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Federal New Releases

New Releases
from Federal Courts

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Fair Housing Act -- Discrimination against persons with handicaps -- Inaccessibility -- FHA's design-and-construction guidelines do not provide a standard for determining whether discrimination under subsections 3604(f)(1) and (f)(2) exists outside of the design and construction contexts -- Statute requiring designers and builders to adhere to certain standards of accessibility does not impose ongoing duty on subsequent owners to ensure that a dwelling conforms to those standards -- Because plaintiff attempted to establish subsequent owner's discrimination purely by reference to conditions that do not comply with design-and-construction guidelines, district court's grant of summary judgment to defendant affirmed
VIEW OPINION

Wrongful death -- Premises liability -- Action arising out of incident in which owner of home on private golf club property located on an island in the Bahamas apparently fell to his death from rocky cliff adjacent to club property, but not owned by club -- District court erred in granting judgment as matter of law in favor of defendants following trial -- Where it was undisputed that point of land from which decedent fell was only accessible from property that defendants purchased and developed for use by invitees such as decedent and that the point of land from which decedent fell presented foreseeable risks to those who entered it, defendants had duty to maintain their own property in a reasonably safe manner to protect its invitees against that danger -- Open and obvious nature of hazard did not discharge defendants' duty to maintain club property in reasonably safe manner to protect invitees on club property against foreseeable dangers on adjacent land by means other than posting a warning -- District court erred in granting judgment as matter of law to defendants on duty owed to decedent as an invitee -- Jury instructions explaining duties owed to invitees and non-invitees did not present correct question to jury, which was not whether defendants owed to decedent a duty as an invitee while he was on adjacent property, but whether defendants owed duty to decedent as an invitee on club property -- Causation -- Inference -- District court improperly found that plaintiff failed to establish that defendants' negligence caused decedent's death without relying on impermissible stacking of inferences by the jury -- If jury found that defendants breached duty of reasonable care to protect invitee against foreseeable zone of risk that existed on adjacent property, the only inference required by the jury was that decedent was killed by conditions on adjacent land, and plaintiff submitted sufficient evidence to allow jury to find that this was more likely than not the case -- Toxicology evidence -- No error in admitting testimony of medical examiner that decedent's urine contained .22% alcohol -- Compromise verdict -- District court abused its discretion in not finding that verdict was result of impermissible compromise where jury's award of zero damages despite having been instructed to determine total amount of loss suffered by decedent's estate without adjusting for comparative negligence was drastically deficient in view of evidence presented by plaintiff, liability was hotly contested, and jury professed to be deadlocked shortly before returning a verdict finding defendants negligent and making a damages finding that was not supported by evidence -- New trial required on both liability and damages
VIEW OPINION

Injunctions -- Preliminary -- Commodities -- Retail commodity transactions -- Civil enforcement action by Commodity Futures Trading Commission -- Amendment to Commodity Exchange Act made by Dodd-Frank Wall Street Reform and Consumer Protection Act which authorizes Commodity Futures Trading Commission to regulate retail commodity transactions offered “on a leveraged or margined basis, or financed by the offeror, the counterparty, or a person acting in concert with the offeror or counterparty on a similar basis,” actually expanded the Commission's enforcement authority -- Commission established basis for preliminary injunction under Act by establishing prima facie case of illegality and reasonable likelihood of future violations -- Commission's authority encompassed transactions in instant case in which broker, which claimed to be buying and selling precious metals to retail purchasers through a network of dealers engaged with the help of holding company and affiliate companies which served as pass-through for broker, actually managed its risk exposure from customers' trading positions not by holding a physical inventory of metals for customers but by trading derivatives in its own margin trading accounts with precious metals trading companies -- Exceptions -- Actual delivery -- Enforceable obligation to deliver -- Dodd-Frank exceptions for certain contracts of sale resulting in actual delivery or which create an enforceable obligation to deliver between parties with the ability to deliver do not apply and remove the transactions at issue from Commission's authority where district court concluded as matter of fact that defendants had never taken delivery of any metals as result of its trades and had no metals to deliver in connection with retail commodity transactions
VIEW OPINION

