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Federal New Releases

New Releases
from Federal Courts

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Insurance -- Liability -- Coverage -- Bodily injury and property damage resulting from accident -- Duty to defend -- Declaratory judgment -- Attorney's fees -- Adoption of magistrate judge's report and recommendation that court grant insurer's motion to dismiss case as moot and insured's motion for order determining entitlement to award of costs and attorney's fees, following parties' amicable resolution of insured's claim for attorney's fees -- Where insurer filed suit seeking a declaratory judgment that it was not required to defend or indemnify insured in underlying wrongful death action, insurer provided a qualified defense to insured in underlying state court tort lawsuit under a reservation of rights, insured filed a counterclaim against insurer for breach of contract for failing to provide an unqualified defense to tort complaint, and insurer paid sufficient indemnity to obtain a release of all claims against insured, settling underlying matter, declaratory judgment and counterclaim are moot -- Under Florida law, insurer's settlement of underlying tort suit in state court and dismissal of related declaratory judgment action as moot was functional equivalent of confession of judgment entitling insured to its attorney's fees -- Court rejected insurer's argument that federal court could not retain jurisdiction to adjudicate claim for attorney's fees once court lost jurisdiction due to mootness -- Even when a court is divested of its subject matter jurisdiction over substantive claim by virtue of intervening dismissal or mootness, a federal court may consider collateral issues after the action is no longer pending
VIEW OPINION

Bankruptcy -- Chapter 15 -- Discovery -- Foreign proceedings -- Following entry of order granting recognition of insolvency proceedings pending against debtor in Brazil as “foreign main proceeding,” trustee of debtor obtained court authority to issue subpoenas with gag provisions as part of his investigation into suspected misappropriated assets of debtor -- After partial relief from court's seal and gag order was granted, two related debtor entities that were targets of discovery requested in subpoenas, and several third-party non-debtor subpoena targets, filed discovery motions seeking to quash or limit subpoenas -- Debtor entities also filed motion to dismiss Chapter 15 proceedings or, in the alternative, to terminate relief granted to trustee under recognition order -- Although related debtor entities were brought into debtor's Brazilian insolvency proceedings under procedures different from those available under the Bankruptcy Code, these differences did not render the Brazilian orders extending debtor's bankruptcy estate to non-debtor related entities “manifestly contrary” to United States public policy or justify terminating trustee's right to conduct discovery under standards in 11 U.S.C. §1522, and so did not warrant dismissal of Chapter 15 case -- Foreign orders at issue did not violate U.S. laws, and, though the Brazilian court orders were entered ex parte, due process was afforded given that debtor entities were allowed to present both argument and evidence on appeal -- In balancing the interests of creditors and the debtor entities, it was appropriate to recognize the Brazilian court decisions in the insolvency proceedings which, after affording both debtor entities due process, found a common economic group between them and debtor's estate, ultimately resulting in extension of estate over them -- Scope of subpoenas -- Where order granting recognition of insolvency proceedings authorized trustee, as part of his investigation into suspected misappropriated assets of debtor, to examine witnesses, take evidence or seek the delivery of information concerning the assets, affairs, rights and obligations of debtor and certain related entities, broad discovery was appropriate as to the related entities because they were debtors, having been brought into debtor's insolvency proceedings by the Brazilian court -- Trustee would not be permitted to obtain and review financial documents relating to third-party non-debtors that did not relate to transactions with debtor entities, except, for those targets in which a debtor entity owned a majority stock interest, broad financial discovery would be permitted -- Motion to dismiss denied
VIEW OPINION

Bankruptcy -- Confirmation -- Chapter 13 plan -- Objection -- Unsecured creditor objected to confirmation of Chapter 13 plan, arguing that plan does not provide for payment of debtor's projected disposable income, because it does not increase payments to unsecured creditors after debtor pays off balance of his car loan in month 10 of plan -- Argument fails, because, even if forward-looking approach to projected disposable income could require debtor to increase his payments to unsecured creditors once his car loan was paid in full, the increase in income would still leave debtor with negative disposable income -- Objection overruled
VIEW OPINION

