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Federal New Releases

New Releases
from Federal Courts

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Criminal law -- Sentencing -- Federal guidelines -- Offense level -- Increase -- District court erred by applying 16-level enhancement for reentering the United States after having been deported for a “crime of violence,” based on conclusion that defendant's Florida conviction for second degree burglary of a dwelling counted as a crime of violence -- District court erred in applying modified categorical approach to find that defendant's conviction counted as a crime of violence under Section 2L1.2, because the Florida statute defining the crime of second degree burglary of a dwelling is indivisible, and non-generic because the locational element is broader than the generic definition of a dwelling -- Defendant's conviction for second degree burglary of a dwelling is not categorically a crime of violence under Section 2L1.2, because Florida's inclusion of curtilage in its definition of dwelling makes its burglary of a dwelling offense non-generic -- On remand district court must calculate defendant's advisory guidelines range using same guidelines that were in effect at his previous sentencing
VIEW OPINION

Public utilities -- Electric -- Rural electrification -- Cooperatives -- Distribution of excess revenues -- Putative class action against rural electric cooperative alleging defendant wrongfully refused to pay out “excess revenues” in cash to its members -- Jurisdiction -- Removal -- Cooperative properly removed case under federal officer removal statute, Section 1442(a)(1), and district court had subject matter jurisdiction to hear case -- Cooperative could effect removal under federal removal statute where cooperative is “acting under” a federal officer for purpose of statute; there is a causal connection between actions for which cooperative is being sued and cooperative's conduct in performance of its duties and loan agreement with Rural Utilities Services; and cooperative has raised a colorable federal defense by raising a plausible claim of conflict preemption -- District court properly granted motion to dismiss the complaint, holding that cooperative's distribution of excess revenues to its members by making credits to their capital accounts, as opposed to making cash payments, complied with requirements of Alabama state law and cooperative's bylaws -- Alabama statute states plainly that manner of distributions, whether by patronage refund or rate reduction, shall be done “as, and in the manner, provided in the bylaws,” and defendant's bylaws use capital account credits as the manner for distributing patronage refunds -- Section 37-6-20 of Alabama Code does not require defendant to distribute patronage funds only in a cash payment, and therefore complaint fails to state a viable claim
VIEW OPINION

Bankruptcy -- Dismissal -- Chapter 7 -- Cause -- Dismissal of Chapter 7 case for cause pursuant to 11 U.S.C. § 707(a) based on debtor filing the case in bad faith is not warranted, where there is no evidence that debtor has transferred assets or paid debts of insiders to the detriment of moving creditor, there is no indication that debtor has failed to make candid and full disclosure in bankruptcy case, debtor has insufficient unencumbered assets and income to meet his obligations, and dismissal of case would only serve to favor moving creditor over other creditors -- Under Eleventh Circuit's standard for determining bad faith, a bankruptcy filing will withstand an allegation of bad faith where a debtor has not, by deliberate act or omission, misused or abused the provisions, purpose, or spirit of Bankruptcy Code
VIEW OPINION

Bankruptcy -- Reopening of case -- Discharge -- Revocation -- Judicial estoppel -- Bankruptcy court would decline to reopen Chapter 7 bankruptcy case and grant secured creditor's request that court revoke debtor's discharge or compel her to withdraw her defense to creditor's state court foreclosure action for perpetrating a fraud on court when debtor actively defended secured creditor's foreclosure action nearly three years after indicating an intent to surrender her home to secured creditor -- Given intervening lapse of time between time debtor indicated an intent to surrender her home and first time she opposed secured creditor's foreclosure action, court cannot conclude that debtor never intended to surrender her home and intended to perpetrate a fraud on court or make a mockery of bankruptcy system -- Decision whether judicial estoppel precludes debtor from defending state court foreclosure action based on her contradictory positions should be decided in first instance by state court, which is in best position to determine whether debtor is making a mockery of foreclosure action by taking a position inconsistent with one she took in bankruptcy case
VIEW OPINION