Civil rights -- Employment discrimination -- Speech -- Retaliation -- Employee, who was employed as security guard for company that subcontracted with county, brought action to recover equitable and compensatory damages against county and security manager for county alleging that he was terminated at county's request in retaliation for exercising his rights under First Amendment when he reported what he believed to be excessive use of force during traffic stop -- Summary judgment in favor of defendant is warranted because plaintiff's speech was not constitutionally protected -- Factors for determining whether plaintiff's speech was made as an employee or as a citizen weigh heavily in favor of finding that plaintiff's speech took place in connection with performance of his duties and that he was acting as employee rather than as a citizen at time he reported the perceived police misconduct where plaintiff was uniformed, on duty, and paid for his time; he witnessed the incident and made the report from his place of employment, never left his position, and participated in an investigation very soon after the event; he informed the police directly, but his subsequent call to his supervisor on same subject immediately after was pursuant to protocol and took advantage of a channel not available to citizens generally; and he did not make a public statement, discuss politics with coworker, or write a letter to newspapers or legislators -- Fact that employee served a unique public protection role and witnessed and reported what he believed to be a crime near place he was charged with guarding inextricably links subject matter of his speech to his job
VIEW OPINION

Insurance -- Automobile -- Bad faith -- Refusal to settle -- Third-party action for common law bad faith stemming from underlying accident-related bodily injury claim asserted by claimant who was seriously injured in automobile accident caused by insured -- Record does not support finding that insurer acted in bad faith where there is a complete absence of evidence that insurer acted solely on basis of its own interest as to claimant's bodily injury claim; instead, record demonstrates that insurer promptly investigated accident and diligently attempted in good faith to settle claim for BI policy limit
VIEW OPINION

Insurance -- Automobile -- Bad faith -- Refusal to settle -- Summary judgment in favor of insurer is appropriate because, based upon record evidence and totality of circumstances, no reasonable jury could find insurer acted in bad faith by allegedly failing to settle the claim within plaintiff's policy limits -- Record does not reflect a lack of urgency on behalf of insurer, and plaintiff does not present any legal authority with similar facts that suggests insurer's behavior did not rise to the level of a reasonably prudent person -- Record does not indicate that any of insurer's actions were done to delay or avoid settlement, to place its interests before plaintiff's, or to obstruct settlement of claim -- Insurer acted in good faith and complied with its legal duties towards insured -- Bad faith standard of care articulated in Boston Old Colony v. Guiterrez is applicable standard of care in evaluating insurer's behavior in bad faith cases -- Plaintiff's arguments that insurer is collaterally and equitably estopped from arguing that it could not settle claim within policy limits are untenable and fail as matter of law
VIEW OPINION

Banks -- Contracts -- Custody agreement -- Torts -- Under facts as alleged, custodian bank breached no duty, contractual or otherwise, by accepting on behalf of its customer securities that later turned out to be fraudulent and listing those securities on monthly account statements issued to the customer -- Allegations, accepted as true, failed to state claims for breach of contract based on custodian bank allowing customer's funds to be disbursed as payment for fake notes, allowing cash to be diverted from customer's account without receiving an asset in exchange, or without timely receiving an asset in exchange, issuing monthly statements to customer listing fraudulent securities with false or inflated market values, and charging excessive fees based on market values that later turned out to be inflated -- Court of Appeals would address the merits of tort claims against custodian bank because custody agreement specifically left open possibility that bank could be liable for losses caused by its negligence, and it appears alleged conduct relating to performance of custody agreement amounts to an independent tort under Florida law -- Negligence -- Duty of care -- Customer failed to state valid negligence claims where customer failed to establish that custodian bank, which had no discretionary role in investing customer's assets, owed him an independent duty to monitor the investments of his account, verify their market value, or ensure they were in valid form -- Aiding and abetting -- District court correctly concluded that customer's aiding and abetting claims against custodian bank fail -- Allegations that custodian bank accepted worthless securities, some of which had facial defects, were insufficient to establish, or allow one to fairly infer, bank's knowledge of underlying fraud or breach of fiduciary duty by investment advisor, as required by Florida law -- Alleging that a bank disregarded “red flags” such as “atypical activities” on a customer's account is insufficient to establish knowledge -- Breach of fiduciary duty -- Although customer may have unilaterally relied on custodian bank for protection from misconduct of investment advisors, the custody agreement and facts alleged in complaint establish an arm's length bargain imposing limited obligation on parties, not a relationship of “trust and confidence” or “special circumstances” as required to make out a fiduciary duty claim -- Negligent misrepresentation -- Customer failed to plead facts sufficient to establish that custodian bank intended to induce him to rely on its alleged representations as to validity of his securities as required to state a claim for negligent misrepresentation under Florida law
VIEW OPINION

