Sunday, December 21, 2014

Lawyers face "public intimidation" charges for reacting to police kicking in their door and invading their home

"Husband and wife lawyers in Crowley, Louisiana, have been indicted on charges of public intimidation for their reaction to police who kicked down their door in response to a 911 call from a neighbor. Both lawyers—J. Clay LeJeune, 45, and Mitzi Mayeaux, 40—are well-known, the Advocate reports. Both were charged with public intimidation. LeJeune was also charged with resisting a police officer with force or violence and accused of threatening officers, the article says.
Police provided few details, but the couple’s lawyer, Barry Sallinger, said the charges relate to a May 25 incident, the story says. The neighbor who called police said a girl or woman in the lawyers’ back yard may have been screaming “help me,” adding that it may be nothing, according to Sallinger." More.

Originally posted by Debra Cassens Weiss in ABA Journal News.  Dec 19, 2014 

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Monday, December 1, 2014

Parents re-homing adopted kids may become more regulated and subject to potential criminal prosecution

".... [W]ith the rise of foreign adoptions of children and the inability of some parents to handle troubled youths, more and more desperate families are taking that approach with adopted youngsters and re-homing the children with strangers. Often those re-homed children report gruesome tales of physical, sexual or emotional abuse by their new guardians....In April, Wisconsin became the first state to make it illegal for anyone not licensed by the state to advertise a child older than age 1 for adoption or any other custody transfer, both in print and online. Parents who want to transfer custody of a child to someone other than a relative must seek permission from a judge. Violators face up to nine months in jail or as much as $10,000 in fines....Last summer, Louisiana also banned nonlegal adoption, with offenders facing a penalty of $5,000 and up to five years in prison. Colorado, Florida and Ohio are considering similar laws...." More.

Originally posted by Martha Neil in ABA Journal News.
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Sunday, November 30, 2014

Slain woman's family alleges AA meetings point 'financial, sexual, and violent predators' to victims

A California wrongful death lawsuit claims that AA, a nonprofit organization known for its 12-step program, attracts some "who find it a convenient place to meet targets for a so-called “13th step”–exploiting troubled women sexually and financially...The suit was filed by the parents of a woman who was allegedly killed by a fellow [AA] participant, Eric Allen Earle. His ex-wife and others close to him said he repeatedly relapsed and became violent when drinking, and court records show he had been the subject of six restraining orders."  More.

Originally posted by Martha Neil in ABA Journal News.

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Monday, November 24, 2014

Trademarks, civil rights, and rib roast with green peppercorn-coffee-rosemary-garlic rub over sweet potato mash

Civil rights -- Due process -- Colleges and universities -- Former tenured university professor brought complaint under 42 U.S.C. section1983 alleging his termination failed to comport with procedural due process -- District court did not err in granting defendants' motion to dismiss on ground that plaintiff could not state a plausible claim for relief under Section 1983 with respect to his procedural due process claim -- Plaintiff was afforded adequate procedural due process prior to revocation of his tenure and termination of his employment where he received prior, written notice of charges against him; was represented by counsel at formal hearing before an unbiased faculty committee; presented argument and evidence on his own behalf, including cross-examination of witnesses against him; had a right to appeal his termination to Board of Regents; and submitted a written appeal to Board of Regents -- Lack of a requirement that plaintiff also receive a hearing before university president, that president review and rely on findings of faculty hearing committee or evidence presented at such hearing before making a final decision, or that plaintiff receive an in-person meeting with Board of Regents prior to his termination did not deprive plaintiff of a meaningful opportunity to be heard -- Jurisdiction -- District court had jurisdiction to consider plaintiff's procedural due process claim because plaintiff's federal action under Section 1983 was not barred by doctrine of res judicata and his procedural due process claim was actionable under Section 1983
JOY LASKAR, Ph.D., Plaintiff-Appellant, v. G.P. “BUD” PETERSON, individually and in his official capacity as President of the Georgia Institute of Technology, a Unit of the University System of Georgia, et al., Defendants-Appellants. 11th Circuit.