Civil rights -- Privacy -- Driver's Privacy Protection Act -- Limitation of actions -- Consolidated appeal from the dismissals on statute of limitations grounds plaintiffs' lawsuits against county sheriff's office, municipalities, and related individuals brought under Driver's Privacy Protection Act and 42 U.S.C. § 1983 alleging defendants accessed plaintiffs' private information through Driver and Vehicle Information Database without their knowledge or consent -- Plaintiffs' direct DPPA claims and their Section 1983 claims based on DPPA are time-barred where plaintiffs failed to present any theory that would have entitled their claims to be treated as filed within limitations period -- Statute of limitations began to run on stand-alone DPPA claims when the alleged DPPA violations occurred -- A Section 1983 claim premised entirely upon a breach of DPPA accrues at time the alleged violations occur, rather than at the time the violations are or should have been discovered -- When a Section 1983 claim is based on the DPPA, a federal statute enacted after December 1, 1990, which does not provide its own limitations period, the limitations period set forth in 28 U.S.C. § 1658 governs, not the forum state personal injury statute -- Equitable tolling -- Plaintiffs cannot reap benefit of equitable tolling by concealment where they do not allege affirmative concealment and the alleged DAVID database accesses in violation of DPPA are not self-concealing -- Illegal act of accessing database without legitimate purpose does not by necessity involve a deception, misrepresentation, trick, or contrivance as required to establish a self-concealing wrong -- Relation back -- Complaints cannot relate back to date of first complaint where both district court's refusal to accept the amended complaints and its decision to deny motions to reopen the cases were entirely appropriate and operated as a second dismissal without prejudice
VIEW OPINION

Insurance -- Liability -- Indemnification -- Dispute between insured and its liability insurer arising from insurer's refusal to reimburse insured for legal bills incurred in defending copyright infringement lawsuit on its own in district court without obtaining insurer's consent to generate those expenses, requesting that insurer provide a defense, or even notifying insurer of claim filed against it -- Insured is not entitled to reimbursement of legal expenses that it incurred prior to tendering the claim to insurer, even if insurer failed to notify insured of its refusal to pay the pre-tender legal expenses within the 30-day statutory deadline under Florida law for an insurer to notify its insured of its defense to coverage -- Florida's Claims Administration Statute, which requires that an insurer who seeks to deny coverage based on a particular coverage defense notify the insured of its reliance on that defense within thirty days of becoming aware of its existence, does not apply to prevent insurer from enforcing a provision of insured's liability insurance policy that excludes insured from obtaining reimbursement for attorney's fees it chose to incur prior to requesting insurer to defend and indemnify it in its pending litigation -- Terms of insurance policy expressly excluded from coverage legal expenses that insured chose to incur on its own without first obtaining insurer's consent; accordingly, insurer's subsequent refusal to reimburse insured for prior legal expenses did not constitute a coverage defense that required insurer to comply with provisions of CAS
VIEW OPINION

Bankruptcy -- Appeals -- Jurisdiction -- Appellate court lacks jurisdiction to consider merits of appeal from bankruptcy order dismissing state court action alleging tort claims arising from alleged scheme to improperly influence bankruptcy judge and secure favorable rulings for Chapter 7 trustee where bankruptcy court had only “related to” non-core jurisdiction over tort claims asserted in state court action and, as a result, did not have statutory authority, absent consent, to enter the final order of dismissal that it certified for direct appeal -- Although tort action stemmed from a bankruptcy in that the alleged corruption or improper conduct of a judge took place during bankruptcy proceeding, state-law tort claims, which were not created by Bankruptcy Code and are not pursuant to federal bankruptcy law, were not core proceedings -- Bankruptcy court's dismissal order must be construed as a report with proposed conclusions of law, a document which, in and of itself, carries no adjudicative authority -- 28 U.S.C. § 158(d)(2)(A), under which appeal was certified, does not give appellate jurisdiction to consider on a direct certified appeal the merits of an unauthorized bankruptcy court order entered without consent in a related non-core proceeding unless it has first been reviewed by the district court as a report with proposed findings of fact and/or conclusions of law under Section 157(c)(1) -- Statute only allows appellate court to consider certified direct appeals from “judgments, orders, or decrees,” rulings which have adjudicative consequences, of the bankruptcy court -- Because bankruptcy court should have submitted a report with proposed conclusions of law recommending dismissal of complaint to district court for de novo review in first instance, unauthorized direct appeal to be transferred to district court for review as a report with proposed conclusions of law
VIEW OPINION

Bankruptcy -- Claims -- Unsecured -- Child support overpayment -- Setoff -- Proceeds from sale of property -- Appeals -- Jurisdiction -- Appeal from bankruptcy court order should be dismissed because two issues raised by appellant in his initial brief are not properly before district court -- Issue regarding classification of child support overpayment as general unsecured claim is not properly before district court on appeal, because appellant failed to preserve the issue by objecting to bankruptcy court's determination that overpayment constituted a general unsecured claim -- Because appellant has not demonstrated that any of five circumstances in which an issue can be raised for first time on appeal apply, appellant is precluded from raising overpayment-classification issue for first time on appeal -- Overpayment-classification issue also fails elements of Bracewell test for determining when an issue is inferable from Rule 8009 Statement of Issues, where issue was not raised in bankruptcy court, issue required district court to make “independent factual findings”; and addressing issue on appeal would present an element of surprise to debtor as issue was not raised in appellant's prior motion to reconsider -- Judicial principles grounded in doctrines of res judicata, collateral estoppel, and law of case bar appellant's assertion that bankruptcy court improperly offset his child support overpayment claim with proceeds from sale of property which was part of parties' community estate where appellant initially objected to inclusion of property in bankruptcy estate and subsequently consented to its inclusion at several stages of bankruptcy court proceedings -- Appellant's second briefed issue in not inferable from question stated in his Designation of Record and Issues on Appeal, because even if court were to conclude that appellant successfully raised the offset issue before bankruptcy court, satisfying first prong of Bracewell test, appellant failed to satisfy the second and third prongs because court cannot make any independent factual findings and finding that issue is properly before district court would present surprise to debtor as the other litigant
VIEW OPINION

