text:
    Sherlyn BROWN, Plaintiff-Appellant, v. MILWAUKEE BOARD OF SCHOOL DIRECTORS, Defendant-Appellee.
    No. 16-1971
    United States Court of Appeals, Seventh Circuit.
    Argued November 3, 2016
    Decided May 4, 2017

      James A. Walcheske, Attorney, Wal-cheske & Luzi, LLC, Brookfield, WI, for Plaintiff-Appellant.
    Jenny Yuan, Attorney, Milwaukee City Attorney’s Office, Milwaukee, WI, for Defendant-Appellee.

      Before BAUER, MANION, and HAMILTON, Circuit Judges.
   HAMILTON, Circuit Judge.

This appeal under the Americans with Disabilities Act addresses a disabled employee’s obligation to participate in identifying reasonable accommodations for her condition.

Plaintiff Sherlyn Brown was an assistant principal for defendant Milwaukee Public Schools until she badly injured her knee while restraining a student. When she returned to work following surgery, she and her doctor told Milwaukee Schools that she could not be “in the vicinity of potentially unruly students.” Since virtually all students are “potentially” unruly, Milwaukee Schools understood that limit to bar virtually all contact with students. It repeatedly communicated that understanding to Brown as it tried to accommodate her disability by finding her a new position. When Brown’s three-year leave of absence expired before a suitable position was found, Milwaukee Schools fired her. Brown sued under the Americans with Disabilities Act, claiming that her disability had never prevented interaction with students and that Milwaukee Schools failed to accommodate her disability. The district court granted summary judgment for Milwaukee Schools, and Brown has appealed.

We affirm. Because Brown and her doctors repeatedly told Milwaukee Schools that she could not be “in the vicinity of potentially unruly students,” Milwaukee Schools is not liable for failing to move her to a position requiring such proximity. All but one of the other jobs Brown identifies as reasonable accommodations would have required such proximity. The lone exception would have been a promotion for which Brown was not the most qualified candidate. The Act did not require Milwaukee Schools to promote her as an accommodation.

I. Legal Framework

We review de novo a district court’s grant of summary judgment. Our account of the facts views the evidence in the light most favorable to the non-moving party, but we must affirm if no reasonable trier of fact could find in favor of the non-moving party. White v. City of Chicago, 829 F.3d 837, 841 (7th Cir. 2016).

Our account of the facts will be easier to follow with a brief outline of the reasonable accommodation duty under the Americans with Disabilities Act. The Act requires employers to make “reasonable accommodations that will allow a ‘qualified individual with a disability’ to perform the essential functions of his or her job.” Miller v. Illinois Dep’t of Transportation, 643 F.3d 190, 197 (7th Cir. 2011), quoting 42 U.S.C. § 12112(b)(5)(A). “Reassigning disabled employees to vacant positions that they can perform is a reasonable accommodation.” Emerson v. Northern States Power Co., 256 F.3d 506, 515 (7th Cir. 2001), citing Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 693 (7th Cir. 1998); 42 U.S.C. § 12111(9) (reasonable accommodation “may include ... reassignment to a vacant position”).

A disabled employee need not be the most qualified applicant for a vacant position, but she must be qualified for it. EEOC v. United Airlines, Inc., 693 F.3d 760, 764 (7th Cir. 2012) (holding that deviation from a best-qualified selection policy does not always represent an undue hardship for the employer); Jackson v. City of Chicago, 414 F.3d 806, 813 (7th Cir. 2005) (“The employer need only transfer the employee to a position for which the employee is otherwise qualified.”), quoting Rehling v. City of Chicago, 207 F.3d 1009, 1014 (7th Cir. 2000). The Act does not, however, require employers to promote employees to accommodate them. Malabarba v. Chicago Tribune Co., 149 F.3d 690, 699 (7th Cir. 1998), citing Shiring v. Runyon, 90 F.3d 827, 832 (3d Cir. 1996).

Identifying reasonable accommodations for a disabled employee requires both employer and employee to engage in a flexible, interactive process. See Stern v. St. Anthony’s Health Center, 788 F.3d 276, 292 (7th Cir. 2015), citing Kauffman v. Petersen Health Care VII, LLC, 769 F.3d 958, 963 (7th Cir. 2014). Both parties are responsible for that process. If a reasonable accommodation was available but the employer prevented its identification by failing to engage in the interactive process, that failure is actionable. Id. On the other hand, if the employee “does not provide sufficient information to the employer to determine the necessary accommodations, the employer cannot be held liable for failing to accommodate the disabled employee.” Reeves ex rel. Reeves v. Jewel Food Stores, Inc., 759 F.3d 698, 702 (7th Cir. 2014), citing Beck v. University of Wisconsin Board of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996).

II. Factual and Procedural Background

In light of these principles, the critical facts here concern (1) the communications between Brown and Milwaukee Schools about the extent of her restrictions, especially her ability to be in the vicinity of potentially unruly students; and (2) the potential reassignments she discussed with Milwaukee Schools as accommodations for her disability.

A. Brown’s Injuries

In 2006, Brown was an assistant principal for Milwaukee Schools. She began to experience severe knee pain while performing the duties of that position. Her doctor diagnosed her with severe arthritis and recommended that she be moved to a job with limited mobility requirements. For the next few years, Milwaukee Schools accommodated her by changing the location of her work and modifying her job duties. It excused her from breaking up fights and physically intervening with students, which would normally be an assistant principal’s responsibility. She arranged those accommodations with James Gorton, Milwaukee School’s employment specialist who continued to work on her case for the remainder of her employment. During that time, Brown underwent knee replacement surgery.

Despite these precautions, Brown injured her knee again in 2009, not long after her surgery, while restraining an unruly student. She had another surgery. Her doctor then restricted her to sedentary work with no student interaction until further notice. A few months after her return to work, in May 2010, her doctor clarified that incidental or one-on-one contact with students “should not be a problem,” but that contact with out-of-control children or potentially combative students should be avoided.

B. Brown’s Leave of Absence

In late July 2010, Brown clarified her medical restriction again. She had been assigned to a new school building as an assistant principal. She found that she was expected to “patrol the halls, [and] be involved in student contact.” She called Gor-ton and told him that she still needed to “avoid interaction with volatile students.” Gorton said he thought her doctor had changed that limit, and he asked her to have her doctor confirm that she had that restriction. Two days later, her doctor told Gorton that Brown “should not be in the vicinity of potentially unruly students.” That restriction, he said, was “permanent” — it would not be removed for at least three to four years, if ever. Gorton immediately told Brown that she could not continue working as an assistant principal and that she would be on sick pay while he worked with her to find a new position. He discussed the scope of the search for a replacement position with her. She said she was interested in positions at or above her pay grade, salary, and number of working days, and would prefer to remain in her union. '

A week later, Gorton sent Brown a list of eight vacant positions he had considered, including a Student Achievement Supervisor position, but he explained that he did not believe any was suitable. For six of the positions, he listed “the job duties require being in the vicinity of potentially unruly students” among the reasons they were unsuitable. For four of the positions, that was the only listed reason. The Student Achievement Supervisor position was unsuitable solely because it required being in the vicinity of potentially unruly students. Brown did not dispute Gorton’s characterization of her restriction.

Later that week, Brown expressed interest in two other positions, including a Charter School Program Officer position. Gorton told her she was not physically qualified for those positions because she would “need to be in the schools to interact with students and staff.” Again, Brown did not dispute his characterization of her restriction.

The next month, Gorton received a letter from an attorney for Brown’s union. That letter did dispute his understanding of her restrictions, saying that she was able to “interact[ ] with students and staff’ but not able to “serve in a position of authority ... over potentially unruly students.” Gorton wrote back disagreeing with the attorney’s characterization and offering to show the attorney the doctor’s specific restrictions. No one followed up with him, and the conversation ended there.

Brown had another surgery in late 2010 and was cleared to return to work in early 2011 with restrictions, including a doctor’s instruction to “avoid/no student discipline situations.” Gorton asked again for clarification and emailed Brown a questionnaire for her doctor to complete. He also asked her to review the factual background provided in the questionnaire, and to let him know if she saw inaccuracies. That background section quoted the doctor’s earlier statement that “Ms. Brown should not be in the vicinity of 'potentially unruly students.” (Emphasis in original.) It asked the doctor if he was lifting that restriction and what he meant by “avoid student discipline situations.” It added parenthetically that “Ms. Brown does not believe that she should be in the vicinity of unruly students.”

Brown evidently did not receive that email; two weeks later, she emailed Gorton to ask why she had not heard from him to arrange her return to work. He re-sent the email and asked her to confirm receipt. He then did not hear from Brown for three weeks, during which he left two voicemails, sent a certified letter, and finally sent an email indicating he would deactivate his file if she did not reply. Brown eventually did reply, and her doctor sent him a response to the questionnaire. The doctor said that the July 2010 restriction, which forbade Brown being “in the vicinity of potentially unruly students,” remained in place. He added that “she should not be put in a position” to injure her knee “in attempting to subdue an unruly student.”

Brown later applied for two positions with Milwaukee Schools: a GE Grant Administrator Position and a Title I Coordinator position. She was not selected for either position. She met with Gorton about the reassignment process on October 14, 2011. Each of them later summarized the meeting in an email to the other. According to Gorton, Brown asked why she still had not been given a position, and Gorton told her that her work restrictions left very few positions with Milwaukee Schools available to her: “most jobs in the district require interaction with students who may be unruly.” Brown’s account is similar. According to her, Gorton told her that “every job in the district required individuals to work with students, except highly specific positions,” and that she “could not be around potentially unruly students.” Brown did not disagree with that characterization of her restriction.

Around the same time, Brown was evaluated by a physician in connection with her disability benefits. That doctor also imposed “permanent work restrictions,” including instructions to “avoid circumstances where unruly behavior may occur. Avoid contact with unruly individuals and situations where potentially unruly behavior may occur.” One month later, in November 2011, Brown asked Gorton about a Student Achievement Supervisor position, which he explained involved “working in the presence of potentially unruly students.” A similar conversation occurred in early 2012: Brown called Gorton to ask about a Student Services Coordinator position, and he said she was not physically qualified for the position.

