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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Product liability, class actions, equitable distribution, and lemon-garlic chicken sauteed in truffle oil with cumin seeds

Class actions -- Torts -- Negligence -- Certification of class -- Denial -- Trial court did not err in denying amended motion for class certification in action against road construction contractor brought by business owners who allegedly sustained lost profits in their respective businesses when contractor's employee allegedly damaged natural gas line, resulting in interruption of gas service to sizable region -- To establish numerosity and typicality for purposes of class action, plaintiffs needed to show that sufficient and clearly ascertainable number of proposed class members had suffered some compensable damage from alleged negligence -- Trial court did not err in determining that proposed class was overbroad and failed in this regard

LUCARELLI PIZZA & DELI and T.A.S. SUNSHINE ENTERPRISES LLC, Appellants, v. POSEN CONSTRUCTION, INC., Appellee. 2nd District.

Contracts -- Employment -- Non-compete and non-solicitation agreements -- Injunction -- Trial court properly entered temporary injunction to enforce non-compete and non-solicitation provisions of employment agreement with provider of home health care services -- Referral sources for home health care services are a legitimate business interest entitled to protection under section 542.335, Florida Statutes (2012) -- Conflict certified

INFINITY HOME CARE, L.L.C., and SYLVIE FORJET, Appellants, v. AMEDISYS HOLDING, LLC, Appellee. 4th District.

Dissolution of marriage -- Child custody -- Timesharing -- Modification -- Concerns related to distance between former wife's residence and child's school not basis for modification where location of parties' respective residences was known at time of final judgment when trial court selected former husband's residence as child's legal address and address to be used for school designation purposes -- Because substantial competent evidence of substantial change in circumstances was not presented, trial court abused its discretion by granting former wife's modification petition

JEROD B. BLEVINS, Appellant, v. JENNIFER BLEVINS, Appellee. 5th District.

Dissolution of marriage -- Equitable distribution -- Non-marital assets -- Real property -- Trial court erred in awarding wife any interest in marital home which husband had acquired prior to the marriage -- Evidence contradicted trial court's finding that wife had invested $40,000 in the home, and although mortgage payments had been made with pooled resources, the value of the home had decreased during the marriage -- Trial court erred in unequally distributing Georgia properties without making requisite findings or explanations -- Remand for further proceedings to equitably distribute marital assets

WILLIAM E. WEAVER, Appellant, v. LORI LYNN WEAVER, Appellee. 4th District.

Insurance -- Homeowners -- Declaratory judgment -- Duty to defend and indemnify -- Exclusions -- Damages arising out of sexual molestation, corporal punishment or physical or mental abuse -- Intentional shooting -- Plain meaning of words “physical abuse” includes an instance such as one at issue in which insured lent gun to his sister who then used gun to shoot plaintiff, her son-in-law, outside of her home -- Trial court properly entered summary judgment in favor of insurer based on determination that insurer had no duty to indemnify or defend its insured in a separate personal injury action arising from the shooting

SALVATORE MIGLINO, Appellant, v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY and HARVEY IRA STEIN, Appellees. 4th District.

Insurance -- Personal injury protection -- Medical expenses -- Coverage -- Statutory fee schedules -- Clear and unambiguous election by insurer -- Policy language providing that any amounts payable “shall be subject to any and all limitations authorized by section 627.736 . . . or any other provisions of the Florida Motor Vehicle No-Fault Law, including, but not limited to, all fee schedules” did not make it clear whether insurer was actually and in fact electing to limit its reimbursements to providers under Medicare fee schedules or was simply announcing that it was reserving its right to elect to do so -- Language is ambiguous and must be construed in favor of providers -- Conflict certified

ORTHOPEDIC SPECIALISTS, as Assignee of KELLI SERRIDGE, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee. 4th District.

Paternity -- Timesharing -- Default -- Trial court erred in entering default judgment in favor of father on his counter-petition requesting to establish paternity and timesharing where record did not reflect that mother received service of counter-petition, motion for default, order granting default, or notice of final hearing

GRANADA FELIPE, Appellant, v. RANDOLHF RINCON, Appellee. 5th District.

