Monday, February 20, 2017

Bankruptcy, constitutional law, international family law issues, and wild caught shrimp sauteed with hot peppers, garlic, and spinach

Finally, I'm back to my blog after getting out from many deadlines and below are some very interesting new decisions:

Flo & Eddie v. Sirius XM Radio
Court: U.S. Court of Appeals for the Second Circuit
Docket: 15-1164        
Opinion Date: February 16, 2017
Areas of Law: Copyright
Sirius appealed the district court's order denying its motions for summary judgment and reconsideration in regard to Flo & Eddie's copyright infringement suit. The court certified a significant and unresolved issue of New York law that is determinative of this appeal: Is there a right of public performance for creators of pre-1972 sound recordings under New York law and, if so, what is the nature and scope of that right? The New York Court of Appeals answered that New York common law does not recognize a right of public performance for creators of pre-1972 sound recordings. In light of this ruling, the court reversed the district court's denial of summary judgment and remanded with instructions to grant Sirius's motion for summary judgment and to dismiss the case with prejudice.

Vergara Madrigal v. Tellez
Docket: 16-50149      
Opinion Date: February 16, 2017
Areas of Law: Family Law, International Law
Father initiated proceedings for the return of his two young daughters under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89. The children resided in Mexico City until Mother took them on vacation and wrongfully detained them in the United States. The district court ordered the children returned to Mexico. The court affirmed the district court's denial of Father's post-judgment motions, concluding that the courts in Mexico, the state of the children's habitual residence, are the appropriate forum to grant relief to address his concerns. The court explained that, subject only to the confines of Mexican law, Mexican courts are free to grant Father full custody over the children and to prohibit or restrict their international travel, and there is no international legal void that requires the Convention’s intervention. In regard to Mother's challenge of the district court's denial of her motion to vacate the Original Return Order, the arrest warrant for Mother's arrest does not establish clear and convincing evidence of a grave risk of harm to the children. Therefore, the court affirmed the district court's denial of Mother's motion to vacate.


Babcock & Wilcox Co. v. Cormetech, Inc.
Court: U.S. Court of Appeals for the Sixth Circuit Docket: 16-3305                   
Opinion Date: February 15, 2017
Areas of Law: Business Law, Contracts
In 2005, B&W entered into a contract to design and construct a Selective Catalyst Reduction (SCR) system to control emissions at KCP&L’s coal-burning Kansas power station. B&W purchased catalyst modules for the SCR from Cormetech, which guaranteed that the catalyst would perform under specified conditions for 24,000 operating hours before needing replacement. KCP&L began operating the SCR in April 2007. A June 2007 performance test revealed that the rate of “ammonia slip” was higher than expected, but within guaranteed limits. B&W advised Cormetech of the issue. Cormetech began testing. A September 2008 letter from KCP&L advised that it was B&W’s obligation to “generate a corrective action plan.” After KCP&L determined in 2008 that the catalyst was at the end of its useful life, it contracted directly with Cormetech for a replacement, which also failed before the end of its expected life. KCP&L’s claim against B&W resulted in a $3.5 million meditation settlement. B&W sued Cormetech; the case was dismissed without prejudice pursuant to the parties’ tolling agreement while B&W pursued mediation with KCP&L. After those efforts resulted in the settlement, B&W reinstituted the action within the agreed period. Following discovery the district court granted Cormetech summary judgment, finding a breach-of-warranty claim time-barred and that an indemnification claim failed for lack of evidence that B&W’s losses resulted from a defect in goods or services purchased from Cormetech. The Sixth Circuit vacated, finding that the court erred by failing to view the record in the light most favorable to the nonmovant.

Lake v. Wexford Health Sources, Inc.
Court: U.S. Court of Appeals for the Seventh Circuit
Docket: 15-2360        
Opinion Date: February 15, 2017
Areas of Law: Civil Rights, Constitutional Law, Medical Malpractice
Lake, a prisoner at Illinois’ Hill Correctional Center, claimed, in his suit under 42 U.S.C. 1983, that Dr. Jackson, the prison’s dentist had refused to send him to an outside dentist to extract a decayed tooth that was causing him pain. Lake claimed that Wexford, the contractor serving the prison, has policy of withholding medical care to save money. Although Dr. Jackson assured him that his mouth could be numbed successfully, Lake refused to let her pull the tooth and complained to Wexford that he was suffering needlessly because of its refusal to provide him with outside treatment. Lake later agreed to let a different prison dentist extract the tooth. A local anesthetic was used during the extraction, but Lake complained afterward that the procedure had been painful. The Seventh Circuit affirmed summary judgment, rejecting Lake’s claims, and agreeing that a jury would have to find that Dr. Jackson had been exercising professional judgment in predicting that administering a local anesthetic would enable her to extract the decayed tooth without inflicting significant pain.

