Asylum injunctions and lamb with garlic and rosemary roasted on a bed of leaks and heirloom tomatoes

"The U.S. Supreme Court on Friday refused to allow President Donald Trump to begin implementing a new policy that allows asylum claims only by immigrants entering the country through points of entry." "The case is Trump v. East Bay Sanctuary." More.

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Originally posted by Debra Cassens Weiss, Dec. 21, 2018, ABA Journal Weekly 

Cotton marketing agreements, consumer law, fair credit reporting act, bankruptcy and pork tenderloin medallions with a sage-mustard cream sauce over red bell pepper-porcini mushroom, rosemary garlic risotto

Weakley v. Eagle Logistics

Dockets: 17-14022, 17-14023

Opinion Date: June 29, 2018

Judge: Per Curiam

Areas of Law: Bankruptcy, Civil Procedure

In this consolidated appeal, plaintiff alleged that the district court abused its discretion by dismissing his two lawsuits based on the doctrine of judicial estoppel as a result of his failure to disclose them in his bankruptcy proceeding. Applying a two-part test to guide district courts in applying judicial estoppel, the court held that plaintiff took an inconsistent position under oath in a separate proceeding and the inconsistent positions were calculated to make a mockery of the judicial system. In this case, plaintiff not only failed to include the two lawsuits in his initial bankruptcy filings but he also failed to include them in any of the six separate amendments that he made to his schedules and filings during the bankruptcy proceeding. Plaintiff only disclosed the lawsuits after defendants had relied on plaintiff's failure to disclose as grounds for dismissal.

Wilcox v. corrections Corp of America

Docket: 17-11919

Opinion Date: June 25, 2018

Judges: TJOFLAT, ROSENBAUM, and BRANCH

Areas of Law: Civil rights, Employment discrimination, Sexual harassment

Employer could not be held directly liable for harassing acts of co-employee who was not plaintiff's supervisor where evidence established that company took prompt remedial action against the harassing employee -- District court did not err in granting judgment as matter of law for employer notwithstanding jury's favorable verdict and award of damages to plaintiff

Felts v. Wells Fargo Bank, N.A.

Docket: 16-16314

Opinion Date: June 27, 2018

Judges: TJOFLAT and WILSON, Circuit Judges, and ROBRENO

Areas of Law: Consumer law, Fair Credit Reporting Act

Mortgagor brought action against mortgage servicer, as furnisher of information to credit reporting agencies regarding her compliance with her payment obligations under her mortgage loan, claiming that furnisher failed to conduct a reasonable investigation into the accuracy of its credit reporting of her mortgage loan in violation of FCRA -- District court did not err in finding that mortgagor's FCRA claim failed as matter of law because the undisputed material facts demonstrated that furnisher's reporting of mortgage account as past due and delinquent during a forbearance plan was neither inaccurate nor materially misleading, and thus mortgagor failed to make the threshold showing that a reasonable investigation could have uncovered an inaccuracy -- Information reported regarding mortgagor's compliance with the terms of Note was not inaccurate where furnisher reported that scheduled monthly payment amount was full amount due under the Note and that mortgagor's payments were “past due” and “delinquent” for months that she did not make full payments required under the Note -- Apparent compliance with terms of forbearance plan mortgagor entered into with furnisher has no bearing on accuracy of information reported to CRAs regarding compliance with terms of original Note, unless plan legally modified terms of Note, and mortgagor has not identified any facts in record establishing that the forbearance plan legally modified the Note -- Consumer Data Industry Association's guidelines regarding credit reporting do not demonstrate that information reported was inaccurate -- Where mortgagor owed payments under Note, it was not misleading for furnisher to report that payments were not being made under Note as agreed, particularly in light of furnisher's additional statement that she was paying under a partial payment agreement -- Omission of lower payment amount mortgagor agreed to pay under forbearance plan did not render credit reporting misleading.

