7th Circuit Affirms Dismissal Of Mexican Complaints
Olivia Covington for www.theindianalawyer.com
The 7th Circuit Court of Appeals has upheld the dismissal of a Mexican company’s fraud claims against an Indiana-based Fortune 500 company, finding the Mexican entity failed to allege the company, rather than its Mexican subsidiary, committed any wrongs.
In 2009, Berry Plastics Corporation executed a series of purchase orders in 2009 through its subsidiary, Pliant de Mexico, S.A. de C.V., with Mexican plastic and shrink wrap supplier Vexol, S.A. de C.V. the agreement called for Pliant to manufacture and distribute shrink wrap to Vexol, but a dispute arose when Vexol’s customers began complaining about the quality of shrink wrap they were purchasing.
When Vexol attempted to return the allegedly subpar products, Pliant claimed Vexol owed it money pursuant to a fabricated “pagare,†the Mexican equivalent of a promissory note. When that allegation produced no results for Pliant, the company filed a fraud claim against Vexol, beginning a process of repeatedly threatening to have Sergio Torreblanca Lopez — a Vexol officer — arrested if his company did not pay what was allegedly owed.
In response, Vexol and Torreblanca filed two complaints in the U.S. District Court for the Southern District of Indiana, the second of which alleged Berry committed fraud — or “dolus†— and “illicit acts†by aiding and abetting Pliant in misleading Vexol into entering into the purchase agreements with the intent of stealing Vexol’s customers. But the district court dismissed Vexol’s complaint with prejudice, finding it failed to allege any misconduct by Berry.
The 7th Circuit Court of Appeals agreed, with Judge Elaine E. Bucklo — sitting by designation from the Illinois Northern District Court — writing that though Vexol claimed its complaint rises from Berry’s conduct in Mexico, it fails to describe any actions that Berry — as opposed to Pliant — took in Mexico.
“Perhaps Vexol thinks its sufficient to describe Berry’s illicit conduct generally as ‘aiding and abetting Pliant’ in committing specific bad acts in Mexico,†Bucklo wrote. “…However expansive Mexico’s law of ‘wrongs’ in terms of the degree of culpability required for liability and the breadth of conduct proscribed … Vexol cites no authority to suggest that corporate ownership, without more, is sufficient to prove aiding-and-abetting liability under Article 1910 (of Mexico’s Federal Civil Code).â€
The appellate court then found the district court did not err by denying Vexol’s motion to file a third amended complaint, noting the lower court had warned the company that if its second complaint did not cure defects identified in the first, it would be dismissed with prejudice.
“It appears to use that another bite at the apple is unlikely to engender anything other than additional expense for all involved,†Bucklo wrote.
Finally, the 7th Circuit denied Berry’s motions for sanctions against Vexol for filing a frivolous appeal. Berry failed to file a separate motion for damages, as is required under Federal Rule of Appellate Procedure 38, Bucklo said.
EVSC Occupational Therapist Receives February Cause for ApplauseÂ
Evansville Vanderburgh School Corporation Occupational Therapist Assistant Amy Maxheimer is the February recipient of the EVSC’s Cause for Applause award. The award seeks to recognize individuals who go above and beyond their normal job responsibilities.
Maxheimer, who was nominated by two fellow coworkers, has worked for the EVSC for 23 years. According to fellow coworker Ruth Burris, Maxheimer “has a deep passion for her students and making sure that their needs are met.â€
Although not directly part of her job responsibilities or her training, Maxheimer has become the district’s “sensory guru,†and is continually asked to travel to schools throughout the corporation to make suggestions for implementing “sensory rooms†for special education students. These rooms include specific locations within a building, special equipment and even color schemes that help students that have sensory issues.
“She has introduced the masses of educators on the need, benefits and appropriate use of sensory rooms …. She does all this on top of maintaining her full caseload of occupational therapy students,†Burris said.
“Anyone who has met or been in the same room with Amy Maxheimer knows that she exudes a special energy and her personality is larger than life. Amy has taken those gifts and applied them directly to the support she provides to the students of the EVSC.†wrote another coworker Jeanne Goedde. “I can honestly saw that Amy finds a piece of her love to share with all of the students she encounters and she is well deserving as a Cause for Applause recipient.â€
Anyone can nominate an employee of the EVSC for the award. Deadline for nominations is the third Friday of each month. To nominate an EVSC employee, go to www.evscschools.com and click on About Us and see Cause for Applause under Community. Paper forms are available at the schools for those without access to the Internet.
