The Florida Law Weekly

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Aliens -- Detention -- Bond -- In consolidated appeals, unadmitted aliens who were detained following a traffic stop without the possibility of bond hearing pursuant to 8 U.S.C. § 1225(b)(2)(A) challenge their detention under Immigration and Nationality Act -- As a matter of first impression, the Eleventh Circuit panel held that Section 1225(b)(2)(A), which limits no-bond detention to “an alien who is an applicant for admission” and who is “seeking admission,” does not authorize the detention of unadmitted aliens who are simply present in the country -- Text and statutory structure of INA, long history of detention across immigration laws, and congressional purpose in passing Illegal Immigration Reform and Immigrant Responsibility Act yield conclusion that no-bond detention generally applies to arriving aliens seeking lawful entry to the country, and not to aliens who are simply present in the country -- An “applicant for admission” is not necessarily “seeking admission” -- Although petitioners were statutorily “applicants for admission,” neither petitioner was seeking lawful entry into the United States after inspection by an immigration officer or taking any cognizable step to obtain the rights and privileges of lawful entry -- Appellate court rejected government's argument that, even if it has misread the INA, petitioners are now “seeking admission” because they did not voluntarily self-deport after the initiation of removal proceedings
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Bankruptcy -- Automatic stay -- Relief from -- State court litigation -- In a case converted from Chapter 11 to Chapter 7, creditor, which had obtained a state court judgment against Chapter 7 debtor related to dispute over legal fees, filed a motion for retroactive relief from the automatic stay so as to allow continued litigation of claims that were initiated by debtor and continued litigation of state court appellate proceedings -- Chapter 11 debtor-in-possession's right to assert litigation claims on behalf of bankruptcy estate terminated when the case was converted to Chapter 7 case and a trustee was appointed -- Bankruptcy court deferred to trustee's exercise of business judgment in determining whether to abandon debtor's civil rights claims asserted in federal court which debtor lacked the authority to assert, since trustee, which owns the claims, did not object to abandonment -- State court appeal -- Relief from automatic stay was warranted so as to permit state court appeal of judgment relating to dispute over legal fees to proceed as to debtor individually -- Stay relief was warranted where bankruptcy court had already determined that debt was nondischargeable, automatic stay would terminate as matter of law once debtor completed required financial management course and filed certificate of completion, and delaying stay relief would only reward debtor's dilatory conduct in not completing the course and filing a certificate -- State court contempt proceedings -- Debtor failed to make even prima facie showing that state contempt proceedings against him were civil and therefore subject to the automatic stay where debtor did not provide bankruptcy court with a sufficient record from which to determine whether the state proceeding was civil or criminal and did not directly refute assistant state attorney's argument that debtor's alleged offense was a completed act of disobedience that could not be purged and carried a jail sentence as a sanction -- Claims -- Allowance -- Objection by party in interest -- Debtor was a party in interest with standing to object to creditor's proof of claim relating to state court judgment -- Debtor had a direct pecuniary interest in the outcome of claim objections because bankruptcy court had already determined the debt was nondischargeable -- Res judicata -- Under Florida law, res judicata barred objection to creditor's proof of claim where state court judgment was on the merits, it was rendered in a former suit between the same parties and upon the same cause of action, and it was issued by a court of competent jurisdiction -- Under Florida law, collateral estoppel, or issue preclusion, barred debtor from contesting validity of creditor's proof of claim where identical issue was presented in state court, that is, debtor's liability for disputed attorney fees and costs, issue determined was a critical and necessary part of state court's determination, there was fair and full opportunity to litigate the issue, parties were identical, and issue was actually litigated -- Rooker-Feldman doctrine did not bar debtor's objection to proof of claim, where state court final judgment was still subject to appeal as of petition date -- Res judicata barred debtor's objection to creditor's proof of claim as to state court sanctions judgments where claims were completely liquidated claims based on final state court judgments, judgments were issued by court of competent jurisdiction and were final and appealable, both creditor and debtor were involved in state court action, and debtor's objections were raised, or could have been raised, in state court proceeding
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Civil rights -- Discovery -- Subpoena -- Religious nonprofit organization that provides counseling and resources to pregnant women sued under 42 U.S.C. §1983 challenging a subpoena issued by the state Attorney General demanding documents and donor information -- Petitioner established a present injury to organization's First Amendment associational rights sufficient to confer Article III standing
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Consumer law -- Motor vehicles -- Odometer tampering -- Federal Odometer Act -- Complaint -- Impleader -- In odometer tampering case brought by consumer, seller of vehicle moved for leave to file third-party complaint seeking to implead individual and entities as parties purportedly responsible for odometer tampering -- Motion to implead a third party which depends on substantive right of contribution is without merit because neither Federal Odometer Act nor federal common law provides a right of contribution -- Further, beyond the contribution question, motion fails Rule 14's requirement that proposed third-party defendant be derivatively liable to the defendant for plaintiff's claim against defendant -- Factual narrative that third parties orchestrated the transaction and performed the odometer work, and that defendant merely completed the paperwork, is not a contribution theory but an assertion that defendant is not liable at all, which is a defense, not a basis for impleader