C. Brown’s Termination

About two and a half years later, Milwaukee Schools sent Brown a letter warning her that she had nearly exhausted the three years of leave of absence to which she was entitled. Brown’s doctor then called Gorton to ask for a list of the essential functions of the Assistant Principal position. Gorton replied with a list, adding that the job included “working in the vicinity of potentially unruly students” and asking for an update on Brown’s work restrictions. Brown’s doctor replied that Brown could return to work with restrictions. He explained that Brown “should not be put in a position where she is responsible for monitoring and controlling students that may become uncontrollable.” The doctor added: “I see no reason why she could not be around students; she just must not be responsible for controlling those students and it would seem that Security should be available to handle such things.”

After receiving that evaluation, Milwaukee Schools searched its available positions and identified four vacant lateral positions, including a Charter School Program Officer and a Student Services Coordinator position. It concluded that Brown was not medically qualified to perform either of those positions because they would involve being around potentially unruly students and potentially monitoring or controlling those students. Because Milwaukee Schools concluded that Brown could not perform the essential functions of any available position, it terminated her employment.

Brown filed suit in the Eastern District of Wisconsfti. Following amendments, her complaint claimed that Milwaukee Schools had violated the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., by fading to accommodate her disability and then terminating her. After conducting discovery, both parties moved for summary judgment. The district court granted Milwaukee Schools’ motion and denied Brown’s.

III. Analysis

Brown contends on appeal that Milwaukee Schools should have accommodated her disability by reinstating her as Assistant Principal or by reassigning her to any one of five vacant positions: Student Achievement Supervisor, Student Services Coordinator, Charter School Program Officer, GE Grant Administrator, and Title I Coordinator. Milwaukee Schools argues that because Brown could not be in the vicinity of potentially unruly students, she was not qualified to perform the essential functions of either her Assistant Principal position or the first four vacant positions. It argues that the final vacant position would have been a promotion for which she was not the most qualified candidate.

The undisputed facts show that Brown told Milwaukee Schools that she could not work in the presence of students. They also show that all but one of the identified vacant positions required work in the presence of students. Brown therefore did not give Milwaukee Schools the information it needed to accommodate her in those positions, and it is not liable for not assigning her to them. As for the last possible position, we agree with Milwaukee Schools that it would have been a promotion it was not required to offer Brown.

A. Qualified to Perform Essential Functions

Milwaukee Schools believes that, with or without reasonable accommodation, Brown was not qualified for either the Assistant Principal position or four of the alternative vacant positions because those positions required her to be in the vicinity of potentially unruly children, which she was unable to do. Brown disagrees, arguing that she was able to be near potentially unruly students, and that, in any case, none of the positions required such contact.

1. Brown’s Restrictions

As noted above, identifying reasonable accommodations for a disabled employee requires both employer and employee to engage in a flexible, interactive process. See Stern, 788 F.3d at 292. The key principle for purposes of this case is that if the employee “does not provide sufficient information to the employer to determine the necessary accommodations, the employer cannot be held liable for failing to accommodate the disabled employee.” Reeves, 759 F.3d at 702.

Such a situation occurred in Steffes v. Stepan Co., 144 F.3d 1070 (7th Cir. 1998). The plaintiff in that case had a condition that restricted her breathing. It was dangerous for her to be exposed to certain chemicals, which limited the jobs she could perform at the chemical company where she worked. She initially gave her employer a doctor’s note ordering that she not be exposed to chemicals, a restriction “the company took ... seriously.” Id. at 1072. “Given the blanket nature” of that restriction, “the obligation fell” to the plaintiff “to update or further clarify the kinds of work she could do.” Id. She did not do so.

When the company offered Steffes a reassignment conditioned on her doctor’s approval, her doctor’s reply “failed to address the exposure issues” the company asked about and “displayed a poor understanding” of the company’s operations. Id. at 1072-73. The company explained that to the plaintiff and did not offer her the reassignment, but asked her to update it if her condition changed. The plaintiff “did not provide any further information to the company” and thereby “failed to hold up her end of the interactive process.” Id. at 1073.

Brown’s case parallels Steffes. She repeatedly presented Milwaukee Schools with a broad restriction for a school system: she needed to avoid proximity to potentially unruly students. Essentially all students are potentially unruly. Milwaukee Schools was always clear about its understanding of her restrictions, and Brown never challenged that understanding. Gor-ton repeatedly told Brown that she could not perform positions that required being “in the vicinity of potentially unruly students.” He said that she was not qualified for a position because she would “need to be in the schools to interact with students and staff.” In Brown’s retelling of one meeting, Gorton told her (not surprisingly, we must add) that almost “every job in the district required individuals to work with students.” Nowhere in the record did Brown tell him he had misunderstood her abilities and limitations.

She points out that on four occasions, other people acting on her behalf challenged Milwaukee School’s understanding. On three of those occasions, however, the undisputed facts show that Milwaukee Schools sought clarification and either did not receive any or was again told that she could not be near students. On the fourth and final occasion, Milwaukee Schools appropriately interpreted the comment in the context of earlier exchanges.

The first instance began in May 2010. In that month, Brown’s doctor modified her work restrictions, which had previously prohibited student interaction, to allow incidental contact between Brown and students. But when Milwaukee Schools assigned Brown to a school where, in her words, she was expected to “patrol the halls, [and] be involved in student contact,” she immediately called Gorton and told him that her restriction had not changed: she still needed to “avoid interaction with volatile students.” Two days later, her doctor confirmed that, sending Milwaukee Schools a much more restrictive letter. The letter said Brown was permanently unable to be “in the vicinity of potentially unruly students.” It enclosed the doctor’s recent examination notes, which said Brown needed to be in a position “that doesn’t require her to deal with children with lots of movement.”

On the second occasion, Brown’s union’s attorney sent Gorton a letter explaining; that Brown was able to “interact ] with students and staff’ and that Gorton’s contrary belief was “at best, in error.” If that were correct, that would be important, of course. Gorton wrote back, disagreeing and offering to show the attorney the doctor’s letter with its greater restrictions. There is no evidence that the union attorney or anyone else followed up with Gor-ton.

The third occasion was Brown’s 2011 return to work following a surgery. Her work restrictions did not include the earlier broad ban on working “in the vicinity of potentially unruly students,” but instead instructed her to avoid “student discipline situations.” Gorton asked for clarification, quoting the earlier restriction and asking whether the doctor was lifting it. The doctor replied that the earlier restriction “remains in place.”

The fourth and final occasion was in August 2014, four days before Brown’s leave of absence expired. Brown’s doctor sent Gorton a fitness-for-duty certificate. The attached patient examination notes said that there was “no reason why she could not be around students; she just must not be responsible for controlling those students.” They said that she, “as before, should not be put in a position where she is responsible for monitoring and controlling students.” The notes did not claim to change Brown’s restrictions. Some of the language is broad and ambiguous, referring to situations “where there could be some question” of controlling a student and noting that security should be available to control students.

By then, Milwaukee Schools had believed for four years that Brown could not be near “potentially unruly” students. It had been told that restriction was permanent. The 2014 doctor’s note did not say Milwaukee Schools had been wrong, and it did not say the situation had changed. Milwaukee Schools had twice before been given doctor’s notes that appeared to loosen the restrictions on Brown, only to be told later that the strict restriction remained in place. Given that, history, we do not believe a reasonable jury could find that the last-minute and ambiguous doctor’s note, which did not address that history, adequately informed Milwaukee Schools that Brown’s limitations were no longer as restrictive.

The undisputed facts show that Milwaukee Schools acted consistently with the restrictions imposed by Brown’s doctors, which said that Brown simply could not work in the vicinity of potentially unruly students. To the extent Brown is arguing that her restrictions were less severe than Milwaukee Schools believed, the undisputed facts show that Brown “failed to hold up her end of the interactive process by clarifying the extent of her medical restrictions.” Steffes, 144 F.3d at 1073. Milwaukee Schools accordingly cannot be held liable for failing to put her in a position it believed would exceed those restrictions.

2. Essential Functions

Brown argues that being in the vicinity of potentially unruly students was not an essential function of any of the positions she requested, for two reasons. First, she asserts, citing 29 C.F.R. § 1630.2(o)(1)(ii), that being in such proximity is a description of work environment, not a description of a job function. Second, she argues that such proximity is not an essential function according to any of the factors courts usually consider: it is not listed on any job descriptions, for example,' nor do any of the positions exist to perform it. See Dunderdale v. United Airlines, Inc., 807 F.3d 849, 853-54 (7th Cir. 2015) (courts should examine several factors to determine essential functions, including the employer’s judgment and the written job description), citing 42 U.S.C. § 12111(8) and 29 C.F.R. § 1630.2(n)(1)(3).

Brown’s rigid distinction between work environment and job functions is not realistic. Some job functions can be performed without regard to some aspects of work environment. In many office environments, for example, it may be possible to change the temperature, lighting, or desk arrangements to accommodate someone’s needs. But sometimes a job function requires a specific work environment. Lawn maintenance cannot be performed indoors; a jockey must often work atop a horse; receptionists must be near office visitors. Section 1630.2(o)(l)(ii) does not say otherwise. It simply lists changes to work environment as one possible way of accommodating a disabled employee. Neither Brown’s evidence nor her arguments suggest that the positions she wanted could have been modified to avoid student contact.

Brown’s second argument is similarly artificial. She focuses on a narrow framing of her restriction, ignoring the logical consequences of that restriction. If Brown could not be near students, then she could not meet with students, could not walk down school hallways during the school day, could not sit in on classes, etc. Milwaukee Schools argues this means she could not perform: (1) the Assistant Principal position, because it would require her to be in schools overseeing their day-today operations; (2) the GE Grant Administrator position, because it would require her to attend and lead meetings at which students were present and in schools in which students were present; (3) the Student Achievement Supervisor position, because it would require her to conduct classroom observations and work daily in schools; (4) the Charter School Program Officer, because it would require in-school compliance checks and classroom observations; and (5) the Student Services Coordinator position, because it would require in-school meetings with students with serious disciplinary problems. To support these points, Milwaukee Schools relies on job descriptions, affidavits from human resources employees, and Brown’s deposition testimony. Brown offers nothing to contradict these points, so we must agree with Milwaukee Schools. See Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 490 (7th Cir. 2007), overruled on other grounds by Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016) (non-moving party must identify “with reasonable particularity the evidence upon which the party relies”), citing Johnson v. Cambridge Industries, Inc., 325 F.3d 892, 898 (7th Cir. 2003).