Contracts -- Real property sale -- Failure to consummate contract -- Purchaser's contract claims for damages and specific performance based on failure to consummate contract for purchase of residential property are barred by remedies limitation provision of the residential contract -- Remedies limitation provision does not contain an unreasonable disparity in remedy alternatives available to parties and thus does not lack mutuality and is enforceable -- Parties' respective remedies are not unreasonably disparate, as pertaining to the failure to consummate sale of residential property, where remedies provision limits purchasing party's remedies for seller's failure to consummate the sale to return of its deposit and out-of-pocket expenses and seller's sole and exclusive remedy for purchaser's failure to consummate the contract was terminating the contract and retaining the earnest money, thus foregoing option of enforcing contract and seeking actual damages or specific performance
INLET BEACH CAPITAL INVESTMENTS, LLC, US 98 CAPITAL INVESTMENTS, LLC, DAVID R. PEARSON, Plaintiffs-Appellants, v. FEDERAL DEPOSIT INSURANCE CORPORATION, as receiver for Peoples First Community Bank Panama City, Florida, a.k.a. FDIC, Defendant-Appellee. 11th Circuit.

Contracts -- Sales -- Accounting -- A Saudi Arabian company that contracted with a Florida-based aircraft parts dealer to sell aircraft parts on consignment sued its contracting party for breach of contract and conversion and requested an accounting -- District court abused discretion when it refused to grant plaintiff an accounting to determine amount, if any, due from defendant -- District court failed to recognize that the fiduciary nature of relationship between parties alone constituted sufficient grounds for an accounting under Florida law and erroneously concluded that an action for damages afforded an adequate remedy at law -- A court-directed accounting was appropriate remedy where defendant, as a consignee, had a fiduciary obligation to account for its handling of plaintiff's parts, parties' contracts explicitly spelled out defendant's duty to keep complete and accurate records and plaintiff's right to review those records, and defendant concededly failed to comply with its accounting and reporting obligations -- A court-directed accounting was proper remedy because plaintiff's breach of contract claim did not constitute an adequate remedy at law where discovery could not provide the means to force defendant, who possessed all relevant details regarding disposition of goods and who had substantial motivation to frustrate discovery process, to disgorge the requisite information for plaintiff to prove damages
ZAKI KULAIBEE ESTABLISHMENT, a company formed under the laws of the Kingdom of Saudi Arabia, Plaintiff-Appellant, v. HENRY H. MCFLIKER, a natural person, a.k.a. Harris H. McFliker, a.k.a. Harold McFliker, AYODH PERSAUD, a natural person, a.k.a. Joe Persaud, SHAMMIE PERSAUD, a.k.a. Bebe Nafessa Persaud, a.k.a. Be Be N. Persaud, a.k.a. Bi Bi N. Persaud, AIRSPARES NETWORK, INC., a Florida corporation, DAYTONA AEROSPACE, INC., a Florida corporation, et al., Defendants-Appellees. 11th Circuit.

Elections -- National Voter Registration Act -- Florida violated section 8(c)(2)(A) of NVRA, which requires state to “complete not later than 90 days prior to the date of a primary or general election for Federal office, any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters,” by conducting a program to systematically remove suspected non-citizens from voter rolls within 90 days of a federal election -- Remand with instructions to district court to enter order declaring that Florida Secretary of State's actions were in violation of 90-day provision of NVRA and to grant such relief as needs and interests of justice require -- Standing -- Individual plaintiffs who had been wrongly identified as non-citizens in a prior program had standing to challenge that prior program, although they were ultimately not prevented from voting in prior election -- These individuals also had standing to prospectively challenge second attempt to remove non-citizens from voter roles because there was a realistic probability that they would be misidentified due to unintentional mistakes in data-matching process -- Organizational plaintiffs had standing to challenge program based on both a diversion-of-resources and an associational standing theory -- Mootness -- Claims related to 2012 elections are not moot because dispute is capable of repetition yet evading review
KARLA VANESSA ARCIA, MELANDE ANTOINE, et al., Plaintiffs-Appellants, v. FLORIDA SECRETARY OF STATE, Defendant-Appellee, LUIS I. GARCIA, et al., Intervenor Defendants. 11th Circuit.

