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Court of Appeals of Illinois
August 16, 2013
In re MARRIAGE OF Scott WENDT, Petitioner-Appellee, and Alison Wendt, Respondent-Appellant.
Jan R. Kowalski, of Kalcheim Haber, LLP, of Chicago, for appellant.
No brief filed for appellee.
GORDON, Justice.
¶ 1 The instant case arises from the dissolution of the marriage of Scott Wendt and Alison Wendt. The sole issue before us concerns Scott's 2012 bonus from his employer, which, if issued at all, would be issued in February 2013.[1] Before the trial [374 Ill.Dec. 301]
Page 440
court, Alison claimed that nine-twelfths of the bonus is marital property because it accrued during the marriage, while Scott claimed it was nonmarital property because it was speculative and discretionary. The trial court found that the bonus was not marital property, characterizing it as an expectancy and not a contractually enforceable right. For the reasons that follow, we affirm.
¶ 3 On July 14, 2010, Scott filed a petition for dissolution of marriage and, on July 15, 2010, Alison also filed a petition for dissolution of marriage. [2] The cases were consolidated by the trial court. Scott is a software developer with Citadel, LLC, and Alison is employed part-time as a teacher. The parties have a daughter, born in June 2009.
¶ 4 On September 9, 2010, Alison filed a petition for temporary maintenance and child support. On January 7, 2011, the court entered an agreed order on Alison's petition, finding that Scott's 2009 net income was $118,920. The court ordered Scott to pay $1,982 per month— 20% of Scott's net income— to Alison in temporary child support and further ordered the parties to equally divide the costs of childcare expenses and ordinary medical, dental, and optical care for their daughter. The matter of temporary maintenance for Alison was entered and continued, and Scott was ordered to provide his 2010 year-end pay stub and W-2 when he received them, as well an any documents from his employer regarding his 2010 bonus.
¶ 5 On April 13, 2012, Alison filed a petition: (1) to vacate the January 7, 2011, order claiming Scott intentionally misrepresented his income and (2) to modify and determine retroactively the correct guideline child support amount that should be due and owing. The petition explained that any bonus Scott received for a particular year was issued by his employer at the beginning of the next year; for instance, Scott received his 2008 bonus in early 2009. The petition claimed that the agreed order for child support was based on Scott's 2009 base income, because he represented that he had not received a bonus for the 2009 calendar year, and his 2010 W-2 was not yet available. Scott also represented that he would not be receiving a bonus for the 2010 calendar year, to be paid in 2011. However, after issuing a subpoena to Scott's employer, Alison discovered that Scott was paid a $70,500 gross bonus payment on February 18, 2011, and received $10,500 on December 19, 2011, as a 2009 " mandatory deferral payout." Additionally, Scott received a $90,000 bonus on February 17, 2012.
¶ 6 Thus, according to the petition, Scott received a $68,235 gross bonus payment for 2008 in early 2009; received no bonus payment for 2009 in 2010; received a $70,500 gross bonus payment for 2010 on February 18, 2011; and received a $90,000 gross bonus payment for 2011 on February 17, 2012. Scott also received $10,500 as a 2009 " mandatory deferral payout" on December 19, 2011, which Alison was investigating to determine whether it was Scott's deliberate deferral of his 2009 bonus.
¶ 7 Based on Citadel documents [3] attached to Alison's petition, Scott's bonus [374 Ill.Dec. 302]
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took the form of " Participation Points" issued by Citadel that were converted to cash at a rate of $1 per point. The 2012 memorandum stated that Scott's " total award of 2011 Participation Points reflects both your individual performance and the Company's overall performance" and would be issued on February 17, 2012, " provided you are employed by Citadel and not under notice at that time." The memorandum further stated that " [y]ou will be eligible to receive 2012 Participation Points based on your individual performance, your demonstration of the characteristics described in the Citadel Leadership Model, and the Company's overall performance during 2012. All bonuses and awards are discretionary. Your entitlement to any bonus or award, and the amount of any bonus or award shall be determined and awarded, if at all, in the discretion of the Company. 2012 Participation Points will be governed by the relevant employee incentive program in effect when 2012 Participation Points are awarded."
¶ 8 On June 21, 2012, the trial court entered an agreed order on Alison's petition, finding that Scott's total gross income was $257,500 and his net income for purposes of child support was $179,566.55. The court ordered Scott to pay Alison $24,148 to reflect arrearage in child support and to pay $945 biweekly for child support, reflecting 20% of his net biweekly pay of $4,725. The court further ordered that, " [c]ommencing on June 1, 2012 and continuing thereafter, Scott shall pay Alison, within seven (7) days of his receipt, an amount equal to Twenty Percent (20%) of the net of any additional compensation incident to his employment, whether bonus, mandatory deferral or otherwise."
¶ 9 On September 19, 2012, the trial court entered a judgment for dissolution of marriage, incorporating a marital settlement agreement between the parties. The marital settlement agreement contained the following provision concerning deferred compensation:
" 1. Deferred Compensation.
Incident to his employment through 8/31/12, Scott is entitled to receipt of certain deferred compensation, which shall be divided in kind Fifty Percent (50%) to each party, as follows:
Incident to his employment through 8/31/12, Scott is entitled to receipt of certain deferred compensation, which shall be divided in kind Fifty Percent (50%) to each party, as follows:
b. 9/12ths of the 2012 Citadel bonus anticipated to be received in February 201[3]; and this issue is reserved." [4]
The next day, the trial court entered an agreed order for the parties to file memoranda of law concerning whether Scott's 2012 bonus, to be received in 2013, was marital property and thereby subject to division between the parties.
¶ 10 Alison's memorandum of law, filed on October 5, 2012, claimed that the portion of Scott's bonus accruing during the marriage was marital property since it was a contractual right and not an expectancy, drawing an analogy to a stock bonus. Scott's memorandum of law, filed the same day, claimed that the bonus was not property but merely future indeterminate income since he needed to be employed on the date that the bonus was distributed and the bonus was purely discretionary on the part of his employer.
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[374 Ill.Dec. 303] ¶ 11 On October 12, 2012, the trial court entered an order finding that " Scott's 2012 Bonus to be received if at all in February 2013, is not a contractually enforceable right and is not marital property as it was not acquired during the marriage pursuant to Section 503 and Scott must be working there to receive the bonus and it is an expectancy and not a written contract of employment." The court ordered that Scott was entitled to retain the entirety of the 2012 bonus as nonmarital property, other than the 20% that was owed for child support pursuant to the judgment for dissolution of marriage.
¶ 12 Alison filed a notice of appeal, and this appeal follows. Scott did not file an appearance on appeal, so we take the instant case under consideration on Alison's brief and the record alone.
¶ 14 On appeal, Alison argues that Scott's 2012 bonus, if issued, should be considered marital property and not nonmarital property as the trial court concluded. Consequently, if it is marital property, Alison argues that she is entitled to 50% of nine-twelfths of the bonus, as provided in the marital settlement agreement incorporated into the judgment for dissolution of marriage. As an initial matter, we emphasize that, no matter the outcome, any bonus received by Scott is expressly included in the calculation of his child support obligation, as provided in the judgment for dissolution of marriage. Thus, the sole issue before us is whether Alison is entitled to any portion of the bonus as marital property.
¶ 15 Generally, the trial court's classification of an asset as marital or nonmarital will not be disturbed unless it is contrary to the manifest weight of the evidence.
See In re Marriage of Lundahl, 396 Ill.App.3d 495, 502, 335 Ill.Dec. 761, 919 N.E.2d 480 (2009). However, where the facts are undisputed and the credibility of witnesses is not at issue, the classification of an asset is reviewed de novo. In re Marriage of Abrell, 236 Ill.2d 249, 255, 337 Ill.Dec. 940, 923 N.E.2d 791 (2010) (considering whether accumulated vacation and sick days are marital property de novo); In re Marriage of Peters, 326 Ill.App.3d 364, 366, 260 Ill.Dec. 169, 760 N.E.2d 586 (2001) (considering whether a stock bonus was marital property de novo ).
See also In re Marriage of Schneider, 214 Ill.2d 152, 162, 291 Ill.Dec. 601, 824 N.E.2d 177 (2005); In re Marriage of Crook, 211 Ill.2d 437, 442, 286 Ill.Dec. 141, 813 N.E.2d 198 (2004). Since the issue in the instant case requires us to determine the legal effect of undisputed facts, we review it de novo. De novo consideration means we perform the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill.App.3d 564, 578, 350 Ill.Dec. 63, 948 N.E.2d 132 (2011).
¶ 16 The classification of a nonvested, discretionary bonus issued after the entry of a judgment for dissolution is an issue that has not yet been considered in Illinois, but Alison argues that Scott's bonus should be considered property under both traditional definitions of property and under the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/101 et seq. (West 2010)). Black's Law Dictionary defines " property" as:
" 1. The right to possess, use, and enjoy a determinate thing (either a tract of land or a chattel); the right of ownership * * *. * * * 2. Any external thing over which the rights of possession, use, and enjoyment are exercised * * *." Black's Law Dictionary 1335-36 (9th ed. 2009).
See also Abrell, 236 Ill.2d at 257, 337 Ill.Dec. 940, 923 N.E.2d 791 (quoting Black's Law Dictionary definition of " property" ).
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[374 Ill.Dec. 304] " Marital property" under the Act " means all property acquired by either spouse subsequent to the marriage," except for certain enumerated exceptions. 750 ILCS 5/503(a) (West 2010). All property acquired by either spouse after the marriage and before a judgment for dissolution of marriage is presumed to be marital property, unless it falls within one of the section 503(a) exceptions. 750 ILCS 5/503(b)(1) (West 2010). There is no claim that Scott's bonus is nonmarital property because it falls within one of the exceptions provided in section 503(a) of the Act. Instead, the trial court in the case at bar found that the bonus was not marital property because it was not property at all but was a mere expectancy. We agree with the trial court.