Autauga Quality Cotton Ass’n v. Crosby

Docket: 17-12092

Opinion Date: June 25, 2018

Judges: NEWSOM, BRANCH, and ANDERSON

Areas of Law: Contracts, Cotton marketing agreement, Breach by grower, Damages

Liquidated damages clause in agreement between grower and cooperative that pooled and marketed grower's cotton amounted to an impermissible penalty under Alabama law and is unenforceable -- Provision did not satisfy second or third prong of three-part test set forth by Alabama court in Camelot Music, Inc. v. Marx Realty & Imp. Co. where evidence indicated that intent was to provide for penalty, not damages, and the agreement's liquidated-damages formula did not remotely prescribe a “reasonable pre-breach [estimate] of the probable loss” -- Cooperative organized under article 4 of Alabama's Agricultural Code not entitled to avail itself of Article 3 liquidated-damages authorization.

Everglades College, Inc. v. Nat’l Labor Relations Board

Docket: 16-10341

Opinion Date: June 26, 2018

Judges: MARTIN and HULL, Circuit Judges, and RESTANI

Areas of Law: Labor relations, Unfair labor practices

Employer did not violate National Labor Relations Act by maintaining and enforcing employment agreement that required employees to individually arbitrate employment-related claims and that waived employees' rights to file class or collective action lawsuits against employer -- Whether employer violated NLRA by maintaining and enforcing employment agreement that caused employees to reasonably believe that they were prohibited from filing unfair labor charges with National Labor Relations Board must be re-evaluated in light of NLRB's recent refashioning of its test for determining whether an employer's allegedly facially neutral policy would reasonably lead an employee to believe that she could not file an unfair labor charge with NLRB -- Unlawful discharge -- Whether employer unlawfully discharged employee for refusing to sign an unlawful employment agreement which could reasonably be construed as prohibiting the filing of unfair labor charges with NLRB must also be reconsidered in light of NLRB's new standard, which applies retroactively.

Llorca v. Sheriff, Collier county, Florida

Docket: 17-10616; 17-11377

Opinion Date: June 27, 2018

Judges: JILL PRYOR, ANDERSON, and HULL

Areas of Law: Labor relations, Fair Labor Standards Act, Overtime

Sheriff deputies are not entitled to compensation under FLSA or Florida Minimum Wage Act for time spent donning and doffing police gear at home or time spent driving to and from work in marked patrol vehicles -- Even though donning and doffing protective gear arguably may be “indispensable,” it is not “integral” to deputies' principal activities of law enforcement duties and therefore such time is not compensable -- Donning and doffing is an entirely separate activity from deputies' principal law enforcement duties, and therefore donning and doffing is a preliminary and postliminary activity as contemplated by Portal-to-Portal Act -- Time deputies spent commuting in marked patrol vehicle is excluded from compensable work time by plain language of Portal-to-Portal Act -- Monitoring roads for traffic violations and other incidents during the deputies' commutes are incidental to use of marked patrol vehicle and not part of employee's principal activities -- Performance of general traffic law enforcement during deputies' commutes is not integral and indispensable to deputies' performance of their principal activities

Rodriguez Asalde v. First Class Parking Systems LLC

Docket: 16-16814

Opinion Date: June 29, 2018

Judge: Jordan

Areas of Law: Labor & Employment Law

Plaintiffs, who are valets, filed a putative class action against FCPS, alleging claims under the minimum-wage and overtime provisions of the Fair Labor Standards Act (FLSA). The Eleventh Circuit held that, although the district court correctly ruled that the vehicles parked by plaintiffs were "goods" subject to the ultimate consumer exception, and not "materials" under the FLSA, FCPS was not entitled to summary judgment on the FLSA claims. Viewing the evidence in the light most favorable to plaintiffs, a jury could reasonably find that the uniforms they had to wear as valets for FCPS constituted "materials" under 29 U.S.C. 203(s)(1)(A). Furthermore, the labels on the uniforms, which reflect foreign manufacture, similarly created a jury issue as to whether the uniforms moved in international or interstate commerce under section 203(s)(1)(A)(ii). Accordingly, the court affirmed in part, reversed in part, and remanded.

