corrections, filed a complaint pursuant to 42 U.S.C. § 1983 alleging that his rights under the Eighth Amendment were violated by prison officials. He brought the lawsuit against David Willis, a Lieutenant at Logan Correctional Center, and Eddie J. Payne, a correctional officer at Pinckney-ville Correctional Center, in connection with an incident that occurred at Logan on August 4, 2011, during his transfer from Dixon Correctional Center to Pinckney-ville. Jackson alleged that he was unconstitutionally subjected to excessive force and also alleged a failure to protect by the refusal of his request to be placed in a prison in which he had no known enemies. The -details surrounding the Eighth Amendment claim are of limited relevance to the issues in this appeal. In brief, Jackson was scheduled to be transferred from Logan to Pinckneyville, but when he arrived at Logan he refused to transfer to Pinckneyville stating that he • had made enemies with correctional officers there. He asserted that he had a right to refuse a transfer. In support of that contention, he testified that he had witnessed other prisoners refuse transfers from Logan, and they were placed in segregation and issued a disciplinary ticket. He further asserted that in May 2007, he refused a transfer to Shawnee Correctional Center while he was at Logan because prison employees were his enemies there, and he was allowed to stay at Logan. In the August 4, 2011, incident, Jackson’s refusal to transfer met with a different reaction. He testified that a number of officers lifted him over their heads and threw him, head first, into the van, causing injury. The officers disputed his testimony as to the manner in which he was transported. They testified that he refused to walk to the van, and that they carried him there, but that he stepped inside of his own accord and was not thrown into it.- They further asserted that once inside the van he never claimed any injury, nor did he request any medical treatment.

Following a trial, a jury retened a verdict in favor of the defendants and against Jackson. On appeal, counsel for Jackson argues that he is-entitled- to a new trial because the court refused to grant a continuance when his attorney withdrew on the eve of trial, the court impróperly admitted a 7-year-old disciplinary report without a limiting instruction or explanation, and the court abused its discretion in admitting a 12-year-old burglary conviction as evidence of Jackson’s truthfulness. None of those alleged errors rendered the trial unfair and command a new trial.

As he proceeded with his case in the district court, Jackson filed multiple requests seeking the appointment of pro se counsel. The district court denied the appointment of counsel numerous times, including in January and October of 2013, and in June of 2014. Each time, the district court reasoned that Jackson had experience litigating and that his pleadings demonstrated a grasp of the relevant facts and law. The court also noted that Jackson had personal knowledge of the alleged excessive force and should be able to obtain medical records to corroborate his injuries. The court concluded, in each instance, that Jackson was competent to proceed pro se in light of the relative simplicity of his claims. See Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007) (setting forth the considerations in determining whether to appoint counsel in civil litigation). On August 26, 2014, the district court procured pro bono representation for Jackson. At that time, the court also extended the final pretrial conference date to September 26. The jury trial dates of October 7-9 had been set by the court on May 9, and at the status on August 26 the court made clear that the final pretrial conference and jury-trial dates were firm. Jackson’s appointed counsel,: Bhairav Radia, appeared in person for the September 26 pretrial conference, and Jackson appeared by phone. At that conference, Jackson did not express any concerns with Radia’s representation. Ten days later, on the eve of trial, in a case that had been pending for 32 months, Jackson—appearing by phone—asked the court to dismiss Radia and to grant him a continuance of the trial date. In addition, at Jackson’s request, his attorney. filed a motion to withdraw in the case. After a discussion with the trial court at which the court reiterated that the trial date was “firm” and that Jackson would be disadvantaged if proceeding unrepresented, Jackson indicated a .willingness to proceed with Radia, but Radia stated that he wanted to proceed with his motion to withdraw because his client disagreed with his .trial strategy and fundamentally distrusted him personally. The trial court arranged, for Jackson and Radia to have the use of the phone in. the courtroom without interruption for around 20 minutes in order.for them to discuss how they wanted to proceed. When court reconvened, Radia informed the court that Jackson had confirmed that he fundamentally distrusted Radia and that they-were in agreement that they could not work together as attorney and client. The trial judge. did not inquire of Jackson separately whether he agreed with that. characterization—which would have been preferable—but Jackson has never asserted that Radia incorrectly characterized his position in informing the court that they agreed that they could not work together. At that time, the trial judge granted the motion to withdraw, but in order to mitigate the adverse impact on Jackson, the court first required Radia to remain as standby counsel. The trial judge refused to continue the case, reasoning that: it was a- relatively straightforward case; Jackson knew the facts as well as anyone; it was late afternoon the day before trial; it would be difficult to contact all of the prospective jurors given that many worked in the fields on farms in the rural area; and that many .prospective jurors had arranged for time off work already. The court also stated that it had contacted many attorneys before finding one available to represent Jackson the first time, and had no reasonable ability to obtain additional counsel for him.