¶ 17 First, Alison does not dispute that Scott does not have an employment contract, making Scott's employment with Citadel at will. Thus, he does not have a contractual right to receive a bonus by virtue of having signed an employment agreement providing for one.
¶ 18 Next, the record demonstrates that Scott is eligible to receive a bonus for the year 2012 from his employer " based on [his] individual performance, [his] demonstration of the characteristics described in the Citadel Leadership Model, and the Company's overall performance during 2012." In his memorandum before the trial court, Scott also represented that " [t]he bonuses are based on the overall performance of Citadel, the performance of SCOTT's department within Citadel (Global Equities), the performance of SCOTT's group within the department and on SCOTT's performance." However, Citadel, Scott's employer, specifically provides: " All bonuses and awards are discretionary. Your entitlement to any bonus or award, and the amount of any bonus or award shall be determined and awarded, if at all, in the discretion of the Company." Thus, it is explicitly the employer's decision whether to issue a bonus and the amount of such bonus, a decision which depends in part on factors unrelated to Scott's work; Scott is not automatically entitled to receive a bonus. Indeed, Scott did not receive a bonus for the 2009 calendar year despite having earned bonuses for 2008 and 2010.
¶ 19 Furthermore, Citadel's memorandum provides that " 2012 Participation Points will be governed by the relevant employee incentive program in effect when 2012 Participation Points are awarded." The record has established that bonuses— comprised of Participation Points that have been converted into a cash payment— are awarded at the beginning of the next calendar year. Thus, the decision of whether Citadel would award Scott a bonus for the 2012 calendar year would be governed by the employee incentive program in effect in early 2013.
¶ 20 In sum, Scott does not have a contractual right to a bonus from his employer, but Citadel may choose to award a bonus in its discretion, a decision which is based on several factors and which would be governed by the employee incentive program in effect in early 2013, approximately five months after the dissolution of the parties' marriage. The right to the bonus is not automatic, and there has been at least one year in which Scott was not issued a bonus. Based on these facts, we cannot find that the bonus, if issued at all, constitutes marital property.
¶ 21 Alison acknowledges that " a discretionary bonus is not a property right vis-a-vis the employer and Scott," but argues that " Scott's bonus is nonetheless a marital property right vis-a-vis Alison." We do not find this argument persuasive.
¶ 22 Alison draws an analogy between Scott's bonus and a pension, which is marital
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[374 Ill.Dec. 305] property under the Act, citing to In re Marriage of Hunt, 78 Ill.App.3d 653, 34 Ill.Dec. 55, 397 N.E.2d 511 (1979). In Hunt, the appellate court held that " an employee spouse's contractual right to a pension or profit-sharing interest is ' property' under section 503 of the [Act], regardless of whether the interest is matured, vested or nonvested, or contributory or noncontributory" and that " [a]ny part of such pension or profit-sharing interest earned by the employee spouse while married is property ' acquired' during marriage within the meaning of section 503 and is, therefore, marital property." Hunt, 78 Ill.App.3d at 658-59, 34 Ill.Dec. 55, 397 N.E.2d 511. In its analysis of unvested pensions, the Hunt court relied on the Supreme Court of California's decision in In re Marriage of Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561 (1976).
¶ 23 In Brown, the California court overruled a previous case in which it had found that nonvested pension rights were not property but were expectancies. The Brown court, however, found that nonvested pension rights were not expectancies, noting that " the defining characteristic of an expectancy is that its holder has no enforceable right to his beneficence." (Emphasis added.) Brown, 126 Cal.Rptr. 633, 544 P.2d at 565. Instead, the Brown court noted that " [s]ince pension benefits represent a form of deferred compensation for services rendered [citation], the employee's right to such benefits is a contractual right, derived from the terms of the employment contract. Since a contractual right is not an expectancy but a chose in action, a form of property [citations], * * * an employee acquires a property right to pension benefits when he enters upon the performance of his employment contract." Brown, 126 Cal.Rptr. 633, 544 P.2d at 565. Thus, the court concluded that nonvested pension rights could constitute community property subject to division upon dissolution of a marriage. Brown, 126 Cal.Rptr. 633, 544 P.2d at 569.
¶ 24 In the case at bar, we cannot agree that Scott's bonus is analogous to the pension rights discussed in Hunt and Brown because both cases concerned the contractual right to pension benefits. However, as noted, Scott does not have a contractual right to a bonus, which is issued at his employer's discretion. Indeed, as the Brown court noted, since Scott has " no enforceable right to [his employer's] beneficence" (emphasis added) ( Brown, 126 Cal.Rptr. 633, 544 P.2d at 565), Scott's bonus is an expectancy and not a property right. Accordingly, we find Alison's attempt to draw an analogy between Scott's bonus and pension benefits to be unpersuasive.
¶ 25 Alison also points to other jurisdictions, claiming that a majority of other states addressing the issue have concluded that cash bonuses are marital property to the extent that marital efforts were expended during the marriage. Although Alison cited a number of cases from other jurisdictions that she claims support her argument, we find these cases unpersuasive because they do not contain the factual scenario at issue here. In most of Alison's cited cases, either the employee spouse had an employment agreement or the payment that was considered by the court was received prior to the entry of the judgment for dissolution of marriage.
See, e.g., Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640, 644 (1987) (" [A]ppellee's employment agreement with [his employer] required the company to pay appellee an incentive bonus based on his productivity and the profitability of the company." (Emphasis in original.)); Byington v. Byington, 224 Mich.App. 103, 568 N.W.2d 141, 143 (1997) (defendant negotiated a compensation package with his employer, including contingent bonuses and incentives
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[374 Ill.Dec. 306] that were received prior to the judgment of divorce); Pruitt v. Pruitt, 94 S.W.3d 429, 432, 433-34 (Mo.Ct.App.2003) (judgment for dissolution entered in November 2001; cash bonus earned during the marriage and received in February 2000 was marital property); Myhra v. Myhra, 16 Neb.App. 920, 756 N.W.2d 528, 535 (2008) (decree of dissolution of marriage entered in 2006; bonus received in 2006 for work performed in 2005). However, in the case at bar, there was no employment agreement that would provide a contractual right to a bonus, nor was the bonus received prior to the entry of the judgment for dissolution of marriage.
¶ 26 Of the cases in other jurisdictions, the one Alison claims is most factually similar to the case at bar is the Supreme Court of Alaska's decision in Lewis v. Lewis, 785 P.2d 550 (Alaska 1990). In that case, the husband executed an employment agreement awarding him 100,000 shares of his employer's stock if the employer had 18 profitable months, and the stock had not been issued at the time of the trial. Lewis, 785 P.2d at 555-56. The wife argued that the stock should be considered marital property similar to a nonvested pension, and the Supreme Court of Alaska agreed. Lewis, 785 P.2d at 556. The court reasoned: " [The husband's] contingent stock interest is similar to a nonvested pension in that both are contractual rights. It was earned at least in part during the marriage. The applicable legal principle is that property earned during a marriage is marital property regardless of when it is transferred. [Citation.] If any stock is awarded to [the husband] pursuant to the employee agreement, that portion of the stock earned during the marriage is marital property." Lewis, 785 P.2d at 556.
¶ 27 We cannot agree that Lewis is factually similar to the case at bar. Here, there was no employment agreement providing for a bonus as in Lewis. Thus, we cannot say that Scott's right to a bonus was a contractual right similar to a nonvested pension.
¶ 28 Finally, Alison also draws an analogy between Scott's bonus and a stock bonus, relying on In re Marriage of Peters, 326 Ill.App.3d 364, 260 Ill.Dec. 169, 760 N.E.2d 586 (2001). In that case, the husband executed an independent sales representative agreement with his employer, which provided that if the husband represented the company for 10 consecutive years and averaged a certain amount in annual collected gross profits, the company would transfer him a percentage of its stock. Peters, 326 Ill.App.3d at 365, 260 Ill.Dec. 169, 760 N.E.2d 586. The husband had been with the company for five years when the parties dissolved their marriage. Peters, 326 Ill.App.3d at 366, 260 Ill.Dec. 169, 760 N.E.2d 586. The trial court determined that the stock bonus was not marital property because it was future compensation for future efforts and his receipt of the bonus was speculative. Peters, 326 Ill.App.3d at 366, 260 Ill.Dec. 169, 760 N.E.2d 586. On appeal, the appellate court determined that the trial court erred in concluding that no part of the bonus could be marital property. Peters, 326 Ill.App.3d at 369, 260 Ill.Dec. 169, 760 N.E.2d 586.
¶ 29 The Peters court considered cases from other jurisdictions, but noted that in most of them, the bonus was received by the time of the dissolution; the court found the Lewis decision to be the most similar to the case before it. Peters, 326 Ill.App.3d at 367, 260 Ill.Dec. 169, 760 N.E.2d 586. Examining Illinois case law, the Peters court noted that pension benefits acquired after the marriage but before judgment for dissolution of marriage were marital property, and that nonvested stock options acquired during the marriage were [374 Ill.Dec. 307]
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marital property when exercised. Peters, 326 Ill.App.3d at 368, 260 Ill.Dec. 169, 760 N.E.2d 586. The Peters court concluded that the stock bonus was similar to nonvested pension benefits, since the husband was required to remain employed for a certain time prior to having a right to receive it. Peters, 326 Ill.App.3d at 369, 260 Ill.Dec. 169, 760 N.E.2d 586. The court also concluded that the stock bonus was similar to a nonvested stock option, which was considered marital property, since the recipient had the potential to receive stock in the employer. Peters, 326 Ill.App.3d at 369, 260 Ill.Dec. 169, 760 N.E.2d 586. The court agreed with the Lewis court that any portion of the stock bonus earned during the marriage should be considered marital property, reasoning that " [t]he bonus is a contractual right that petitioner was working toward during the marriage and thus was more than a mere expectancy." Peters, 326 Ill.App.3d at 369, 260 Ill.Dec. 169, 760 N.E.2d 586.