Criminal law -- Guilty plea -- Judicial participation -- Plain-error review of Rule 52(b), which controls when defendant fails to contemporaneously object to trial error, applies where defendant argued for first time on appeal that magistrate judge violated rule 11(c)(1) by improperly participating in plea discussions -- Assuming arguendo that counsel's silence deprived defendant of meaningful opportunity to contemporaneously object during in camera hearing to magistrate judge's remarks encouraging defendant to plead guilty, defendant had ample opportunity to object himself in months following the comments and during time following plea when he represented himself -- Vacatur of guilty plea for violation of prohibition of judicial involvement in plea discussions is not in order where defendant has failed to meet his burden of demonstrating that the error affected his substantial rights under third prong of plain-error standard by showing a reasonable probability that he would have exercised his right to trial and not pled, but for magistrate judge's improper remarks encouraging him to plead guilty
VIEW OPINION

Civil rights -- Prisoners -- Cruel and unusual punishment -- Deliberate indifference -- Dismissal -- Mootness -- Voluntary cessation -- In dismissing as moot federal prisoner's lawsuit alleging federal prison officials violated his Eighth Amendment rights by being deliberately indifferent to protection he required after he assisted prison officials in investigation of its own officer, district court applied incorrect legal standard for evaluating voluntary cessation by a government actor by failing to require government to shoulder its initial burden of showing unambiguous termination of wrongful behavior and therefore improperly shifting burden to prisoner, and then requiring prisoner to rebut the government actor's presumption that objectionable behavior will not recur by showing a substantial likelihood that offending government conduct will resume if suit is terminated -- Correct standard for rebutting government actor's presumption is a reasonable basis to believe that offending policy will be reinstated if suit is terminated -- Prisoner's request for injunctive relief to prevent his return to high-security federal prison is not moot where Bureau of Prisons has not met its formidable or heavy burden of establishing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur or that challenged conduct has been unambiguously terminated -- Given facts of case, considered in light of factors reviewed in deciding earlier voluntary cessation cases, Bureau of Prisons has not met its initial burden to show that prisoner will not be returned to a high-security prison facility
VIEW OPINION

Civil rights -- Prisoners -- Deliberate indifference to substantial risk of serious harm -- Inmate, who was assaulted and stabbed by his cellmate, brought pro se Bivens action against federal prison officials for alleged deliberate indifference to substantial risk of serious harm that cellmate posed to plaintiff's safety through defendant's failure to protect plaintiff from his cellmate -- Qualified immunity -- Defendants are not entitled to qualified immunity at summary judgment stage on plaintiff's Eighth Amendment failure-to-protect claim because record contains sufficient evidence from which a reasonable jury could find that defendants actually (subjectively) knew that plaintiff faced a substantial risk of serious harm from his cellmate where defendants knew that cellmate had a violent past, was very disruptive, and needed greater management; that cellmate started a dangerous cell fire that endangered his life and plaintiff's life and the cellmate expressed no regret at having endangered plaintiff's life or safety; that it was possible that cellmate was targeting plaintiff with his unsafe actions, and that plaintiff feared for his life if he was returned to cell with his cellmate -- Defendants are not entitled to qualified immunity on ground that the law did not clearly establish that their actions were unconstitutional because law of Eleventh Circuit clearly established at time of cell fire and assault that defendants' total failure to investigate, or take any other action to mitigate, the substantial risk of serious harm that cellmate posed to plaintiff constituted unconstitutional deliberate indifference to plaintiff's Eighth Amendment rights
VIEW OPINION