Jones v. Coleman
Court: U.S. Court of Appeals for the Sixth Circuit
Docket: 16-5908        
Opinion Date: February 15, 2017
Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Election Law
White County parents formed the Association for Accurate Standards in Education (AASE) to oppose another group advocating for removal of a social studies textbook that includes discussion of Islam. Eight part-time volunteers comprise AASE. It does not have a separate bank account and does not keep regular records. Five or six people have donated to AASE. No individual donation has exceeded $200; total donations have not reached $500. Seats on the Board of Education were up for election in 2016. AASE parents wanted to support and oppose candidates through AASE. They did not want AASE to make direct campaign contributions, but wanted AASE to spend less than $250 on independent expenditures, including yard signs, stickers, and brochures. They learned that the Tennessee Registry of Election Finance had fined Williamson Strong, an unincorporated group that disseminates information about candidates and issues in Williamson County, $5,000 for failing to certify a treasurer or file financial disclosure statements under Tenn. Code 2-10-102(12)(A), which defines a political campaign committee as: A combination of two or more individuals . . . to support or oppose any candidate. They sued the Registry’s officials in their official capacities under 42 U.S.C. 1983, claiming that the Act violates their First Amendment, equal protection, and due process rights. The district court stayed the case pending the outcome of the state administrative proceedings in the Williamson Strong case. The Sixth Circuit reversed. Abstention was improper in this case, in light of the Act’s alleged chilling effects.


Appling v. Lamar, Archer & Cofrin, LLP
Docket: 16-11911      
Opinion Date: February 15, 2017
Areas of Law: Bankruptcy
Debtor made false oral statements to his lawyers, Lamar, Archer & Cofrin, LLP, that he expected a large tax refund that he would use to pay his debt to the firm. Debtor filed for bankruptcy after Lamar obtained a judgment for the debt. Lamar then initiated an adversary proceeding to have the debt ruled nondischargeable. The bankruptcy court and the district court determined that the debt could not be discharged under 11 U.S.C. 523(a)(2)(A) because it was incurred by fraud. The court reversed and remanded, concluding that debtor's debt to Lamar can be discharged in bankruptcy. In this case, because a statement about a single asset can be a "statement respecting the debtor's . . . financial condition," and because debtor's statements were not in writing, his debt can be discharged under section 523(a)(2)(B).

Lunsford, Sr. v. Process Technologies Services
Docket: 16-11578      
Opinion Date: February 15, 2017
Areas of Law: Bankruptcy
After Process Technologies obtained a judgment in state court against debtor for violations of state securities laws, debtor filed for bankruptcy. Process Technologies then filed an adversary proceeding, arguing that 11 U.S.C. 523(a)(19)(A) barred debtor from discharging the debt. The court concluded that debtor cannot discharge his debt because the bankruptcy court made a finding of fact that debtor violated securities laws and, in the alternative, section 523(a)(19)(A) applies irrespective of whether debtor violated securities laws. The court also concluded that debtor is not entitled to leave to amend his complaint. Accordingly, the court affirmed the bankruptcy court's order that excepted the debt from discharge and denied leave to amend.

Edward Lewis Tobinick, MD v. Novella
Docket: 15-14889      
Opinion Date: February 15, 2017
Areas of Law: Business Law, Constitutional Law
This case stems from a dispute between two doctors regarding the medical viability of a novel use for a particular drug. The Tobinick Appellants filed suit against the Novella Appellees, and Yale, challenging Dr. Novella's article criticizing Dr. Tobinick's novel treatments. The Tobinick Appellants then filed an amended complaint to add allegations relating to Dr. Novella's second article that was published just nine days prior. The court concluded that, because the Tobinick Appellants have not demonstrated a probability of success on the actual malice issue, the district court did not err in granting Dr. Novella's special motion to strike the state law claims pursuant to California's anti-SLAPP statute, Cal. Civ. Proc. Code 425.16(a); even though Dr. Novella had not yet filed his answer, the district court did not abuse its discretion in twice denying the Tobinick Appellants' motion for leave to amend the operative complaint because it properly sought to prevent an undue delay caused by the Tobinick Appellants' last-minute attempts to amend their complaint; the district court did not abuse its discretion in denying each of the Tobinick Appellants' discovery-related requests for relief; and the court rejected the Tobinick Appellants' Lanham Act, 15 U.S.C. 1125(a) claims. Accordingly, the court affirmed in all respects.