UE’s Graduating Class of 2017 Sees Higher Salary, Higher Employment Rate
The University of Evansville’s 2017 graduating class has found success after graduation, with 94 percent currently employed or enrolled in graduate school—up from 93 percent last year. The median salary of those employed full-time is $47,750, also an increase from the previous year’s salary of $47,500.
The survey was a collaborative effort between UE’s Center for Career Development, the Office of Alumni and Parent Relations, the Office of Institutional Effectiveness, and academic departments.
“The active role we take in our students’ success and career development is strongly reflected in this survey,†said Dr. Thomas Kazee, UE president. “We offer a unique career planning process that begins before they even enroll here, and it continues well after they graduate.â€
UE’s rate stands in contrast to the National Association of Colleges and Employers Career Services Benchmark Survey, which shows 81 percent placement rate nationally for 2016 graduates.
Employers for the 2017 class include Amazon, Rolls-Royce North America, USAA, Berry Global, Honda Motor Manufacturing, KMPG, and more than 230 other employers across the globe.
Other results reported in the survey included:
·        51 percent of employed graduates were working in Indiana.
·        57 percent of those in graduate school were studying in Indiana.
·        28 percent of those not currently enrolled in further education intend to pursue graduate school within three years.
“It’s important to note that we received a response from 97 percent of the class of 2017, said Gene Wells, senior director for UE’s Center for Career Development. “That participation rate is unheard of at most schools, who are lucky to receive a 65 percent response. This report truly is representative of virtually the entire 2017 graduating class.â€
UE’s Center for Career Development provides comprehensive services to students throughout their collegiate journey and even before they enroll. Through the Career Advantage Program, prospective students have the opportunity to evaluate and test career options by taking a career assessment, meeting with a career advising professional, and developing a career action plan. Prospective students can begin this Career Advantage Program during their very first visit to UE—even before committing to attend the University.
Graduating seniors and new alumni can sign up for the UE Connect program, which is designed to assist students and alumni with career-related needs and connect them with engaged alumni who will support and champion their professional goals. All Center for Career Development services, ranging from resume and cover letter assistance, to mock interviews, to UE JobLink database access, are free to students and alumni.
VANDERBURGH COUNTY FELONY CHARGES
 Below are the felony cases to be filed by the Vanderburgh County Prosecutor’s Office today.
Jeffrey A. Embrey: Attempt Manufacturing methamphetamine (Level 4 Felony), Conspiracy Manufacturing methamphetamine (Level 4 Felony), Resisting law enforcement (Class A misdemeanor)
Jerry Wayne Harris: Assisting a criminal (Level 6 Felony)
Seth Alexander Schnarre: Domestic battery (Level 6 Felony)
Joselynn S. Young: Battery against a public safety official (Level 6 Felony), Resisting law enforcement (Level 6 Felony), False informing (Class B misdemeanor), Operating a motor vehicle without ever receiving a license (Class C misdemeanor)
Roosevelt Keith Nash: Conspiracy Dealing in methamphetamine (Level 2 Felony), Dealing in methamphetamine (Level 2 Felony), Conspiracy Dealing in a narcotic drug (Level 4 Felony), Dealing in a narcotic drug (Level 4 Felony), Possession of cocaine (Level 6 Felony), Maintaining a common nuisance – controlled substances (Level 6 Felony), Possession of marijuana (Class B misdemeanor)
Tiana N Bendingfield: Conspiracy Dealing in methamphetamine (Level 2 Felony), Dealing in methamphetamine (Level 2 Felony), Conspiracy Dealing in a narcotic drug (Level 4 Felony), Dealing in a narcotic drug (Level 4 Felony), Possession of cocaine (Level 6 Felony), Maintaining a common nuisance – controlled substances (Level 6 Felony), Possession of marijuana (Class B misdemeanor)
Matthew Dale Russ: Sexual battery (Level 6 Felony), Strangulation (Level 6 Felony), Domestic battery (Level 6 Felony)
Charles Eugene Chatman: Unlawful possession of a firearm by a serious violent felon (Level 4 Felony)
Alanna M. McNeal: Unlawful possession or use of a legend drug (Level 6 Felony), Carrying a handgun without a license (Class A misdemeanor)
Jeremy Lee Hudson: Battery against a public safety official (Level 6 Felony), Resisting law enforcement (Class A misdemeanor), Attempt Resisting law enforcement (Class A misdemeanor), Possession of paraphernalia (Class C misdemeanor)
AG Curtis Hill files complaint following reports of troubling conditions at Marion County facility
Attorney General Curtis Hill announced today that his office has filed an administrative complaint with the Indiana Professional Licensing Agency following reports of troubling conditions at a Marion County residential facility.