B. Promotion

Our discussion so far has eliminated from consideration four of the five positions Brown requested. The remaining position, the Title I Coordinator position, did not require proximity to students. Milwaukee Schools contends that it was a promotion and that Brown was not the most qualified candidate, and therefore it was not obligated to give her the position. See Malabarba, 149 F.3d at 699 (“[A]n employer does not have to accommodate a disabled employee by promoting him or her to a higher level position.”). Brown does not contend that she was the most qualified candidate but instead argues that the position would not have been a promotion.

Milwaukee Schools advances three reasons that the Title I Coordinator position would have been a promotion: (1) Brown’s pay grade would increase; (2) her salary would increase because of the pay grade change and because she would be working twelve months per year rather than ten; and (3) the position involved substantially increased responsibilities. Brown disagrees because she did not consider the position a promotion when she applied because the position’s salary range included her salary as an assistant principal and because Milwaukee Schools had previously moved her between pay grades without classifying the change as a promotion.

Even accepting these factual assertions, as we must on summary judgment, they do not present a genuine issue of material fact. Whether a reassignment would be a promotion, demotion, or lateral transfer is not determined by the employee’s perceptions. See Gile v. United Airlines, Inc., 95 F.3d 492, 497 (7th Cir. 1996) (“Employers should reassign the individual to an equivalent position, in terms of pay, status, etc.”), quoting 29 C.F.R. app. § 1630.2(o). And while Milwaukee Schools once moved Brown between pay grades without classifying the change as a promotion, her salary remained the same despite the change in grade. Brown does not explain why that happened, nor does she point to evidence that Milwaukee Schools could do that again. Most important, Brown does not dispute that her salary would have increased by about $20,000 per year if she had taken the Title I Coordinator position. Cf. Office of the Architect of the Capitol v. Office of Compliance, 361 F.3d 633, 640-41 (Fed. Cir. 2004) (finding substantial evidence that moving an employee into a position normally accorded a higher wage grade classification was not a promotion: the employer “frequently move[d] employees between positions without changing their pay or wage grade classification”). Brown does not deny that the Coordinator position involved twelve months of work rather than the Assistant Principal’s ten. Cf. Emerson, 256 F.3d at 515 (“NSP did not simply transfer Emerson into the available full-time position because it would have been a promotion from part-time status to full-time status.”). Nor does she deny that the position involved increased responsibilities. A reasonable jury would be, and we are, forced to conclude that the Coordinator position would have been a promotion that the Americans with Disabilities Act did not require be offered to Brown.

This is an unusual case, and our holding is correspondingly narrow. If Milwaukee Schools, rather than Brown’s doctor, had decided that she could not be near students, we would have a different case. So too if Milwaukee Schools had not communicated its understanding of Brown’s restrictions to her or if it had not sought clarification when it received contradictory information. See EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 808 (7th Cir. 2005) (reversing summary judgment where employer “did not actively engage in the interactive process by suggesting possible accommodations or requesting information that would help it do so”); Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1285 (7th Cir. 1996) (reversing summary judgment where employer could have called to clarify potentially ambiguous doctor’s note but did not). But the. undisputed facts show here Milwaukee Schools acted on the basis of restrictions imposed by Brown’s doctors and that no reasonable accommodation of her disability was possible. The judgment of the district court is AFFIRMED.

      . Two points in the record, both in Brown’s deposition, ambiguously suggest such a correction, but neither would justify denying summary judgment. In the first, Brown described her 2012 conversation with Gorton about the Student Services Coordinator position. She said that he told her she was not physically qualified and that “there was a disagreement ... in the conversation ... I told him that I would not be controlling the students.” Later in the deposition, discussing a different position, Brown said that she agreed "at that particular time” that the job duties required being in the vicinity of potentially unruly students, but that that "has changed to the degree that I had to explain to him at a later date that not knowing how he was coming up with it and the information that he was getting in terms of me not being qualified because of my medical condition, it did not change, but my interpretation of what he was telling me changed. And I began — and I challenged him after that in terms of the positions that he offered me.” It is unclear from those comments what she communicated to Gorton, and neither comment addressed Brown’s medical restrictions, focusing instead on the duties of particular positions.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Wallace B. CARSON, Defendant-Appellant.
    No. 16-2694
    United States Court of Appeals, Seventh Circuit.
    Argued April 26, 2017
    Decided May 5, 2017

      Taylor Philip Bayless, Deirdre A. Dur-borow, Attorneys, Office of the United States Attorney, Criminal Division, Fair-view Heights, IL, James M. Cutchin, Attorney, Office of the United States Attorney, Benton, IL, for Plaintiff-Appellee.
    Daniel G. Cronin, Attorney, Office of the Federal Public Defender, East St. Louis, IL, for Defendant-Appellant.
    Before WOOD, Chief Judge, and RIPPLE and SYKES, Circuit Judges.
   PER CURIAM.

Wallace Carson robbed a convenience store by pulling a gun on the cashier. The police caught him in short order, and he pleaded guilty to Hobbs Act robbery and other charges. The district court sentenced Carson as an armed career criminal, classifying as violent felonies prior convictions for robbery and armed robbery. Carson now appeals, arguing that under Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), none of those crimes is a violent felony. Because the appeal waiver in Carson’s plea agreement precludes this argument, we dismiss the appeal.

Carson robbed a Walgreens store in 2015. He waited in line until the cashier opened the register to make change for the woman in front of him. He pulled a loaded, semiautomatic pistol out of his pants and held it in his right hand while reaching across the counter and grabbing cash from the register. Carson fled by bicycle, but witnesses told police his direction of travel and he was quickly caught. Carson was charged with Hobbs Act robbery, 18 U.S.C. § 1951(a); brandishing a firearm in furtherance of a crime of violence, id. § 924(c); and possessing a firearm as a felon, id. § 922(g)(1).

Carson pleaded guilty to all charges and waived his right to appeal with limited exceptions in exchange for the government’s agreement to recommend a 3-level reduction for acceptance of responsibility and a prison sentence of 272 months. That sentence represented the low end of the range calculated by the parties based on a shared assumption that Carson would be sentenced as an armed career criminal. See 18 U.S.C. § 924(e); U.S.S.G. § 4B1.4. The appeal waiver states:

[I]n exchange for the recommendations and concessions made by the Government in this Plea Agreement, Defendant knowingly and voluntarily waives the right to contest any aspect of the conviction and sentence, including the manner in which the sentence was determined or imposed, that could be contested under Title 18 or Title 28, or under any other provision of federal law, except that if the sentence imposed is in excess of the Sentencing Guidelines as determined by the Court (or any applicable statutory minimum, whichever is greater), Defendant reserves the right to appeal the substantive reasonableness of the term of imprisonment. ...
Defendant’s waiver of the right to appeal or bring collateral challenges shall not apply to: 1) claims of ineffective assistance of counsel; 2) any subsequent change in the interpretation of the law by the United States Supreme Court or the United States Court of Appeals for the Seventh Circuit that is declared retroactive by those Courts and that renders Defendant actually innocent of the charges covered herein; and 3) appeals based upon Sentencing Guide-line amendments that are made retroactive by the United States Sentencing Commission ....

During the plea colloquy, the judge stated three times that as an armed career criminal, Carson faced a statutory minimum of 15 years’ imprisonment on the charge of possessing a firearm as a felon. See § 924(e). The judge also ensured that Carson understood the rights he was waiving, including his right to appeal.

The presentence investigation report recommended that Carson be sentenced as an armed career criminal (a defendant with three prior convictions for serious drug offenses or violent felonies). 18 U.S.C. § 924(e)(1). The statute defines a violent felony as any crime punishable by more than a year in prison that “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, [or] involves use of explosives.” Id. § 924(e)(2)(B). The presentence report then identified four predicate convictions subjecting Carson to the enhancement: robbery in February 1990 and March 1991, both in Illinois; robbery in March 1992 in Missouri; and armed robbery in November 2005 in Illinois. Though Carson objected to other parts of the pre-sentence report, he did not object to his designation as an armed career criminal; Rather, he had already stipulated in the plea agreement that the statutory minimum for the § 922(g)(1) charge is 15 years and that his criminal history category is VI, which would not be true if he is not an armed career criminal.

The judge sentenced Carson as an armed career criminal, which changed the statutory penalties he faced on the § 922(g)(1) charge from a maximum of 120 months’ imprisonment to a minimum of 180 months’ imprisonment. See § 924(e). And under the Sentencing Guidelines, the designation also raised the recommended imprisonment range for that charge (which was grouped with the Hobbs Act robbery charge) from 57-71 months to 188-235 months. See U.S.S.G. §§ 2K2.1(a)(4)(A); 4B1.4(b)(3)(A), (c)(2). The judge imposed concurrent 188-month terms for the § 922(g)(1) and Hobbs Act counts plus a consecutive term of 84 months for the § 924(c)(1) count (the statutory minimum since the gun was brandished, see 18 U.S.C. § 924(c)(1)(A)(ii)), for a total of 272 months’ imprisonment.

On appeal Carson acknowledges the appeal waiver but asserts that it should not be enforced. He points to United States v. Gibson, 356 F.3d 761 (7th Cir. 2004), which he reads broadly for the proposition that appeal waivers are unenforceable when a defendant contends his sentence exceeds the statutory maximum. He also cites a recent decision from this court in which the panel disregarded an appeal waiver to avoid a miscarriage of justice. See United States v. Litos, 847 F.3d 906, 910 (7th Cir. 2017). Carson contends that his sentence on the § 922(g)(1) count exceeds the statutory maximum and has caused a miscarriage of justice because, he argues, none of his prior convictions is a violent felony.

Carson’s argument for ignoring his waiver is one we recently rejected as “entirely circular.” United States v. Worthen, 842 F.3d 552, 555 (7th Cir. 2016). The defendant in Worthen was convicted of Hobbs Act robbery and also, based on that offense, using or carrying a firearm during a crime of violence. Id. at 554. He appealed despite waiving that right as part of his plea agreement; Hobbs Act robbery is not a crime of violence, he contended, making his § 924(c)(1) conviction and sentence illegal and the appeal waiver unenforceable. Id. at 554-55. In refusing to disregard the appeal waiver, we reasoned that we could not determine the lawfulness of the defendant’s sentence without resolving his entire appeal. That was not the situation in Gibson, we explained, because in Gibson no analysis was necessary to understand that the sentence imposed exceeded the statutory cap. Id. at 555; see Gibson, 356 F.3d at 766. On the other hand, we continued, if the very argument raised in apparent violation of an appeal waiver must be decided on the merits in order to know whether the sentence is unlawful (and thus the waiver is unenforceable), we would “eviscerate the right to waive an appeal” by creating a rule “that an appeal waiver is enforce-able unless the appellant would succeed on the merits of his appeal.” Worthen, 842 F.3d at 555.