Criminal law -- Habeas corpus -- Counsel -- Ineffectiveness -- Sentencing -- Defendant cannot succeed on his claim that trial counsel was ineffective for failing to advise him during plea negotiations that he faced a statutory mandatory minimum fifteen-year sentence if convicted of causing a minor to engage in a commercial sex act by means of force, fraud, and coercion under 18 U.S.C. § 1591(b)(1) because he has not carried his burden of establishing prejudice under Strickland by showing a reasonable probability that but for counsel's ineffectiveness he would have accepted a plea offer that proposed a mandatory period of incarceration of fifteen years, the court would have accepted terms of plea agreement, and the conviction or sentence, or both, under offer's terms would have been less severe than under judgment and sentence that in fact were imposed -- Defendant cannot succeed on claim that trial counsel was ineffective for failing to advise him during plea negotiations that Section 1591(b) carried possibility of life term of supervised release -- Counsel's failure to inform defendant of life term of supervised release was not so deficient as to deprive him of his Sixth Amendment right to counsel where counsel informed defendant that his potential maximum sentence if convicted was life in prison -- Defendant cannot succeed on claim that counsel was ineffective for failing to object that impermissible double counting occurred at sentencing since the four-level enhancement that was applied to his offense level was based on same conduct that determined the base offense level -- Even if a viable double counting issue arguably existed, defendant cannot establish that he was prejudiced by counsel's failure to raise the claim, as record abundantly reveals that district court would have imposed same sentence even without the alleged double counting -- District court was not required to conduct evidentiary hearing on ineffective assistance of counsel claims where claims were clearly contradicted by record or were patently frivolous -- Record, which establishes that defendant refused to accept a plea deal that could have resulted in fewer than five years in prison, affirmatively contradicts allegation that defendant would have pled guilty to fifteen-year deal if properly advised
VIEW OPINION

Criminal law -- Hobbs Act robbery -- Conspiracy -- Use and carrying of firearms during commission of violent crime -- Search and seizure -- Warrant -- GPS tracking -- Evidence resulting from installation and use of GPS tracking device without a warrant to determine location of vehicle that was used in commission of several robberies was admissible under good faith reliance exception to exclusionary rule under Davis v. United States -- Davis good-faith exception to exclusionary rule applies where officer's conduct comported with clear, binding precedent that pre-dated Supreme Court's holding in United States v. Jones, that the installation and use of a GPS tracking device is a search under the Fourth Amendment -- Because United States v. Michael articulated clear, binding precedent that warrantless installation of a device permitting electronic surveillance of a vehicle does not violate Fourth Amendment when the police have reasonable suspicion the vehicle was involved in criminal activity, and there is no doubt of reasonable suspicion in this case, it was reasonable for police to rely on this long-standing, clear precedent when they attached GPS to subject vehicle without a warrant -- Evidence -- District court did not abuse discretion in any of its evidentiary rulings -- Hearsay evidence -- Admitting testimony of sergeant who provided a summary of investigation and shed additional light on why he conducted his investigation in manner that he did was not reversible error because, even if it was error to admit statements, content of all the statements was introduced elsewhere in the record -- Sufficiency of evidence -- Evidence was sufficient for reasonable trier of fact to find beyond reasonable doubt that codefendant was guilty of conspiracy to commit Hobbs Act robbery, aiding and abetting Hobbs Act robbery, and possession of firearms in furtherance of a crime where there was substantial evidence showing codefendant associated himself with and acted to further robberies at three of four stores, and conspired with others to rob -- Viewing evidence in light most favorable to government, a reasonable trier of fact could find that testimony, video surveillance, and cell phone records support government's theory that codefendant furthered each robbery by acting as a scout, lookout, or to divert or distract store employees during armed robberies -- Evidence was insufficient to convict on counts pertaining to robbery at fourth store, because there was no evidence that defendant acted to further robbery at that store -- Evidence of presence in vicinity alone is insufficient to convict for aiding and abetting the robbery -- Interstate commerce -- Evidence was sufficient for reasonable trier of fact to find the robberies impacted interstate commerce -- No abuse of discretion in excluding testimony of defendant's medical expert witness based on relevance, limiting defendant's closing argument to twenty minutes when no offer of proof was made as to what arguments were foreclosed, and admitting lay witness testimony of records custodian explaining how he mapped cell phone tower locations for each phone call
VIEW OPINION

