Tuesday, November 29, 2011

1st Circuit denies issue-of-first-impression appeal of cyberstalking defendant

"On Nov. 23, a unanimous panel in U.S. v Walker rejected Jeffrey Martin Walker's appeal of his August 2009 conviction on counts of stalking — and mailing a threatening letter targeting — his wife. He was sentenced to 11 years and five months in prison in December 2009.

The 1st Circuit rejected Walker's argument that the interstate stalking statute applies only to injuring or harassing acts that occur during or after interstate travel. The court also held that the charge for mailing a threatening letter can apply even when the letter threatens someone other than the addressee. Finally, the court held that a defendant's failure to challenge a perceived indictment error before the trial is a waiver according to the Federal Rules of Criminal Procedure."  More
First posted Nov. 28, 2011 by Sheri Qualters in National Law Journal

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Friday, November 18, 2011

Insurance and torts, tobacco, procedural due process over angel hair pasta, tossed with fresh basil and roasted garlic


Insurance -- Commercial -- Breach of contract -- Bad faith -- Appeal of non-final order denying insurer's motion to dismiss breach of contract and bad faith claim, leaving claims to be tried simultaneously -- Trial court's order is reversed because insurer should not be required to defend against bad faith claim until insured has prevailed on merits -- Trial court can decide either to dismiss bad faith claim without prejudice or abate the claim until underlying breach of contract issue is resolved
LANDMARK AMERICAN INSURANCE COMPANY, Appellant, v. STUDIO IMPORTS, LTD., INC., Appellee. 4th District.

Insurance -- Commercial general liability -- Duty to defend -- Error to enter summary judgment based on finding that insurer had no duty to defend insured in personal injury action that fell within automobile exclusion of commercial general liability policy where complaint alleged facts that fairly brought suit outside automobile exclusion
CATEGORY 5 MANAGEMENT GROUP, LLC, Appellant, v. COMPANION PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee. 1st District.

Medical -- Appeals -- Harmless error occurs in a civil case when it is more likely than not that the error did not contribute to the judgment -- Question certified -- To avoid a new trial, the beneficiary of the error in the trial court must show on appeal that it is more likely than not that the error did not influence the trier of fact and thereby contribute to the verdict -- Court recedes from line of cases which applied a strict, outcome-determinative “but-for” test for harmless error -- Wrongful death -- Action alleging anesthesiologist and hospital were negligent in administering anesthesia, in monitoring decedent's system during cesarean delivery and controlling her fluids during surgery, and in responding to decedent's cardiopulmonary arrests -- Cross-examination -- Limitation -- Trial court abused its discretion in precluding plaintiff from cross-examining defense expert, who maintained that death resulted from amniotic fluid embolus and testified regarding range of probability of AFE occurring, regarding credibility of another witness, whose testimony seemingly indicated a disproportionately high diagnosis of AFE cases at defendant hospital -- Error was harmless where it is more likely than not that the restriction on the cross-examination did not contribute to the verdict
FRANK SPECIAL, as Personal Representative of the Estate of Susan Special, Appellant, v. IVO BAUX, M.D., IVO BAUX, M.D., P.A. PINNACLE ANESTHESIA, P.L.; and WEST BOCA MEDICAL CENTER, INC., Appellees. 4th District.

Torts -- Trusts -- Breach of fiduciary duty -- Amended final judgment awarding plaintiff an equitable lien on certain real property on plaintiff's breach of fiduciary duty claim against defendant individually and as trustee of revocable living trust was apparently based on erroneous impression that trial court could not transfer title of property to plaintiff -- Remand for reconsideration of appropriate remedy
REBEKAH PARIZ, Appellant/Cross-Appellee, vs. HELEN M. COLON, INDIVIDUALLY, AND AS TRUSTEE OF THE HELEN M. COLON REVOCABLE LIVING TRUST AND HELEN M. COLON REVOCABLE LIVING TRUST, Appellee/Cross-Appellant. 3rd District.

Torts -- Product liability -- Tobacco -- Individual action by Engle class member -- Appeals -- Certiorari -- Petition for certiorari review of orders denying plaintiff's motion to amend a complaint filed by her and her deceased husband in order to state an action for wrongful death and plaintiff's motion to substitute herself, as personal representative of husband's estate, as the plaintiff -- Denial of motion to amend is not reviewable by certiorari where order of dismissal could be entered and plaintiff could then seek review by plenary appeal -- Petition dismissed for lack of jurisdiction -- Concern expressed over basis for circuit court's ruling, which relied upon district court opinion holding that when a personal injury plaintiff's death is the result of the personal injuries, an amendment to the personal injury complaint should not be permitted and a new, separate lawsuit for wrongful death must be filed, as new lawsuits could be barred as untimely under Engle even though original personal injury lawsuits were timely filed
CHARLEEN SKYRME, Petitioner, v. R.J. REYNOLDS TOBACCO COMPANY; PHILIP MORRIS USA, INC.; LORILLARD TOBACCO COMPANY; LORILLARD, INC.; LIGGETT GROUP, LLC (f/k/a Liggett Group, Inc., Liggett & Myers Tobacco Company); and VECTOR GROUP, LTD., INC. (f/k/a Brooke Group, Ltd.), Respondents. 2nd District.

