Schlessinger v. Salimes, s. 96-1730

• Decision Date: 15 November 1996
• Docket Number: Nos. 96-1730,s. 96-1730
• Citation: 100 F.3d 519
• Parties: David M. SCHLESSINGER, Plaintiff-Appellant, v. George SALIMES, et al., Defendants-Appellees. & 96-2606
• Court: U.S. Court of Appeals — Seventh Circuit

Page 519

100 F.3d 519

David M. SCHLESSINGER, Plaintiff-Appellant, v. George SALIMES, et al., Defendants-Appellees.

Nos. 96-1730 & 96-2606

United States Court of Appeals,

Seventh Circuit

Argued October 28, 1996

Decided November 15, 1996

Appeals from the United States District Court for the Eastern District of Wisconsin, No. 94-C-1154, John W. Reynolds, Judge.

Andrew J. Shaw (argued), Wawatosa, WI, for Plaintiff-Appellant.

Charles H. Bohl, Milwaukee, WI, Kathryn M. West, DeVonna Joy, Nathan Fishback (argued), Whyte Hirschboeck Dudek, Milwaukee, WI, for George Salimes, Police Department of City of Geneva, Edward Gritzner

Michael J. Cieslewicz (argued), Kevin A. Christensen, Kasdorf, Lewis & Swietlik, Milwaukee, WI, DeVonna Joy, Nathan Fishback, Whyte Hirschboeck Dudek, Milwaukee, Wi, for Town of Geneva in No. 96-1730.

Mary Beth Castino (argued), Mohr & Anderson, Hartford, WI, for George Condos.

Michael J. Cieslewicz (argued), Kevin A. Christensen, Kasdorf, Lewis & Swietlik, Milwaukee, WI, Kathryn M. West, DeVonna Joy, Nathan Fishback, Whyte Hirschboeck Dudek, Milwaukee, WI, for Town of Geneva in No. 96-2606.

Before POSNER, Chief Judge, and EASTERBROOK and RIPPLE, Circuit Judges.

EASTERBROOK, Circuit Judge.

David Schlessinger and two friends visited Anthony's Steakhouse in Geneva, Wisconsin, for dinner on January 8, 1994. Schlessinger ordered his steak medium-well done. Before the main course arrived, Schlessinger deemed that he was "receiving substandard service at the restaurant, so I demanded better service." Judging the meat he received "burned," Schlessinger complained long and loud. George Condos, the owner, told him that the food had been properly prepared and asked him to stop disturbing the other patrons. Schlessinger was unwilling to eat the food, to leave, or to pay until his demand for a new entree had been met. Schlessinger's affidavit continues: "I feared trouble by the escalating situation and called the police [from my cellular phone] to get the situation corrected." George Salimes and another officer answered the call. Condos suggested to the officers that Schlessinger might be under the influence of drugs. Salimes told Schlessinger that, unless he paid the tab and left, he would be arrested for disorderly conduct and theft of services. The trio then paid and left.

Most people dissatisfied with a restaurant's service or cuisine would tell their friends not to go, resolve not to return themselves, and perhaps write a letter to the editor of the local newspaper or the Better Business Bureau, then let the matter drop. But having played the wise guy in calling the police, Schlessinger encored that performance by filing this suit against Condos, Salimes, and everyone else in or out of sight--including the Town of Geneva, the Town Board and its members, the Town's police department, and the Town's chief of police. According to the complaint, most of the defendants are liable under 42 U.S.C. sec. 1983 for an unconstitutional seizure of his person--even though he walked out of the restaurant unhindered. Condos and the Restaurant were sued under the diversity jurisdiction on a variety of state-law theories. None of the claims reached first base. The district court dismissed those against Condos and the Restaurant after finding that Schlessinger could not obtain damages exceeding the jurisdictional minimum (then $50,000). The court granted summary judgment to Salimes on the ground of qualified immunity. Claims against the remaining defendants collapsed because Schlessinger neglected to inform the court how they could be liable. He asserted that they were indifferent to his rights, but that is not enough for liability. After judgment, Schlessinger attempted to rectify the deficiency by a motion under Fed. R. Civ. P. 60(b)(6), which the district judge denied out of hand. Schlessinger has filed appeals from both the judgment and the order denying the Rule 60(b) motion.

This goofy lawsuit deservedly met an abrupt end in the district court. Frivolous at the outset, and likely maliciously retaliatory as well, the case has deteriorated on appeal. Consider for example the question whether the complaint satisfies the jurisdictional minimum amount in controversy. Plaintiffs receive the benefit of all doubt: a court may not dismiss the claim unless it "appear[s] to a legal certainty that the claim is really for less than the jurisdictional amount". St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289 (1938). Yet a plaintiff challenged to show that the recovery could exceed the requisite level cannot just appeal to the judge's druthers; he must show how the rules of law, applied to the facts of his case, could produce such an award. Wellness Community [registered]-National v. Wellness House, 70 F.3d 46, 49-50 (7th Cir. 1995). Schlessinger was not arrested, and the check for all three diners was only $100 (some of which doubtless represents drinks and appetizers, and therefore is not in controversy). He himself called the police, initiating the events of which he complains. He accuses Condos of slander for telling Salimes that Schlessinger might be high on drugs. We suppose that this statement is defamatory and shall assume not only that the complaint adequately alleges malice but also that Wisconsin authorizes punitive damages for statements to the police--although it has a strong privilege (which Schlessinger does not discuss) for allegations of crime made to police for the purpose of initiating a bona fide investigation. Otten v. Schutt, 15 Wis. 2d 497, 113 N.W.2d 152 (1962); Joseph v. Baars, 142 Wis. 390, 125 N.W. 913 (1910). Does Wisconsin authorize punitive awards as high as $50,000 in the absence of any concrete injury? Schlessinger did not cite in the district court a single case addressing that subject, or any other theory of damages.

On appeal, his indifference to Wisconsin's law persists. Now Schlessinger seeks to establish a $50,000 amount in controversy by attaching two newspaper articles to his brief. One, from the Wall Street Journal, observes that high jury verdicts have led to proposals for statutory caps; it has nothing to do with the rules Wisconsin uses to compute punitive damages in defamation cases. The other, from the Washington Post, begins: "A former cafeteria manager at the Smithsonian Institution's National Museum of American History was awarded $400,000 Monday in a human rights lawsuit after a jury heard testimony that his boss addressed him as an 'old fart.' " What this suit, dealing with a hostile working environment, has to do with accusations of crime in Wisconsin Schlessinger does not endeavor to explain. No argument based on Wisconsin law has been preserved, so this appeal was doomed. Because he took his cue from the newspapers rather than from the law books, Schlessinger's lawyer (yes, he has one) neglected to notice that many jury awards are trimmed as legally unjustified. Runaway juries occasionally return mammoth verdicts; this interesting social phenomenon does not effectively abolish the jurisdictional minimum in diversity litigation, as Schlessinger seems to believe.

Next consider the claim against the Town, the Police Department, and their top officials. Under Monell v. New York City Department of Social Services, 436 U.S. 658 (1978), municipal bodies are not vicariously liable for the acts of their employees. They are liable only for their own policies, and Schlessinger has not tried to identify an unconstitutional policy that the...