Insurance -- Commercial general liability -- Exclusions -- Duty to defend -- Purchaser of commercial general liability policies who was sued for violating Telephone Consumer Protection Act brought suit against insurance company for breach of contract when insurer denied coverage based on exclusion for violations of any statute that addresses sending, transmitting or communicating any material or information -- Under Florida law, exclusion is not void due to ambiguity because any reasonable interpretation of exclusion's plain language excludes coverage for violations of Act -- Although language of exclusion is broad and excludes coverage for violations of many laws, exclusion is not ambiguous -- A broadly written provision is not the same as an ambiguous one -- Even assuming that exclusion is ambiguous, it would not be void under Florida law, which provides that remedy for an ambiguous provision is to resolve the ambiguity against the insurer and in favor of coverage -- Under Florida law, exclusion is not void for being against public policy where exclusion does not render policy absurd or completely contradict insuring provisions
VIEW OPINION

Criminal law -- Habeas corpus -- Sentencing -- Judges -- Magistrate judge lacked statutory authority to enter final judgment on a federal prisoner's motion to vacate sentence under 28 U.S.C. § 2255 because a Section 2255 proceeding is not a civil matter for purposes of Section 636(c), which authorizes a magistrate judge, with consent of parties, to conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment -- Although Section 636(c) could plausibly be read to authorize a magistrate judge to enter final judgment in a Section 2255 proceeding, to avoid Article III concerns, the court held that it does not because such a reading is equally plausible
VIEW OPINION

Criminal law -- Possession of firearm by convicted felon -- Sentencing -- Federal guidelines -- Offense level -- Increase -- Prior conviction of crime of violence -- Conviction for vehicle flight from law enforcement officer under section 316.1935(1) qualifies as crime of violence under sentencing guidelines
VIEW OPINION

Criminal law -- Habeas corpus -- Where district court referred petition to magistrate judge, who ordered state to show cause why petition should not be granted and directed state to file comprehensive appendix with copies of various pleadings, transcripts, briefs, motions, and other records from previous state court proceedings; and state's answer included references to specific numbered exhibits which were filed with the district court of appeal as an appendix to state's answer, state was procedurally required to serve petitioner with these exhibits -- District court abused its discretion in denying motion for reconsideration over petitioner's objections to underlying procedural violations -- Procedural rules governing section 2254 proceedings mandate that an answer in a habeas corpus proceeding must be served on a petitioner -- Documents filed separately from the answer, but referred to in it, are considered part of the answer and are therefore also subject to service requirement
VIEW OPINION

Civil rights -- Law enforcement officers -- Search and seizure -- Intercepted communications -- Federal Wiretap Act violations -- Qualified immunity -- Monitoring and recording of privileged attorney-client conversations between attorney and client by detectives who were investigating an alleged misdemeanor violation of a domestic violence injunction, without notice and without warrant, violated clearly established Fourth Amendment rights of client and attorney -- Attorney and client had reasonable expectation of privacy for their privileged attorney-client conversations in interview room of sheriff's office -- Warrantless seizure of client's written statement from attorney also constituted clear Fourth Amendment violation -- Single passing reference to prevention of the “arguable destruction of or tampering with evidence” by detectives in their renewed summary judgment motion, unaccompanied by any discussion or elaboration, was insufficient to preserve argument that seizure was justified by exigent circumstances -- Moreover, detectives did not point to or present any evidence to justify an objectively reasonable belief that they were facing an emergency justifying warrantless seizure -- District court correctly held that defendants were not entitled to qualified immunity on Fourth Amendment claims
VIEW OPINION