¶ 30 In the case at bar, as noted, there was no employment agreement analogous to that in Peters and Scott was not contractually entitled to a bonus. Consequently, we do not find the decision in Peters to be " controlling stare decisis " as Alison claims.
¶ 31 As a final matter, Alison claims that the speculative nature of the bonus is irrelevant to the determination of whether it is marital property. However, our supreme court, in finding that accumulated vacation and sick days were not marital property, noted:
" [T]he value of accrued vacation and sick days is speculative and uncertain until a party actually collects compensation for those days at retirement or termination of his employment. A party cannot receive cash for those days prior to retirement or termination. In fact, it is possible that in some cases, an employer might change its policy concerning the right to receive compensation for accrued sick days, limiting or eliminating that right entirely." Abrell, 236 Ill.2d at 266-67, 337 Ill.Dec. 940, 923 N.E.2d 791.
Similarly, in the case at bar, Scott's bonus is speculative until it is actually awarded by his employer, and Citadel could change its policy for awarding bonuses, as is contemplated by its disclaimer that " 2012 Participation Points will be governed by the relevant employee incentive program in effect when 2012 Participation Points are awarded." Consequently, we cannot find that the trial court erred in determining that the 2012 bonus, if issued, is nonmarital property.
¶ 33 We find that the trial court did not err in finding Scott's 2012 bonus, if issued, is nonmarital property because Scott did not have a contractual right to the bonus, which was issued in his employer's discretion.
¶ 34 Affirmed.
Presiding Justice LAMPKIN and Justice REYES concurred in the judgment and opinion.
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That headline above is from an article we linked to via Salon, and there is something about that headline and this quote from the same article we linked to on our Facebook page this morning:
"The two parties aren't just making progress impossible, they're destroying our political system."
This "partisan death jam" is playing out right before our eyes, and the money flowing into the jam from "influencers" being organized by "bundlers" is really quite remarkable. The graphic above is just an excerpt of a larger graphic via OpenSecrets.org depicting the money bundling undertaken by both the Obama and Romney campaigns that just gets to the heart of so much that is wrong with the two party dominated political system. The money, the influence buying and selling and ultimately the total disruption of democracy. We've talked openly before about the solution not being another political party, like an Independent Party, but instead being about more people becoming aware, angry and supporting a growing slate of independent candidates who want to unwind the money/government/special interest knot and get back to being responsible to the American people.
You need to see the full graphic, but it's too big to reproduce here.

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Grandma's Passover Chocolate Cake With Orange
Total Time
1hr 20mins
Prep 20 mins
Cook 1 hr
Similar yet different to others posted here. I found this in my Grandmother's Passover electric mixer box.
Ingredients Nutrition
- 6 large eggs, separated
- 1 1⁄2 cups sugar
- 4 tablespoons cocoa
- 3⁄4 cup cake crumbs, crumbs for Passover
- 1⁄4 cup concord grape wine
- 1 orange, juice and rind of, grated
- Sift all dry ingredients into a bowl and set aside.
- Beat egg whites with sugar in a large bowl.
- Beat yolks well with wine in yet another bowl.
- Add the yolks to the whites and fold in the sifted ingredients and mix.
- Add the juice of the orange and the grated rind.
- Bake at 325 degrees F. for 1 hour.


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This is a fresh, natural strawberry flavor, a bit different than the original. Concentrated Strawberry (Ripe) flavoring by The Flavor Apprentice. Strawberry (Ripe) concentrated flavoring is produced from ingredients approved in food industry for beverages and products for human consumption.
Ingredients: Natural and Artificial Flavors, Propylene Glycol.
Flavor concentrates are undiluted, full strength concentrates direct from the manufacturer. Recommended usage is to test at 5% flavoring in your recipe, and adjust to taste.
For Best Storage Conditions:
Store in a tightly closed container, away from heat and direct sunlight.


text:
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Votes: 1,394
18. Stanley and Livingstone (1939)
Approved | 101 min | Adventure, Drama, History
When American newspaperman and adventurer Henry M. Stanley comes back from the western Indian wars, his editor James Gordon Bennett sends him to Africa to find Dr. David Livingstone, the ... See full summary »
Directors: Henry King, Otto Brower | Stars: Spencer Tracy, Nancy Kelly, Richard Greene, Walter Brennan
Votes: 984
19. The Corsican Brothers (1941)
Approved | 111 min | Adventure, Romance
Douglas Fairbanks jr plays Siamese twins, separated by a good doctor [scalpel hemostat sutures quickly!!] after their parents are killed by Vendetta, personified by Akim Tamiroff in bolero ... See full summary »
Director: Gregory Ratoff | Stars: Douglas Fairbanks Jr., Ruth Warrick, Akim Tamiroff, J. Carrol Naish
Votes: 477
20. The Prisoner of Shark Island (1936)
Approved | 96 min | Biography, Drama, History
The story of Dr. Samuel Mudd, who was imprisoned after innocently treating President Lincoln's assassin in 1865.
Director: John Ford | Stars: Warner Baxter, Gloria Stuart, Claude Gillingwater, Arthur Byron
Votes: 1,464
21. Lady in the Dark (1944)
100 min | Drama, Musical, Romance
Ginger Rogers, "Allure" magazines editor-in-chief, suffers from headaches and continuos daydreams and undergoes psychoanalysis to determine why.
Director: Mitchell Leisen | Stars: Ginger Rogers, Ray Milland, Warner Baxter, Jon Hall
Votes: 297
22. Alexander's Ragtime Band (1938)
Approved | 106 min | Drama, Musical, Romance
This send-up of ragtime song and dance begins in 1915 San Francisco when society boy Roger Grant decides to pursue popular rather than serious music.
Director: Henry King | Stars: Tyrone Power, Alice Faye, Don Ameche, Ethel Merman
Votes: 1,410
23. The Story of Dr. Wassell (1944)
140 min | Drama, Action, Adventure
As the Japanese sweep through the East Indies during World War II, Dr. Wassell is determined to escape from Java with some crewmen of the cruiser Marblehead. Based on a true story of how Dr... See full summary »
Director: Cecil B. DeMille | Stars: Gary Cooper, Laraine Day, Signe Hasso, Dennis O'Keefe
Votes: 581
24. Baby Take a Bow (1934)
PG | 76 min | Comedy, Drama, Family
Eddie Ellison is an ex-con who spent time in Sing-Sing prison. Kay marries him as soon as he serves his time. Five years later, Eddie and his ex-convict buddy Larry, have both gone straight... See full summary »
Director: Harry Lachman | Stars: Shirley Temple, James Dunn, Claire Trevor, Alan Dinehart
Votes: 602
25. Love Is News (1937)
Approved | 77 min | Comedy, Romance
Financier's daughter spars with newspaper reporter: he by writing about her, she by announcing their engagement.
Director: Tay Garnett | Stars: Tyrone Power, Loretta Young, Don Ameche, Slim Summerville
Votes: 401
26. Just Around the Corner (1938)
Passed | 70 min | Comedy, Musical
Shirley helps her idealistic architect father get his dream of a slum clearance project; The little miss dances with bill "Bojangles" robinson. Based on paul gerard smith's book, "Lucky penny".
Director: Irving Cummings | Stars: Shirley Temple, Joan Davis, Charles Farrell, Amanda Duff
Votes: 395
27. Four Men and a Prayer (1938)
Not Rated | 85 min | Adventure, Mystery
The sons of a disgraced British officer try to clear his name.
Director: John Ford | Stars: Loretta Young, Richard Greene, George Sanders, David Niven
Votes: 494
28. Stowaway (1936)
Approved | 87 min | Musical, Adventure, Family
Ching-Ching gets lost in Shanghai and is befriended by American playboy Tommy Randall. She falls asleep in his car which winds up on a ship headed for America. Susan Parker, also on the ... See full summary »
Director: William A. Seiter | Stars: Shirley Temple, Robert Young, Alice Faye, Eugene Pallette
Votes: 930
29. Ladies in Love (1936)
Approved | 97 min | Comedy, Romance
Three working girls in Budapest pool their resources to get a better apartment and impress their dates. One dates a nobleman and, learning of her rejection by him, considers poison. Another... See full summary »
Director: Edward H. Griffith | Stars: Janet Gaynor, Loretta Young, Constance Bennett, Simone Simon
Votes: 286
30. Charlie Chan in Paris (1935)
Approved | 72 min | Comedy, Crime, Drama
Hired to investigate forged bonds, Charlie is thwarted by the murder of his undercover agent, but the arrival of son Lee helps him uncover the true culprits.
Directors: Lewis Seiler, Hamilton MacFadden | Stars: Warner Oland, Mary Brian, Thomas Beck, Erik Rhodes
Votes: 1,171
31. This Is My Affair (1937)
Not Rated | 100 min | Crime, Drama, History
Navy Lt. Richard Perry becomes an undercover man out to discover the leaders of a group of well connected men who pull off bank robberies during the McKinley administration (early 20th ... See full summary »
Director: William A. Seiter | Stars: Robert Taylor, Barbara Stanwyck, Victor McLaglen, Brian Donlevy
Votes: 406
32. Charlie Chan at the Circus (1936)
Approved | 72 min | Comedy, Crime, Mystery
While visiting the circus with his family, Charlie is recruited by the big top's co-owner to investigate threatening letters that he's received.
Director: Harry Lachman | Stars: Warner Oland, Keye Luke, George Brasno, Olive Brasno
Votes: 1,211
33. Ma and Pa Kettle Go to Town (1950)
Approved | 79 min | Comedy, Crime
When Pa wins a jingle-writing contest, he and Ma head for New York City. They they get in trouble with gangsters when they lose some stolen money which they had already agreed to deliver to one of the thugs.