His office filed the complaint on February 5, 2018, against the license of Health Facility Administrator (HFA) Cynthia Jones of Rockville, Indiana. The complaint alleges that in early 2015 Jones stopped showing up for work at the now-closed Roland’s Retirement Club in Speedway but allowed the owner of the business to continue using her license for the purpose of keeping the facility licensed with the state.
Such action, the complaint alleges, constitutes fraud or material deception in the course of professional service or activities. Further, it alleges that by her absence from her work duties, Jones failed to administer resident-centered policies that ensure the health, safety, welfare and rights of residents – and failed to ensure residents were free from neglect.
On August 8, 2017, the Indiana State Department of Health conducted an inspection of Roland’s Retirement Club and discovered multiple bugs in Room 29. Jones was not present at that inspection. Weeks later, on September 22, 2017, the Speedway Police Department and Emergency Medical Services discovered a deceased resident at the facility lying on the floor of Room 29 with cockroaches crawling from her body.
Roland’s Retirement Club closed on or about November 30, 2017.
“Taking action to protect vulnerable citizens is absolutely a top priority of my office,” Attorney General Hill said. “We daily work to ensure laws are followed in regard to the well-being of all Hoosiers, including the elderly residing in assisted-living settings. As part of this task, we must make sure healthcare professionals follow the laws governing their important roles — and we must make sure they face appropriate penalties when they don’t.”
USI starts four-game road swing Thursday
The University of Southern Indiana men’s basketball team will finish the 2017-18 regular season with four-straight road games, beginning with William Jewell College Thursday at 7:30 p.m. and Rockhurst University Saturday at 3 p.m. The road trip concludes the following week with visits to the University of Wisconsin-Parkside (February 22) and Lewis University (February 24).
Game coverage for all of USI’s game action, including live stats, video stream, and audio broadcasts, is available at GoUSIEagles.com. The games also can be heard on ESPN 97.7 WREF and 95.7FM The Spin.
USI Men’s Basketball Week 14 Notes:Â
Eagles go 0-2 in a rough week. USI had a rough week, falling at the University of Illinois Springfield, 79-70, and dropping Senior Night at the PAC to seventh-ranked Bellarmine University, 93-48. The Eagles had an early nine-point lead at Illinois Springfield, but could not rally back from a 14-point second half deficit. Freshman Emmanuel Little led USI with a double-double, 23 points and 10 rebounds, while junior guard Alex Stein rounded out the double-digit scorers with 22 points.
The Eagles could not get on track defensively as the Knights shot 71.2 percent (37-52) in losing their first game of the year at the PAC. Senior guard Marcellous Washington led USI with 16 points in the loss to Bellarmine.
Stein in the top five. USI junior guard Alex Stein has moved into the Eagles’ top-five all-time in scoring with 1,423 points. Stein is 139 points behind fourth-place Cris Brunson (1,562 points, 2001-05).