The court inquired as to whether Jackson had seen all of the documents in the case, and Radia indicated that Jackson had not seen a set' of documents that were prepared as trial exhibits. The court then altered the schedule for the next day in ordér to give time for Jackson to review them with standby counsel. Instead of proceeding with the trial the next .day, the court limited the proceedings to jury selection in the morning, and made arrangements for Jackson to stay at the courthouse all day that day to allow him to review the exhibits in the Marshal Service area with Radia, or to take the documents back to the correctional center.

Jackson recognizes that he had no right to counsel in his civil proceeding, and does not argüe that the court erred in failing to obtain substitute counsel for him after Ra-dia was allowed to withdraw. His only claim is that the trial court should have granted a continuance to allow him to either obtain substitute counsel on his own or prepare to defend himself pro se.

A district court’s decision to deny a continuance is reviewed only for abuse of discretion, and we will reverse only if the record contains no evidence upon which the judge, could have rationally based his decision. Wasson v. Peabody Coal Co., 542 F.3d 1172, 1175 (7th Cir. 2008). “This, court has emphasized that ‘district judges must be allowed considerable leeway in scheduling civil cases, and therefore in denying continuances that would disrupt their schedules... .'" Id. at 1175, quoting Research Sys. Corp. v. IPSOS Publicite, 276 F.3d 914, 920 (7th Cir. 2002). Jackson argues that the court abused its discretion in refusing the continuance because: this was his first and only continuance in the 32-month-old case; the request was made in good faith; he had not received all discovery in a timely fashion; and having persuaded Jackson that he needed experienced trial counsel, the court should not have permitted appointed counsel to withdraw without granting a continuance sufficient to allow Jackson to obtain substitute counsel or prepare to try the case pro se. None of those arguments establish an abuse of discretion here.

Jackson’s argument that it was his first request for a continuance and that discovery was not timely received suffer from the same defect, in that the continuance request was made on the eve of trial. Jackson appeared by phone ten days prior, and neither requested a continuance nor did he even complain of his representation or the discovery concerns at that time. The compressed time period in which to prepare to try his case was a result of his failure to raise those concerns earlier. Moreover, Jackson’s complaint that the court convinced him of the need for counsel but then failed to grant him time to prepare his case ignores the sequence of events on October 6, the day before trial. Jackson initially agreed to retain his counsel when questioned by the court and after the court made clear to him that no continuance to the trial would be granted; nevertheless, after he was given time to consult privately with his counsel, Radia informed the court that Jackson had confirmed that he fundamentally distrusted Radia and that they were in agreement that they could not work together as attorney and client. Therefore, even with the knowledge that the court would not continue the case, Jackson agreed that he still wanted his counsel to withdraw.

The trial court attempted to minimize the adverse impact of Jackson’s decision by requiring Radia to remain as standby counsel. The court also altered the trial schedule for the next day, so that jury instruction would end in the morning and ensuring that Jackson had access to Radia and all trial exhibits for the remainder of the day. Those provisions appeared to have ameliorated the adverse impact of the denial, because the court noted in a subsequent order that Radia had done an admirable job as standby counsel and that Jackson consulted with Radia frequently. Finally, the court had already determined numerous times that Jackson was capable of handling the" litigation pro se, holding that he had experience litigating, that his pleadings demonstrated a grasp of the relevant facts and law, that he had personal knowledge of the facts, and that the claims were relatively" simple. The court expressed its concern with the impact of such a last-minute-continuance on the prospective jurors, who had arranged to take time off from their work to appear the next day for the trial, and who could not be easily contacted. Those are relevant considerations for a court in determining whether tó grant a "continuance. In conclusion, there was no abuse of discretion in the court’s decision to deny the continuance given that it was made on the eve of trial in a case that had been pending for 32 months, a continuance would not i-esult in the appointment of new counsel because the court did not believe it could reasonably obtain additional representation, Jackson had demonstrated an ability to litigate the case pro se, the court modified the trial schedule to allow time for Jackson to familiarize himself with the trial exhibits that had been prepared by appointed counsel, and appointed counsel would remain as standby counsel.