Bankruptcy -- Liens -- Avoidance -- Mortgages -- Foreclosure -- Limitation of actions -- When a lender files a foreclosure case that accelerates the borrower's obligations and that case is dismissed without prejudice, the note and mortgage may still be enforced based on a default in payments occurring after date of the defaults alleged in original complaint, even when later foreclosure action is filed more than five years after loan was first accelerated -- Under Florida law, subsequent defaults of note and mortgage trigger new causes of action for purposes of five-year statute of limitations for filing an action to foreclose a mortgage, notwithstanding the acceleration of note and mortgage in filing of a foreclosure proceeding -- Further, attempt to extinguish first mortgage lien fails, even if statute of limitations has expired, because Florida's applicable statute of repose governs duration of mortgage lien, and preserves the lien until five years after maturity date in mortgage documents -- Even if holder of first mortgage were barred from enforcing note and mortgage against debtor, lien on property remains, and lien would become enforceable should debtor attempt to sell or refinance the property before statute of repose expires
VIEW OPINION

Administrative law -- Department of Labor -- Federal Water Pollution Control Act -- Petition for review of decision of DOL's Administrative Review Board arising from complaint filed by former county employees asserting that county had fired them in retaliation for whistleblower activity protected under FWPCA -- Appeals -- Factual findings -- Standard of review -- Substantial evidence scrutiny applies to an appeal from an Administrative Law Judge's factual findings and conclusions in a proceeding under FWPCA -- Board incorrectly applied de novo rather than substantial evidence scrutiny to ALJ's factual findings -- Reviewing for substantial evidence would not have changed result because Board reversed the ALJ on matters of law, not fact, and therefore remand to agency is unnecessary and petition for review would be denied -- Record shows ample support for ALJ's and Board's factual finding and conclusion that county employees engaged in protected activity by voicing their concerns and complaints, even though their suspicions turned out to be unfounded -- FWPCA protects activity undertaken with a reasonable, good-faith basis, even if it is incorrect, and record shows that county employees had good-faith basis for voicing their concerns -- Board correctly applied de novo review in rejecting ALJ's legal conclusion that record had to show that protected activity was the motivating factor in county's decision to terminate employees, and in reversing the ALJ's legal analysis because county had not met its burden to separate the retaliatory from nonretaliatory motives for deciding to fire the employees in order to show its decision would have been the same absent the employees' protected activity
VIEW OPINION

Aliens -- Removal -- Conviction of aggravated felony -- Alien was ineligible for cancellation of removal because his burglary offense, for which he was sentenced to a term of imprisonment of at least one year, qualified as an aggravated felony -- Board of Immigration Appeals reasonably concluded that alien's sentence to one year of house arrest, as a punitive measure that involves a serious restriction of liberty, constituted confinement that qualifies as a term of imprisonment of at least one year under the Immigration and Nationality Act
VIEW OPINION

Child custody -- International Child Abduction -- Return of child to place of habitual residence -- Denial -- Grave risk of harm to child -- Serious threats of violence directed against a parent can constitute grave risk of harm to child under Hague Convention on Civil Aspects of International Child Abduction -- District court correctly found that clear and convincing evidence supported determination that child would face grave risk of harm if returned to country of habitual residence
VIEW OPINION

Criminal law -- Habeas corpus -- Limitation of actions -- Tolling -- A petition for a belated direct appeal, under Florida Rule of Appellate Procedure 9.141(c), does not qualify as an application for State collateral review that, while pending, tolls the period of limitation for a Florida prisoner's federal petition for writ of habeas corpus -- Because Florida prisoner's petition for belated direct appeal does not qualify as application for state collateral review, his federal petition for writ of habeas corpus was properly dismissed as untimely
VIEW OPINION