Civil rights -- Search and seizure -- Excessive force -- Qualified immunity -- Where officer arrived late at ongoing police action and witnessed shots being fired by one of several individuals in a house surrounded by other officers, officer did not violate clearly established law on record as described by Court of Appeals panel when he shot and killed an armed occupant of the house without first giving a warning -- Clearly established law must be particularized to facts of case and not defined at a high level of generality -- Appellate court erred in relying on Supreme Court cases which lay out excessive-force principles at only a general level, and do not by themselves create clearly established law outside “an obvious case”
VIEW OPINION

Torts -- Banks -- Complaint -- Amendment -- Futility -- District court erred in denying plaintiff's motion for leave to amend complaint on ground that amendment was futile, because proposed complaint stated plausible claims against defendant bank for negligence, gross negligence, or aiding and abetting fraud or conversion -- Negligence -- Allegations, if proven, are sufficient to establish that defendant bank owed a duty of care to plaintiff, even though plaintiff was not a bank customer, and therefore the bank may be held liable under negligence theories -- Allegations were sufficient to establish that bank owed a duty to plaintiff, a noncustomer, because allegations establish that corporation, which agreed to hold plaintiff's money in escrow maintained with bank, owed plaintiff a fiduciary duty; bank, through its vice president, was aware of this fiduciary relationship; and bank, through its vice president, knew that corporation's owner was misappropriating funds held in escrow account into which plaintiff wired money -- Under Florida law, vice president's knowledge that bank customer had misappropriated money can be imputed to bank because interests of vice president were not entirely adverse to those of bank, which gained some benefit from vice president's conduct -- Aiding and abetting fraud or conversion -- District court erred in denying motion for leave to amend on ground that amendment would be futile, because proposed amended complaint stated a claim for aiding and abetting fraud or conversion -- Allegations were sufficient to establish existence of the underlying fraud and bank's knowledge of fraud, and plaintiff plausibly claimed that bank rendered substantial assistance to bank customer in commission of fraud and misappropriation -- Bank's inaction, through its failure to warn plaintiff or stop customer's fraud, is sufficient to constitute substantial assistance where bank owed a fiduciary duty to plaintiff
VIEW OPINION

Antitrust -- Restraint of trade -- Colombian company sued its former partner in a joint venture created when the companies entered into collaboration agreement to create a more effective competitor in softgel market, alleging defendant violated Section 1 of Sherman Act when it acquired another player in the softgel market because the acquisition placed defendant in direct competition with plaintiff, thus transforming the once-lawful collaboration agreement into per se illegal horizontal market allocation in restraint of trade -- Concerted action -- Defendant was entitled to summary judgment because plaintiff failed to establish the foundational requirement of concerted action necessary to maintain a Section 1 claim -- Collaboration agreement cannot form basis for Section 1 claim, because plaintiff never made a conscious commitment to a common scheme to illegally restrain trade -- Simple existence of collaboration agreement, standing alone, is insufficient to satisfy the concerted action requirement -- Where the alleged anticompetitive effects arose from defendant's unilateral decision to remove the assets of its acquired company from the market, to which plaintiff never acquiesced, defendant's post-merger coordination with its acquired company is insufficient as matter of law to support a Section 1 claim -- A company and its wholly owned subsidiary are legally incapable of conspiring for purposes of Section 1 claim -- Alternatively, and for wholly independent basis, defendant is entitled to summary judgment because plaintiff failed to show that the restraint had any actual anticompetitive effects by presenting evidence of actual reductions in output, or increases in price, or deterioration in quality -- Rule of reason analysis applied rather than the per se rule to determination of whether defendant violated Section 1 of the Sherman Act -- Where parties' legitimate, procompetitive joint venture was transformed into an anticompetitive market allocation as result of the unilateral conduct of one of parties, and some procompetitive efficiencies might flow from the collaboration agreement, even post-acquisition, application of per se rule is inappropriate -- Under Eleventh Circuit precedent, simply because an agreement is capable of being characterized as a market allocation agreement does not mean that per se rule applies
VIEW OPINION

