NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 28, 2012*
Decided April 5, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD A. POSNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 11‐3632
Appeal from the
ROGER W. ALSWAGER, United States District Court
Plaintiff‐Appellant, for the Eastern District of Wisconsin.
v. No. 09‐CV‐52‐JPS
ROCKY MOUNTAIN INSTRUMENTAL J.P. Stadtmueller,
LABORATORIES, INC. and ROBERT K. LANTZ, Judge.
Defendants‐Appellees.
O R D E R
Roger Alswager brought this diversity suit against Dr. Robert Lantz and his
chemical‐testing company, Rocky Mountain Instrumental Laboratories, asserting a breach
of contract and several tort claims. He contended that the defendants’ failure to timely
return certain blood‐test results precluded him from mounting a defense to his state charge
for drunk driving. The district court granted summary judgment for the defendants on
*
After examining the briefs and the record, we have concluded that oral argument
is unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP.
P. 34(a)(2)(C).
No. 11‐3632 Page 2
Alswager’s tort claims and dismissed the contract claim as moot after the defendants
offered to reimburse him for the costs of the blood tests. We affirm the judgment, although
on somewhat different grounds.
Alswager was arrested in Wisconsin in 2007 and charged with driving while
intoxicated. See WIS. STAT. § 346.63(1)(a). He intended to contest the charge by arguing that
he became intoxicated involuntarily after accidentally taking one of his wife’s Ambien
sleeping pills.1 More specifically, he wanted to argue that he was under the influence of that
sedative and was sleep‐walking and thus unaware that he drank alcohol before driving. He
enlisted Dr. Lantz, a chemist and registered medical technologist, to testify that Ambien’s
side effects may include this dissociative behavior. In January 2009, several weeks before his
trial on the drunk‐driving charge, Alswager arranged to have the blood samples that were
drawn at the time of his arrest sent to Dr. Lantz, who agreed to test the samples for the
presence of Ambien and alcohol. The week before trial, Dr. Lantz returned the results of the
alcohol test, which measured Alswager’s blood‐alcohol content as .211, nearly triple the
legal limit in Wisconsin. Dr. Lantz informed Alswager that he would conduct the Ambien
test later that week. By the start of Alswager’s trial, however, he had not finished the test.
Alswager’s attorney conducted the two‐day trial without the results, and Alswager was
convicted by a jury. As it turned out, on the second morning of the trial, Dr. Lantz sent
Alswager’s attorney an e‐mail confirming the presence of Ambien in Alswager’s blood, but
the attorney did not see the message until hours after the jury had rendered the verdict.
Alswager’s attorney moved for a new trial, proposing to bolster the involuntary
intoxication defense with the results of the blood test. The trial court denied the motion, and
Alswager, by that point proceeding pro se, appealed. The Wisconsin Court of Appeals
rejected his argument that the accidental ingestion of sleeping pills could establish an
involuntary intoxication defense, and affirmed his conviction as well as the order denying
postconviction relief. State v. Alswager, No. 2008AP3046‐CR (Wis. Ct. App. Apr. 20, 2011).
In the meantime, Alswager brought this diversity action again Dr. Lantz and Rocky
Mountain, claiming that Dr. Lantz’s failure to return the Ambien test results before trial
constituted a breach of contract, negligence, misrepresentation, and breach of fiduciary
1
Ambien, the brand name for a drug called zolpidem, works by slowing activity in
the brain to allow sleep. The National Library of Medicine reports that this medicine has
been known to induce sleep‐walking, driving, and eating while not fully awake.
See National Center for Biotechnology Information, U.S. National Library of Medicine,
Zolpidem, http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000928 (last visited Apr. 2,
2012).
No. 11‐3632 Page 3
duty. The late test results, he maintained, prevented him from effectively defending against
the criminal charge and burdened him with the cost and inconvenience of appealing the
resulting state conviction. Alswager sought compensatory damages—including the legal
expenses he incurred pursuing postconviction relief—and also an award of punitive
damages.