Labor relations -- Unfair labor practices -- Refusal to negotiate with union -- Employees -- Freelance stagehands referred to producers of concerts and other live events are independent contractors, not employees of referral service -- Extent of control referral service has over stagehands, failure to withhold taxes from stagehands' paychecks, existence of independent contractor agreements signed by stagehands, nature of referral service's business, absence of employee benefits, provision of tools by stagehands, and provision of insurance by clients all support conclusion that stagehands are independent contractors -- National Labor Relations Board misapplied the law of agency when it determined that stagehands were employees of referral service -- Referral service does not have right to exercise control over stagehands where factual findings fail to establish that service had right to control manner, means, and details of work, and stagehands have entrepreneurial interests -- Failure to withhold taxes is strong evidence that stagehands are independent contractors -- Board erred in its application of law by failing to give strong weight to factual finding that referral service does not withhold taxes, and by concluding that this fact was not determinative -- Independent contractor agreements are evidence of intent to form an independent contractor relationship -- Board erred by discounting significance of independent contractor agreement signed by each stagehand only because stagehands were required to sign one -- Significance of independent contractor agreements is not “undercut” by fact that all of stagehands signed one -- Board erroneously considered negotiations over pay -- Under common law of agency, Board should not have weighed the factual finding that stagehands could not negotiate their pay -- Board misapplied the law when it considered whether stagehands perform work essential to operations of referral service -- Board confused work that is essential to referral service's business with work that is part of business of referral service
VIEW OPINION

Stored Communications Act -- Damages -- Jury verdict awarding zero damages after finding that defendant had violated SCA by viewing former husband's email account and corporation's web mail account in an effort to prove to divorce court that former husband was lying about and hiding assets -- Appellate court does not have authority to award actual or punitive damages when jury has rejected the entry of such an award -- Neither district court nor appellate court has authority to award statutory damages in the absence of actual damages -- Attorney's fees -- District court did not abuse its discretion in denying plaintiff's request for attorney's fees -- Accessing facility through which electronic communication service was provided and thereby obtaining access to electronic communication while it was in “electronic storage” -- Appellate court need not decide under circumstances of instant case whether emails which had already been opened by recipient at time defendant read them were in electronic storage and therefore entitled to SCA protection where it was undisputed that defendant also accessed emails which had not yet been opened by recipient and that these emails were in electronic storage and protected by SCA -- Challenges to jury instructions relating to definition of “electronic storage” and damages under SCA were not preserved for appeal where defendant failed to object to instructions before jury deliberated -- Defendant failed to show that error was so prejudicial as to have affected outcome of proceedings, as required by plain-error analysis -- No reversible error demonstrated with respect to evidentiary rulings challenged on appeal -- Extensive discussion of SCA and relationship to Wiretap Act
VIEW OPINION

Taxation -- Federal income tax -- Deductions -- Conservation easement donated to county -- Valuation -- Methodology -- Fair market value of perpetual conservation restriction is equal to difference between fair market value of property it encumbers before granting the restriction and fair market value of encumbered property after granting restriction -- Before value must take into account parcel's highest and best use, and comparable sales method for valuing land bears on ultimate value for parcel -- Appeals -- There is no basis in record for taxpayer's argument that IRS is either judicially or equitably estopped from appealing tax court's highest-and-best-use determination either by its purported assertion of inconsistent claims across different legal proceedings or its acceptance of benefits from taxpayer -- Tax court did not clearly err in adopting residential development at moderate density as highest and best use, as proposed by taxpayer, despite argument by IRS that local ordinance indicated that approval of MDR-level development on parcel was unlikely -- Although tax court erred by omitting from its highest-and-best-use analysis a consideration of whether proposed use was “needed or likely to be needed in the reasonably near future,” the error was harmless because applicable market clearly demanded MDR-level development -- Tax court was not required to discount its before valuation of parcel to account for nondevelopment risk -- Tax court erred when, without giving any indication that it considered comparable-sales method inappropriate, it departed from this method in the course of reducing appraiser's valuation -- Even if unexplained departure from comparable-sales method was proper, tax court erred by relying on evidence outside record to value parcel in selecting an appreciation rate -- Remand for further proceedings
VIEW OPINION