Torts -- Civil procedure -- Relief from judgment -- Procedural due process -- No abuse of discretion in denying plaintiffs' motion for relief from summary judgment entered in favor of retailer in action alleging malicious prosecution and other claims arising out of arrest and prosecution of plaintiff for retail theft -- Plaintiffs were afforded both proper notice and a meaningful opportunity to be heard where it was undisputed that they were served with notice of summary judgment hearing approximately three months before hearing took place and raised no objections to either the scheduled date or duration of hearing in interim between receipt of notice and hearing; hearing was conducted in fair manner appropriate to nature of proceeding; and summary judgment was granted only after plaintiffs conceded the issue of probable cause
OSANNA S. CARMONA and NELSON L. CARMONA, Appellants, v. WAL-MART STORES, EAST, LP, Appellee. 2nd District.

Torts -- Automobile accident -- Rear-end collision -- Evidence -- Damages -- Claim that trial court, in granting plaintiff's motion in limine, improperly precluded defendants from presenting testimony that the amount of damages plaintiff was claiming was not reasonable or necessary for the injuries at issue was not preserved for appeal where no transcript of hearing on motion in limine was in the record and neither record nor brief revealed what specific testimony was excluded as a result of the motion in limine -- Trial court did not err in denying motion for directed verdict as to charges that plaintiff's physician violated section 456.052 by self-referring plaintiff for MRIs to a facility that the physician himself owned without making required disclosure, as it was unclear whether statute was, in fact, violated -- Argument -- Trial court did not abuse its discretion in denying defendant's motion for new trial based on cumulative effect of allegedly improper remarks made by plaintiff's counsel during closing argument where defendants failed to show that remarks were incurable, remarks were not as pervasive as defendants suggest, many of the remarks were fair reply to arguments made by defendants, and public's interest in system of justice was not impaired
AARMADA PROTECTION SYSTEMS 2000, INC. and JEFFREY STEVEN DUBLE, JR., Appellants, v. LANCE YANDELL and MAUREEN YANDELL, Appellees. 4th District.

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Class Action? Chicago Lawyer Sues Southwest, Says Airline Breached Free-Drink Coupon Contract

"Although the airline revised its policy in August of last year, notifying customers that such coupons would be honored only on the day of the flight after August 2011, a Chicago lawyer is challenging that change.
Adam J. Levitt, who allegedly has about 45 now-worthless free-drink coupons from Southwest, filed suit yesterday in federal court in Chicago, according to Reuters.  The complaint, which seeks class action status, contends that the carrier breached a contract with passengers by changing its policy and refusing to honor the coupons, which have no expiration date. Alcoholic beverages purchased on board otherwise would cost about $5 each." More.

Posted in ABA Journal by Marcia Neil, Nov. 17, 2011

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Thursday, November 17, 2011

Justices struggle over strip-search case

"The Supreme Court on Wednesday struggled with whether jail officials may conduct intrusive strip searches of all arrestees, even of those detained for minor offenses, or whether the Constitution demands something more."  The Petitioner "urged the justices to hold that the Fourth Amendment requires reasonable suspicion for strip searches of all arrestees in order to protect individual integrity and dignity"  The opposing side urged a uniform policy, "reasonable suspicion should not be required when an arrestee is going to be put into the general prison or jail population."  "The Fourth Amendment issue in Florence v. Board of Chosen Freeholders stems from two strip searches of Albert Florence, a New Jersey resident. Florence, after a traffic stop, was arrested on a bench warrant for failure to pay a fine. Although Florence produced a receipt showing payment of the fine, the officer arrested him and took him to the Burlington County jail in New Jersey."  More.
Posted in National Law Journal by Marcia Coyle, Oct. 12, 2011

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Sunday, November 6, 2011

Attorneys' fees, attorney disqualification and cornmeal pancakes with pecans and cranberries


Appeals -- Jurisdiction -- Attorney's fees -- Appellate court lacks jurisdiction to consider challenge to award of attorney's fees based on dismissal with prejudice of counterclaim where trial court reserved jurisdiction to determine the amount of fees to be awarded
CHARLES A. MORRISON AND SHIRLEY W. MORRISON, Appellants, v. UNITED STATES OF AMERICA, ACTING THROUGH FARM SERVICE AGENCY, f/k/a FARMERS HOME ADMINISTRATION, UNITED STATES DEPARTMENT OF AGRICULTURE, Appellee. 1st District.