Director: Charles Lamont | Stars: Marjorie Main, Percy Kilbride, Richard Long, Meg Randall
Votes: 571
34. Always Goodbye (1938)
Approved | 75 min | Comedy, Drama, Romance
A woman must decide between two men - one she loves, the other she admires and respects.
Director: Sidney Lanfield | Stars: Barbara Stanwyck, Herbert Marshall, Ian Hunter, Cesar Romero
Votes: 239
35. Stand Up and Cheer! (1934)
Passed | 68 min | Comedy, Musical
President Franklin Roosevelt appoints a theatrical producer as the new Secretary of Amusement in order to cheer up an American public still suffering through the Depression. The new ... See full summary »
Director: Hamilton MacFadden | Stars: Warner Baxter, Madge Evans, James Dunn, Sylvia Froos
Votes: 325
36. Bwana Devil (1952)
79 min | Adventure
British railway workers in Kenya are becoming the favorite snack of two man-eating lions. Head engineer Bob Hayward becomes obsessed with trying to kill the beasts before they maul everyone on his crew.
Director: Arch Oboler | Stars: Robert Stack, Barbara Britton, Nigel Bruce, Ramsay Hill
Votes: 268
37. The Road to Glory (1936)
103 min | Drama, War
The story of trench life during World War I through the lives of a French regiment. As men are killed and replaced jaunty Lt. Denet becomes more and more somber. His rival for the affection of nurse Monique is Capt. La Roche.
Director: Howard Hawks | Stars: Fredric March, Warner Baxter, Lionel Barrymore, June Lang
Votes: 314
38. Charlie Chan's Murder Cruise (1940)
Passed | 76 min | Comedy, Crime, Mystery
Charlie tries to discover the identity of a strangler who strikes multiple times on a cruise ship bound from Honolulu to California.
Director: Eugene Forde | Stars: Sidney Toler, Marjorie Weaver, Lionel Atwill, Victor Sen Yung
Votes: 920
39. Racket Squad (1950– )
30 min | Crime, Drama
This series dramatizes confidence games which fall under the jurisdiction of Captain John Braddock.
Stars: Reed Hadley, Hugh Beaumont, Keith Richards, Griff Barnett
Votes: 66
40. I Take This Woman (1940)
Passed | 98 min | Drama
Georgi has attempted suicide in reaction to an earlier love affair. Now that Dr. Decker has married her he sets out to get her to love him. To make enough to give her what she wants he ... See full summary »
Directors: W.S. Van Dyke, Frank Borzage, Josef von Sternberg | Stars: Spencer Tracy, Hedy Lamarr, Verree Teasdale, Kent Taylor
Votes: 450
41. Mysterious Mr. Moto (1938)
Approved | 62 min | Crime, Drama, Mystery
Mr. Moto has himself imprisoned on Devil's Island so he can help his cellmate (Ames) escape and thereby get the goods on a gang of international killers.
Director: Norman Foster | Stars: Peter Lorre, Mary Maguire, Henry Wilcoxon, Erik Rhodes
Votes: 532
42. Slightly Honorable (1939)
Approved | 85 min | Comedy, Crime, Drama
A lawyer is framed for the murder of a young party girl and tries to clear his name.
Director: Tay Garnett | Stars: Pat O'Brien, Edward Arnold, Broderick Crawford, Ruth Terry
Votes: 279
43. Hollywood Cavalcade (1939)
Passed | 97 min | Comedy, Drama, History
Starting in 1913 movie director Connors discovers singer Molly Adair. As she becomes a star she marries an actor, so Connors fires them. She asks for him as director of her next film. Many silent stars shown making the transition to sound.
Directors: Irving Cummings, Buster Keaton, Malcolm St. Clair | Stars: Alice Faye, Don Ameche, J. Edward Bromberg, Alan Curtis
Votes: 277
44. One in a Million (1936)
Approved | 95 min | Comedy, Musical, Romance
American theatrical manager (Menjou) discovers Henie preparing for the Olympics in Switzerland and brings her to Madison Square Garden.
Director: Sidney Lanfield | Stars: Sonja Henie, Adolphe Menjou, Jean Hersholt, Ned Sparks
Votes: 192
45. Crazy House (1943)
Approved | 80 min | Comedy, Music
Olsen and Johnson, stage comedians turned film stars, produce a star-studded musical comedy with an eccentric "millionaire" who hasn't got a dime.
Director: Edward F. Cline | Stars: Ole Olsen, Chic Johnson, Cass Daley, Patric Knowles
Votes: 146
46. Lillian Russell (1940)
Approved | 127 min | Biography, Drama, Musical
Life story of the musical star from her discovery in 1890 by band leader Tony Pastor till her retirement in 1912 when she married newspaperman Alexander Moore.
Director: Irving Cummings | Stars: Alice Faye, Don Ameche, Henry Fonda, Edward Arnold
Votes: 301
47. Dixie (1943)
Passed | 89 min | Biography, Comedy, Musical
A young songwriter leaves his Kentucky home to try to make it in New Orleans. Eventually he winds up in New York, where he sells his songs to a music publisher, but refuses to sell his most... See full summary »
Director: A. Edward Sutherland | Stars: Bing Crosby, Dorothy Lamour, Billy De Wolfe, Marjorie Reynolds
Votes: 87
48. The World Moves On (1934)
Approved | 104 min | Drama, History, Romance
Richard Girard is part of a New Orleans family working closely with the English Warburtons. When Richard meets Mary Warburton she is engaged to Erik von Gerardt. He does wed Mary but their time in America is financially difficult.
Director: John Ford | Stars: Madeleine Carroll, Franchot Tone, Reginald Denny, Sig Ruman
Votes: 231
49. Perfect Strangers (1950)
88 min | Drama, Romance
Ginger Rogers and Dennis Morgan, serving on a sequestered jury during a murder trial, fall in love. She is divorced, he is married.
Director: Bretaigne Windust | Stars: Ginger Rogers, Dennis Morgan, Thelma Ritter, Margalo Gillmore
Votes: 268
50. The Monster and the Girl (1941)
Approved | 65 min | Crime, Drama, Horror
After a young woman is coerced into prostitution and her brother framed for murder by an organized crime syndicate, retribution in the form of an ape visits the mobsters.
Director: Stuart Heisler | Stars: Ellen Drew, Robert Paige, Paul Lukas, Joseph Calleia
Votes: 287
51. Marie Galante (1934)
Approved | 88 min | Drama, Romance, Thriller
Marie is kidnapped and taken aboard ship, then thrown off at Yucatan. She winds up singing in a café in the Panama Canal zone. There she gets involved in a plot to destroy the canal and runs into American intelligence officer Crawbett.
Director: Henry King | Stars: Spencer Tracy, Ketti Gallian, Ned Sparks, Helen Morgan
Votes: 235
52. Phantom of Chinatown (1940)
Approved | 62 min | Action, Crime, Drama
Detective James Lee Wong is on the scene as archaeologist Dr. John Benton, recently returned from an expedition in China where a valuable ancient scroll was recovered, is murdered while giving a lecture on the expedition.
Director: Phil Rosen | Stars: Keye Luke, Lotus Long, Grant Withers, Charles Miller
Votes: 320
53. Now I'll Tell (1934)
82 min | Drama
Golden is a two-bit gambler who has promised wife Virginia he'll quit when he makes $200,000. When he fixes a fight he gets mobster Mossiter mad, then loses his fortune to him. He pawns his... See full summary »
Director: Edwin J. Burke | Stars: Spencer Tracy, Helen Twelvetrees, Alice Faye, Robert Gleckler
Votes: 93
54. Remember the Day (1941)
Passed | 86 min | Drama, Romance, War
Elderly schoolteacher Nora Trinell, waiting to meet presidential nominee Dewey Roberts, recalls him as her student back in 1916 and his relation to Dan Hopkins, the man she married and lost.
Director: Henry King | Stars: Claudette Colbert, John Payne, Shepperd Strudwick, Ann E. Todd
Votes: 359
55. The Man Who Broke the Bank at Monte Carlo (1935)
71 min | Comedy, Romance
Russian prince goes to Monte Carlo just after World War I with money supplied him by Parisian Russians. He wins but the casino operators want him honor the tradition of returning to the ... See full summary »
Director: Stephen Roberts | Stars: Ronald Colman, Joan Bennett, Colin Clive, Nigel Bruce
Votes: 92
56. Second Honeymoon (1937)
Approved | 84 min | Comedy, Romance
Newly remarried woman finds her businessman husband boring and runs into her wealthy playboy first husband.
Director: Walter Lang | Stars: Tyrone Power, Loretta Young, Stuart Erwin, Claire Trevor
Votes: 263
57. The Living Ghost (1942)
Passed | 61 min | Horror, Mystery, Thriller
Wise-cracking ex-detective Nick Trayne is called in to try to find the whereabouts of wealthy kidnap victim Walter Craig. Craig unexpectedly turns up alive but with apparent brain damage, ... See full summary »
Director: William Beaudine | Stars: James Dunn, Joan Woodbury, Paul McVey, Vera Gordon
Votes: 398
58. Girls in the Night (1953)
Passed | 83 min | Crime, Drama
A family's efforts to move out of a slum area into a better neighborhood is hampered when their son is accused of the murder of a local blind beggar.
Director: Jack Arnold | Stars: Harvey Lembeck, Joyce Holden, Glenda Farrell, Leonard Freeman
Votes: 30
59. You Can't Have Everything (1937)
Approved | 100 min | Comedy, Musical, Romance
Starving playwright Judith Wells meets playboy writer of musicals, George Macrae, over a plate of stolen spaghetti. He persuades producer Sam Gordon to buy her ridiculous play "North Winds"... See full summary »
Director: Norman Taurog | Stars: Alice Faye, The Ritz Brothers, Don Ameche, Charles Winninger
Votes: 122
60. Bottoms Up (1934)
85 min | Comedy, Drama, Musical
Promoter Smoothe King helps a pair of phonies con their way into a movie company. As Wanda heads toward stardom, she turns more and more from King toward the matinée idol. King must decide between his plans and her happiness.