This Week at USI
4:30 p.m. Thursday, February 15
Southern Indiana Reading Series to host poetry reading from Kaveh Akbar and Ruth Awad
The University of Southern Indiana’s Southern Indiana Reading Series will present a poetry reading by Kaveh Akbar and Ruth Awad at 4:30 p.m. Thursday, February 15 in the Griffin Center Great Hall. The reading is free and open to the public, and will include a question and answer session as well as a book signing. More Information
Opening Night: 7 p.m. Thursday, February 15
USI Theatre Continues Season with Italian American Reconciliation
University of Southern Indiana Theatre will continue its 2017-2018 season with the play Italian American Reconciliation, written by John Patrick Shanley. The production runs February 15-18 in the USI Performance Center located in University Center East on USI’s campus. Tickets are $2 for USI students, $10 for USI employees, $4 for non-USI students (student ID required), $10 seniors (60+), and $12 for adults. Shows start at 7 p.m. Thursday through Saturday and 2 p.m. for the Sunday matinee. To purchase tickets or for more information visit USI.edu/Theatre or call the box office at 812-465-1668. Read More
10:30 a.m. Friday, February 16
International Food Expo to feature diverse food, entertainment
The International Club at the University of Southern Indiana will host the annual International Food Expo from 10:30 a.m. to 2 p.m. Friday, February 16 in Carter Hall, located in University Center West. The International Food Expo is an opportunity for USI’s international students to share the cultural diversity, customs and cuisine of their home country with the USI community and the public. Tickets can be purchased in advance for $10 from the Center for International Programs Office in the University Center East, Room 1235, or at the door on the day of the Expo for $15. A portion of the proceeds will be donated to a local charity. For additional information, contact Nicole Vernon at nmvernon@usi.edu or 812-228-5092. Read More
7 p.m. Friday, February 16
USI to continue French film festival
The University of Southern Indiana’s College of Liberal Arts, World Languages and Cultures Department, and USI Society for Arts and Humanities will host the Tournées Film Festival, a French film festival continuing on Fridays through February 23. This week’s film, Louise by the Shore, will be screened at 7 p.m. in Forum One. The film festival is free and open to the public. A discussion will follow each screening. More Information
Open through Saturday, February 17
New Harmony Gallery hosting ceramics exhibition of artists-in-residence
The New Harmony Gallery of Contemporary Art is hosting a ceramics exhibition, showcasing artists-in-residence at the New Harmony Clay Project, through Saturday, February 17. The exhibition is free and open to the public. A closing reception will be held at the gallery at 4 p.m. Saturday, February 17 prior to the Under the Beams concert featuring Daniel Hsu at 7:30 p.m. Read More
Open through Monday, February 19
Visiting artist to feature in dual exhibition at USI
The McCutchan Art Center/Pace Galleries will present two exhibits, IF/THEN: Sarah Martin and The Chair, writ small, through Monday, February 19. Sarah Martin, University of Southern Indiana Art and Design Department visiting studio artist for spring 2018, will give a lecture on her work at 6:30 pm Monday, February 19 in Kleymeyer Hall in the Liberal Arts Center on the USI campus. There will be a closing reception for both exhibitions and their artists immediately following the lecture in the McCutchan Art Center/Pace Galleries. Read More
6:30 p.m. Monday, February 19
Evansville native to share homelessness journey as part of annual Symposium
Evansville native Terri “Detroit†Hughes will share her remarkable journey from Skid Row to the movie screen during a public screening of the documentary film “Lost Angels: Skid Row is My Home†at 6:30 p.m. on Monday, February 19, in Carter Hall in the University Center at the University of Southern Indiana. This free, public event is associated with the Symposium on Homelessness, a student activity earlier in the day for which Hughes is the keynote speaker. Read More
10 a.m. Wednesday, February 21
2018 Spring CareerLink Job Fair
The Spring 2018 CareerLink Job Fair will be held from 10 a.m. to 2 p.m. Wednesday, February 21 in Carter Hall. The largest job fair hosted by USI, students will have the opportunity to meet and network with representatives from more than 80 local employers. More Information
6 p.m. Wednesday, February 21
Social activist Tia Oso to present 2018 Mandela Social Justice Day keynote address
Tia Oso, director of impact at Revolve Impact and a dynamic and experienced social justice leader, will present the keynote address for the University of Southern Indiana’s 2018 Nelson Mandela Social Justice Day at 6 p.m. Wednesday, February 21 in Carter Hall located in University Center West. Oso’s address, “Chaos or Community: The Persistent Question in Achieving Racial Progress and Human Rights,†is free and open to the public. The keynote address is the culmination of a full day of activities meant to raise dialogue at USI around current issues of human and civil rights, public service, and activism. This event is sponsored by the USI College of Liberal Arts, College of Nursing and Health Professions, Multicultural Center, Counseling Center and the Office of Housing and Residence Life. Read More