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Contracts -- Subscription agreement -- Internet-based platform -- Arbitration -- Notice -- Subscriber to internet-based platform was not on inquiry notice of terms of service or arbitration agreement found within a browsewrap agreement on platform's subscription page where hyperlink to arbitration agreement was not conspicuous enough to put a reasonably prudent person on inquiry notice -- Internet site owner's hyperlink was not conspicuous where terms-of-service hyperlink was located beneath two large, red action buttons that were prominently featured at the center of the page which user had to click, hyperlink was printed in small font and dim-gray color on bottom half of the page which user did not have to click, hyperlink was not highlighted in different color and was not in all capital letters, and terms of service stated nothing about consenting to binding arbitration by creating an account
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Copyrights -- Infringement -- Photographs -- Exclusive licensee of certain images created by world-famous photographer sued defendants for copyright infringement -- Civil procedure -- Complaint -- Amendment -- Addition of party -- District court did not abuse its discretion in denying, as untimely, plaintiff's motion for leave to amend complaint to add photographer as co-plaintiff -- Even if motion was functionally treated as motion to intervene, statutory provision permitting intervention of any person having or claiming an interest in the copyright was inapplicable where photographer never moved to intervene -- Standing -- Copyright ownership -- Defendants were permitted to challenge whether plaintiff owned the exclusive right that defendants allegedly infringed, even though photographer as copyright holder did not dispute plaintiff's standing, where defendants asserted that licensee lacked an ownership interest because photographer did not actually transfer one -- District court erred in granting summary judgment in favor of alleged infringers based on conclusion that, because photographer retained certain rights, plaintiff lacked statutory standing to sue -- Photographer's retention of certain rights did not automatically doom plaintiff's asserted status as an exclusive licensee -- Bundle of exclusive rights that comes with a copyright is divisible, meaning that the photographer and licensee could legally retain different exclusive rights to the same copyrighted photographs and sue for infringement of their particular right -- Existence of third party's earlier-granted nonexclusive license to the photographs did not affect whether licensee received an exclusive license -- Remand for further proceedings
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Criminal law -- Cocaine possession and importation -- Conspiracy -- Counsel -- Right to counsel -- Purposeful intrusion -- Defendant cannot succeed on Sixth Amendment right-to-counsel claim contending that government intruded on defendant's attorney-client relationship by engaging coconspirator as a cooperating witness when government knew that coconspirator was paying for defendant's counsel -- There was no Sixth Amendment violation without tainted evidence, communication of defense strategy to prosecution, and purposeful intrusion by government -- Defendant cannot succeed on claim that government interfered with his right to counsel by using coconspirator to collect incriminating information from defendant without his attorney present where defendant failed to show that coconspirator deliberately elicited incriminating statements from him while acting as government agent -- Evidence -- Cell phone contents -- As a matter of first impression in Eleventh Circuit, expert testimony is not required to admit content extracted from a cellphone using plug-and-play technology called Cellebrite, which required no special skill or knowledge to operate -- District court did not abuse its discretion in allowing texts, photos, and call records extracted from defendant's cell phone using Cellebrite to be admitted by lay testimony where agent's testimony about extracting the content of defendant's phone using the extraction technology was enough to authenticate the extracted data and no specialized knowledge or skill was needed to operate extraction tool or interpret its output -- Discovery -- Subpoenas -- Opinion testimony from lawyer -- District court did not abuse its discretion in quashing subpoena for testimony from former Assistant United States Attorney about coconspirator's character for truthfulness where defendant failed to show that decision by Department of Justice to bar the testimony was arbitrary and capricious -- Department did not act arbitrarily or capriciously in denying request for testimony of AUSA where testimony was, at a minimum, very unlikely to have been admissible under federal evidence rules requiring that witness have personal knowledge and that testimony be based on witness's own perception -- Jury instructions -- Deliberate ignorance -- District court did not err in giving deliberate ignorance instruction where evidence presented at trial supported both actual knowledge and deliberate ignorance instructions, deliberate ignorance instruction did not mislead the jury, and error, if any, was harmless where record evidence was sufficient to convict under either actual knowledge or deliberate indifference theory -- Sentencing -- Due process -- Fair trial -- Inconsistent theories -- Government did not violate defendant's due process right by presenting factually inconsistent theories at sentencing hearing of defendant and his co-conspirator when government, in a plea agreement, agreed that co-conspirator was responsible for five to fifteen kilograms of cocaine and then argued that defendant was responsible for at least ten times as much cocaine as his co-conspirator -- Rather than advance factually inconsistent theories, government just gave a better deal to a cooperating witness -- Reasonableness of sentence -- Defendant failed to raise a procedural reasonableness challenge, and use of the words “procedurally unreasonable” was not enough for a cognizable sentencing challenge -- Defendant's sentence, which fell eighty-four months below Guidelines range, was substantively reasonable -- Further, defendant could not use his co-conspirator as a comparator in arguing about a sentence disparity, where coconspirator cooperated and pleaded guilty which defendant did not do -- Pursuant to Eleventh Circuit law, individuals who cooperate are not similarly situated to those who provide no help to government and go to trial