Director: David Butler | Stars: Spencer Tracy, Pat Paterson, John Boles, Sid Silvers
Votes: 74
61. The Green Hornet Strikes Again! (1940)
Approved | 293 min | Action, Adventure, Crime
A wealthy publisher uses a disguise and calls himself the Green Hornet to fight crime in his city.
Directors: Ford Beebe, John Rawlins | Stars: Warren Hull, Wade Boteler, Anne Nagel, Keye Luke
Votes: 259
62. Private Number (1936)
Approved | 80 min | Drama, Romance
A young woman searching for work takes a job as a maid for a rich family. Intrigue follows as a butler schemes to make the attractive newcomer his own. Only to be foiled by the wealthy ... See full summary »
Director: Roy Del Ruth | Stars: Robert Taylor, Loretta Young, Basil Rathbone, Patsy Kelly
Votes: 172
63. Rainbow Island (1944)
Approved | 98 min | Musical
Three merchant seamen fleeing the Japanese take refuge on a Pacific island, where they come across a doctor and his daughter who take care of the natives, a hostile tribe that wants to kill... See full summary »
Director: Ralph Murphy | Stars: Dorothy Lamour, Eddie Bracken, Gil Lamb, Barry Sullivan
Votes: 29
64. The Gay Deception (1935)
Approved | 77 min | Comedy, Romance
Mirabel wins a $5,000 lottery which will enable her to live like a queen in New York. There she meets Sandro, a bellboy who is really a prince, so she does get to be a queen after all.
Director: William Wyler | Stars: Francis Lederer, Frances Dee, Benita Hume, Alan Mowbray
Votes: 219
65. The Saint Takes Over (1940)
Approved | 69 min | Crime, Mystery
Inspector Fernack is framed by a cartel of five gangsters and Simon does his best to prove it before all the conspirators are murdered by a mysterious killer.
Director: Jack Hively | Stars: George Sanders, Wendy Barrie, Jonathan Hale, Paul Guilfoyle
Votes: 420
66. Charlie Chan's Courage (1934)
Approved | 70 min | Mystery
Charlie is hired to deliver a pearl necklace to a millionaire at his ranch. When murder intervenes he disguises himself as a Chinese servant and begins sleuthing.
Directors: Eugene Forde, George Hadden | Stars: Warner Oland, Drue Leyton, Donald Woods, Paul Harvey
Votes: 354
67. The Baroness and the Butler (1938)
Approved | 80 min | Comedy, Drama, Romance
A Butler (Powell) gets elected to the Hungarian parliament where he opposes his master's government.
Director: Walter Lang | Stars: William Powell, Annabella, Helen Westley, Henry Stephenson
Votes: 293
68. 365 Nights in Hollywood (1934)
77 min | Comedy, Musical
Down-on-his-luck film director Jimmie Dale takes a job at a fly-by-night acting school. He is drawn into the plans of the school's owner to bilk a wealthy young man out of the funds he has ... See full summary »
Director: George Marshall | Stars: James Dunn, Alice Faye, Frank Mitchell, Jack Durant
Votes: 74
69. The Country Doctor (1936)
Approved | 95 min | Drama, Romance
A doctor has a rough time obtaining the money for delivering his services in a lumber town until he delivers the Dionne quintuplets.
Director: Henry King | Stars: The Dionne Quintuplets, Yvonne Dionne, Cecile Dionne, Marie Dionne
Votes: 38
70. Flight for Freedom (1943)
Approved | 102 min | Biography, Drama
The life of air pioneer Amelia Earhart is here given a fictionalized treatment, with a speculative conclusion.
Director: Lothar Mendes | Stars: Rosalind Russell, Fred MacMurray, Herbert Marshall, Eduardo Ciannelli
Votes: 153
71. Josette (1938)
73 min | Comedy, Crime, Musical
Two young men try to wrest their father from the clutches of a gold digger but by mistake think the woman is a young nightclub singer with whom they both fall in love.
Director: Allan Dwan | Stars: Don Ameche, Simone Simon, Robert Young, Joan Davis
Votes: 45
72. Crack-Up (1936)
Approved | 65 min | Drama
Colonel Gimpy heads a spy organization trying to get the plans for a new airplane. Test pilot Ace Martin agrees to help.
Director: Malcolm St. Clair | Stars: Peter Lorre, Brian Donlevy, Helen Wood, Ralph Morgan
Votes: 110
73. Mystery of the 13th Guest (1943)
Passed | 60 min | Crime, Mystery
A woman of twenty-one opens her grandfather's will left to her thirteen years earlier, per his instructions. Murder soon follows.
Director: William Beaudine | Stars: Dick Purcell, Helen Parrish, Tim Ryan, Frank Faylen
Votes: 335
74. Caravan (1934)
Approved | 101 min | Musical
Member of royal family is forced to marry a vagabond.
Director: Erik Charell | Stars: Charles Boyer, Loretta Young, Jean Parker, Phillips Holmes
Votes: 42
75. No Room for the Groom (1952)
82 min | Comedy
Alvah, a young GI who happens to own a vineyard, elopes to Las Vegas with Lee, his housekeeper's daughter. But Alvah's chicken pox postpone the wedding night. The rest revolves around more ... See full summary »
Director: Douglas Sirk | Stars: Tony Curtis, Piper Laurie, Don DeFore, Spring Byington
Votes: 252
76. Happy Go Lucky (1943)
Approved | 81 min | Comedy, Musical
A gold-digger hopes to land a rich husband in Trinidad, but gets mixed up with a beach boy and voodoo.
Director: Curtis Bernhardt | Stars: Mary Martin, Dick Powell, Betty Hutton, Eddie Bracken
Votes: 99
77. Metropolitan (1935)
Approved | 79 min | Drama, Musical, Romance
Opera prima donna leaves the Metropolitan to form her own company with Tibbett as leading man. She leaves this company too which means Tibbett and company must carry on without her.
Director: Richard Boleslawski | Stars: Lawrence Tibbett, Virginia Bruce, Alice Brady, Cesar Romero
Votes: 80 | Gross: $0.02M
78. State's Attorney (1932)
Approved | 79 min | Drama
Attorney Tom Cardigan is the discontented "mouthpiece" for Vanny Powers' mob. When Tom takes sweet June Perry as his mistress, she tries in vain to redeem him. But Powers decides Tom would ... See full summary »
Director: George Archainbaud | Stars: John Barrymore, Helen Twelvetrees, Jill Esmond, William 'Stage' Boyd
Votes: 198
79. The Great John L. (1945)
Approved | 96 min | Biography, Drama, Sport
Women in the life of prizefighter John L. Sullivan.
Director: Frank Tuttle | Stars: Linda Darnell, Barbara Britton, Greg McClure, Otto Kruger
Votes: 37
80. The Lady Pays Off (1951)
80 min | Comedy, Drama
The naive Evelyn Warren, elected shool-teacher of the year by Time Magazine, goes to Las Vegas, where she loses a lot of money. In order to pay her debts, casino-manager Matt Braddock asks ... See full summary »
Director: Douglas Sirk | Stars: Linda Darnell, Stephen McNally, Gigi Perreau, Virginia Field
Votes: 53
81. Thank You, Jeeves! (1936)
57 min | Comedy
Erudite manservant Jeeves hopes to keep his frivolous employer Bertie out of new harrowing adventures, but a damsel in distress, carrying half of some mysterious plans, intrudes on their ... See full summary »
Director: Arthur Greville Collins | Stars: Arthur Treacher, Virginia Field, David Niven, Lester Matthews
Votes: 144
82. Three Smart Saps (1942)
17 min | Comedy, Short
The stooges are engaged to the three daughters of a prison warden. When they learn that some crooks have taken over the prison and their prospective father-in-law has been locked up, they ... See full summary »
Director: Jules White | Stars: Moe Howard, Larry Fine, Curly Howard, Julie Gibson
Votes: 292
83. The Kaiser Aluminum Hour (1956–1957)
60 min | Drama
Live dramas that were broadcast every other week. The show had covered both light and serious drama and featured both well-known and not so well-known actors and actresses.
Stars: Alexander Scourby, William Shatner, Larry Gates, Paul Mazursky
Votes: 27
84. Buried Alive (1939)
Approved | 62 min | Drama
A prison trustee rescues a despondent executioner from a bar-room brawl, and is blamed for the fight by a tabloid reporter who actually started it, and loses parole, becomes embittered, and gets blamed for murder of guard.
Director: Victor Halperin | Stars: Beverly Roberts, Robert Wilcox, Paul McVey, Ted Osborne
Votes: 119
85. World Premiere (1941)
71 min | Comedy
A producer devises an elaborate gala premiere for his latest anti-Nazi propaganda epic.
Directors: Ted Tetzlaff, Otis Garrett | Stars: John Barrymore, Frances Farmer, Eugene Pallette, Virginia Dale
Votes: 33
86. To Mary - with Love (1936)
87 min | Drama
Ten years of married life beginning in 1925. Mary stands by Jack after the Depression of 1929 but considers divorce when he again becomes successful by 1935. Bill, who loves Mary, works at ... See full summary »
Director: John Cromwell | Stars: Warner Baxter, Myrna Loy, Ian Hunter, Claire Trevor
Votes: 21
87. Pacific Blackout (1941)
Passed | 76 min | Mystery, Romance, Thriller
While bombers roar overhead during a practice blackout in a large American West coast city, Robert Draper, is among the prisoners in a police van. The inventor of a new range finder for ... See full summary »
Director: Ralph Murphy | Stars: Robert Preston, Martha O'Driscoll, Philip Merivale, Eva Gabor
Votes: 21
88. The Iron Major (1943)
Approved | 85 min | Biography, Drama
Coach Frank Cavanaugh returns to college football after World War I, then gradually goes blind.