Wollschlaeger v. Governor of the State of Florida
Docket: 12-14009      
Opinion Date: February 16, 2017
Areas of Law: Civil Rights, Constitutional Law
This case concerns certain provisions of Florida's Firearms Owners' Privacy Act (FOPA), Fla. Stat. 790.338, 456.072, 395.1055, & 381.026. The district court held that FOPA's record-keeping, inquiry, anti-discrimination, and anti-harassment provisions violated the First and Fourteenth Amendments, and permanently enjoined their enforcement. Exercising plenary review and applying heightened scrutiny as articulated in Sorrell v. IMS Health, Inc., the court agreed with the district court that FOPA's content-based restrictions—the record-keeping, inquiry, and anti-harassment provisions—violate the First Amendment as it applies to the states. The court explained that, because these three provisions do not survive heightened scrutiny under Sorrell, the court need not address whether strict scrutiny should apply to them. The court concluded, however, that FOPA's anti-discrimination provision—as construed to apply to certain conduct by doctors and medical professionals—is not unconstitutional. Finally, the court concurred with the district court's assessment that the unconstitutional provisions of FOPA can be severed from the rest of the Act. Accordingly, the court affirmed in part, reversed in part, and remanded so that the judgment and permanent injunction can be amended in accordance with this opinion.

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Sunday, November 6, 2016

The FBI's Clinton email disclosure and its search of Anthony Weiner's computer right before the election: a violation of the law?

"FBI director James Comey’s disclosure on Friday that the bureau will investigate a Clinton aide’s emails has politicians and experts considering whether any laws were broken or whether any rights were violated.
Senate Minority Leader Harry Reid, D-Nevada, said in a letter on Sunday that Comey’s disclosure 11 days before the election may have violated the Hatch Act, which restricts political activities of government workers, the Washington Post reports. And the Volokh Conspiracy’s Orin Kerr, a law professor at George Washington University, says it’s possible the new investigation will be found to violate the Fourth Amendment. . . .
University of Minnesota law professor Richard Painter, a former White House ethics lawyer, sees some merit in Reid’s argument. In a New York Times op-ed, he said he filed a complaint on Saturday with the Office of Special Counsel, which investigates Hatch Act violations, and with the Office of Government Ethics.
“The FBI’s job is to investigate, not to influence the outcome of an election,” he wrote. . . ."

Originally posted in the ABA Journal

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Monday, October 24, 2016

Mortgages, child support, excessive force, and organic fennel, rosemary cream, and Kalamata olives on a bed of handmade posta

Appeals -- Sanctions -- Failure to timely file initial brief -- Failure to obey court orders -- Appellate counsel referred to Local Professionalism Panel
NOCARI INVESTMENT, LLC, et al., Appellants, v. WELLS FARGO BANK, N.A., et al., Appellees. 3rd District.