Carson does not meaningfully distinguish Worthen. Although he argues that the defendant in that case was trying to invalidate the underlying § 924(c)(1) conviction as well as the sentence for that crime, he does not explain why that difference matters. Our reasoning in Worthen applies equally to Carson’s effort to invalidate his sentence; it is not possible to determine if Carson’s sentence as an armed career criminal is illegal (or a miscarriage of justice) without resolving the merits of his appeal.

Neither is Carson’s situation like that in Litos. There, we had already concluded in the appeals of his codefendants that restitution had been imposed improperly, and we allowed the appellant to benefit from that conclusion even though, unlike his codefendants, he had waived his right to appeal. See Litos, 847 F.3d at 910. All of the criminal participants were jointly and severally liable, and we reasoned that leaving the appellant on the hook for the entire improper amount by vacating the restitution imposed on his codefendants would constitute a miscarriage of justice. Id. But that exceptional situation is not present here; there is no way to resolve the merits of Carson’s appeal without pretending that he did not bargain away the right to that relief. Carson received the benefit of that bargain when the government recommended a reduction of his offense level for acceptance of responsibility and the low end of their agreed guidelines calculation. And he does not otherwise challenge the voluntariness of his guilty pleas. Because an appeal waiver stands or falls with a guilty plea, we therefore enforce his waiver and dismiss this appeal. See United States v. Gonzalez, 765 F.3d 732, 741 (7th Cir. 2014); United States v. Zitt, 714 F.3d 511, 515 (7th Cir. 2013); United States v. Sakellarion, 649 F.3d 634, 639 (7th Cir. 2011).

Dismissed.


text:
    UNITED STATES of America, Plaintiff-Appellee v. Justin WRICE, Defendant-Appellant
    No. 15-3772
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 17, 2016
    Filed: February 13, 2017
    Lisa C. Williams, U.S. Attorney, U.S. Attorney’s Office, Northern District of Iowa, Cedar Rapids, IA, for Plaintiff-Ap-pellee.
    John Bishop, The Armstrong Centre, Cedar Rapids, IA, for Defendant-Appellant.
    Justin Wrice, Pro Se.
    Before LOKEN, SMITH, and COLLOTON, Circuit Judges.
   PER CURIAM.

Justin Wrice was sentenced to 108 months’ imprisonment — the high end of his Guidelines range — for conspiring to distribute crack cocaine. He appeals that sentence, arguing that the district court gave significant weight to an improper factor in determining his sentence. According to Wrice, the court gave too much weight to its “obvious skepticism that Mr. Wrice could both take care of his child every day in Chicago, and at the same time commit criminal offenses in Iowa.” (Footnote omitted.)

Giving significant weight to an improper sentencing factor is an abuse of discretion. United States v. Meza-Lopez, 808 F.3d 743, 745 (8th Cir. 2015). Here, the court addressed the factors in 18 U.S.C. § 3553(a) by starting with the facts of the crime. Between August 2013 and February 2014, Wrice and a coconspirator distributed crack cocaine and sold guns in Waterloo, Iowa. Then the court made what seems like an aside:

This at the time — this all occurred in the Northern District of Iowa and Mr. Wrice claims that he always lived in Chicago; took care of his child; took the child to daycare; saw his child every day and it doesn’t seem to me that those two things jive.

The court went on to note Wrice’s gang history, his marijuana use, his attempt to flee arrest while possessing crack and heroin with substantial sums of cash, his prior theft-related conviction, and his lack of employment-related earnings. The court also considered facts in Wrice’s favor, such as his lack of alcohol or major drug problems, his specialized skills, and his good family support.

We do not decide whether the incongruity between Wrice’s child care and his proven out-of-state drug distribution would be an improper factor to consider, because it did not receive significant weight. The court’s remark does not indicate that the court relied on its surmise to any meaningful degree. The court’s discussion of the § 3553(a) factors covered three transcript pages. Given the undisputed facts of the offense, the remark’s effect on the ultimate sentence was negligible. The court focused on the crime of conviction and Wrice’s family history, current marijuana use, gang association, fugitive status, criminal acts while a fugitive, and conduct during arrest. The court did not give significant weight to an improper factor.

Accordingly, we affirm.

      . The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa.

      . The Chicago/Iowa disconnect, then, was not the "very first thing the court made note of in justifying its sentence,” as Wrice asserts.


text:
    Don William DAVIS Appellant v. Wendy KELLEY, Director, Arkansas Department of Correction Appellee
    No: 17-1806
    United States Court of Appeals, Eighth Circuit.
    Filed April 17, 2017

      Deborah Ruth Sailings, Scott Braden, Assistant Federal Public Defender, Federal Public Defender’s Office, Little Rock, AR, E. Alvin Schay, Litle Rock, AR, for Petitioner-Appellant
    Don William Davis, Pro Se
    Kelly Hook Fields, Mark Lunsford Pryor, Attorney General’s Office, Little Rock, AR, Jeffrey Weber, Bryant, AR, for Defendant-Appellee
    SMITH, Chief Judge, SHEPHERD and KELLY, Circuit Judges.
   ORDER

PER CURIAM.

Death row inmate Don William Davis moves for a stay of his execution scheduled for April 17, 2017, at 7:00 p.m., pending full briefing and argument of his appeal from the district court’s denial of his Federal Rule of Civil Procedure 60(b) motion. We deny his motion for stay.

“[A] stay of execution is an equitable remedy. It is not available as a matter of right, and equity must be sensitive to the State’s strong interest in enforcing its criminal judgments without undue interference from the federal courts.” Hill v. McDonough, 547 U.S. 573, 584, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006). “[I]nmates seeking time to challenge the manner in which the State plans to execute them must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits.” Id..... A movant must present evidence to show a significant possibility of success on the merits of his claim. Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam).

Johnson v. Lombardi, 809 F.3d 388, 390 (8th Cir.), cert. denied, — U.S. —, 136 S.Ct. 601, 193 L.Ed.2d 480 (2015).

Davis sought relief from judgment pursuant to Rule 60(b) to obtain a merits ruling on his procedurally defaulted ineffective-assistance-of-trial counsel claim. That claim asserts that trial counsel rendered ineffective assistance at the penalty phase in violation of the Sixth Amendment by failing to present a witness to evaluate and explain Davis’s admitted. school and institutional records. He also asserts Davis’s counsel failed to present other witnesses in mitigation. The district court denied relief, but granted a certificate of appealability on the issue.

A Rule 60(b) motion is a second or successive habeas corpus application if it contains a claim. For the purpose' of determining whether the motion is a habeas corpus application, claim is defined as an “asserted federal basis for relief from a state court’s judgment of conviction” or as an attack on the “federal court’s previous resolution of the claim on the merits.” Gonzalez [v. Crosby] 545 U.S. [524,] 530, 532 [ (2005) ], 125 S.Ct. 2641 [162 L.Ed.2d 480]. “On the merits” refers “to a determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief under 28 U.S.C. §§ 2254(a) and (d).” Id. at 532 n. 4, 125 S.Ct. 2641. When a Rule 60(b) motion presents a claim, it must be treated as a second or successive habeas petition under AEDPA.
No claim is presented if the motion attacks “some defect in the integrity of the federal habeas proceedings.” Id. at 532, 125 S.Ct. 2641. Likewise, a motion does not attack a federal court’s determination on the merits if it “merely asserts that a previous ruling which precluded a merits determination was in error — for example, a denial for such reasons as failure to exhaust, procedural default, or statute-of-limitations bar.” Id. at n. 4.

Ward v. Norris, 577 F.3d 925, 933 (8th Cir. 2009).

Davis challenges the district court’s pri- or determination that his claim was procedurally defaulted. He argues that he is entitled to relief from judgment under Rule 60(b) as evidenced by the Supreme Court’s recent decision in Buck v. Davis, — U.S. —, 137 S.Ct. 759, 197 L.Ed.2d 1 (2017). He claims that Buck “was properly reopened under comparable circumstances.”

Rule 60(b) includes the “requirement that the motion ‘be made within a reasonable time.” Gonzalez, 545 U.S. at 535, 125 S.Ct. 2641. Additionally, Rule 60(b)(6) “provides] that a court may lift a judgment for ‘any other reason that justifies relief.’ Relief is available under subdivision (b)(6), however, only in ‘extraordinary circumstances.’ ” Buck, 137 S.Ct. at 772. In the habeas context, such “extraordinary circumstances” “rarely occur.” Id. (quoting Gonzalez, 545 U.S. at 535, 125 S.Ct. 2641). “In determining whether extraordinary circumstances are present, a court may consider a wide range of factors. These may include, in an appropriate case, ‘the risk of injustice to the parties’ and ‘the risk of undermining the public’s confidence in the judicial process.’ ” Id. at 778 (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863-64, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988)). We review for an abuse of discretion a district court’s Rule 60(b)(6) determination. Id. at 777.

Here, the district court denied habeas relief in January 2004. We affirmed the district court’s decision in September 2005. See Davis v. Norris, 423 F.3d at 868, 879 (8th Cir. 2005). In 2012, the Supreme Court decided Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) (holding when a state formally limits the adjudication of claims of ineffective assistance of trial counsel to collateral review, a prisoner may show cause for procedural default if (1) “the state courts did not appoint counsel in the initial-review collateral proceeding,” or “appointed counsel in [that] proceeding ... was ineffective under the [Strickland] standards”; and (2) “the underlying ... claim is a substantial one, which is to say that ... the claim has some merit”). In 2013, the Supreme Court decided Trevino v. Thaler, — U.S. —, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013) (holding that the exception announced Martinez extended to state systems that, as a practical matter, deny criminal defendants “a meaningful opportunity” to pursue ineffective-assistance claims on direct appeal).

