Tuesday, May 22, 2012

Evidence, automobile accidents, depositions, and salmon carpaccio with capers and organic lemons

Civil rights -- Prisoners -- Due process -- Appeal from dismissal of prisoner's Section 1983 civil rights action alleging state prevented him from gaining access to physical evidence for purposes of DNA testing, in violation of his procedural due process rights, prohibition against cruel and unusual punishment, his right to confrontation, and his right to access to the courts compulsory process -- District court correctly determined that it lacks jurisdiction under Rooker-Feldman doctrine over claim that Florida's DNA access procedures as applied to facts of case fail to meet requirements of procedural due process -- To extent plaintiff raised substantive due process right to obtain biological evidence for DNA testing, in order to make a conclusive showing that he is innocent, claim is without merit, because Supreme Court's decisions in District Attorney's Office for the Third Judicial District v. Osborne unambiguously concluded that there is no substantive due process postconviction right to obtain evidence for DNA testing purposes -- Additionally, actual innocence claim of kind made in this case would be brought in habeas petition and plaintiff has neither sought habeas relief based on free standing actual innocence claim, nor has he shown that available discovery in a habeas proceeding is facially inadequate or that it somehow would be arbitrarily denied to him -- Claims that it is cruel and unusual punishment to subject plaintiff to sentence of life imprisonment if there is evidence that might exonerate him and that plaintiff is entitled to access evidence for DNA testing under Sixth Amendment because he has a right to government's assistance in securing favorable witnesses at trial and to put forward evidence that might influence the determination of guilt or innocence lack merit under Osborne -- Claim that state, by denying plaintiff access to physical evidence, has effectively deprived him of opportunity to litigate his claim, in violation of Due Process and Equal Protection Clauses, is foreclosed by Supreme Court and Eleventh Circuit precedent, which require a litigant asserting an access claim to show actual injury by proving he has colorable underlying claim for which he seeks relief, because plaintiff failed to establish in support of his access to courts claim necessary prerequisite of an actual injuryCARL ROBERT ALVAREZ, Plaintiff-Appellant, v. ATTORNEY GENERAL FOR THE STATE OF FLORIDA, STATE ATTORNEY FOR THE EIGHTEENTH JUDICIAL CIRCUIT OF FLORIDA, Defendants-Appellees. 11th Circuit.

Criminal law -- Concealing location of minor in violation of court order -- Error to deny motion for judgment of acquittal where state did not prove that defendant concealed location of child in violation of court order, as there was no court order expressly telling defendant that she was required to disclose location of child to court -- Statute is not ambiguousANALYN MERKLE n/k/a ANALYN G. MEGISON, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Criminal law -- Fines and surcharges -- Error to impose discretionary fines in written judgment where those fines were not orally pronounced -- Surcharges associated with those fines were likewise improperly imposedMARSHALL S. LAMOREAUX, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Employer-employee relations -- Employee benefit plans -- Retirement benefits -- Employee Retirement Income Security Act -- Allegations that fiduciaries of retirement plan, which was structured both as an “eligible individual account plan” and an “employee stock ownership plan,” breached their fiduciary responsibilities under ERISA by continuing to purchase and failing to sell employer's stock even though they knew based on nonpublic information that stock price probably was inflated; provided inaccurate information to plan participants in fiduciary communications; and failed to disclose to plan participants certain business practices by employer that had inflated employer's stock price -- Discussion of prudence and diversification in context of EIAP and ESOP and of presumption described in Moench v. Robertson -- District court did not err in dismissing plaintiffs' claims that defendants breached fiduciary duties of prudence and loyalty -- Prudence -- Although district court improperly concluded that plaintiffs' claim that defendants acted imprudently in acquiring and holding employer's stock was actually a claim that defendants should have diversified the plan's investments and erred in concluding, alternatively, that defendants had no discretion not to invest in employer's stock, defendants' motion to dismiss prudence claim was properly granted based on district court's second alternative holding that plaintiffs' allegations were insufficient to rebut presumption of prudence -- Claim was not a diversification claim where plaintiffs alleged that defendants acted imprudently because they knew stock was overpriced, not merely that stock made up too large a percentage of the company stock fund -- Fact that plan required that plan be invested “primarily” in company stock did not require defendants to invest exclusively in the stock and did not eliminate discretion to sell company stock or stop investing in it -- ESOP fiduciary is presumed prudent for investing in, or continuing to hold, employer securities consistently with the terms of the plan, and that presumption can be overcome only by showing an abuse of discretion -- Although fiduciary is generally required to invest according to terms of plan, when circumstances arise such that continuing to do so would defeat or substantially impair purpose of plan, a prudent fiduciary should deviate from those terms to the extent necessary, and it is an abuse of discretion not to do so -- It is not necessary, as district court held, that company be on the “brink of financial collapse” in order to demonstrate abuse of discretion -- Because abuse of discretion standard applies to fiduciary's decision to continue to invest or remain invested in company stock in obedience to plan's directions, abuse of discretion is element of a claim that the fiduciary's decision was imprudent, and district court properly dismissed prudence claim for failure to state cause of action where plaintiffs failed to plead facts sufficient to raise plausible inference that fiduciaries abused their discretion by following plan's directions -- Loyalty -- District court did not err in dismissing claims that defendants violated fiduciary duty of loyalty by making misrepresentations in SEC filings that were sent to, or were accessible to, plan participants or by failing to inform plan participants of employer's business practices and the effect those practices would likely have on stock price when they became public

RAYMOND A. LANFEAR, RANDALL W. CLARK, ANTONIO FIERROS, Plaintiffs-Appellants, TERRY CLARK, et al., Plaintiffs, v. HOME DEPOT, INC., ROBERT L. NARDELLI, JOHN I. CLENDENIN, MILLEDGE A. HART, III, KENNETH G. LANGONE, et al., Defendants-Appellees, LARRY M. MERCER, et al., Defendant. 11th Circuit.

Mortgage foreclosure -- Default -- Vacation -- Service of process -- Defects -- Substitute service on defendant at address in foreign state at which wife was residing was not valid where it was not shown that this address was defendant's “usual place of abode” -- Evidence showing that defendant and his wife had separated two months earlier, that a petition for dissolution of marriage was pending, and that defendant was living in a different city was sufficient to rebut presumed validity of substitute service -- Neither copy of personal financial statement dated four days after process was served, in which defendant listed the wife's address as his address, nor testimony by plaintiff's vice president that defendant told him he and his wife were reconciling was sufficient to establish that wife's address was defendant's usual place of abode at time of service -- Error to deny motion to set aside final judgment of foreclosure and foreclosure sale for invalid service of processSTEPHEN H. HECK, Appellant, v. BANK LIBERTY, SUCCESSOR IN INTEREST TO CHAMPION BANK BY ASSET ACQUISITION FROM THE FDIC, AS RECEIVER FOR CHAMPION BANK, Appellee. 1st District.

 Torts -- Automobile accident -- Evidence -- Deposition of defendant driver -- No abuse of discretion in allowing deposition of defendant to be published to jury and read into record at rescheduled trial after defense counsel filed affidavit detailing his unsuccessful efforts to locate defendant for several weeks prior to trial and asserting that client had taken a temporary job assignment out of state with a federal military agency, defendant had stated to defense counsel that she was uncertain about her ability to contact counsel while on assignment, and counsel had been unable to obtain any information from employer about defendant's whereabouts -- Being called away for compelling reason was sufficient to show deponent's absence was not self-procuredTARA ASHLEY SUZANNE HUTCHINGS, Appellant, v. PATRICIA ANN LILES, Appellee. 1st District.

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