Torts -- Fraud -- Civil theft -- Limitation of actions -- Reconsideration by successor judge of order of recused judge dismissing complaint on basis of statute of limitations and statute of repose -- Successor judge properly denied motion for reconsideration of predecessor judge's order dismissing complaint where plaintiff failed to indicate how grounds alleged for recusal impacted the recused judge's rulings and failed to demonstrate any prejudice he suffered from initial judge's entry of order of dismissal

STEVE OGNENOVIC, Appellant, v. DAVID J. GIANNONE, INC., DAVID J. GIANNONE, and RICHARD ANDERSON, Appellees. 4th District.

Torts -- Nursing homes -- Violation of resident's rights -- Arbitration -- Trial court erred in denying defendant nursing home's motion to compel arbitration pursuant to arbitration agreement signed by resident's sister as attorney-in-fact for resident under durable power of attorney on basis that power of attorney limited sister to act as attorney-in-fact for resident to claims involving only liquidated damages -- Language of power of attorney, which granted sister ability to sue for “liquidated or liquidated” damages on behalf of resident, was ambiguous -- Remand for trial court to conduct further proceedings to determine intent of sisters in creating power of attorney

SANTA ROSA INVESTORS, INC. d/b/a SANTA ROSA HEALTH AND REHABILITATION CENTER; SUMMIT CARE II, INC.; GUY FARMER, and JOE D. MITCHELL, Appellants, v. BETTY WILSON AND VIOLET JOYCE CARTER, AS POWER OF ATTORNEY FOR BETTY WILSON, Appellees. 1st District.

Wrongful death -- Medical malpractice -- Trial court did not err in entering summary judgment for defendant University of Miami on claim that University was vicariously liable for negligence of physicians where there had been no pleading that University was vicariously liable for negligence of those physicians -- On motion for summary judgment, trial court considers only issues raised in pleadings

LISA WILSON and KEISHA SALMON, etc., Appellants, vs. RICHARD STONE, M.D., et al., Appellees. 3rd District.

Wrongful death -- Product liability -- Tobacco

DIANA PAPPAS, as Personal Representative of the Estate of MINA PAPPAS, Deceased, Appellant/Cross-Appellee, v. R.J. REYNOLDS TOBACCO COMPANY a foreign corporation, LIGGETT GROUP, LLC, a foreign corporation, f/k/a LIGGETT GROUP, INC., f/k/a LIGGETT & MYERS TOBACCO COMPANY and VECTOR GROUP LTD, INC., f/k/a BROOKE GROUP, LTD, a foreign corporation, Appellees/Cross-Appellants. 4th District


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Court: BigLaw firms missed $1.5B error, erasing JPMorgan's security interest in GM loan

". . . .The problems began when a partner at Mayer Brown instructed an associate to draft documents to release the bank’s security interest in $300 million in financing that GM was paying off, according to opinion. The associate asked a paralegal to search for UCC-1 financing statements documenting the security interest. The associate found the correct two documents, along with a third–the most important financing statement for an unrelated $1.5 billion loan by a syndicate of lenders for which JPMorgan Chase was the secured party of record.
“No one at General Motors, Mayer Brown, JPMorgan, or its counsel, Simpson Thacher & Bartlett, noticed the error,” though documents were sent to each organization for review, the appeals court said. A lawyer at Simpson Thacher had responded, “Nice job on the documents.” The mistake went unnoticed until GM’s bankruptcy in 2009." More.



Originally posted by Debra Cassens Weiss in ABA Journal News.  Jan. 22, 2015
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Business law, civil procedure, and ground almond corn meal souffle pancakes with fresh peaches lightly sauteed in butter and dark maple syrup

Richardson v. Koch Law Firm, P.C.

