Sunday, April 20, 2014

Pregnancy discrimination, alimony, injunctions, and rosemary-sage-infused pot roast

Banks -- Contracts -- Custody agreement -- Torts -- Under facts as alleged, custodian bank breached no duty, contractual or otherwise, by accepting on behalf of its customer securities that later turned out to be fraudulent and listing those securities on monthly account statements issued to the customer -- Allegations, accepted as true, failed to state claims for breach of contract based on custodian bank allowing customer's funds to be disbursed as payment for fake notes, allowing cash to be diverted from customer's account without receiving an asset in exchange, or without timely receiving an asset in exchange, issuing monthly statements to customer listing fraudulent securities with false or inflated market values, and charging excessive fees based on market values that later turned out to be inflated -- Court of Appeals would address the merits of tort claims against custodian bank because custody agreement specifically left open possibility that bank could be liable for losses caused by its negligence, and it appears alleged conduct relating to performance of custody agreement amounts to an independent tort under Florida law -- Negligence -- Duty of care -- Customer failed to state valid negligence claims where customer failed to establish that custodian bank, which had no discretionary role in investing customer's assets, owed him an independent duty to monitor the investments of his account, verify their market value, or ensure they were in valid form -- Aiding and abetting -- District court correctly concluded that customer's aiding and abetting claims against custodian bank fail -- Allegations that custodian bank accepted worthless securities, some of which had facial defects, were insufficient to establish, or allow one to fairly infer, bank's knowledge of underlying fraud or breach of fiduciary duty by investment advisor, as required by Florida law -- Alleging that a bank disregarded “red flags” such as “atypical activities” on a customer's account is insufficient to establish knowledge -- Breach of fiduciary duty -- Although customer may have unilaterally relied on custodian bank for protection from misconduct of investment advisors, the custody agreement and facts alleged in complaint establish an arm's length bargain imposing limited obligation on parties, not a relationship of “trust and confidence” or “special circumstances” as required to make out a fiduciary duty claim -- Negligent misrepresentation -- Customer failed to plead facts sufficient to establish that custodian bank intended to induce him to rely on its alleged representations as to validity of his securities as required to state a claim for negligent misrepresentation under Florida law
DOUGLAS LAMM, Individually and on behalf of Douglas Lamm IRA, Plaintiff - Appellant, v. STATE STREET BANK AND TRUST, Defendant - Appellee. 11th Circuit.

Civil procedure -- Error to dismiss complaint because of failure to perfect service on one defendant -- Whether the unserved defendant was an indispensable party to lawsuit was not addressed below or on appeal and is not self-evident -- Error to dismiss complaint for failure to timely file joint status report without appropriate evidentiary hearing and appropriate findings where counsel for both parties denied receiving order requiring joint status report -- Moreover, order does not say that case was dismissed without prejudice and could be refiled, although that appeared to have been court's intent, and there was no explanation of status of counterclaim, which appeared also to have been dismissed -- Remand for further proceedings
RICHARD W. TAYLOR, P.A., Appellant, v. CHRISTOPHER N. BAVARO, et al., Appellees. 5th District.

Civil rights -- Florida Civil Rights Act prohibits pregnancy discrimination in employment
PEGUY DELVA, Petitioner, v. THE CONTINENTAL GROUP, INC., Respondent. Supreme Court of Florida.

Dissolution of marriage -- Alimony -- Long-term marriage -- Error to deny wife's request for permanent alimony following dissolution of 18-year marriage without making findings regarding factors enumerated in statute -- Inconsistent provisions of final judgment requiring former wife both to bear sole responsibility for certain utilities and service contracts associated with marital residence and to split all utilities and service contracts with former husband to be clarified on remand
LISA WRIGHT, Appellant/Cross-Appellee, v. HENDON O. WRIGHT, III, Appellee/Cross-Appellant. 5th District.

Dissolution of marriage -- Attorney's fees -- Justiciable issues -- Error to grant former wife's motion for section 57.105 attorney's fees on basis that there was no justiciable issue of either law or fact in former husband's request to set aside stipulated oral settlement which resolved parties' cross-petitions to modify child custody and visitation provisions contained in final judgment of dissolution -- Best interests of child take predominance over any agreement between parents and must be independently determined by trial court, and it cannot be concluded that former husband's attempt to set aside custody agreement prior to issuance of final judgment, on the basis that the trial court had independent obligation to determine children's best interests and repudiate the couples' “preliminary” agreement to the extent it was inconsistent with this standard, warranted award of attorney's fees
ROBERT MICHAEL PUGLISI, Appellant, v. TERI ANNE PUGLISI, Appellee. 5th District.

Injunctions -- Temporary restraining order -- Inexcusable delay -- Motion for TRO to prevent the sale of counterfeit merchandise outside concert venue is denied where plaintiff's decision to wait until seven days prior to concert to seek injunctive relief constituted inexcusable delay resulting in a manufactured emergency violative of local rules and Federal Rules Of Civil Procedure -- TRO is also deniable on basis that plaintiff neglected to estimate the number of “bootleggers” expected, value of seized merchandise, or a reasonable amount of security -- TRO is unreasonably broad where it names unknown and unnamed “John Doe” defendants, seeks to extend injunction to a ten mile radius around concert venues, and unacceptably permits federal, state, and local law enforcement to assign service and seizure of the unauthorized merchandise to “anyone acting under their supervision”
BRAVADO INTERNATIONAL GROUP MERCHANDISING SERVICES, INC., Plaintiff, v. MIKE SMITH, JOHN DOES 1-100, JANE DOES 1-100, XYZ COMPANY, Defendants. U.S. District Court, Middle District of Florida, Tampa Division.

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