On February 22, 2017, the Supreme Court decided Buck. In that case, Buck sought federal habeas relief under 28 U.S.C. § 2254, contending that his trial counsel’s introduction of expert testimony reflecting the view that his race predisposed him to violent conduct violated his Sixth Amendment right to counsel. His claim, however, was proeedurally defaulted under Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Thereafter, the Supreme Court issued Martinez and Trevino, modifying the Coleman rule. Following Trevino, Buck sought to reopen his§ 2254 case under Rule 60(b). The district court denied his motion. The Supreme Court, however, concluded that the district court abused its discretion in denying the motion because “extraordinary circumstances” existed. First, “Buck may have been sentenced to death in part because of his race.” Id. at 778. Second, Buck’s underlying ineffective-assistance claim was race-based and “injure[d] not just the defendant, but ‘the law as an institution, ... the community at large, and ... the democratic ideal reflected in the processes of our courts.’ ” Id. (quoting Rose v. Mitchell, 443 U.S. 545, 556, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979)). Third, the case’s extraordinary nature was confirmed by the State’s refusal to confess error in Buck’s case, despite admitting error in similar cases. Id.

Even assuming Davis’s motion is timely, Davis has faded to present extraordinary circumstances mirroring those demonstrated in Buck. As the district court pointed out, Buck focused on the race-based nature of the case and its far reaching impact on the community by the prospect of a defendant having been sentenced to death because of his race. These extraordinary facts have no application to the present case.

Accordingly, we hold that Davis has failed to show a significant possibility of success on the merits of his claim. See Johnson, 809 F.3d at 390.

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . The record strongly supports the district court’s finding that Davis's motion is untimely. See Watkins v. Lundell, 169 F.3d 540, 543-44 (8th Cir. 1999) ("What constitutes a reasonable time is dependent on the particular facts of the case in question and is reviewed for abuse of discretion.”). Davis’s Rule 60(b)(6) motion was filed on April 12, 2017, five days before the scheduled execution and years after Martinez and Trevino. And while the recent Buck decision clarifies that a Rule 60(b)(6) motion can be a successful mechanism to raise a claim of Martinez default post-judgment, Davis concedes that Martinez and Trevino represent "the revolution in the law” applicable to this case.


author: COLLOTON, Circuit Judge. SHEPHERD, Circuit Judge,

text:
    SHELBY COUNTY HEALTH CARE CORPORATION, doing business as Regional Medical Center, Plaintiff-Appellant, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY; Medford Farm Partnership; Aaron Medford; Barbara Ford, as Special Administratrix of the Estate of John Dallas Smiley, Defendants-Appellees.
    No. 15-3765
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 20, 2016
    Filed: April 28, 2017
    Rehearing and Rehearing En Banc Denied June 16, 2017

      Counsel who presented argument on behalf of the appellant was Curtis Henry Goetsch, of Germantown, TN.
    Counsel who presented argument on behalf of appellees Southern Farm Bureau Casualty Insurance Company; Medford Farm Partnership; and Mr. Aaron Med-ford was Ben C. Hall, of Cabot, AR.
    Counsel who presented argument on behalf of appellee Ms. Barbara Ford was Brandon W. Lacy, of Jonesboro, AR.
    Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.

       Chief Judge Smith, Judge Riley, and Judge Shepherd would grant the petition for rehearing en banc.

   COLLOTON, Circuit Judge.

Shelby County Health Care Corporation, doing business as Regional Medical Center (“The Med,” for short), seeks relief for alleged impairment of a hospital lien. The district court dismissed The Med’s claim on the ground that it was barred by the Rooker-Feldman doctrine and, alternatively, that it failed under Arkansas law. We conclude that the claim is not barred by Rooker-Feldman, and that Tennessee law should apply, so we vacate the district court’s order and remand for further proceedings.

I.

The hospital lien in question arose from treatment that John Smiley received at The Med in Memphis, Tennessee, from February 18, 2009, when he was involved in an automobile accident, until March 6, 2009, when he died of his injuries. The Med promptly filed a hospital lien for Smiley’s medical bills pursuant to the Tennessee Hospital Lien Act in the Shelby County Circuit Court in Tennessee. Tenn. Code Ann. § 29-22-101. The Med mailed a copy of the hospital lien to the attorneys for Smiley’s estate.

Barbara Ford was appointed administrator of Smiley’s estate by an Arkansas circuit court. Ford negotiated a settlement with the tortfeasor’s insurer, Southern Farm Bureau Casualty Insurance Company. As part of the settlement negotiations, Ford sent to the insurer Smiley’s hospital bill and records from The Med documenting Smiley’s pain and suffering. The insurer, along with its insured Aaron Medford, and Medford’s employer Medford Farm Partnership, settled with Ford for $700,000. The administrator of the estate allocated the entire $700,000 to recovery for wrongful death and none to the recovery of compensatory damages for medical services and other expenses.

In September 2010, the settling parties (which did not include The Med) memorialized the agreement in an Arkansas probate court judgment that purported to extinguish any outstanding liens. The Med learned of the probate court judgment by April 2011, but did not seek to intervene in the proceedings. The probate court closed Smiley’s estate on September 16, 2011.

The Med sued the settling parties to recover $355,364.16 in damages for the impairment of its hospital lien. The district court granted summary judgment for the defendants on the ground that The Med failed to enforce its lien by neglecting to file it in the Arkansas probate court. The Med appealed, and this court reversed, concluding that the district court misconstrued The Med’s claim as one for lien enforcement rather than lien impairment. Shelby Cty. Health Care Corp. v. S. Farm Bureau Cas. Ins. Co., 798 F.3d 686, 689 (8th Cir. 2015). We remanded for the district court to address, among other questions, whether Arkansas law or Tennessee law applied to The Med’s lien impairment claim. Id. at 689-90.

On remand, the district court again granted summary judgment for the settling parties. The court first ruled that the Rooker-Feldman doctrine barred The Med’s claims. See D.C. Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fid. Tr. Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923). Alternatively, the court reasoned that Arkansas’s choice-of-law rules called for the application of Arkansas law, and that The Med’s claim failed under Arkansas law. The court concluded that The Med did not properly perfect its lien under Arkansas law, and that even if the lien were perfected, it would be unenforceable because Arkansas law prevents a hospital lien from attaching to a wrongful death recovery.

II.

We consider first the district court’s ruling that it lacked jurisdiction. In concluding that The Med’s claim “appears to be barred by the Rooker-Feldman doctrine,” the district court reasoned that “[t]o now find that there was a valid, enforceable lien would effectively reverse the decision made by the Arkansas probate court.” The court explained that the probate court found that The Med’s lien was void and not enforceable in Arkansas, while The Med now alleges that the defendants impaired a valid lien.

The Rooker-Feldman doctrine is confined to “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). The doctrine does not apply here, because The Med was not a “state-court loser.” The Med was not a party to the state-court probate proceedings. Whatever narrow application the Rooker-Feldman doctrine might have to de facto appeals by non-parties is hot germane here, where The Med has no relationship to the parties in probate court. Cf. Lance v. Dennis, 546 U.S. 459, 466 n.2, 126 S.Ct. 1198, 163 L.Ed.2d 1059 (2006) (per curiam) (reserving judgment on whether Rooker-Feld-man applies where an estate takes a de facto appeal in a district court of an earlier state decision involving the decedent).

The district court relied on Lemonds v. St. Louis County, 222 F.3d 488 (8th Cir. 2000), which stated a broader view of the Rooker-Feldman rule: “The Rooker-Feld-man doctrine forecloses not only straightforward appeals but also more indirect attempts by federal plaintiffs to undermine state court decisions.” Id. at 492. Starting from that premise, Lemonds said the fact that federal-court plaintiffs were not parties to an earlier state-court lawsuit “does not automatically preclude a Rooker-Feld-man bar.” Id. at 495. The court ruled that non-parties who could have pursued a claim in state court were barred by Rook-er-Feldman from proceeding in federal court when “the entire upshot of a favorable decision” would have been “to unwind the decision of the state court.” Id. at 496.

Lemonds, however, has been superseded by the Supreme Court’s clarification of the Rooker-Feldman doctrine. In Exxon Mobil, the Court observed that “the doctrine has sometimes been construed to extend far beyond the contours of the Rooker and Feldman cases.” 544 U.S. at 283, 125 S.Ct. 1517. The Court emphasized that the doctrine applies only to claims brought by “state-court losers” and “does not otherwise override or supplant preclusion doctrine or augment the circumscribed doctrines that allow federal courts to stay or dismiss proceedings in deference to state-court actions.” Id. at 284, 125 S.Ct. 1517. In Lance, the Court explained that “[t]he Rooker-Feldman doctrine does not bar actions by nonparties to the earlier state-court judgment simply because, for purposes of preclusion law, they could be considered in privity with a party to the judgment.” 546 U.S. at 466, 126 S.Ct. 1198. To apply Rooker-Feldman here to a non-party who had an opportunity to intervene in state-court proceedings would echo the pre-Exxon Mobil lower-court rulings that expanded the doctrine too far.

In this case, moreover, The Med does not seek to reverse the order of the Arkansas probate court. The Med acknowledges that it could not seek a judgment directly against the proceeds of the personal injury settlement; those proceeds were awarded to Ford. In this case, The Med asserts that the probate court’s order is evidence that the settling parties impaired The Med’s hospital lien, and The Med seeks a judgment against Ford and the other settling parties. The Rooker-Feldman doctrine thus does not bar The Med’s claim.

III.

The district court ruled alternatively that Arkansas law applies to the dispute between the parties, and that The Med’s claim fails under Arkansas law. On appeal, the parties debate whether Arkansas law or Tennessee law should apply.

Federal jurisdiction over this case is based on diversity of citizenship, so we apply the choice-of-law rules of Arkansas, the forum State, to determine which law governs the dispute. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Under Arkansas law, the framework for deciding the choice-of-law question depends on the type of claim involved. A contract claim triggers different analysis than a tort claim.

The Med argues that the case raises an issue in contract, because hospital liens arise from an express or implied contract that is formed when the hospital provides emergency medical services. See Midwest Neurosurgery, P.C. v. State Farm Ins. Cos., 268 Neb. 642, 686 N.W.2d 572, 578 (2004). But the Arkansas Supreme Court, in considering its own State’s hospital lien statute, has not accepted that characterization. In Stuttgart Regional Medical Center v. Cox, 343 Ark. 209, 33 S.W.3d 142 (2000), the court rejected a patient’s argument that a hospital enforcing its lien brought an action that “sounded in contract” based on agreements with a hospital; instead, the hospital’s “sole cause of action was to enforce its lien.” Id. at 145.