Court: U.S. 7th Circuit Court of Appeals

Docket: 12-3868 Opinion Date: September 26, 2014

Judge: Easterbrook

Areas of Law: Bankruptcy, Civil Procedure

Richardson, apparently a lawyer who has been suspended several times, incurred educational debt in 1988 but did not pay. Indiana University, the creditor, sued in 1998. Richardson filed a bankruptcy petition days before trial but did not tell the court, the University, or its counsel. Nor did he appear for trial. The state judge entered a default judgment, which the law firm tried unsuccessfully to collect. After learning about the bankruptcy, the law firm stopped collection efforts. The bankruptcy ended in 2001, and the firm resumed collection efforts, relying on 11 U.S.C. 523(a)(8), which makes most educational debts nondischargeable. Richardson filed a second bankruptcy in 2002 that lasted until 2007. Again the law firm ceased its efforts until after its end. The post-2007 efforts resulted in Richardson’s claim that the law firm violated the Fair Debt Collection Practices Act, 15 U.S.C. 1692e, 1692f, by trying to enforce a judgment that had been entered in violation of the Bankruptcy Code’s automatic stay. The district court treated the suit as a collateral attack on the state court’s judgment and dismissed for want of jurisdiction, invoking the Rooker-Feldman doctrine. The Seventh Circuit held that the dismissal should be on the merits, noting that the state court judgment was vacated at the request of Indiana University.

http://j.st/Zf28

Wells Fargo Equip. Fin., Inc. v. Titan Leasing Inc.

Court: U.S. 7th Circuit Court of Appeals

Docket: 13-2291 Opinion Date: September 30, 2014

Judge: Easterbrook

Areas of Law: Business Law, Commercial Law, Contracts

Gerdau leased a locomotive from Titan for use in switching at its Knoxville mill. Titan shipped the locomotive in 2008, but it was damaged in transit and sent for repair. It did not reach Gerdau’s plant until 2009. Gerdau rejected it, stating that it needed further repairs. While the locomotive was being repaired, Titan assigned the lease to Leasing, an affiliated business, which then used the lease as security for a loan from Wells Fargo. The loan is nonrecourse: Wells Fargo agreed to look for repayment exclusively from the stream of rentals expected from Gerdau. Leasing made several warranties. Gerdau has never made a payment on the lease. Wells Fargo has taken control of the locomotive and is attempting to sell it. The district court granted summary judgment against Wells Fargo, ruling that Leasing had kept its promises. The court looked to the lease, and then to the Uniform Commercial Code, to see whether the locomotive had been “accepted” when the lease was assigned. Gerdau had an opportunity and the lease required Gerdau to inspect before shipment. The Seventh Circuit reversed. Gerdau did not acknowledge the locomotive’s receipt; Leasing did not live up to its warranties. It must repay Wells Fargo. Titan must perform the guarantees.

http://j.st/ZfFN

Foodmark, Inc. v. Alasko Foods, Inc.

Court: U.S. 1st Circuit Court of Appeals

Docket: 13-2188 Opinion Date: October 1, 2014

Judge: Thompson

Areas of Law: Business Law, Consumer Law, Contracts

Alasko Foods, Inc. (“Alasko”), a Canadian corporation that sells frozen produce to retail outlets, and Foodmark, Inc. (“Foodmark”), a Massachusetts corporation that assists food manufacturers in marketing branded-label and private-label products to retailers, entered into a “U.S. Representation Agreement [and] Sales Management Agreement” wherein Alasko retained Foodmark to market Alasko’s products in the United States. Five years later, Alasko terminated the Agreement. Foodmark filed a complaint against Alasko, alleging that Alasko’s refusal to pay the “Non-Renewal Termination Fee” contemplated by the Agreement constituted a breach of the Agreement and of its covenant of good faith and fair dealing. A federal district court entered summary judgment for Foodmark and awarded $1.1 million in damages. The First Circuit affirmed, holding that there were no genuine issues of fact, and Foodmark was entitled to a termination fee in the amount calculated by the district court.

http://j.st/ZYJQ

Lightfoot v. Cendant Mortgage Corp.

Court: U.S. 9th Circuit Court of Appeals

Docket: 10-56068 Opinion Date: October 2, 2014

Judge: Fletcher

Areas of Law: Civil Procedure

Plaintiffs appealed the district court's judgment dismissing her claims against Fannie Mae, contending that the district court lacked jurisdiction over their claims. The court affirmed, concluding that, under the rule announced in American National Red Cross v. S.G., the sue-and-be sued clause in Fannie Mae's federal charter confers federal question jurisdiction over claims brought by or against Fannie Mae. Accordingly, the district court had subject matter jurisdiction over plaintiffs' claims.

http://j.st/ZYiM

Bersin Bagel Group v. The Original Brooklyn Water Bagel Co., et al.