Bankruptcy -- Fraudulent and preferential transfers -- Avoidance -- Chapter 7 trustee filed adversary proceeding against corporate vehicle of debtor's fraudulent operation and investor who was defrauded into purchasing three worthless shares of debtor's corporation, asserting causes of action for fraudulent and preferential transfers regarding victim investor's payment for worthless stock and the series of transfers made by debtor to corporate bank account from checking account in debtor's name -- Chapter 7 trustee did not and cannot meet her burden of proof on her claim to avoid the transfer of stock payment price as fraudulent, where the record is clear that debtor received reasonably equivalent value for the stock payment -- Further, debtor personally received the benefit of the stock payment, spending the entirety of that payment and then some for his own personal benefit -- Debtor was only entitled to receive the reasonably equivalent value of stock which was zero; debtor actually received $49,000 wired by investor as payment for stock by accessing and spending the monies for personal gain; and value received by debtor was significantly in excess of what debtor gave up, as he was selling worthless stock to victim -- Chapter 7 trustee is not entitled to avoid transfer of stock payment as preferential where transfer of stock shares and stock payment was a contemporaneous exchange for value, and debtor received stock payment price of $49,000, a massive amount more than value of his worthless stock -- Chapter 7 trustee is not entitled to avoid series of payments by debtor as fraudulent where trial evidence proves defendant received value, as he appropriated full value of series payments in amount of $7,800 to his own personal use and benefit as shown by bank statements contained in trial exhibits -- Chapter 7 trustee is not entitled to avoid as preferential the series of payments where transfers were contemporaneous exchanges for new value, with debtor personally receiving full benefit of $7800 of new value
VIEW OPINION

Bankruptcy -- Surrender of real property -- Reopening of closed case -- Appeal of bankruptcy court orders reopening Chapter 7 bankruptcy case and compelling debtors to withdraw their answer and affirmative defenses in mortgage servicer's state court foreclosure action, and denying sanctions for debtors' and their counsel's failure to comply with statement of intention indicating surrender of residence in the bankruptcy proceeding -- Jurisdiction -- Appeals -- Final orders -- Bankruptcy court's orders were final orders, from which appeal would lie, as orders completely resolved the dispute between servicer and debtors, and the bankruptcy court was left with nothing more to do -- Preservation of issue -- Chapter 7 debtors never properly raised issue whether filing a statement of intention with respect to property securing creditor's claim constituted “surrender” of real property before the bankruptcy court, and thus failed to preserve the issue on appeal -- Standing -- Assuming without deciding that debtors' counsel properly preserved its challenge, debtors' counsel did not have an injury in fact and therefore lacked standing to appeal bankruptcy court's orders
VIEW OPINION

Torts -- Cruise ships -- Negligence -- Passenger brought action against cruise ship alleging defendant was negligent in alerting plaintiff about dangerous conditions of outdoor deck where she allegedly slipped and fell and injured her ankle -- Evidence -- Expert testimony -- Motion in limine to strike plaintiff's orthopedic expert and chiropractic expert on ground that experts have proffered unreliable medical opinions that are inadmissible under Daubert is denied -- Argument that omission of a differential diagnosis analysis renders experts' medical opinions unreliable and inadmissible under Daubert is unsupported, as defendant failed to cite a single case, and court finds none, where Eleventh Circuit has explicitly required this form of analysis to survive a Daubert challenge -- Argument that orthopedic expert is an unreliable medical expert under Daubert because his analysis was based on plaintiff's subjective history and not any reliable medical evidence is misleading and misses the mark as there is nothing in expert's deposition testimony that undermines the medical record that plaintiff's pain management doctor provided to expert -- Argument that orthopedic expert is an unreliable medical expert because he was unable to identify any cognizable facts in support of his medical opinions during his deposition is unpersuasive as there is a lengthy list of supporting reasons for expert's medical opinions -- Argument that expert allegedly relied on inaccurate information to reach his medical conclusion that plaintiff's symptoms from her preexisting and chronic lumbar spine condition had resolved before the cruise must fail -- Even if one of arguably twenty-one different sources of data relied on by expert was imperfect, an expert's method need not be perfect, nor need he apply it perfectly -- Argument for exclusion that medical experts relied exclusively on the chronology of plaintiff's symptoms to conclude that shipboard fall was the underlying cause of her injuries is flawed -- While a temporal proximity, alone, is insufficient to prove causation, each expert had separate underlying reasons for their medical opinions, and neither expert relied solely on a temporal relationship
VIEW OPINION

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