Here, of course, the action is not to enforce a lien, but to seek relief for impairment of a lien. Ford, citing Lane v. Celadon Trucking, Inc., 543 F.3d 1005 (8th Cir. 2008), argues that the action raises an issue in tort. Lane involved a worker’s compensation subrogation claim in which an employer paid worker’s compensation benefits to an injured employee. The employer had negotiated both an employment agreement and a settlement agreement in which the employer retained its statutory rights to recover amounts paid to the employee by third parties based on the injury. The employer then asserted a worker’s compensation lien on any recovery the employee might receive from the tortfeasor who caused the injury, and later attempted to recover proceeds of a settlement that the employee received from the tortfeasor. In determining the type of action involved for purposes of choice-of-law analysis, this court concluded that despite the agreements and the lien, “the issue was not simply one of contract because it implicated the tort aspects of the plaintiffs recovery for his personal injuries.” Id. at 1009.

Although there are differences between a subrogation claim to recover on a worker’s compensation lien and a claim alleging impairment of a hospital lien, see Nat’l Ins. Ass’n v. Parkview Mem’l Hosp., 590 N.E.2d 1141, 1145 (Ind. Ct. App. 1992), we think the dispute between the parties in this case is still best characterized as raising an issue in tort. The relevant tort here is the alleged impairment of the hospital lien secured by The Med. A lien is an interest, in another’s property. A claim of lien impairment is an assertion that the defendants interfered with this property interest, a wrong analogous to the common-law tort of conversion. See Unigard Ins. Co. v. Tremont, 37 Conn.Supp. 596, 430 A.2d 30, 32-33 (1981); Rew v. Maynes, 147 Iowa 15, 125 N.W. 804, 804 (1910). We therefore expect that the Arkansas courts are likely to treat a claim of lien impairment as raising an issue in tort rather than contract, and we proceed with the choice-of-law analysis accordingly.

Once upon a time, Arkansas courts resolving choice-of-law questions in tort cases followed the rule of lex loci delicti: apply the law of the place where the tort was committed. E.g., Wheeler v. Sw. Greyhound Lines, Inc., 207 Ark. 601, 182 S.W.2d 214, 215 (1944). More recently, however, the Arkansas Supreme Court has “evolved” to consider the five choice-influencing factors identified by Professor Robert Leflar “to soften the formulaic application of lex loci delicti.” Schubert v. Target Stores, Inc., 360 Ark. 404, 201 S.W.3d 917, 922 (2005). As we understand current Arkansas law, the state supreme court considers first which State has the most significant relationship to the action and the parties, and then analyzes the Leflar factors: (1) predictability of results, (2) maintenance of interstate and international order, (3) simplification of the judicial task, (4) advancement of the forum’s governmental interests, and (5) application of the better rule of law. Ganey v. Kawasaki Motors Corp., U.S.A., 366 Ark. 238, 234 S.W.3d 838, 846-47 (2006).

In determining which State has the most significant relationship to the action and parties, Arkansas courts examine the contacts that are most relevant in the particular case. Here, the most significant contacts do not weigh clearly in favor of either Arkansas or Tennessee. The medical bills that formed the basis for the hospital lien were incurred in Tennessee. The Med filed its hospital lien in Tennessee, would have received funds based on the lien in Tennessee, and thus felt the harm from any impairment of the lien in Tennessee. But the settlement agreement and corresponding probate order that allegedly impaired the lien were filed in Arkansas. The parties’ domiciles do not tip the balance. The Med is a Tennessee corporation that conducts business exclusively in Tennessee. Ford is domiciled in Virginia. The insurer is incorporated in Mississippi and does business in several states, including Arkansas, but not Tennessee. Medford is an Arkansas resident, employed by Medford Farm Partnership, which operates in Arkansas. That Mr. Smiley’s automobile accident occurred in Arkansas carries little weight in the analysis. The relevant wrong here is alleged impairment of the lien, not negligent operation of a vehicle, and the factors described above' are most significant in the lien impairment action.

So we turn to the Leflar factors, three of which are most pertinent here. The first factor is predictability of results. “The consideration here is the idea that a decision following litigation on a given set of facts should be the same regardless of where the litigation occurs in order to prevent forum shopping.” Schubert, 201 S.W.3d at 922. We think this factor favors Tennessee law. Judge Moody was quite right in State Farm Mut. Auto. Ins. Co. v. Shelby Cty. Health Care Corp., No. 3:10CV00169, 2011 WL 5508854, at *3 (E.D. Ark. Nov. 10, 2011), that “[f]orcing The Med, or any other regional hospital, to predict [in] which state an insurer would administer the claims of Med patients would certainly result in unpredictable results.” Applying Tennessee law to hospital hens filed in Tennessee creates consistent outcomes for patients who live in different States when they seek medical care at the same facility in Tennessee. Forum-shopping might not be a concern in the case of deceased patients, because probate law restricts where an estate could settle a claim. But many patients live beyond their stay at The Med, and uniform application of Tennessee law prevents forum shopping in hen impairment actions involving former patients. The choice of law should not depend on whether a patient has died.

The second Leflar factor — the maintenance of interstate and international order — also favors Tennessee law. This factor focuses on whether one State’s law would “manifest disrespect for [another state’s] sovereignty or impede the interstate movement of people and goods.” Whitney v. Guys, Inc., 700 F.3d 1118, 1125 (8th Cir. 2012) (alterations in original). The record reflects that The Med is the only Level 1 Trauma Center within a 150-mile radius of Memphis, and the facility renders life-saving trauma care to hundreds of Arkansas residents per year. Arkansas itself encourages hospitals to provide emergency services to its residents, as illustrated by its own hospital hen statute. Ark. Code Ann. § 18-46-104. But application of Arkansas law here would be disruptive to interstate order, because it would deprive The Med of compensation for emergency care administered to severely injured Arkansans.

Under the fourth Leflar factor— the advancement of the forum’s interest— we determine the forum’s interest by examining its contacts with the case. Schubert, 201 S.W.3d at 923. Arkansas’s primary contact with this hen impairment action is that an Arkansas probate court order memorialized the settlement that The Med alleges impaired its hen. Arkansas’s hospital hen statute reflects the State’s general interest in encouraging hospitals to provide emergency services to its residents. See Ark. Code Ann. § 18-46-104. In the case of a wrongful death settlement, however, Arkansas law prevents a third party from attaching a hen to a wrongful-death recovery. Ark. Code Ann. § 16-62-102(e). And according to a divided opinion of the Arkansas Court of Appeals, Arkansas law permits the administrator of an estate like Ford to allocate all of a settlement in a wrongful-death and surviv- or action to the wrongful-death aspect of the action, and none to medical expenses that would benefit the creditors of the estate. Mid-South Adjustment v. Estate of Harris, 87 Ark. App. 139, 189 S.W.3d 518, 520 (2004).

Because the settlement here was allocated entirely to a wrongful-death recovery, the fourth factor concerning advancement of the forum’s interest arguably points to Arkansas law. But Arkansas’s statutory policy preventing creditors from attaching liens to wrongful-death recoveries is implicated as to the full recovery here only because Mid-South Adjustment allows an estate’s administrator unilaterally to allocate a settlement to avoid the claims of an estate’s creditors. The Arkansas legislature has not spoken to the allocation issue, and given the concerns expressed by the dissenting judges about tension between the State’s probate laws and the wrongful-death statute, id. at 520-22 (Robbins, J., dissenting), we are not confident that the Arkansas Supreme Court would agree with the intermediate court. Even taking the court of appeals decision as the best indicator of current Arkansas law, the court did not identify a strong Arkansas public policy in favor of the allocation procedure.

In any event, we are not convinced that the forum’s interest outweighs the concerns previously expressed about forum shopping and the maintenance of interstate order that favor application of Tennessee law. The Arkansas Supreme Court, speaking of interstate order, has acknowledged that “[djeference to sister state law in situations in which the sister state’s substantial concern with a problem gives it a real interest in having its law applied, even though the forum state also has an identifiable interest, will at times usefully further this part of the law’s total task.” Gomez v. ITT Educ. Servs., 348 Ark. 69, 71 S.W.3d 542, 547 (2002) (quoting Robert A. Leflar, American Conflicts of Law § 104, at 208 (3d ed. 1977)). We believe that this case presents such an occasion.

Having considered both which State has the most significant relationship to the parties and the action, and Professor Lef-lar’s choice-influencing factors, we conclude that Tennessee law should apply to The Med’s lien impairment claim. We therefore reverse the district court’s order granting summary judgment in favor of the defendants and remand the case for further proceedings in accordance with this opinion.

SHEPHERD, Circuit Judge,

dissenting.

Until now, the commonplace procedure where an Arkansas resident is fatally injured in an accident that occurs in Arkansas is that an Arkansas probate court appoints an administrator in an Arkansas county for the purpose of bringing a wrongful death claim. After that claim is settled in an Arkansas probate court, there has been no question that the proceeds from that action do not become a part of the assets of the estate and, therefore, are not subject to the debts of the deceased. Thus, the court defies controlling Arkansas law by holding that an out-of-state medical care provider — who is located less than 100 miles away and has actual notice of the proceedings, but nevertheless fails to file a claim against the estate, perfect an Arkansas medical lien, or otherwise appear in the probate case — is entitled to proceeds from a wrongful death action. Accordingly, I respectfully dissent.

Accordingly, although I agree with the majority’s determination that the Rooker-Feldman doctrine does not bar the present action, I cannot agree with the outcome of its conflict of laws analysis. The state, in Arkansas Code Annotated section 16-62-102(e), made unmistakably clear its policy goals with regard to the question of whether damages recovered by survivors of the deceased for wrongful death may be claimed by creditors by stating that “[n]o part of any recovery referred to in this section shall be subject to the debts of the deceased or become, in any way, a part of the assets of the estate of the deceased person.” Further, this policy has been reiterated and applied in a number of subsequent state court decisions. See, e.g., Douglas v. Holbert, 335 Ark. 305, 983 S.W.2d 392, 396 (1998).