Court: U.S. 11th Circuit Court of Appeals

Docket: 13-12798 Opinion Date: September 30, 2014

Judge: Marcus

 Areas of Law: Civil Procedure

The district court entered a final judgment that barred future lawsuits against OBWB related to certain false patent marking or advertising after OBWB settled a qui tam false marketing suit. Subsequently, Bersin filed suit against OBWB for damages tied to Bersin's investment in an OBWB franchise. The district court issued an order that purported to enforce the federal judgment by enjoining Bersin's state court suit. The court concluded that it lacked jurisdiction to hear the appeal where the order was not final under 28 U.S.C. 1291 because it was not the proper tool for enforcing an injunction. The order did not hold a noncompliant party in contempt or impose sanctions, nor was the order an appealable interlocutory decision for purposes of section 1292(a)(1). The order merely clarified the existing injunction found in the district court's judgment. Accordingly, the court dismissed the appeal.

 http://j.st/ZfFu

Scarlott v. Nissan North America, Inc., et al.

Court: U.S. 5th Circuit Court of Appeals

Docket: 13-20528 Opinion Date: September 30, 2014

Judge: Higginson

Areas of Law: Civil Procedure

Plaintiff filed suit in Texas state court against Nissan for breach of express warranty, breach of implied warranty, and violation of Texas law. Plaintiff then amended her complaint to add claims against the dealership, a Nissan distributor, and an auto care company (Hurricane). Defendants asserted federal question jurisdiction under the Magnuson-Moss Warranty Act, 15 U.S.C. 2301 et seq., and removed to federal court. Plaintiff raised the issue of subject matter jurisdiction three months after removal. Plaintiff subsequently dismissed her claims against the dealership and distributor. Plaintiff then filed a motion to remand the suit to state court and the district court denied the motion. The court reversed and remanded, concluding that the district court erred by denying plaintiff's motion to remand where it was not facially apparent that her total damages meet the $50,000 jurisdictional threshold.

http://j.st/ZYZd

Monkton Ins. Servs., Ltd. v. Ritter

Court: U.S. 5th Circuit Court of Appeals

Docket: 13-50941 Opinion Date: September 26, 2014

Judge: Elrod

Areas of Law: Civil Procedure

Plaintiff filed a third-party complaint against Butterfield, a Cayman bank organized and regulated under Cayman law and located on the Island of Grand Cayman, alleging that Butterfield breached contracts with Geneva by failing to detect forged signatures on withdrawals from Geneva's bank account. On appeal, plaintiff challenged the dismissal of his claims against Butterfield for lack of personal jurisdiction. The court concluded that exercising specific jurisdiction over Butterfield would be improper because Butterfield has not purposefully availed itself of the benefits and protections of Texas law through minimum contacts related to the cause of action. Accordingly, the court affirmed the district court's grant of Butterfield's motion to dismiss for lack of personal jurisdiction. Further, the district court did not abuse its discretion in denying plaintiff's motion for jurisdictional discovery.

http://j.st/ZfVp

Cedar Lodge Plantation, L.L.C., et al. v. CSHV Fairway View I, L.L.C., et al.

Court: U.S. 5th Circuit Court of Appeals

Docket: 14-30735 Opinion Date: September 26, 2014

Judge: Jones

Areas of Law: Civil Procedure, Class Action

Cedar Lodge filed a proposed class action suit against Fairway Defendants in Louisiana state court and Fairway Defendants removed to federal court under the Class Action Fairness Act (CAFA), 28 U.S.C. 1332(d). Cedar Lodge subsequently amended the complaint to add STS, a Louisiana citizen, as defendant and moved to remand to state court under the local controversy exception to CAFA jurisdiction. The district court remanded. This court then granted the Fairway Defendants permission to appeal the remand order and now hold that the application of the local controversy exception depends on the pleadings at the time the class action is removed, not on an amended complaint filed after removal. Accordingly, the court reversed and remanded for further proceedings.

http://j.st/ZfVS

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