  Bankruptcy -- Claims -- Objections -- Rule 3001(c) objections, asserting that proofs of claim did not attach a copy of writing upon which claims are based, lack merit -- Creditor was not required to prove that its claims are based on an open-end or revolving consumer credit agreement -- Objections to claims, which were scheduled as undisputed in amounts identical to amounts asserted by creditor in its proofs of claim, are not good faith objections -- Objections to claims on grounds that account summary statement attached to each proof of claim includes a notation that debt was “charged off” are legally insufficient -- Mere fact that proof of claim includes reference to a charge-off date is not, standing alone, a legal basis for a claim objection -- Even if court followed decisions disallowing claims where debtor received a Form 1099-C reflecting the cancellation of debt, validity of proofs of claim remain unrebutted and claims will be allowed where debtors did not present evidence that they received a Form 1099-C for any of debts subject of charge-off objections In re: AMAURYS RODRIGUEZ and ANAEN NUNEZ, Debtors. U.S. Bankruptcy Court, Southern District of Florida.   Williams v. Poarch Band of Creek Indians Court: U.S. Court of Appeals for the Eleventh Circuit Docket: 15-13552 Opinion Date: October 18, 2016 Areas of Law: Constitutional Law, Native American Law Plaintiff filed suit against the Poarch Band of Creek Indians, alleging that she was terminated from her job because of her age pursuant to the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. 621-634. The district court adopted the Magistrate’s Report and Recommendation to grant the Poarch Band's motion to dismiss the suit based on the doctrine of tribal sovereign immunity. In this case, there is no evidence that the Poarch Band waived its immunity, either generally or in the present suit. The court rejected plaintiff's comparison of the definitions of the term "employer" found in the ADEA and Title VII, in conjunction with the Supreme Court's opinion in Fitzpatrick v. Bitzer; plaintiff's argument that the ADEA is a statute of general applicability is foreclosed by the court's precedent; and other circuits that have considered the issue raised by this appeal also have determined that federal courts lack subject-matter jurisdiction over an ADEA claim asserted against a federally-recognized Indian tribe. Accordingly, the court affirmed the district court's decision to grant the Poarch Band’s motion to dismiss for lack of subject-matter jurisdiction.    Bankruptcy -- Discharge -- Fraudulent transfer -- Discharge should be denied pursuant to Section 727(a)(2)(A) because debtor transferred property within one year before his bankruptcy petition with intent to hinder, delay, or defraud his creditors -- Debtor transferred property where debtor liquidated his pension fund, deposited the net proceeds of fund in his individual checking account, and within the two months between the deposit and filing of his bankruptcy petition made a number of transactions which had the effect of significantly diminishing his bank account -- Debtor cannot claim that proceeds of liquidated pension account were exempt from his Chapter 7 estate where he voluntarily withdrew funds from his pension plan, funds were never placed in designated individual retirement account or any other investment vehicle, Section 222. 21(c), Florida Statutes, did not provide an exemption for funds after they were paid to debtor and deposited into his checking account, and debtor did not claim an exemption for his checking account under that statute -- False oath or account -- Discharge should be denied pursuant to Section 727(a)(4) where debtors knowingly made a false oath on the bankruptcy schedules -- Where Statement of Financial Affairs signed by debtors did not disclose liquidation of pension fund; income received as a result of fund's liquidation; or gifts that debtor wife made from proceeds of fund, even though she was aware that the transactions had occurred within two months before bankruptcy petition was filed, debtors' nondisclosures constitute false oaths -- Debtors were obligated to disclose assets and transactions, despite their claim that pension proceeds were exempt -- Circumstantial evidence shows that debtors intended to hinder, delay, or defraud their creditors by disposing of proceeds of pension fund and misrepresenting the transactions on their bankruptcy schedules -- Based on circumstances, court could conclude that debtor husband had prior knowledge of bankruptcy process, that debtors were aware of claims of mortgage creditors who had foreclosed on their home, that husband liquidated his pension fund in effort to remove it from reach of creditors, and that debtors thereafter attempted to spend pension proceeds or otherwise conceal them from bankruptcy estate -- Failure to satisfactorily explain loss of assets or deficiency -- Discharge should be denied pursuant to Section 727(a)(5) because debtor experienced a loss of assets and failed to provide a satisfactory explanation for the loss -- Debtor's bank accounts were significantly diminished in weeks before bankruptcy petition was filed, and he was unable to provide even vague or speculative explanations of many transactions that took place on eve of his bankruptcy In re: JEFFREY LEONARD JONES, DARNELLA COLE JONES, Debtors. U.S. Bankruptcy Court, Middle District of Florida, Jacksonville Division.

Child custody -- Jurisdiction -- Uniform Child Custody Jurisdiction Enforcement Act -- Florida is home state of child who was born in Florida and lived in Florida until mother relocated to New York when child was less than two weeks old -- Trial court erred in dismissing putative father's petition for determination of paternity, parental responsibility, child support, and related relief on basis that court lacked jurisdiction under UCCJEA because Florida was not child's home state -- Fact that child was born out of wedlock has no bearing on child's home state
JAMES BAKER, Appellant, v. CARA CATHERINE TUNNEY, Appellee. 5th District.