Director: Ray Enright | Stars: Pat O'Brien, Robert Ryan, Ruth Warrick, Leon Ames
Votes: 149
89. Brooklyn Orchid (1942)
Approved | 50 min | Comedy
Taxicab company owners Tim McGuerin and Eddie Corbett rescue Lucy Gibbs from a suicide attempt and she insists on placing her life and destiny in the hands of her two rescuers. From there, ... See full summary »
Director: Kurt Neumann | Stars: William Bendix, Joe Sawyer, Marjorie Woodworth, Grace Bradley
Votes: 72
90. Nancy Steele Is Missing! (1937)
Approved | 84 min | Drama
After being in jail for seventeen years a crook is met by the girl he kidnapped as a baby. She now thinks he's her father. When he returns her to her real father there's a job and a reward,... See full summary »
Directors: George Marshall, Otto Preminger | Stars: Victor McLaglen, Walter Connolly, Peter Lorre, June Lang
Votes: 44
91. New York Town (1941)
94 min | Comedy
Victor Ballard is a poor but happy-go-lucky New York sidewalk photographer who shares a studio apartment with a painter from Poland, Stefan Janowski. When Victor shoots a photo of Alexandra... See full summary »
Director: Charles Vidor | Stars: Fred MacMurray, Mary Martin, Robert Preston, Akim Tamiroff
Votes: 32
92. Harmon of Michigan (1941)
Passed | 65 min | Biography, Drama, Sport
Tom Harmon (ol' # 98 for the Michigan Wolverines, husband of actress Elyse Knox and father of Mark Harmon and Kelly Harmon)took a back seat to no one on the football field (except the ... See full summary »
Director: Charles Barton | Stars: Tom Harmon, Anita Louise, Forest Evashevski, Oscar O'Shea
Votes: 37
93. Butch Minds the Baby (1942)
Approved | 75 min | Comedy
The Broadway citizen Aloysius 'Butch' Grogan is known far and wide to be involved with criminal activities. Butch is motivated to pursue a life of crime in order to provide the lovely widow... See full summary »
Director: Albert S. Rogell | Stars: Virginia Bruce, Broderick Crawford, Dick Foran, Porter Hall
Votes: 19
94. Below the Sea (1933)
Passed | 78 min | Adventure, Romance
A wealthy woman funds an underwater expedition to explore for marine life, but what she doesn't know is that her "colleagues" have other intentions.
Director: Albert S. Rogell | Stars: Ralph Bellamy, Fay Wray, Frederick Vogeding, Esther Howard
Votes: 192
95. Life Begins at 40 (1935)
Approved | 85 min | Comedy
In small-town America the easy-going publisher of the local paper finds himself in opposition to the local banker on the return to town of a lad jailed possibly wrongly for a theft from the... See full summary »
Director: George Marshall | Stars: Will Rogers, Richard Cromwell, George Barbier, Rochelle Hudson
Votes: 109
96. Sergeant Madden (1939)
Approved | 80 min | Crime, Drama, Family
A highly respected Irish cop is pleased when his son follows him onto the force. Unfortunately, the son is more interested in rewards than in upholding the law. When he shoots a child ... See full summary »
Director: Josef von Sternberg | Stars: Wallace Beery, Tom Brown, Alan Curtis, Laraine Day
Votes: 97
97. Are Husbands Necessary? (1942)
79 min | Comedy
Ray Milland and Betty Field play a warring married couple who hope to patch up their differences by adopting a baby. When Milland's ex-flame Patricia Morrison shows up unexpectedly, the fur flies.
Director: Norman Taurog | Stars: Ray Milland, Betty Field, Patricia Morison, Eugene Pallette
Votes: 24
98. One Mile from Heaven (1937)
Approved | 67 min | Drama
A newspaper woman believes she has a Scoop when she finds a 'Quadroon-Mulatto' woman who is thought by all to be the mother of a 'White' child.
Director: Allan Dwan | Stars: Claire Trevor, Sally Blane, Douglas Fowley, Fredi Washington
Votes: 29
99. Sins of Man (1936)
86 min | Drama
Austrian church bell ringer Freyman loves music and wants his two sons (both played by Ameche) to love it too. The first goes to America and the second is born deaf-mute but gains hearing ... See full summary »
Directors: Otto Brower, Gregory Ratoff | Stars: Jean Hersholt, Don Ameche, Allen Jenkins, J. Edward Bromberg
Votes: 16
100. King of Burlesque (1936)
Approved | 90 min | Drama, Musical
Former burlesque producer moves into legitimate theatre and does well until he marries a socialite. After his divorce his former top singer returns from London to help out.
Director: Sidney Lanfield | Stars: Warner Baxter, Alice Faye, Jack Oakie, Mona Barrie
Votes: 93


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In the United States Court of Appeals For the Seventh Circuit
September 2, 2010
JUNE O. CARLSON, PLAINTIFF-APPELLANT,v.SCOTT BUKOVIC, ET AL., DEFENDANTS-APPELLEES.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:07-cv-00006-Nan R. Nolan, Magistrate Judge.
Before RIPPLE, MANION and SYKES, Circuit Judges.
June Carlson brought a multi-count civil rights action under 42 U.S.C. § 1983 against Officer Scott Bukovic and the City of Darien, an Illinois municipal corporation. Certain counts were dismissed by the district court and are not at issue in this appeal. Remaining are a Fourth Amendment excessive force claim against Officer Bukovic and a Monell*fn1 claim against the City for failure to train the officer.*fn2 With respect to these claims, the parties cross-moved for sum-mary judgment. The district court granted summary judgment in favor of the City on the Monell claim but denied summary judgment to both parties on the excessive force claim. That claim proceeded to trial, and a jury determined that Officer Bukovic did not violate Ms. Carlson's constitutional rights because no Fourth Amendment seizure had occurred. Ms. Carlson now appeals the district court's final determination of both the excessive force claim and the Monell claim. For the reasons stated in this opinion, we affirm the judgment of the district court.*fn3
The facts surrounding Ms. Carlson's excessive force claim were contested initially. Because the action was tried to a jury, however, we must take the facts in the light most favorable to the party who prevailed at trial, Officer Bukovic, and draw all inferences in his favor. See Majeske v. City of Chi., 218 F.3d 816, 820 (7th Cir. 2000).
On January 3, 2005, Ms. Carlson and her son, Paul Carlson, visited the WalMart store in Darien, Illinois. At that time, Ms. Carlson was approximately 83 years old; Mr. Carlson is a handicapped adult. During their visit to the store, Mr. Carlson scratched his arm on a fire hose box and reported the incident to store employees. The employees consequently requested that Mr. Carlson complete certain forms. During that process, a dispute arose between the store employees and the Carlsons over whether the store would provide Ms. Carlson with copies of the forms. The store manager explained:
Well, as [Ms. Carlson] was upset and agitated by not having the forms, [Mr. Carlson] made a gesture towards me as to come towards me where I felt like I was threatened by his actions, and then I had asked him to step back, that I had felt threatened by him coming towards me. And there was some-a little bit of commotion. When I did ask him to step back, he did move back, and I remember her saying that, we're not threatening you. And I remember stating, no, I feel threatened, and, you know, I'm asking for him to step back. He made a step again.
And then at some point in time... we phoned the police department to help, not to banish them or-but to alleviate the situation because at that point in time, I felt threatened to the point where it was-I would not be able to end the situation.
Trial Tr. at 454-55. A store employee called the City of Darien Police Department to complain that the Carlsons were being disruptive.
Darien Police Officers Scott Bukovic and Richard Stutte soon arrived and asked the store manager what had happened. The manager explained that Mr. Carlson had scratched his arm and that, during the claims process, he had become loud and threatening. Ms. Carlson accused the manager of lying and tried to interrupt Officer Bukovic's conversation with the manager several times. Ms. Carlson's voice was raised; she was upset and, by some accounts, hysterical. She tapped Officer Bukovic on the arm, to which he said, "let me finish with [the store manager], please don't touch me, and then I will get to you." Trial Tr. at 461.
Officer Bukovic spoke next to Mr. Carlson, who explained his side of the story. Officer Bukovic observed Mr. Carlson to be loud and boisterous. Officer Bukovic relayed to the manager what Mr. Carlson had said; the manager reiterated that she had felt threatened. Officer Bukovic believed the manager.
Officer Bukovic then attempted to get Ms. Carlson's side of the story, but she would not explain what had happened. Ms. Carlson said that the manager was lying. Ms. Carlson's manner also was loud and boisterous. Officer Bukovic then asked the store manager what she wanted him to do. The manager said that Mr. Carlson could remain and complete his paperwork, but that Ms. Carlson would have to leave the store because she was being disruptive. Officer Bukovic told Ms. Carlson that, if she did not leave, he could arrest her for trespass. Ms. Carlson said she would not leave because she was concerned about her son.
Officer Bukovic tried three or more times to convince Ms. Carlson to leave the store, but she would not go. As Officer Bukovic made his last request, he reached for Ms. Carlson's right arm with both of his hands, placing one hand on her forearm and one hand on her upper arm. The touch was a calm, escorting gesture in an attempt to guide Ms. Carlson out of the store. The Personnel Manager of the WalMart, who witnessed the scene, testified that Officer Bukovic "was just asking her to-that it was time to leave the store, I think, and he kind of went like this.... To like you would do a grandmother, you know, to sort of maybe turn towards the exit. He barely touched her, and she started screaming." Trial Tr. at 392-93.*fn4
The Store Manager of the WalMart testified that "when the officers went to go help [Ms. Carlson] to the front door or escort [her] to the front door, one of them-how can I describe it?-as if you were helping your grandma through the parking lot on an icy day, grabbed her elbow, let me help you to the front." Id. at 462.
