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7th Circuit rules against Indianapolis attorney

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The 7th Circuit Court of Appeals ruled today on the case of Paul K. Ogden v. James Atterholt, Carol J. Mihalik, and the Indiana Department of Insurance, No. 09-2953, which comes out of the Southern District of Indiana in Indianapolis.
 

Hired in late 2006 as manager for the state agency’s newly created title insurance division, Paul Ogden began working around his immediate supervisor, Chief Deputy Commissioner Carol Mihalik, who the court record says Ogden began to resent for what he described as an ineffective management style. He met with the state’s personnel division to file a formal complaint against Mihalik, and wrote a memo about reorganizing the state agency so that the title insurance division was removed from the consumer protection unit – specifically he alleged that Mihalik was incompetent or corrupt. After receiving that memo, Commissioner of Insurance James Atterholt and Mihalik met with Ogden and told him he could either resign or be fired for being “out of line.” Ogden chose resignation and signed a voluntary resignation letter so that he could keep his accrued vacation time and avoid being placed on Indiana’s “do not hire” list, the court opinion says.
Ogden sued the management and overall department on state claims involving “whistle-blowing,” unjust termination, and intentional infliction of emotional distress, as well as federal claims on due process and a 42 U.S.C. §1983 violation of his First Amendment free speech rights.

The case was moved to federal court on those two claims, and U.S. Magistrate Judge Jane Magnus-Stinson granted summary judgment for the defendants on both federal claims and remanded the suit to state court on the remaining claims. Ogden appealed, and now the three-judge 7th Circuit panel affirmed the magistrate judge’s ruling on the free speech claim.

Citing the U.S. Supreme Court decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), the panel found that Ogden’s memo was not protected speech because it directly involved his work responsibilities. The appellate court wasn’t convinced that it should dissect the multiple issues touched on in that memo.

“The memo speaks for itself,” Judge Diane Sykes wrote for the panel, noting that it dealt specifically with Milhalik’s ability to supervise the division where he worked. “Ogden’s memo reflects exactly the sort of localized employment-related speech that Garcetti held was not entitled to First Amendment protection.”

In addition to the free speech issue, the judges also touched on what it called one final housekeeping item: the due process claim that had been raised at the District level. Ogden raised a concern on appeal that Magistrate Judge Magnus-Stinson’s resolution in favor of the defendants might foreclose litigation of that due process claim in the Indiana courts. The appellate panel noted that it wasn’t clear during the litigation at the District level whether that claim involved state or federal law, but Ogden clarified in a reply brief and at oral arguments that the issue was specifically focused on state law.

“The magistrate judge should not have taken up and resolved the due-process claim as if it arose under federal law – though it was understandable why she did so given the confusion in the pleadings,” Judge Sykes wrote. “That claim now returns to state court along with Ogden’s other state claims.”
 

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  1. Actually, and most strikingly, the ruling failed to address the central issue to the whole case: Namely, Black Knight/LPS, who was NEVER a party to the State court litigation, and who is under a 2013 consent judgment in Indiana (where it has stipulated to the forgery of loan documents, the ones specifically at issue in my case)never disclosed itself in State court or remediated the forged loan documents as was REQUIRED of them by the CJ. In essence, what the court is willfully ignoring, is that it is setting a precedent that the supplier of a defective product, one whom is under a consent judgment stipulating to such, and under obligation to remediate said defective product, can: 1.) Ignore the CJ 2.) Allow counsel to commit fraud on the state court 3.) Then try to hide behind Rooker Feldman doctrine as a bar to being held culpable in federal court. The problem here is the court is in direct conflict with its own ruling(s) in Johnson v. Pushpin Holdings & Iqbal- 780 F.3d 728, at 730 “What Johnson adds - what the defendants in this suit have failed to appreciate—is that federal courts retain jurisdiction to award damages for fraud that imposes extrajudicial injury. The Supreme Court drew that very line in Exxon Mobil ... Iqbal alleges that the defendants conducted a racketeering enterprise that predates the state court’s judgments ...but Exxon Mobil shows that the Rooker Feldman doctrine asks what injury the plaintiff asks the federal court to redress, not whether the injury is “intertwined” with something else …Because Iqbal seeks damages for activity that (he alleges) predates the state litigation and caused injury independently of it, the Rooker-Feldman doctrine does not block this suit. It must be reinstated.” So, as I already noted to others, I now have the chance to bring my case to SCOTUS; the ruling by Wood & Posner is flawed on numerous levels,BUT most troubling is the fact that the authors KNOW it's a flawed ruling and choose to ignore the flaws for one simple reason: The courts have decided to agree with former AG Eric Holder that national banks "Are too big to fail" and must win at any cost-even that of due process, case precedent, & the truth....Let's see if SCOTUS wants a bite at the apple.

  2. I am in NJ & just found out that there is a judgment against me in an action by Driver's Solutions LLC in IN. I was never served with any Court pleadings, etc. and the only thing that I can find out is that they were using an old Staten Island NY address for me. I have been in NJ for over 20 years and cannot get any response from Drivers Solutions in IN. They have a different lawyer now. I need to get this vacated or stopped - it is now almost double & at 18%. Any help would be appreciated. Thank you.

  3. I am in NJ & just found out that there is a judgment against me in an action by Driver's Solutions LLC in IN. I was never served with any Court pleadings, etc. and the only thing that I can find out is that they were using an old Staten Island NY address for me. I have been in NJ for over 20 years and cannot get any response from Drivers Solutions in IN. They have a different lawyer now. I need to get this vacated or stopped - it is now almost double & at 18%. Any help would be appreciated. Thank you.

  4. Please I need help with my class action lawsuits, im currently in pro-se and im having hard time findiNG A LAWYER TO ASSIST ME

  5. Access to the court (judiciary branch of government) is the REAL problem, NOT necessarily lack of access to an attorney. Unfortunately, I've lived in a legal and financial hell for the past six years due to a divorce (where I was, supposedly, represented by an attorney) in which I was defrauded of settlement and the other party (and helpers) enriched through the fraud. When I attempted to introduce evidence and testify (pro se) in a foreclosure/eviction, I was silenced (apparently on procedural grounds, as research I've done since indicates). I was thrown out of a residence which was to be sold, by a judge who refused to allow me to speak in (the supposedly "informal") small claims court where the eviction proceeding (by ex-brother-in-law) was held. Six years and I can't even get back on solid or stable ground ... having bank account seized twice, unlawfully ... and now, for the past year, being dragged into court - again, contrary to law and appellate decisions - by former attorney, who is trying to force payment from exempt funds. Friday will mark fifth appearance. Hopefully, I'll be allowed to speak. The situation I find myself in shouldn't even be possible, much less dragging out with no end in sight, for years. I've done nothing wrong, but am watching a lot of wrong being accomplished under court jurisdiction; only because I was married to someone who wanted and was granted a divorce (but was not willing to assume the responsibilities that come with granting the divorce). In fact, the recalcitrant party was enriched by well over $100k, although it was necessarily split with other actors. Pro bono help? It's a nice dream ... but that's all it is, for too many. Meanwhile, injustice marches on.

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