Civil rights -- Cruel and unusual punishment -- Due process -- Death penalty -- Stay of execution -- Plaintiff is not entitled to emergency stay of execution pending resolution of his petition for full court en banc review of his appeal from district court's order dismissing his civil rights complaint challenging constitutionality of Georgia's method of execution and the state's Lethal Injection Secrecy Act because he has not shown a substantial likelihood of success on merits of due process claim alleging that state's secrecy law deprives him of information necessary to challenge the state's lethal injection protocol, and because equities counsel against imposing the stay
VIEW OPINION

Civil rights -- Due process -- Death penalty -- Lethal injection protocol -- Right of access to information state keeps secret -- Georgia Lethal Injection Secrecy Act -- Stay of execution
VIEW OPINION

Firearms -- Restrictions -- Categorical ban on firearms owned for lawful purposes -- Municipal ordinances
VIEW OPINION

Criminal law -- Witnesses -- Confrontation -- Admission of out-of-court statements into evidence
VIEW OPINION

Freedom of Information Act -- Exemptions -- Trade secrets and commercial or financial information obtained from a person and privileged or confidential
VIEW OPINION

Criminal law -- Habeas corpus -- Counsel -- Ineffectiveness -- Appellate counsel rendered ineffective assistance in failing to argue that there was insufficient evidence to support defendant's kidnapping convictions in light of Georgia Supreme Court's decision in Garza v. State, which modified the test for asportation
VIEW OPINION

Criminal law -- Habeas corpus -- Murder -- Death penalty -- Counsel -- Ineffectiveness -- Inmate moved to recall Eleventh Circuit's 2014 mandate denying his petition for habeas corpus relief and to reconsider his original habeas petition after en banc decision by Court in a different, currently pending case, and also moved to stay his execution pending resolution of pending case -- Both motions argued, in essence, that decision in pending case is “likely [ ] to reverse the case law governing federal habeas review” and under the “look through” approach that defendant anticipates will be adopted, the court would likely have found his ineffective-assistance-of-counsel claim in his original habeas petition meritorious -- Circuit Court is foreclosed by Antiterrorism and Effective Death Penalty Act and Supreme Court precedent from recalling the mandate denying habeas relief -- Motion to recall must be denied because it is effectively a second or successive habeas corpus petition that does not raise any new claims not presented or fully adjudicated in first habeas application, and because it does not satisfy any of statutory exceptions to dismissal, as his claim does not rely on any new rule of constitutional law or any new evidence that was not presented and considered in the original habeas petition -- Even if court were not foreclosed from examined merits of defendant's motion, habeas relief would still be denied because, regardless of how pending case is decided, defendant's claim is without merit -- Even if court could recall the mandate, court would not do so because no injustice, let alone a miscarriage of justice as required by Supreme Court precedent, would result from allowing the prior decision to rest undisturbed -- Further, disturbing finality of prior decision would be inappropriate in light of state's interest in finality of its criminal judgments -- Motion to stay execution pending reevaluation of original habeas petition in light of forthcoming decision in pending case would be denied, because, regardless of how pending case is decided, defendant has not shown a substantial likelihood that he will prevail on merits of his underlying ineffective-assistance-of-counsel claim
VIEW OPINION

Criminal law -- Habeas corpus -- Second or successive petitions -- Section 2254 habeas corpus petition challenging a judgment generated by a state court order deleting chemical castration from defendant's original sentence is not second or successive within meaning of Section 2244(b) because state trial court's grant of defendant's post conviction motion and its vacatur of punishment of chemical castration from the original sentence constituted a resentencing that substantively changed defendant's original sentence, and yielded a new judgement, even though defendant's total custodial term, life in prison, remained the same, and even though current habeas petition challenged only the underlying convictions -- Where the initial imposition of punishment of chemical castration was erroneous under Florida law, and subsequent removal of that punishment substantively altered the punitive terms of defendant's custody, such that the original judgment, standing alone, no longer accounted for the authorization to detain defendant, there was a new judgment -- Where a state court corrects a legal error in an initial sentence, and imposes a new sentence that is substantively different than the one originally imposed, there is a new judgment under Eleventh Circuit and Supreme Court case law
VIEW OPINION

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