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Civil rights, contracts, equitable distribution, trespass, and bison meatballs, tomatoes and fresh rosemary over herbed pasta and olives

Appeals -- Extension of time to file initial, answer, or reply brief -- Agreed notice – Procedure.  ADMINISTRATIVE ORDER 17-2. 1st District.

 

Arbitration -- Waiver -- Active participation in litigation -- Dispute arising out of partnership agreement containing arbitration clause -- By pursuing relief in trial court based upon partnership agreement, plaintiff waived its right to compel arbitration of defendant's counterclaims, which were also based upon the partnership agreement -- Plaintiff's argument that amended complaint was solely based on breaches of employment agreement and employee handbook, neither of which contained arbitration clause, is incorrect.  JORDAN L. CHAIKIN, Appellant, v. PARKER WAICHMAN LLP, a Florida limited liability partnership; and JERROLD S. PARKER, individually, Appellees. 2nd District.

Attorney's fees -- Because record is devoid of evidence supporting award of attorney's fees, award is properly reversed without remand for taking additional evidence.  B and H Miracle, LLC, a Florida limited liability company; FRANCIS L. BAKER, an individual and JAMES E. HOLLIS, SR., an individual, Appellants, v. WELLS FARGO BANK, N.A., a national banking association f/k/a WACHOVIA BANK, N.A., a national banking association, Appellee. 1st District.

Attorney's fees -- Proposal for settlement -- Trial court erred in denying motion for attorney's fees on ground that proposals for settlement failed to apportion settlement amount to each defendant -- Sufficient apportionment was set forth where plaintiff sent identical proposals for settlement to two defendants indicating the total settlement amount sought, and each proposal contained a footnote clarifying the total amount sought and indicating that if each of the two defendants accepted and tendered the full settlement amount to the plaintiff, the plaintiff would return half of the amount to each of the defendants.  GOLISTING.COM, INC., d/b/a PALM BEACH PREMIER REAL ESTATE, a Florida corporation, Appellant, v. JOHN PAPERA, individually, and CHRISTINE PAPERA, individually, Appellees. 4th District.

Contracts -- Unjust enrichment -- Claim for unjust enrichment cannot be pursued where there is an express contract concerning the same subject matter.  BRENDA WILLIAMS, et al., Appellants, vs. MARYE JOHNSON, et al., Appellees. 3rd District.

 

Dissolution of marriage -- Appeals -- Issues either not preserved for appellate review or expressly waived -- Absence of statutory findings in written judgment -- Adoption of former wife's proposed final judgment.  SCOTT A. BROCK, FORMER HUSBAND, Appellant, v. CAROLYN ANN BROCK, FORMER WIFE, Appellee. 1st District.

Dissolution of marriage -- Child custody -- Trial court did not err in modifying timesharing by awarding primary residence and majority timesharing to former husband -- Trial court was not required to set forth specific steps by which former wife might reestablish majority timesharing -- Conflict certified.  RACHEL D. DUKES, F/K/A RACHEL D. GRIFFIN, FORMER WIFE, Appellant, v. TIMOTHY R. GRIFFIN, FORMER HUSBAND, Appellee. 1st District.

Dissolution of marriage -- Child support -- Income -- Imputed income -- Trial court erred in imputing $80,000 of income to former husband on assumption he could secure a job as a corporate pilot where there was no evidence that there are any corporate pilot positions available in area for which former husband is qualified and that would work with equal timesharing plan -- Attorney's fees -- Trial court's award of attorney's fees to former wife for first appeal and all post-remand proceedings is reversed where award was based on imputed income decision which is reversed -- Further, trial court failed to make findings of fact distinguishing between costs of litigation attributable to improper vexatious litigation and costs that would have been incurred absent any such inappropriate litigiousness, and failed to determine whether former husband had ability to pay fee award.  GLENN ROBERT BROGA, Former Husband, Appellant, v. LINDA MARIE BROGA, Former Wife, Appellee. 1st District.