Attorney Disqualification: BOFA SEEKS TO OUST AIG LAW FIRM FROM $10 BILLION CASE, AIG v. Bank of Am Corp., 22 No. 3 Westlaw Journal Insurance Coverage 2, Westlaw Journal Insurance Coverage October 28, 2011 NEW YORK, Oct. 18 (Reuters) - Bank of America Corp. urged a judge to disqualify the law firm representing insurer American International Group in its $10 billion mortgage fraud lawsuit against the bank, alleging a conflict of interest by one of the firm's partners. The bank said Quinn Emanuel Urquhart & Sullivan should be removed because the partner had defended Merrill Lynch & Co. and its First Franklin Financial Corp. unit against similar charges that they made and sold defective mortgage loan.

Attorney's fees -- Offer of judgment
LOIS M. SEEVERS, Appellant, v. LUIS A. MONTIEL, individually, Appellee. 1st District.

Bankruptcy -- Fraudulent transfers -- Avoidance -- Chapter 11 trustee instituted adversary proceedings to avoid and recover as fraudulent transfers distributions made to investors in debtor corporations that were operated as instruments of a Ponzi scheme -- Investors asserted affirmative defense claiming transfers were “for value” -- General rule in fraudulent transfer actions arising out of Ponzi scheme that a defrauded investor gives “value” to debtor in exchange for a return of principal amount of investment, but not as to any payments in excess of principal, applies to investors that hold an equity interest in the insolvent debtors -- Under general rule, transfers from debtors up to principal amount of investment through investors' purchase of limited partnerships from debtors satisfied investor defendants' restitution or fraud claims and provided value to debtors
WILLIAM F. PERKINS, Plaintiff-Appellant, v. AENA Y. HAINES, JAMES BRONNER, SIMONE BRONNER, NATHANIEL BRONNER, GEORGE RUSSELL CURTIS, SR., et al., Defendants-Appellees. 11th Circuit.

Bankruptcy - Transfer made by debtor involved in Ponzi scheme in order to redeem equity investment may constitute transfer "for value."  Addressing an issue of apparent first impression for the circuit, the Eleventh Circuit Court of Appeals has ruled that, with respect to the "for value" defense to fraudulent transfer actions arising out of a Ponzi scheme, the general rule that a debtor's transfers to an investor up to the principal amount of the investment were given "for value" and are not subject to recovery by the bankruptcy trustee, while any transfers exceeding the amount of the principal were not made "for value," applies regardless of whether good faith investors have an equity interest in, or some other form of claim against, the debtor. Courts do not distinguish between equity investments and debt-based claims when applying the "for value" defense of 11 U.S.C.A. 548(c) in this context. Perkins v. Haines ,(C.A.11 (Ga.))

Civil procedure -- Default -- Vacation -- Service of process -- Defects -- Error to deny motion to vacate default and final judgment where plaintiff failed to make diligent effort to personally serve defendant before serving process by publication
DANIEL BLANCO, Appellant, v. BANK OF NEW YORK as successor in interest of JP Morgan Chase Bank, N.A., as Trustee on behalf of SAMI 2006-AR-3, Appellee. 4th District.

Construction: ROOFING CONTRACTOR MUST WEATHER DAMAGES JUDGMENT WITHOUT COVERAGE, Evanston Ins. Co. v. Heeder, 22 No. 3 Westlaw Journal Insurance Coverage 7, Westlaw Journal Insurance Coverage October 28, 2011 An insurer that limited its coverage to residential roofing owes no duty for a $681,000 judgment for damage that happened during a commercial roofing project, a federal judge in Tampa, Fla., has ruled. U.S. District Judge Susan C. Bucklew of the Middle District of Florida said Evanston Insurance Co. only insured roofing contractor Douglas D. Heeder for the operations listed on his insurance application and the policy's declarations page. The judge granted the insurer's motion for summary judgment.