Labor relations -- Fair Labor Standards Act -- Overtime -- Former employees of Florida construction contractor brought suit claiming contractor failed to pay wages, including overtime, that they were entitled to receive under FLSA -- Jurisdiction -- District court had subject matter jurisdiction where face of complaint alleged federal claim for unpaid, overtime hours -- Statement of claim that plaintiffs filed under the local practices did not amend that jurisdictional basis out of the complaint -- Plaintiffs' failure to reiterate their unpaid-overtime-hours claim in statement of claim document is not controlling -- Statement of claim document does not have status of a pleading and is not an amendment of complaint under Rule 15 of Federal Rules of Civil Procedure
ARLE CALDERON, MANNY FERNANDEZ, ADALBERTO GALO, LUIS MOLINA, ANDY W. DEL TORO, SERGIO D. HERNANDEZ, PEDRO JOSE MARTINEZ, WILLIAMS ARIELLO GALANTINO, JOSE DE LA CRUZ CARDENAS, on their own behalf and others similarly situated, Plaintiffs-Appellants, v. BAKER CONCRETE CONSTRUCTION, INC., a Florida profit corporation, et al., Defendants, FORM WORKS/bAKER JV, LLC., a foreign profit corporation, Defendant-Appellee. 11th Circuit.

Trademarks -- Infringement -- Online education -- Standing -- Florida Virtual School, a Florida state agency established for development and delivery of online education, appeals from dismissal of its trademark infringement suit against a national online education provider for lack of standing based on conclusion that only Department of State has standing to sue for infringement of plaintiff's trademarks -- Florida Virtual School has authority, and standing, to file action to protect its trademarks
FLORIDA VIRTUALSCHOOL, a Florida Educational Institution, Plaintiff-Appellant, v. K12, INC., a Delaware Corporation, K12 FLORIDA, LLC, a Florida Limited Liability Company, Defendants-Appellees. 11th Circuit.

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Friday, November 21, 2014

Easley again recognized among legal leaders in 2014

Congratulations to Dorothy Easley of Easley Appellate Practice for being recognized as a top appellate lawyer in the 2014 Super Lawyers Business Edition just released.  Ms. Easley is recognized as an attorney selected to the Super Lawyers list in 2014 within specific business-related practice areas, in this case, business appeals.

Saturday, November 15, 2014

The general rules on contract enforceability in Florida and recent contract decisions

To determine a contract’s enforceability, the Florida Supreme Court has long-established that Florida uses the objective (as opposed to the subjective) test (first expressed by the late Supreme Court Justice Oliver Wendell Holmes):

The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs-not on the parties having meant the same thing, but on their having said the same thing.

Robbie v. City of Miami, 469 So. 2d 1384, 1385 (Fla. 1985) (quoting Blackhawk Heating & Plumbing Co. v. Data Lease Financial Corp., 302 So. 2d 404 (Fla. 1974)); see also, Oliver Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (quoted in Gendzier v. Bielecki, 97 So. 2d 604, 608 (Fla. 1957)).

The Florida Supreme Court also holds in Blackhawk Heating and Plumbing Co. Inc. v. Data Lease Fin. Corp., 302 So. 2d 404 (Fla. 1974), that nonessential terms left for future negotiations do not render a contract unenforceable.   Where an Agreement consists of “two sets of external signs”, “says the same thing”, and on the same day, it is generally enforceable. 

Below are some recent decisions of interest on CONTRACTS:
Contracts -- Error to enter summary judgment for plaintiff in breach of contract action where there was a lack of evidence to establish that plaintiff had standing at time action was filed, and an incorrect cardmember agreement was attached to complaint
DETELINA Y.A. MITEVA, Appellant, vs. AMERICAN EXPRESS BANK, FSB, Appellee. 3rd District.

Contracts -- Real property sale -- Specific performance -- Trial court erred in dismissing purchaser's complaint for specific performance, concluding an action for specific performance could not be asserted, where contract does not limit the remedies available to the purchaser in the event of default by the seller


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Saturday, November 1, 2014

Five stars for Easley's federal appellate treatise

We are proud and so honored to announce that Board certified appellate specialist Dorothy F. Easley's 2014 treatise, Successful Federal Appeals in all Circuit Courts: a Practical Guide for Busy Lawyers, has earned five stars by reviewers. More.