Ms. Carlson "freaked out" and began flailing her arms. Id. at 511. Officer Bukovic grabbed onto one or both of her arms to prevent her from striking him and, at the same time, tried to get her to calm down. Ms. Carlson put her hands up and crossed her arms in front of her chest. The incident lasted no more than five seconds.*fn5
After Ms. Carlson had calmed down, Officer Bukovic asked her if she needed any medical attention, but she refused to acknowledge him. Eventually, she left the store. The officers did not arrest Ms. Carlson.
The Carlsons brought this action against various WalMart corporate entities, the City of Darien and Officer Bukovic. After filing a series of amended complaints, Mr. Carlson abandoned his claims, and Ms. Carlson narrowed her complaint to consist only of a Fourth Amendment excessive force claim against Officer Bukovic and a section 1983 Monell claim against the City for failure to train. Importantly, Ms. Carlson disavowed any intention to assert a Fourth Amendment false arrest claim.*fn6
The parties cross-moved for summary judgment on both outstanding claims. Ms. Carlson's version of the facts, described in her motion, was very different from the version described by the defendants. She essentially contended that Officer Bukovic attacked and brutalized her in the WalMart store. Ms. Carlson contended that, because Officer Bukovic had touched her, no genuine issue of material fact existed as to whether a Fourth Amendment seizure had occurred. She also claimed, however, that summary judgment was appropriate on the reasonableness of the force used, as well as on the Monell claim asserted against the City. The defendants cross-moved for summary judgment on those same issues and also asserted that Officer Bukovic was entitled to qualified immunity.
The district court*fn7 denied the cross-motions for summary judgment because a genuine issue of material fact existed as to whether Officer Bukovic had seized Ms. Carlson.*fn8 The district court also concluded that, due to the conflicting factual accounts, a genuine issue of material fact existed as to whether the seizure, assuming one had occurred, was unreasonable. The district court also denied Officer Bukovic qualified immunity due to the factual differences. However, the district court granted the City summary judgment on the Monell failure-to-train claim.
Ms. Carlson asked the court to reconsider its ruling; she argued that the force used by Officer Bukovic, even though minimal, was a seizure as a matter of law. She essentially maintained that any touching used by an officer to influence a citizen's movements constitutes a Fourth Amendment seizure. In her view, the district court's contrary ruling was based on a misunderstanding of established Supreme Court precedent governing the law of Fourth Amendment seizure. She further argued that other cases that had determined that, despite the occurrence of some physical contact, no Fourth Amendment seizure had taken place were not controlling. The district court denied that motion.
Prior to trial, Officer Bukovic filed a motion in limine to exclude, among other things, any reference to or statement about Ms. Carlson's lawful presence in the WalMart store. See R.112 (item #9).*fn9 Officer Bukovic argued that, because Ms. Carlson had not advanced a Fourth Amendment false arrest claim, the issue of Ms. Carlson's lawful presence at the WalMart store was irrelevant to the excessive force claim to be tried.*fn10
He contended that, in any event, Ms. Carlson's reading of the Illinois trespass statute was legally incorrect because the criminal law of Illinois prohibits remaining on the property of another after having been asked to leave. Officer Bukovic contended that Ms. Carlson's anticipated presentation of the trespass issue would be erroneous and would mislead the jury. He asked that such evidence be excluded under Federal Rule of Evidence 403.
Ms. Carlson opposed the motion. She contended that the issue of her lawful presence and Officer Bukovic's probable cause to detain her were central to the action. She further argued that the Illinois criminal trespass statute did not apply because the statute included an "open to the public" exception. Tr. at 76-77, May 18, 2009. She maintained that the issue was related to the reasonableness of Officer Bukovic's seizure, and, thus, testimony about the trespass issue should be admissible at trial.
The district court granted the motion in limine, ruling that "injecting the issue of criminal trespass will mislead and confuse the jury and lead to unfair prejudice." R.124 at 5 (citing Rule 403). The district court also ruled:
Ms. Carlson may argue only that she did not want to leave and that she did not believe she was trespassing because the store was open to the public; she was there during normal business hours; and she was not creating a disturbance. Officer Bukovic, in turn, may argue that he believed Ms. Carlson was trespassing because the store owner wanted her to leave; she refused his order to leave; and she was behaving in a disruptive manner.
Id. at 5-6. Over the course of several pretrial conferences, Ms. Carlson asked the district court to reconsider its ruling. However, the district court steadfastly maintained that, because Ms. Carlson had disavowed any intention to assert a Fourth Amendment false arrest claim, the issue of Ms. Carlson's legal status on the WalMart property and Officer Bukovic's probable cause to seize her were irrelevant to the issues to be tried.*fn11
With these parameters in place, the district court conducted a four-day jury trial. The evidence consisted of testimony from Officer Bukovic, Ms. Carlson, Mr. Carlson, the WalMart store employees and Ms. Carlson's doctors. The evidence established that Officer Bukovic asked Ms. Carlson to leave the store, and that he momentarily placed his hands on her arm.
Unsatisfied with the parties' proposed jury instructions, the district court crafted instructions using the Seventh Circuit and Ninth Circuit pattern instructions on the law of Fourth Amendment excessive force claims. The district court removed references to arrest situations and, instead, proposed giving instructions on how to determine whether a Fourth Amendment seizure had occurred.
Ms. Carlson objected, primarily taking issue with the court's instruction that "in performing his job, an officer can use force that is reasonably necessary under the circumstances." See R.151. She maintained that any touching by an officer without probable cause to detain was per se unreasonable. She proposed several alternative instructions. The first would have required the jury to determine whether Officer Bukovic had probable cause to detain her for questioning. Another would have instructed that, if Officer Bukovic lacked probable cause to detain, any "knowing or intentional use of force... is automatically [that is, per se] unreasonable." See Appellant's Br. 24 (brackets in original); see also Tr. at 33-37, June 15, 2009. Ms. Carlson also proposed an instruction essentially requiring the jury to find that she was not trespassing because she was in the store during normal business hours. See Appellant's Br. 26.
The district court rejected Ms. Carlson's proposed instructions because they misstated the law of Fourth Amendment excessive force claims. The district court decided to give the instructions that it had formulated. The parties also disagreed over how the verdict form should be structured. Ms. Carlson proposed a special verdict form that would have asked the jury nine questions about disputed facts, such as whether Officer Bukovic "intentionally applied some degree of force to the person of Plaintiff." See R.183.*fn12 Her proposed verdict form also asked the jury to determine whether Officer Bukovic had "probable cause to believe that Plaintiff was committing the crime of disorderly conduct" and "the crime of criminal trespass to property in his presence." See id.
The district court rejected Ms. Carlson's proposed verdict form because it interjected irrelevant issues and would confuse the jury. Instead, the district court fashioned a special verdict form that tracked the law of Fourth Amendment excessive force claims. It asked: "Do you find that Plaintiff has proven by a preponderance of evidence that Defendant, Scott Bukovic[,] 'seized' Plaintiff, June Carlson, as that term has been defined in these instructions?"; if the jury answered "yes" to that question: "Do you find that Plaintiff has proven by a preponderance of evidence that Defendant, Scott Bukovic[,] used 'excessive force' against Plaintiff, June Carlson, as that term has been defined in these instructions?" R.185.
The jury answered no to the first question, concluding that no Fourth Amendment seizure had occurred. The district court accepted the verdict. Ms. Carlson did not file a motion for judgment as a matter of law under Federal Rule of Civil Procedure 50.
A. The Section 1983 Fourth Amendment Excessive Force Claim
Ms. Carlson's primary contention is that the district court erred by sending the question of whether there was a seizure to the jury because Officer Bukovic's touching was a seizure as a matter of law and that the seizure was "per se" unreasonable.*fn13
Throughout the district court proceedings, Ms. Carlson maintained that she was "seized as a matter of law" and that the seizure was "per se unreasonable." As her counsel stated at one point: "[E]ven though Defendant opted not to arrest Plaintiff, his initiation and continuation of unconsented-to physical contact against her person, no matter how brief, falls within an exception to the per se unreasonable rule only if he had probable cause to arrest her." R.132 at 11. The district court correctly rejected Ms. Carlson's formulations of the law.
Any Fourth Amendment inquiry necessarily begins with a determination of whether a search or seizure actually occurred. See Scott v. Harris, 550 U.S. 372, 381 (2007) (beginning a section 1983 Fourth Amendment excessive force inquiry with a determination that a seizure occurred and then turning to whether the force used was unreasonable); Leaf v. Shelnutt, 400 F.3d 1070, 1089 (7th Cir. 2005) ("In order to determine whether [an officer] seized [an individual] in violation of the Fourth Amendment,... [w]e first consider whether [the individual] was seized...."). If that question is answered in the affirmative, the next question is whether the seizure was unreasonable. See Brower v. County of Inyo, 489 U.S. 593, 599 (1989) (" 'Seizure' alone is not enough for § 1983 liability; the seizure must be 'unreasonable.' "); see also Graham v. Connor, 490 U.S. 386, 395 n.10 (1989) (distinguishing the seizure inquiry from the reasonableness inquiry); Leaf, 400 F.3d at 1089 ("[I]f we conclude that [the individual] was seized, we then must determine whether the seizure was unreasonable."). The seizure and reasonableness inquiries are distinct and should not be conflated. Furthermore, an officer's probable cause to seize is not antecedent to this two-step inquiry but rather is a subset of the larger reasonableness inquiry of the second step.
With respect to the first inquiry-whether there has been a seizure-the traditional approach is whether the person believed he was "free to leave." This standard is an objective one and "is made on the basis of the 'totality of the circumstances' surrounding the encounter." United States v. Jerez, 108 F.3d 684, 690 (7th Cir. 1997) (quoting Florida v. Bostick, 501 U.S. 429, 437 (1991)). For an understanding of this standard, we begin with Justice Stewart's opinion in United States v. Mendenhall, 446 U.S. 544 (1980), and the plurality opinion of the Supreme Court in Florida v. Royer, 460 U.S. 491 (1983).*fn14 In Mendenhall, Justice Stewart noted that physical contact with the police was but one of several "circumstances that might indicate a seizure." See Mendenhall, 446 U.S. at 554. Additional circumstances include the number and threatening presence of officers, the display of a weapon and the police officers' language and tone of voice suggesting compulsion. Id. at 554-55. In Royer, the Court determined that a seizure had occurred in an airport when the officers took a man's plane ticket and license, thus preventing him from walking away. See 460 U.S. at 504-06. In both cases, the focus was squarely on whether a reasonable person would have felt free to leave.