I agree with the majority’s conclusion that this action sounds in tort rather than in contract. See Stuttgart Reg’l Med. Ctr. v. Cox, 343 Ark. 209, 33 S.W.3d 142, 145 (2000). Thus, Arkansas courts first determine which state has the most significant relationship to the parties and the litigation by examining the contacts relevant to the dispute. Ganey v. Kawasaki Motors Corp., U.S.A., 366 Ark. 238, 234 S.W.3d 838, 847 (2006). Next, the courts consider the lex loci delicti doctrine and Professor Leflar’s five “choice-influencing considerations.” Id. (internal quotation marks omitted). Those factors are “1) predictability of results; 2) maintenance of interstate and international order; 3) simplification of the judicial task; 4) advancement of the forum’s governmental interests; and 5) application of the better rule of law.” Gomez v. ITT Educ. Servs., Inc., 348 Ark. 69, 71 S.W.3d 542, 546 (2002).

Assuming that an examination of the relevant contacts does not favor the application of either state’s law, I dissent from the majority’s conclusion that factors one, two, and four indicate that Tennessee law should apply. The first factor — predictability of results — weighs in favor of applying Arkansas law. “The consideration here is the ideal that a decision following litigation on a given set of facts should be the same regardless of where the litigation occurs in order to prevent forum shopping.” Schubert v. Target Stores, Inc., 360 Ark. 404, 201 S.W.3d 917, 922 (2005). Simply put, forum shopping is not a legitimate concern in a probate case such as this when there is only one state in which the estate could be settled. While the majority correctly observes that this could potentially be a concern when a patient does not pass away during the course of his treatment, the majority’s opinion loses sight of the fact that this is not what happened here.

The second factor — maintenance of interstate order — likewise favors application of Arkansas law. “When the forum has little or no interest in applying its own law, its parochial decision to do so anyway could adversely affect the smooth functioning of the federal system and lead to retaliation in future cases by courts in the other state with a substantial interest in having its law applied.” 2 David Newbern et al., Arkansas Civil Practice & Procedure § 6:6 (5th ed. 2010). It is for this reason that the state supreme court has “note[d] that ‘[djeference to sister state law in situations in which the sister state’s substantial concern with a problem gives it a real interest in having its law applied, even though the forum state also has an identifiable interest, will at times usefully further this part of the law’s total task.’ ” Gomez, 71 S.W.3d at 547 (second alteration in original) (quoting Robert A. Leflar, American Conflicts of Law § 104, at 208 (3d ed. 1977)). On the other hand, “where the enforcement of the foreign law would contravene the established policy of the state of the forum, the law of the forum governs.” Sutherland v. Ark. Dep’t of Ins., 250 Ark. 903, 467 S.W.2d 724, 726 (1971).

“Under current Arkansas law, when a person’s death is caused by the negligence of another, two causes of action arise.” Davis v. Parham, 362 Ark. 352, 208 S.W.3d 162, 167 (2005). First, the estate can maintain a survival action under Arkansas Code Annotated section 16-62-101 for claims the decedent personally could have brought against a tortfeasor had death not occurred. See id. Second, the decedent’s beneficiaries may bring a wrongful death action for their own injuries caused by the tortfeasor. See id.; Ark. Code Ann. § 16-62-102. Further, in Arkansas, survival claims and 'wrongful death claims are “typically brought by the personal representative of the decedent and joined in one action.” Howard W. Brill, Arkansas Law of Damages § 34.1 (6th ed. 2014) (citing Dawson v. Gerritsen, 295 Ark. 206, 748 S.W.2d 33, (1988)). Unlike recoveries in survival actions, the Arkansas legislature has seen fit to protect wrongful death recoveries from the grasp of creditors: “No part of any recovery referred to in this section shall be subject to the debts of the deceased or become, in any way, a part of the assets of the estate of the deceased person.” Ark. Code Ann. § 16-62-102(e). The reasoning for this is quite logical. Survival actions pursue claims personal to the decedent and, thus, those recoveries should also be subject to the decedent’s debts. Wrongful death suits, on the other hand, seek relief for the beneficiaries’ own injuries and, as such, that recovery rightfully forms no part of the decedent’s estate. Therefore, because application of Tennessee law in this instance “contravene[s] the established policy” of Arkansas, I believe this factor weighs in favor of applying Arkansas law. Sutherland, 467 S.W.2d at 726.

Finally, the fourth factor — advancement of the forum’s interest — favors application of Arkansas law. Analysis of this factor “requires the court to identify the factual connections linking the case to the forum state and then determine whether those facts implicate state policies that would justify application of forum law to the particular issue.” 2 Newbern et al., supra; see also Schubert, 201 S.W.3d at 923. The Arkansas contacts relevant to this action are as follows: The accident giving rise to the wrongful death occurred there. The decedent was domiciled there. The estate was opened there. The probate court appointed an administrator to pursue survival and wrongful death claims there and, in the absence of outstanding claims against the estate or medical liens filed pursuant to Arkansas law, determined that the $700,000 offer was a “full and final settlement of any and all claims arising under the Arkansas Wrongful Death Act.” These facts clearly implicate Arkansas’s policy against subjecting wrongful death recoveries to claims by creditors. See Ark. Code Ann. § 16-62-102(e). “Once a settlement is obtained, subsection (e) declares that the settlement proceeds do not become assets of the decedent’s estate.... Instead, the proceeds of a wrongful-death action are for the sole benefit of the statutory beneficiaries and may not be used to pay off debts of the estate.” Douglas, 983 S.W.2d at 396.

The majority correctly notes that an Arkansas Court of Appeals decision—Mid-South Adjustment Co. v. Estate of Harris, 87 Ark. App. 139, 189 S.W.3d 518, 520 (2004)—upheld a probate court’s decision that allocated 100% of a settlement to recovery for wrongful death.. But the majority then goes on to conclude that “the court did not identify a strong Arkansas public policy in favor of the allocation procedure.” The majority reasons that the Arkansas legislature has not spoken to the precise issue and that the dissenting judges in Mid-South Adjustment noted tension between Arkansas probate and wrongful-death laws. However, the Arkansas legislature has spoken on the issue — it has clearly stated that “[n]o part of any recovery referred to in this section shall be subject to the debts of the deceased or become, in any way, a part of the assets of the estate of the deceased person.” Ark. Code Ann. § 16-62-102(e) (emphasis added). Thus, whether Mid-South Adjustment identified a strong public policy is beside the point because the State of Arkansas has a clear policy against subjecting wrongful death recoveries to claims by the decedent’s creditors.

Moreover, the primary concern noted by the dissenters in Mid-South Adjustment involved the fact that the estate was settled and closed without notice to the creditors. See 189 S.W.3d at 521 (Robbins, J., dissenting). That concern is entirely absent here. The Med concedes that it had notice of the probate proceedings by April of 2011. As this is six months before the estate was closed, the Med had ample time to take action in Arkansas by filing its lien there or filing a claim against the estate, either of which would have entitled it to more notice. Significantly, in its September order approving the settlement, the Monroe County Circuit Court sitting in probate noted that no medical lien had been filed in Arkansas and that all claims against the estate had been paid. Instead, the Med filed the lien in Tennessee and then waited until August of 2013 — more than two years after the estate was closed — to instigate the present action.

Because I believe all three applicable factors favor the application of Arkansas law, I respectfully dissent. I would affirm the district court’s determination that Arkansas substantive law applies to the problem at issue.

      . Elements of such damages include, inter alia, the decedent’s medical expenses, lost earnings prior to death, and pain and suffering. Brill, supra, § 34.2. "Apart from the personal injury action, the administrator may assert any claim that the decedent could have asserted if he had lived.” Id.

      . Recovery for wrongful death is intended to compensate the statutory beneficiaries for pecuniary losses — “defined as the present value of the benefits, including money, goods, and services, that the decedent would have contributed to the statutory beneficiaries if he had lived” — mental anguish, and loss of consortium. Brill, supra, §§ 34.4, 35.5.


author: LOKEN, Circuit Judge.

text:
    MARTINIZING INTERNATIONAL, LLC, Plaintiff-Appellant v. BC CLEANERS, LLC, et al., Defendants-Appellees
    No. 16-1069
    United States Court of Appeals, Eighth Circuit.
    Submitted: December 12, 2016
    Filed: April 28, 2017

      Counsel who represented the appellant was Elizabeth L. Sokol of Birmingham, MI.
    The appellee did not file a brief.
    Before LOKEN, MURPHY, and KELLY, Circuit Judges.
   LOKEN, Circuit Judge.

Martinizing International, LLC commenced this action against BC Cleaners, LLC and two of its member-managers, Brent Lundell and Timothy Carver, asserting claims of Lanham Act trademark infringement, see 15 U.S.C. § 1125(a), and violation of the Minnesota Deceptive Trade Practices Act (MDTPA), see Minn. Stat. § 325D.44. Defendants failed to appear. The district court granted a default judgment against BC Cleaners, concluding that it willfully infringed Martinizing’s trademarks and engaged in a deceptive trade practice. Martinizing Int’l, LLC v. BC Cleaners, LLC, 2015 WL 8483280 (D. Minn. Dec. 9, 2015). The court denied Mar-tinizing a default judgment against Lun-dell and Carver, concluding they were not personally liable for trademark infringement or a deceptive trade practice. Id. at *3. Martinizing appeals, arguing the court erred when it denied a default judgment against Lundell and Carver and reduced the award of attorneys’ fees for willful infringement. Defendants have not appeared in this Court. We affirm the grant of a permanent injunction enjoining BC Cleaners from using Martinizing’s trademarks. We conclude Martinizing failed to prove willful infringement by BC Cleaners and therefore reverse the award of damages, an accounting for profits, and attorneys’ fees. We affirm the denial of a default judgment against defendants Lundell and Carver.

I.

Martinizing’s amended complaint alleged that, in June 2011, it entered into two franchise agreements with Markus Kan-ning, dba KM Cleaners, Inc., authorizing use of Martinizing’s trademarks in operating dry-cleaning stores in Eagan and Inver Grove Heights, Minnesota. The agreements prohibited Kanning as franchisee from selling the franchise locations or assigning the franchise agreements without Martinizing’s prior written consent. Mar-tinizing learned that KM Cleaners and BC Cleaners entered into an Asset Purchase Agreement dated August 22, 2014, without Martinizing’s consent, and that defendants continued to operate the franchised stores, using and displaying Martinizing’s trademarks without its approval. On January 15, 2015, counsel for Martinizing sent a letter to BC Cleaners and Lundell, demanding that they sign a franchise agreement or refrain from using the trademarks, but defendants continued to use Martinizing’s marks and trade dress. Mar-tinizing attached to the complaint copies of a document entitled “Asset Purchase Agreement of Martinizing Dry Cleaners” between KM Cleaners, Inc. and BC Cleaners, LLC, and the January 2015 “Cease and Desist” letter. The complaint generally alleged that Lundell and Carver were member-managers who “aided, abetted, directed and controlled BC with respect to the wrongful conduct.”