Dissolution of marriage -- Equitable distribution -- Trial court erred in awarding former husband a dollar-for-dollar credit for contributions he made to mortgage encumbering former wife's premarital duplex -- Credit awarded should be based upon the amount by which the use of marital funds to pay down the mortgage reduced the indebtedness on the property.  BRIDGETT BETTS, Appellant, v. RICKY BETTS, Appellee. 2nd District.

Paternity -- Disestablishment -- Trial court erred in denying father's petition to disestablish paternity based on newly discovered evidence in form of recent DNA test showing that he was not child's biological father on ground that court could not disestablish paternity unless another putative father was willing to “step in” and establish paternity.  L.G., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. 4th District.

 

Torts -- Civil rights -- Trial court abused its discretion by dismissing with prejudice counts asserting claims against assistant state attorneys in their individual capacities for tortious interference with a business relationship and Fourth Amendment violations after determining that amendment of claims would be futile -- Moreover, allegations against ASAs in individual capacities fall within Florida's limited waiver of sovereign immunity, and face of complaint did not otherwise conclusively establish that ASAs were entitled either to sovereign immunity or qualified immunity -- Remand with instructions to afford plaintiff opportunity to amend these counts to clearly identify particular defendant to which plaintiff attributes a particular improper act.  CHRISTINA PAYLAN, Appellant, v. DARRELL DIRKS, CHRISTINE BROWN, and MARK OBER, Appellees. 2nd District.

Torts -- Jury -- Voir dire -- Trial court did not err in granting new trial based on court's failure to allow defendants to question several members of jury venire before they were excused for bias.  HEATHER IRIMI, as Personal Representative of the ESTATE OF DALE MOYER, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, et al., Appellees. 4th District.

Torts -- Real property -- Trespass -- Trial court erred in entering judgment for civil trespass damages where none of defendants occupied subject property without authority, and plaintiff had no interest in property sufficient to support a trespass claim -- Defendant became equitable owner of property when defendant and plaintiff entered into contract for purchase and sale of the property, and that ownership continued notwithstanding defective execution of warranty deed -- Damages -- Proper measure of damages for trespass is the value of the loss of use and enjoyment of or the injury to the land trespassed upon.  RANDALL GUNNING, individually, CASTLE CONSULTING I LTD., INC., a Florida corporation; and RIVER OF LIFE INTERNATIONAL OUTREACH CENTER, INC., a Florida corporation, Appellants, v. EQUESTLEADER.COM, INC., a Virginia corporation; and DONALD PIERCE, individually and president of Equestleader.Com, Inc., Appellees. 2nd District.

Wrongful death -- Product liability -- Tobacco -- Fraudulent concealment -- Jury instructions -- Trial court abused its discretion in giving requested special instruction related to claim for fraudulent concealment, which stated that plaintiff need not provide direct evidence of plaintiff's reliance on any specific statement by defendant or defendant's co-conspirators and that reliance could be inferred if evidence as a whole supported such an inference -- Issue was adequately covered by standard instruction on inferences, and proposed instruction was potentially confusing -- Moreover, instruction was requested on sole basis that it was necessary to prevent defendant from making certain closing arguments, which was not proper basis for request -- Reversal not required -- Prejudice to defendant was not apparent from record where jury instruction on causation permitted jury to find causation under either a reliance theory or an omission/concealment theory, or both, and the special instruction only impacted the reliance theory.  R. J. REYNOLDS TOBACCO COMPANY, Appellant, v. COLETTE S. O'HARA, as Personal Representative for the Estate of GARRY L. O'HARA, Appellee. 1st District.

 

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