Later, in I.N.S. v. Delgado, 466 U.S. 210 (1984), the Court ruled that immigration "sweeps" in workplaces, whereby government agents asked questions of workers while other agents stood at the doors, did not constitute a Fourth Amendment seizure. The Court explained that "[u]nless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the Fourth Amendment." Id. at 216. Notably, the agents had tapped one of the workers on the shoulder and asked her questions; the Court found that no seizure had occurred. Id. at 220. In Tennessee v. Garner, 471 U.S. 1, 7 (1985), while holding that "there can be no question that apprehension by the use of deadly force is a seizure," the Court reaffirmed the continued viability of the Mendenhall totality of the circumstances approach because, in other circumstances, "it is not always clear just when minimal police interference becomes a seizure."
In cases where physical contact with a citizen occurred, the Court has suggested that the official purpose of the contact matters.*fn15 In Brower v. County of Inyo, 489 U.S. 593 (1989), the Court reversed an appellate court determination that a police roadblock that caused a fatal car crash was not a seizure. The Supreme Court determined that the roadblock was indeed a seizure because the roadblock effectively controlled and stopped the suspect. The Court explained,
Violation of the Fourth Amendment requires an intentional acquisition of physical control. A seizure occurs even when an unintended person or thing is the object of the detention or taking, but the detention or taking itself must be will- ful.... In sum, the Fourth Amendment addresses misuse of power, not the accidental effects of otherwise lawful government conduct.
... It is clear, in other words, that a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual's freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmentally desired termination of an individual's freedom of movement (the fleeing felon), but only when there is a governmental termination of freedom of movement through means intentionally applied.
Brower, 489 U.S. at 596-97 (internal citations and quotation marks omitted) (emphasis in original); see also County of Sacramento v. Lewis, 523 U.S. 833, 844 (1998) (concluding that no seizure occurred where the police accidentally struck and killed a motorcyclist during a high-speed pursuit). The Court expanded on that rationale in California v. Hodari D., 499 U.S. 621, 624-29 (1991), where the Court determined that no seizure occurred when a suspect was approached by police, then ran away and was chased. The Court stated that "[t]he word 'seizure' readily bears the meaning of laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful." Id. at 626. The Court cited with approval commentary that explained that an arrest could be accomplished by " 'constructive detention,' " which " 'is accomplished by merely touching, however slightly, the body of the accused, by the party making the arrest and for that purpose.' " Id. at 625 (citing A. Cornelius, Search and Seizure 163-64 (2d ed. 1930)) (emphasis added). Finally, an important caveat to the free to leave standard, often employed in bus sweep contexts, is that "when a person 'has no desire to leave' for reasons unrelated to the police presence, the 'coercive effect of the encounter' can be measured better by asking whether 'a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter.' " Brendlin v. Cal., 551 U.S. 249, 255 (2007) (quoting Bostick, 501 U.S. at 435-36).
As this discussion makes clear, mere physical contact by an officer, although a significant factor, does not automatically qualify an encounter as a Fourth Amendment seizure. See 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.4(a), p. 427 (4th ed. 2010) ("Even physical contact is acceptable if it is consensual, a normal means of attracting a person's attention or obviously serves some nonseizure purpose." (internal quotation marks and citations omitted)); see also id. at n.85 & accompanying text (commenting that "physically grabbing and moving the suspect," with a concomitant show of force and authority, may indicate that a seizure occurred). For instance, we have suggested that physical contact does not elevate automatically an encounter to the level of a Fourth Amendment seizure. As we said in Acevedo v. Canterbury, 457 F.3d 721, 725 (7th Cir. 2006), "[c]ertain types of non-restraining physical contact, without a concomitant showing of authority, are just too minor to constitute a 'seizure' for Fourth Amendment purposes without doing violence to that word." See also Williams v. City of Champaign, 524 F.3d 826, 829 (7th Cir. 2008) ("In constitutional tort cases (including cases brought to vindicate rights created by the Fourth Amendment) as elsewhere in the law, de minimis non curat lex."); Leaf, 400 F.3d at 1090-91 (determining that no seizure occurred where officers pointed guns and shined lights towards a sleeping man, even if they nudged him). In sum, there are, of course, situations in which the totality of the circumstances require a determination that a seizure has occurred as a matter of law. See, e.g., Tenn. v. Garner, 471 U.S. 1, 7 (1985) (fatal shooting of suspect constituted seizure). However, it is also clear that a mere touch is not per se a seizure under the Fourth Amendment.
The application of these principles to this case centers on the question of whether a seizure took place. In this case, this question admittedly is one of some difficulty. We conclude, accordingly, that the district court correctly submitted the matter to the jury. Even accepting the evidence in the light most favorable to Officer Bukovic, we cannot characterize the situation as the sort of de minimis touching that, as a matter of law, has no Fourth Amendment implications. There certainly was evidence of record that would have permitted the jury to determine that a seizure in fact did take place. On the other hand, the jury also was entitled to reach the opposite conclusion: Officer Bukovic's contact with Ms. Carlson's arm may have been so light and so momentary that it did not convey, to the objective observer, a demonstration of anything more than an encouragement that she leave the area. We must remember that police officers find themselves in a myriad of contentious, and potentially explosive, situations where in an effort to defuse the situation, a combination of verbal declarations and gestures must be employed. When considered in context, such actions may be more exhortatory than commanding in nature. While it could have determined otherwise, we believe that the jury was entitled to determine that, at the time he touched Ms. Carlson's arm, Officer Bukovic's action was just this type of gesture: more exhortatory than commanding. The appropriate characterization of this situation was a question for the jury after it had heard all the evidence. Cf. Acevedo, 457 F.3d at 725 (concluding that the question of whether an officer seized an individual by punching him in the face was a question for the jury).
The district court's formulation of jury instructions adequately articulated these legal principles.*fn16 The district court informed the jury that the seizure determination depended on whether Ms. Carlson's liberty was restrained and whether "a reasonable person would not have felt free to ignore the presence of law enforcement and to go about her business." Trial Tr. at 568. The jury was instructed to evaluate objectively the totality of the circumstances. The district court provided, moreover, appropriate factors to guide the jury's consideration of the issue. Ms. Carlson was not entitled to an instruction that made the determination depend entirely on whether physical contact had occurred; that factor is but one that the jury ought to consider. See Mendenhall, 446 U.S. at 554.*fn17 Nor was Ms. Carlson entitled to an instruction linking the seizure inquiry to the issue of probable cause because those concepts are not to be conflated. The district court did not abuse its discretion in rejecting Ms. Carlson's proposed jury instructions.
The district court also acted well within its discretion when it declined to give a jury instruction describing the Illinois criminal trespass statute and when it precluded Ms. Carlson from presenting evidence to show that she had not violated the statute.*fn18 Whether the statute was violated was not relevant to the threshold issue of whether a seizure had occurred. Deter-mining whether a seizure occurred needed to be decided separate and apart from the question of reasonableness.*fn19
For the same reasons, the district court acted well within its discretion in declining to approve a verdict form submitted by Ms. Carlson. It simply did not comport accurately with the governing legal principles.*fn20
B. The Section 1983 Monell Claim
Ms. Carlson also appeals the district court's dismissal of her Monell failure-to-train claim asserted against the City. However, because Ms. Carlson's section 1983 Fourth Amendment excessive force claim failed, her Monell claim failed as well. See Jenkins v. Bartlett, 487 F.3d 482, 492 (7th Cir. 2007) ("[T]here can be no liability under Monell for failure to train when there has been no violation of the plaintiff's constitutional rights."); Windle v. City of Marion, Ind., 321 F.3d 658, 663 (7th Cir. 2003) ("[A] plaintiff must prove that the individual officers are liable on the underlying substantive claim in order to recover damages from a municipality under [a theory of]... failure to train."). Accordingly, we affirm the district court's grant of summary judgment in favor of the City on the Monell claim.
C. The District Court's Alleged Bias
Ms. Carlson contends that the district court was biased because it showed sympathy for Officer Bukovic when it referred to him as "this poor cop" during a pretrial conference. See Appellant's Br. 45-47. Ms. Carlson does not specifically request a form of relief under this theory, but we assume she demands a new trial with a different presiding judge. Ms. Carlson, however, did not move for the district court's disqualification under 28 U.S.C. § 455. Although we have left open the question of "whether we may review a refusal to recuse under section 455(b) when the argument is raised for the first time on appeal," United States v. Smith, 210 F.3d 760, 764 (7th Cir. 2000), we need not resolve that issue today because recusal was unnecessary in this case.*fn21 The district court's off-the-cuff remark did not "display a deep-seated favoritism or antagonism that would make fair judgment impossible." In re Huntington Commons Assocs., 21 F.3d 157, 158 (7th Cir. 1994) (internal quotation marks omitted); see also Hook v. McDade, 89 F.3d 350, 354-56 (7th Cir. 1996) (describing the various forms of and bases for § 455 recusal). Our review of the entire record has assured us that the district court managed Ms. Carlson's case competently and fairly.
Ms. Carlson also appears to contend that the district court was biased and should have been removed pursuant to 28 U.S.C. § 144. However, Ms. Carlson concedes that she did not comply with the "procedural and substantive requirements" of § 144. See United States v. Barnes, 909 F.2d 1059, 1072 (7th Cir. 1990).
For the reasons stated in this opinion, we affirm the judgment of the district court.
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