The district court granted the defendants’ motion for summary judgment as to
Alswager’s tort claims but allowed the contract claim to proceed. The court rejected
Alswager’s contention that the defendants, “as professionals testing his blood,” undertook a
duty that would subject them to tort liability. Regarding the contract claim, however, the
court concluded that Alswager presented sufficient evidence that the defendants had agreed
to complete the blood testing before his trial. But the court strictly limited the damages
Alswager could recover on the contract claim; his “maximum entitlement to damages,” the
court held, was the amount he paid Dr. Lantz and Rocky Mountain under the contract.
The defendants then tendered the full amount of those damages, sending Alswager a
check for $1,040—the contract price he had paid for the blood tests, plus interest. Alswager
refused to accept the check. The defendants then moved to dismiss the contract claim as
moot, contending that no dispute remained after Alswager rejected their offer of all
available relief. Alswager did not disagree that the check represented full reimbursement of
the contract price, but he insisted that the offer was incomplete because it did not include
the costs of litigating his state postconviction motion and appeal.
The district court granted the defendants’ motion and dismissed the contract claim
as moot. The court recounted its earlier ruling that Alswager could not recover the legal
expenses of his state litigation and reiterated that any recovery on the contract claim would
be limited to the price Alswager paid under the contract. Because the offer of that amount
plus interest constituted “the entirety of the relief to which [Alswager] is entitled under the
law,” the court concluded that no controversy remained.
On appeal Alswager argues that the defendants’ offer did not moot his contract
claim because it did not include recovery of the legal expenses he incurred in his state
postconviction proceeding and appeal. His claim for those damages, he maintains, kept the
controversy alive. We agree that the case is not moot, but affirm on other grounds.
In some circumstances, a defendant may effectively eliminate a controversy by
offering to satisfy a plaintiff’s entire demand. Thorogood v. Sears, Roebuck & Co.,
595 F.3d 750,
752–53 (7th Cir. 2010); Gates v. Towery,
430 F.3d 429, 431–32 (7th Cir. 2005); Holstein v. City of
Chicago,
29 F.3d 1145, 1147 (7th Cir. 1994); Rand v. Monsanto Co.,
926 F.2d 596, 598 (7th Cir.
1991); Alliance to End Repression v. City of Chicago,
820 F.2d 873, 878 (7th Cir. 1987); see Weiss
No. 11‐3632 Page 4
v. Regal Collections,
385 F.3d 337, 340 (3d Cir. 2004). Once a plaintiff is offered all the relief he
requested, no dispute remains, and the case is moot. See Ortiz v. John O. Butler Co.,
94 F.3d
1121, 1125 (7th Cir. 1996); Holstein,
29 F.3d at 1147; Rand,
926 F.2d at 598.
Here, however, the defendants’ offer did not include all the damages Alswager
sought and thus did not moot the case. See Gates,
430 F.3d at 431–32; ABN Amro
Verzekeringen BV v. Geologistics Ams., Inc.,
485 F.3d 85, 96 (2d Cir. 2007). It’s true that the
offer included all the relief to which Alswager was entitled under the district court’s ruling,
but whether that ruling was correct remains a live issue for appeal. Alswager sought to
recover the costs from his state litigation as an item of consequential damages on his
contract claim. The district court properly concluded that he could not recover those
expenses because the Wisconsin Court of Appeals had rejected his contention that the late
delivery of the test results would have made a difference in his trial. Accordingly, the
district court was correct that the sum of money offered to Alswager was all that he could
recover. It was likely more—the offer included the cost of the test for alcohol, which has
never been part of Alswager’s contract claim.
Alswager also challenges the district court’s rejection of his tort claims and insists
that Rocky Mountain, as a “blood‐testing laboratory,” owed him a duty apart from the
contract. That contention is meritless. As the district court explained, Alswager has not
established that the defendants undertook “a duty existing independently of the
performance of the contract.” See Greenburg v. Stewart Title Guar. Co.,
492 N.W.2d 147,
151–52 (Wis. 1992).
We have reviewed Alswager’s other contentions, but none has merit.
AFFIRMED.