Child support -- Income -- Deductions -- Administrative support order erroneously allowed deductions for expenses against gross income that were not permitted by statute -- Remand for recalculation of parents' respective net incomes for purposes of child support guidelines
DEPARTMENT OF REVENUE on behalf of HOLLY N. HARRIS, Appellant, v. THADIUS DEMENTRIEL CRAWFORD, Appellee. 1st District.

Civil procedure -- Proposal of settlement -- Attorney's fees -- An offer of settlement is not invalid for failing to state, as required under Rule of Civil Procedure 1.442(c)(2)(F), whether the proposal includes attorney's fees and whether attorney's fees are part of the legal claim, where attorney's fees are not sought in the pleadings
SUSANNE L. KUHAJDA, Petitioner, vs. BORDEN DAIRY COMPANY OF ALABAMA, LLC., et al., Respondents. Supreme Court of Florida.

Civil rights -- Search and seizure -- Arrests -- Excessive force -- Officer's multiple tasings of suspect, after an arrest had been fully secured and any potential danger or risk of flight eliminated, violated suspect's clearly established constitutional right to be free from excessive force -- Where law enforcement officers handcuffed and pinned down the suspect following a struggle and then tased him five times with at least two of those tases occurring after suspect had ceased resisting, a reasonable officer in arresting officer's position and under circumstances would have had fair warning that repeatedly tasing handcuffed suspect after he had ceased struggling and resisting was unreasonable and unconstitutionally excessive under Fourth Amendment -- Evidence construed in favor of plaintiff demonstrates that suspect was not flight risk or a threat to safety of officers or public prior to conclusion of tasings -- Officer was not entitled to qualified immunity on excessive force claim at summary judgment stage of proceedings
PATRICIA JUANITA WATE, individually and as personal representative of the Estate of James Clifton Barnes, Deceased, Plaintiff-Appellee, v. KENNETH KUBLER, Defendant-Appellant. 11th Circuit.

Consumer law -- Mortgage foreclosure -- Real Estate Settlement Procedures Act -- Loss mitigation -- Loan servicer had no duty to evaluate an application for loss mitigation options submitted by borrowers when, at time application was submitted, a foreclosure sale of borrowers' property was scheduled to occur in two days -- Under Regulation X, which implements RESPA, a loan servicer's duty to evaluate a borrower's loss mitigation application is triggered only when borrower submits the application more than 37 days before the foreclosure sale -- Borrowers' application was untimely, even where servicer postponed the foreclosure sale such that sale actually transpired more than 37 days after they submitted their complete loss mitigation application -- To evaluate the timeliness of an application, Regulation X requires counting the number of days between date a complete loss mitigation application is received and date of foreclosure sale, and directs using scheduled date of foreclosure sale as of date complete application was received to determine date of foreclosure sale -- It is irrelevant if servicer subsequently reschedules foreclosure sale to a later date -- Because borrowers completed their application too late to trigger servicer's duty to evaluate the application, summary judgment was properly granted to servicer on loss mitigation claim -- Notice of error -- Borrowers were not entitled to summary judgment on separate claim that loan servicer failed to respond adequately to their subsequent notice of error as required by Regulation X, because borrowers failed to present evidence that they suffered actual damages or were entitled to statutory damages based on pattern or practice of RESPA noncompliance -- Use of a template to respond to borrowers' notice of error was insufficient evidence from which to infer that servicer had a pattern or practice of issuing form letters that were unresponsive to borrowers' notices of error
JOHN LAGE, MARIA MANTILLA, Plaintiffs-Appellants, v. OCWEN LOAN SERVICING LLC, Defendant - Appellee. 11th Circuit.

Mortgages -- Satisfaction -- Failure to timely record certificate of discharge -- Jurisdiction -- Plaintiff who used proceeds of real estate sale to satisfy a mortgage owned by defendant lacks standing to sue when he alleges only a failure to record a satisfaction of mortgage within a statutory period and fails to bring suit until after that statutory violation has been remedied -- Because plaintiff has not alleged that the violation of New York law that occurred when defendant failed to timely record the discharge of mortgage caused or could cause him harm that could constitute a concrete injury in fact, appeal from dismissal of complaint must be dismissed for lack of jurisdiction
ROGER NICKLAW, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. CITIMORTGAGE, INC., Defendant-Appellee. 11th Circuit.

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