Monday, October 27, 2014

FDCPA, FCCPA, copyrights and academic works, and eggplant, black olive, roasted garlic, and heirloom tomatoes over angel hair pasta

Consumer law -- Debt collection -- Action alleging that defendant debt collector violated Florida Consumer Collection Practices Act and Fair Debt Collection Practices Act by sending plaintiff a letter stating that “Unless you, within 30 days of receipt of this notice, dispute the validity of the debt, or any portion thereof, the debt will be assumed to be owed” -- Complaint stated claim that letter violated FDCPA because it did not state that if plaintiff did not dispute the debt within 30 days the only entity to assume the debt to be valid is the debt collector -- Defendant's substitution of the word “owed” for the word “valid” in the letter is not a basis for FDCPA claim -- Complaint stated claim that letter violated FCCPA provision that a person shall not assert the existence of a legal right when such person knows that the right does not exist by asserting the misleading communication regarding who could assume that the debt was owed -- Complaint stated claim that letter violated provision of FDCPA that debt collector shall not use any false representations or deceptive means to attempt to collect any debt by stating that if federal bankruptcy discharge has been entered, an In Rem judgment will be entered -- Language could be perceived by the least sophisticated consumer to mean that the consumer will not be allowed to contest an In Rem judgment before it is entered -- Plaintiff may seek declaratory and injunctive relief
ERICA MARTIN, on behalf of herself and others similarly situated, Plaintiff, v. BUTLER & HOSCH, P.A., Defendant. U.S. District Court, Middle District of Florida, Tampa Division.

Copyrights -- Infringement -- Academic works -- Three publishing houses brought copyright infringement action alleging members of the Board of Regents and officials at state university infringed plaintiffs' copyrights by maintaining a policy which allows professors to make digital copies of excerpts of plaintiffs' books available to students without paying plaintiffs -- Immunity -- Argument that defendants are immune from suit pursuant to Eleventh Amendment, which was not raised on cross-appeal, is not properly raised -- Fair use -- District court abused discretion in granting declaratory and injunctive relief to plaintiffs where court's grant of injunctive relief was predicated on its finding of infringement, which was in turn based on court's legally flawed methodology in balancing four fair use factors and erroneous application of factors two and three -- District court did not err in performing a work-by-work analysis of individual instances of alleged infringement in order to determine the need for injunctive relief -- However, district court did err by giving each of four fair use factors equal weight, and by treating the four factors mechanistically, rather than undertaking a holistic analysis which carefully balanced the four factors -- District court did not err in holding that first fair use factor, the purpose and character of the use, favors a finding of fair use, notwithstanding nontransformative nature of the use, where defendant's use was for nonprofit educational purposes, which are favored under fair use statute -- District court erred in holding that second fair use factor, the nature of the copyrighted work, favors fair use in every case -- Because the digital copies of excerpts in question contained evaluative, analytical, or subjectively descriptive material that surpasses the facts, or derives from the owner's own experiences or opinions, district court should have held that second factor was neutral or even weighted against fair use where such material dominated -- In analyzing the third fair use factor, the amount used in relation to the copyrighted work as a whole, district court erred in setting a 10 percent-or-one-chapter benchmark, rather than performing this analysis on a work-by-work basis, taking into account whether the amount taken, qualitatively and quantitatively, was reasonable in light of the pedagogical purpose of the use and threat of market substitution -- District court did not err in its application of fourth fair use factor, the effect of defendants' use on potential market for or value of copyrighted work -- District court erred by not affording fourth factor more significant weight in overall fair use analysis, where defendants' unpaid copying was nontransformative and plaintiffs' works were used for one of purposes for which the works were marketed and threat of market substitution was severe -- District court erred by separating two additional considerations from its analysis of first and fourth fair use factors -- Although it is within district court's discretion to go beyond considerations set forth in four factors, district court's supplemental considerations of whether limited unpaid copying of excerpts will deter authors from creating new academic works and whether slight limitation of permissions income caused by defendants' fair use would promote spread of knowledge and would not appreciably diminish plaintiffs' ability to publish scholarly works, were not actually supplemental, and as such should have been considered within existing statutory framework -- Attorney's fees -- Prevailing party -- Because district court's designation of defendants as prevailing party and consequent award of attorney's fees and costs were predicated on its erroneous fair use analysis, reversal of award of attorney's fees and costs to defendants is appropriate
CAMBRIDGE UNIVERSITY PRESS, OXFORD UNIVERSITY PRESS, INC., SAGE PUBLICATIONS, INC., Plaintiffs-Appellants, v. CARL V. PATTON, et al., Defendants, J. L. ALBERT, in his official capacity as Georgia State University Associate Provost for Information System and Technology, MARK P. BECKER, in his official capacity as President of Georgia State University, KENNETH R. BERNARD, JR., in his official capacity as member of the Board of Regents of the University System of Georgia., ROBERT F. HATCHER, in his official capacity as Vice Chair of the Board of Regents of the University System of Georgia, W. MANSFIELD JENNINGS, JR., in his official capacity as member of the Board of Regents of the University System of Georgia, JAMES R. JOLLY, in his official capacity as member of the Board of Regents of the University System of Georgia, et al., Defendants-Appellees. 11th Circuit.