 Contracts -- Insurance -- Discovery -- Request for production -- Insured is not entitled to discovery of insurer's claims file where insured has only alleged a breach of contract action, not a bad faith claims handling case -- To extent any of documents responsive to insured's request for production are contained within insurer's claims file, they are protected from disclosure -- Any documents not contained within claims file that are responsive to insured's request for production should be produced -- Insurer satisfied request for “copies of any and all documents that show payments made” to insured, if any, on this claim, by stating that it has produced copies of checks issued to insured -- To extent documents responsive to this request would be included in claims file they are not discoverable in this breach of contract action -- Request for a copy of each check for payments in this claim is denied as moot where insurer asserts that only documents responsive to this request have already been produced -- Request for a copy of agent's file is due to be granted where insurer asserts conclusory, boilerplate objection that fails to explain precise ground that makes the request objectionable -- Request for a copy of all documents regarding all prior claims, excluding any privileged information, is vague and ambiguous and motion to compel is due to be denied -- Interrogatories -- Interrogatory seeking information about how insurer adjusted the claim is relevant to insured's breach of contract claim and motion to compel is due to be granted -- Privilege log -- Any documents listed on privilege log that are included within claims file are not discoverable -- Regarding documents on privilege log that were withheld based on attorney-client and work product privileges, where insurer has asserted that these documents were made after lawsuit was filed and concern defense of lawsuit, motion to compel is denied
GAVIN'S ACE HARDWARE, INC., Plaintiff, vs. FEDERATED MUTUAL INSURANCE COMPANY, Defendant. U.S. District Court, Middle District of Florida, Fort Myers Division.

Counties -- School boards -- Teachers -- Termination of employment -- Teacher was given sufficient notice before her employment was terminated following an informal hearing, and she was not denied due process -- Teacher was provided notice of a pre-determination conference to discuss her absences from work, which she did not attend, teacher did not return calls regarding her attendance at conference or her absence from work, administrative complaint was hand delivered to the mailbox at teacher's official home address, and was also sent to two different email addresses on file for her -- Due process does not require a showing that interested party received actual notice
LINDA M. SCHIMENTI, Appellant, v. SCHOOL BOARD OF HERNANDO COUNTY, FLORIDA, Appellee. 5th District.

Dependent children -- Placement -- Interstate Compact on the Placement of Children -- Trial court erred in terminating protective supervision and permanently placing child with father, who lived in foreign state and with whom child was on an “extended visit,” without foreign state's concurrence to placement and without statutorily-compliant home study -- Mother was entitled to evidentiary hearing before trial court could place child with non-custodial father -- Appellate court's decision not to be read as requiring that child, who is currently residing with father, be relocated back to Florida pending evidentiary hearings
M.A.C., Mother of K.C., K.C., and K.P., Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. 1st District.

Dissolution of marriage -- Child custody -- Time-sharing -- Contempt -- No error in finding wife in contempt for depriving husband of time-sharing with child -- No abuse of discretion in determining that husband was entitled to makeup time-sharing -- Trial court erred in failing to find that the manner in which makeup time-sharing was ordered was in best interests of child, as required by statute -- Competent substantial evidence would not support any implicit finding that order granting husband immediate custody of child and 100% time-sharing for period of 150 days was in best interests of child, as this order not only changed primary custody of child from mother to father, but also relocated child to foreign state in middle of school year -- Remand for further proceedings
MARIAH ARICA CHEEK, FORMER WIFE, Appellant, v. BRIAN R. HESIK, FORMER HUSBAND, Appellee. 1st District.

Dissolution of marriage -- Child support -- Modification -- Appeals -- Neither order domesticating foreign support order nor order of protection expressly disposed of petition to modify child support, either on the merits or on jurisdictional grounds -- Orders are not final orders, and are not appealable non-final orders
KAREN ELAINE PULKKINEN N/K/A KAREN ELAINE BRAUTCHECK, FORMER WIFE, Appellant, v. JYRKI TUONO JUHANI PULKKINEN, FORMER HUSBAND, Appellee. 1st District.

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Tuesday, November 1, 2011

Chemerinsky: Keeping Up With the Joneses—How Far Does the ‘Reasonable Expectation of Privacy’ Go?


Posted on ABA Journal by Erwin Chemerinsky
 
“One of the most difficult, and potentially most important cases of the U.S. Supreme Court term will be argued on Nov. 8. United States v. Jones involves the question of whether it is a search or seizure within the meaning of the Fourth Amendment when the police plant a GPS device on a person’s vehicle and monitor it for 24 hours a day, for 28 days.

Since Katz v. United States, decided in 1967, the Supreme Court has defined the protections of the Fourth Amendment in terms of the “reasonable expectation of privacy.” But how does that apply in this situation?

On the one hand, the court has long held that people have no expectation of privacy for their public activities. The police could have followed Jones’ car on public streets for a month, perhaps by using undercover officers, and no one would have contended that there was a search or seizure that required a warrant.”  More.

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