When a default judgment is entered, facts alleged in the complaint are taken as true, but “it remains for the [district] court to consider whether the unchallenged facts constitute a legitimate cause' of action, since a party in default does not admit mere conclusions of law.” Marshall v. Baggett, 616 F.3d 849, 852 (8th Cir. 2010) (quotation omitted). Thus, after entry of default, Martinizing had to prove it was entitled to the relief sought in its complaint against each defendant — treble damages under the Lanham Act, an injunction enjoining use of its trademarks and unfair competition, prejudgment interest, costs, and attorneys’ fees. Whether Martinizing met that burden is an issue of law we review de novo. Marshall, 616 F.3d at 853.

In support of its motion for entry of default, Martinizing submitted two email responses from defendants, neither of which was filed with the court. In a March 1, 2015 email, Lundell stated: ‘We will comply with [Martinizing’s demands]. Signage will [be] handled by KM Cleaners and the landlord who are operating the stores. The stores are no longer under our control.” In a June 23, 2015 email, Lundell wrote:

As an additional follow-up, BC Cleaners, LLC was never a franchisee of Martiniz-ing.... BC Cleaners was operating the units for KM Cleaners, LLC along with an agreement to purchase the units from KM Cleaners [that] was never fully executed.

In support of its motion for default judgment, Martinizing submitted with an attorney affidavit copies of its franchise agreements with Kanning, the purported Asset Purchase Agreement and “Closing Documents” between KM Cleaners and BC Cleaners, the January 2015 Cease and Desist letter, photos of the dry-cleaning stores showing use of the Martinizing trademarks, and documents supporting its claim for an award of $18,592.92 in costs and attorneys’ fees. The attorney claimed personal knowledge of facts supporting the claim for costs and attorneys’ fees, but no first-hand knowledge of facts relating to the underlying franchise transactions.

II.

In our review of this abbreviated record, we found the most notable aspect to be that the allegations of trademark infringement and deceptive trade practice by defendants in the amended complaint are directly contradicted by the terms of the Asset Purchase Agreement that was made part of the amended complaint. As relevant here, the Agreement provided:

4. USE OF NAME
Seller will transfer to Buyer the rights it has to use the name “Martinizing Dry Cleaners”, thru the assignment of the Franchise agreement with Martinizing in conducting its business. Seller shall execute any necessary documents to [e]ffeet this consent upon receipt of payment in full of the Promissory Note hereto attached Marked Exhibit D.
5. MARTINIZING FRANCHISE
Seller will transfer its interest to the Buyer in the Martinizing franchise for these locations upon payment in full of the attached Promissory Note marked exhibit D. Buyer will pay Seller the prorated share of the annual Franchise fee from September 1 thru November 30, 2014. This money to be paid May 31, 2015. Buyer to pay the transfer fee upon transfer of this Franchise to them.

Exhibit D is an interest-free $10,000 Promissory Note dated August 22, 2014, personally guaranteed by Lundell and Carver, in which BC Cleaners promised to pay KM Cleaners $5,000 on October 15, 2014, and $5,000 on November 30, 2014.

From the plain meaning of these Asset Purchase Agreement provisions, together with the other facts of record, we conclude the following:

First, the Asset Purchase Agreement contractually obligated Kanning and KM Cleaners to assign the franchise agreements to BC Cleaners. The Agreement deferred Kanning’s assignment of his franchisee interest in the dry-cleaning stores until November 30, 2014, after defendants finished paying the Exhibit D Promissory Note. In the interim period, the Agreement obligated KM Cleaners to continue paying the annual franchise fee to Martin-izing, with BC Cleaners agreeing to reimburse KM Cleaners on May 31, 2015. KM Cleaners’ promise to assign valid franchise agreements necessarily included obtaining Martinizing’s approval.

Second, until the franchised stores were transferred to BC Cleaners in accordance with the Asset Purchase Agreement, Kan-ning and KM Cleaners remained Martiniz-ing’s authorized franchisee. Martinizing did not allege that it terminated the franchise agreements. See Minn. Stat. § 80C.14, subd. 3. To prevail on its claim of trademark infringement, Martinizing must prove that defendants’ conduct was “likely to cause confusion” as to the origin or approval of products or services. See, e.g., Everest Capital Ltd. v. Everest Funds Mgmt., L.L.C., 393 F.3d 755, 759 (8th Cir. 2005), citing 15 U.S.C. § 1125(a)(1)(A). Here, continued operation of the stores under franchise agreements that had not been terminated obviously caused no customer confusion whatsoever. As Lundell put it in his second email, BC Cleaners simply operated the stores “for KM Cleaners” during this interim period. Martinizing does not allege that BC Cleaners wrongfully acted as KM Cleaners’ agent, and we have trouble positing what that claim would be. If the interim arrangement violated the unterminated franchise agreements, any claim would presumably be against franchisee Kanning, not these defendants.

Third, unlike the categorical demand a trademark owner typically directs at an infringing competitor, Martinizing’s January 2015 Cease and Desist letter invited BC Cleaners and Lundell to become “an authorized Martinizing franchisee.” Implicit in this invitation was the grant of a reasonable period of time for defendants to decide whether to accept. Meanwhile, the stores continued to operate under the KM Cleaners franchise, causing no likelihood of customer confusion, only a possible claim by Martinizing against Kanning for any unpaid franchise fees.

Fourth, on March 1, 2015, Lundell and BC Cleaners replied to Martinizing’s Cease and Desist letter. They declined to seek a franchise agreement, stated they were no longer operating the stores, and agreed to comply with the cease and desist demands in Martinizing’s January letter. Because BC Cleaners had been using Mar-tinizing’s trademarks without approval and agreed to stop, the district court did not abuse its discretion in granting a permanent injunction enjoining BC Cleaners “from any and all further use of [Martiniz-ing’s] name and registered marks.”

Because the Lanham Act is grounded in equity and bars punitive remedies, “relief in a Lanham Act case should be limited to an injunction if that is sufficient to do equity.” Minnesota Pet Breeders, Inc. v. Schell & Kampeter, Inc., 41 F.3d 1242, 1247 (8th Cir. 1994) (citations omitted). Here, Martinizing argued to the district court that it was entitled to money damages (indeed, treble damages) because BC Cleaners operated the franchised stores “as if it were an authorized Martin-izing International franchisee,” ignoring plain language in the franchise agreements requiring Martinizing’s consent. But the documentary record establishes only that BC Cleaners (i) entered into an agreement to acquire the store assets and obtain a valid assignment of the franchise agreements, (ii) operated the stores during the period when the existing franchisee had promised to obtain Martinizing’s consent to the assignments, and then (iii) vacated the stores when the uncompleted deal fell through. Whether a Lanham Act plaintiff must prove willful infringement to recover money damages is an open question in this circuit after the Lanham Act amendments in 1999. See Masters v. UHS of Del., Inc., 631 F.3d 464, 471 n.2 (8th Cir. 2011). But even if willful infringement is not a prerequisite, on this record we conclude Martiniz-ing failed to prove that BC Cleaners’ conduct makes this the kind of exceptional case that would entitle Martinizing to damages, an accounting of infringer profits, or attorneys’ fees, in addition to the injunc-tive relief we have upheld. See 15 U.S.C. § 1117(a); Minn. Stat. § 325D.45. For example, Martinizing made no showing what franchise fees were not paid by Fanning during the months when BC Cleaners was operating the stores under the unterminated agreements.

Turning to the individual defendants, as member-managers of BC Cleaners, a limited liability company, Lundell and Carver enjoyed limited liability for BC Cleaners’ liabilities, debts, and obligations — including torts. See Minn. Stat. § 322B.303, subd. 1. Thus, for Martinizing to prevail against Lundell and Carver, “we must find a theory in the complaint to support imposing personal liability.” Marshall, 616 F.3d at 853. The general rule is that a corporate officer or limited liability company member is personally liable for trademark infringement if he or she directly participates in the infringement. See, e.g., United States v. Washington Mint, LLC, 115 F.Supp.2d 1089, 1106 (D. Minn. 2000), and cases cited. Similarly, for individual liability under the MDTPA, a corporate officer must participate in the corporation’s deceptive trade practice. See Avery v. Solargizer Int’l, Inc., 427 N.W.2d 675, 683 (Minn. App. 1988); Ellingson v. World Amusement Serv. Ass’n, 175 Minn. 563, 222 N.W. 335, 339 (1928).

Here, Lundell and Carver were involved in BC Cleaners, but Martinizing submitted no evidence addressing the extent of their involvement in the continued use of Martinizing trademarks after BC Cleaners entered into the Asset Purchase Agreement but prior to KM Cleaners completing the Agreement by assigning its franchise agreements to BC Cleaners. More importantly, as Martinizing failed to prove that it was entitled to monetary remedies against BC Cleaners, these individual defendants are likewise not liable for damages, an accounting for profits, and attorneys’ fees. Nor did the district court abuse its discretion in not granting injunc-tive relief against the individual defendants, as BC Cleaners had agreed to stop using the trademarks. Therefore, we affirm the denial of a default judgment against Lundell and Carver.

For the foregoing reasons, the judgment of the district court is affirmed in part and reversed in part. The case is remanded with directions to enter an amended judgment that retains paragraphs l.a. and 5, modifies paragraphs l.b. and 2, and deletes paragraphs 3, 4, and 6 of the Judgment dated December 9, 2015.

      . The Asset Purchase Agreement documents reveal that Lundell signed the Agreement on behalf of BC Cleaners, and that Lundell and Carver personally guaranteed BC Cleaners’ financial obligations under that Agreement.

      . Under Minnesota law, a franchisor may not “unreasonably withhold consent” to assignment of a franchise if the franchisee to be substituted meets the franchisor’s "present qualifications and standards.” Minn. Stat. § 80C.14, subd. 5.