Jackson next challenges the court’s evidentiary decision to admit a 2007 disciplinary report. The trial court enjoys broad discretion in determining whether to admit or exclude evidence, and therefore we will reverse such evidentiary determinations only for an abuse of discretion. Hall v. Flannery, 840 F.3d 922, 926-27 (7th Cir. 2016); Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 831 F.3d 815, 833 (7th Cir. 2016). At trial, Jackson testified that based on his own personal experience, he believed that he could refuse a transfer at the Logan Correctional Center. He testified that on May 16, 2007, he had arrived at Logan to be transferred to Shawnee, and he successfully refused the transfer to Shawnee. He stated that rather than being transferred, he was placed in segregation at Logan and issued a disciplinary ticket. In response to that testimony, the defendants cross-examined Jackson as to that May 2007 incident. The defendants asked Jackson whether in May 2007 he had refused a direct order to get on the bus and had then threatened to kill one of the officers at Shawnee if forced to go there. Jackson responded that he did not remember making that statement, and denied threatening the staff at Shawnee. At that point, defendants’ counsel introduced the May 2007 disciplinary report to impeach Jackson, in which Jackson was found guilty of threatening correctional officers.

Jackson did not object to the introduction of that report and therefore the admission of the report can be reviewed only for plain- error, which is available only in extraordinary cases. Fed. R. Evid. 103; Boutros v. Avis Rent A Car System, 802 F.3d 918, 924 (7th Cir. 2015). Under that standard, Jackson must show that exceptional circumstances exist,- substantial-rights are affected, and a miscarriage of justice will result if review is denied. Id. He cannot meet that burden here.

The evidence of the disciplinary report, though potentially prejudicial, was relevant to rebut Jackson’s contention that he was allowed to refuse the transfer in this case because he had been allowed to do so in May 2007. The report demonstrated that additional factors were present in the May 2007 incident, in that the correctional officers believed that he had threatened to kill officers at' Shawnee in the May 2007 incident, which rendered it a fundamentally different situation from the transfer at issue here. Jackson himself rendered that evidence relevant by relying on that incident, and the court did not abuse its discretion in allowing it. See e.g. Gomez v. Ahitow, 29 F.3d 1128, 1139 (7th Cir. 1994) (upholding the admission of threat evidence where the evidence was probative to an issue other than credibility). In fact, the court attempted to minimize the adverse impact by denying the defendants’ request for a Gilbert instruction, which would have instructed the jury that Jackson threatened prison staff as indicated in the report despite his denial. Gilbert v. Cook, 512 F.3d 899, 902 (7th Cir. 2008). The court decided to admit the report rather than issue the instruction in order to minimize the likelihood that the jury would unduly focus on that past incident. Jackson has failed to demonstrate that his substantial rights are affected resulting in a miscarriage of justice.

Jackson’s final argument is also without merit. He asserts that the court erred in allowing defense counsel to ask whether he was incarcerated for a felony, to which he replied “burglary, yes.” Jackson never objected to that question, so once again review is limited to the plain error standard, and requires a showing that his substantial rights were violated and a miscarriage of justice will result. Id. He cannot meet that burden. Jackson had already revealed in his opening statement that he was incarcerated for burglary, so there was no prejudice to him from it. That is particularly true in a case such as this challenging actions that occur during a prison transfer, because the fact of his incarceration is already known, so the risk of prejudicial impact is lower. Furthermore, Jackson has failed to indicate how introduction of that evidence could have affected his substantial rights. See Fed. R. Civ. P. 61.

Jackson filed a pro se brief -in this appeal, raising a number of additional issues, but those too are without merit. He alleges that the defendants offered conflicting testimony, but it is the province of the jury to weigh the credibility of the witnesses and make the final -determination. Perry v. New Hampshire, 565 U.S. 228, 132 S.Ct. 716, 723, 181 L.Ed.2d 694 (2012). Moreover, he asserts that he should have been allowed to present evidence as to grievances he had pursued against Pinckney-ville prison officials, but that is not relevant to the narrow issue before the court in this case as to the excessive force claim. He also challenges the inability to pursue additional discovery, but concerns about discovery were pursued in the August 26, 2014 status hearing, and the court directed the defendants to ensure all discovery was provided by September 2nd. The court began the status hearing on September 26 by inquiring whether Radia had received all discovery and Radia responded that he had and agreed with the court that it was a “dead issue” now. Jackson did not indicate any disagreement with that state-, pient, Accordingly, any such challenge raised in this appeal is waived. Jackson has raised no meritorious challenge in this appeal.

Accordingly, the decision of the district court is AFFIRMED.