Creditors' rights -- Collection efforts under Terrorism Risk Insurance Act by victims of kidnapping by terrorist organization against agencies or organizations of terrorist organization (claimants) to recover default judgment entered in favor of victims against terrorist organization -- Due process -- Claimants were entitled to actual notice and to be heard before execution, though not necessarily before attachment -- TRIA does not preempt Florida law, and judgment creditors seeking to satisfy judgments under it must follow notice requirements of Florida law -- District court used proper standard to find claimants to be agencies or instrumentalities of terrorist organization -- Assets of claimants were blocked when Office of Foreign Assets Control designated claimants as Special Designated Narcotics Traffickers -- OFAC's de-listing of claimants did not operate retroactively to put their assets out of plaintiffs' reach because they were no longer blocked -- There is no merit to contention that means by which plaintiffs moved against claimants' assets constituted fraud -- Reassignment to different district court judge on remand is unnecessary -- Turnover judgment against one claimant reversed, as writ of garnishment was filed after claimant's de-listing by OFAC, so that claimant's assets were not blocked -- District court judgment as to other claimants affirmed

Wrongful death -- Product liability -- Tobacco -- Evidence -- In wrongful death action against cigarette manufacturer, district court abused discretion by excluding evidence of decedent's alcohol abuse -- District court improperly shifted burden of proof by forcing defendant to prove that decedent's death was caused by something other than smoking -- District court applied wrong legal standard in requiring testimony offered by defendant regarding alternative causes be to a reasonable degree of medical certainty, rather than the “more likely than not” standard, and placed the burden of proof as to causation on the wrong party -- Decedent's alcohol abuse was an essential part of defendant's attempt to show that something other than his smoking could have caused his death -- Decedent's alcohol abuse was relevant to cause of death, to determination of comparative fault, and to damages -- Prejudicial effect of evidence of alcohol abuse did not outweigh probative value
THELMA AYCOCK, as Personal Representative of the Estate of Richard Aycock, Plaintiff-Appellee, v. R.J. REYNOLDS TOBACCO COMPANY, individually and as successor by merger to the Brown and Williamson Tobacco Corporation and the American Tobacco Company, Defendant-Appellant, PHILIP MORRIS USA, INC., et al, Defendants. 11th Circuit.

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Sunday, October 19, 2014

Oklahoma Supreme Court rules Facebook post informing dad of planned adoption not adequate notice

"Pregnant and planning to have her baby adopted, an Oklahoma woman sent a Facebook post to the father to let him know. . . .'This court is unwilling to declare notice via Facebook alone sufficient to meet the requirements of the due process clauses of the United States and Oklahoma Constitutions because it is not reasonably certain to inform those affected,' wrote Justice David Combs in the supreme court’s Tuesday ruling. It reversed an appellate court and vacated a trial court’s decision to terminate the parental rights of Billy McCall."  More.

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Sunday, October 12, 2014

Obama reportedly weighs executive action to bypass congressional obstacle and close Guantanamo

"President Barack Obama is said to be unwavering in his commitment to close the Guantanamo detention facility, so much so that the White House is drafting options that would allow him to do so through executive action." More.

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