Employer-employee relations -- Family Medical Leave Act -- Waiver or release of claims -- No error in granting summary judgment in favor of former employer on claims of interference and retaliation under Family Medical Leave Act where plaintiff signed severance agreement with employer ostensibly waiving FMLA claims -- Although employee may not waive “prospective” rights under FMLA, an employee can release FMLA claims that concern past employer behavior -- “Prospective rights” are those allowing an employee to invoke FMLA protections at some unspecified time in the future -- Severance agreement which settled claims based on past employer conduct was valid -- Knowing and voluntary waiver -- District court did not err in concluding that plaintiff executed severance agreement knowingly and voluntarily -- Contention that waiver was contrary to public policy may not be raised for first time on appeal
VIEW OPINION

Civil rights -- Prisoners -- Deliberate indifference to substantial risk of serious harm -- Action against warden and others arising out of incident in which plaintiff, an inmate at state correctional facility, was assaulted with a box-cutter blade wielded by another inmate -- Plaintiff failed to establish that defendants created prison conditions that presented a substantial risk of serious harm by failing to provide adequate security on back hallway where attack on plaintiff occurred or through lack of oversight of hobby craft shop
VIEW OPINION

Criminal law -- Child pornography -- Production and possession -- Evidence was sufficient to support convictions for producing and possessing child pornography -- Interstate commerce elements of statutes at issue were satisfied by evidence that defendant's cellphone and laptop were both manufactured outside U.S., that defendant took pornographic images of victim on his foreign-made cellphone and then used internet to send the pictures to his email account, and that defendant downloaded at least two of the photographs onto his foreign-made computer -- Distribution -- Evidence that defendant sent the four pictures he took with his cell phone to his own email address was not sufficient to support conviction for distribution of child pornography -- No error in permitting government's computer forensics expert to give his opinion that defendant created illicit images on his cellphone and later downloaded them onto his computer -- No abuse of discretion in not granting mistrial after government inadvertently played a portion of a police interview in which detective made brief and isolated reference to the “first time” defendant was accused of “taking some inappropriate pictures” -- Sentencing -- Federal guidelines -- Resentencing required in light of appellate court's reversal of distribution conviction -- Court notes that definition of “distribution” in section 2G2.1(b)(3), which encompasses both distribution and “possession with intent to distribute,” is broader than the meaning of “distribute” in 18 U.S.C. § 2252A(a)(2)
VIEW OPINION

Criminal law -- Attempted bank robbery -- Bank robbery -- Use of firearm during bank robbery -- Felon in possession of firearm -- Convictions for both attempted bank robbery and subsequent completed bank robbery were supported by sufficient evidence, including testimony of two persons who were alleged to have participated in one or both of the incidents at issue -- District court improperly denied defendant's request for expert to assist in proving defense theory that defendant had long-term back injury which would have prevented him from vaulting back and forth over a teller counter, as masked robber had done during completed bank robbery, where defendant made request well in advance of trial and defendant's physical condition was his sole defense to the completed bank robbery charge -- Under circumstances, error did not result in fundamentally unfair trial -- Evidence -- Prior inconsistent statements -- No error in allowing portion of recording of telephone call between defendant and his brother to be played in government's rebuttal case to impeach the brother's testimony that he had never spoken to defendant on the phone -- Claim that district court erred in failing to give limiting jury instruction advising jury to consider prior inconsistent statement as impeachment only and not as substantive evidence was not preserved for appeal where defendant did not request limiting instruction or object to any purported uses of the call as substantive evidence -- Failure to give limiting instruction was not plain error -- Alleged trial errors, when viewed individually and cumulatively, did not result in fundamentally unfair trial -- Conviction for using and brandishing firearm in completed bank robbery was unsupported by evidence
VIEW OPINION

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