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Elections -- Congressional redistricting -- Racial gerrymandering
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Elections -- Congressional redistricting -- Racial gerrymandering -- Because the Voting Rights Act of 1965 did not require Louisiana to create an additional majority-minority district, no compelling interest justified the state's use of race in creating a new congressional map, and that map is an unconstitutional racial gerrymander -- Compliance with Section 2 of Voting Rights Act, as properly construed, could provide a compelling reason for race-based districting -- In light of significant historical developments, the Court updated the Gingles framework for evaluating §2 claims and realigned it with the text of §2 and constitutional principles -- Under updated Gingles test, Section 2 of Voting Rights Act does not provide a compelling interest to justify state's creation of new congressional map because the State did not need to create a new majority-minority district to comply with the Act
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Elections -- Voter registration -- Georgia voters sued secretary of state alleging state was violating voter registration list maintenance requirements under National Voter Registration Act and state law -- Standing -- Injury in fact -- District court did not err in dismissing plaintiffs' suit for lack of Article III standing because their injuries were speculative and not particularized -- Voters failed to allege a particularized injury where their claimed injury of an undermined confidence in state's elections based on secretary's alleged failure to properly maintain voter rolls equally affects all Georgia voters -- To state a particularized injury-in-fact for purposes of standing doctrine, the injury must be one that does not equally affect all members of public -- Whether plaintiffs personally discovered the state's purported failure to obey federal law through their own initiative is not dispositive of particularized injury, and does not grant standing to sue
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Torts -- Automobile accident -- Rear end collision -- Negligence -- Respondeat superior -- Plaintiffs brought negligence action against defendant on theory of respondeat superior seeking damages for injuries sustained by driver and passenger when a vehicle driven by defendant's former employee rear-ended plaintiffs' vehicle -- Damages -- Past medical expenses -- Reasonableness -- Defendant not entitled to judgment as matter of law as to reasonableness of plaintiffs' past medical expenses -- Evidence relating to past medical expenses was sufficient to establish that plaintiffs actually incurred these expenses, that incurring these medical expenses was necessary, and that the medical expenses claimed were reasonably related to injuries sustained in subject accident -- Plaintiffs were not required to present evidence to justify amounts of their medical bills; rather, Florida law required plaintiffs to present evidence sufficient to tie the incurrence of the expenses to the subject accident, and plaintiffs carried this burden -- New trial -- Evidence -- Expert testimony -- Defendant not entitled to new trial based on district court's exclusion of testimony of defendant's medical billing and coding expert where witness was not qualified to testify as to reasonableness of amounts charged for medical services and witness's opinion about customary amounts charged for procedures billed by plaintiffs' treating physicians would not be helpful to jury -- District court did not abuse its discretion by excluding testimony of defendant's expert opining that certain dollar amounts were objectively reasonable amounts to charge for certain treatments because testimony was likely to confuse the issues, mislead the jury, and cause unnecessary protraction of proceeding -- Medical bills -- Defendant not entitled to new trial based on district court's admission of plaintiffs' medical bills as evidence of past medical expenses -- Plaintiffs' testimony clearly relating the treatment to the accident and testimony of plaintiffs' medical providers tying plaintiffs' actual treatment to injuries and pain resulting from accident provided sufficient support for admission of medical bills into evidence -- Closing argument -- Defendant not entitled to new trial based on comments by plaintiffs' counsel during rebuttal closing argument -- Defendant failed to object to counsel's comments and failed to establish that court committed plain error by failing to address counsel's arguments -- District court did not plainly err by failing to object sua sponte to comments regarding defendant's failure to take responsibility and counsel's allegedly improper “conscience of the community” argument -- Remittitur -- Defendant is not entitled to remittitur or reduction of jury's award of damages -- Jury's award of past medical expenses for both plaintiffs was supported by evidence, and opinion of defendant's expert witness as to reasonable value of plaintiffs' past medical expenses was not relevant
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Torts -- Defamation -- Invasion of privacy -- Republican nominee in special election to fill an open seat for United States Senator in Alabama sued Democratic Political Action Committee for defamation and false-light invasion of privacy under Alabama law, alleging two statements in PAC's campaign ad when read together created false defamatory implication that plaintiff had solicited a 14-year-old girl for sex -- Actual malice -- Legal framework -- Relevant legal framework for actual malice in a defamation by implication case requires clear and convincing evidence of both actual falsity and subjective intent to communicate the defamatory implication -- On the merits, district court erred in denying defendant's renewed motion for judgment as matter of law after jury found defendant liable for defamation and false-light invasion of privacy and awarded compensatory damages -- Plaintiff, as a public figure, failed to present clear and convincing evidence that defendant intended or recklessly disregarded the ad's alleged defamatory implication and, therefore, insufficient evidence exists to support a finding of the necessary intent to defame for purposes of actual malice in a defamation-by-implication case -- None of facts relied on by plaintiff give rise to necessary intent to defame for actual malice, and no other evidence in record shows that defendant intended or recklessly disregarded the ad's implication that plaintiff solicited sex from 14-year-old girl
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