Articles Posted in Civil Procedure

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An affidavit which satisfies Rule 56 of the Federal Rules of Civil Procedure may create an issue of material fact and preclude summary judgment even if it is self-serving and uncorroborated. Because this principle applies in all civil cases, including those in the realm of tax law, the Eleventh Circuit, en banc, overruled that portion of Mays v. United States, 763 F.2d 1295, 1297 (11th Cir. 1985), which is (or may be interpreted to be) to the contrary. In this case concerning IRS assessments, the court remanded with instructions for the panel to consider the government's arguments, as well as defendant's answers to them. View "United States v. Stein" on Justia Law

Posted in: Civil Procedure

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Cita Trust appealed the district court's dismissal of its complaint against Fifth Third Bank in a commercial contract dispute action. The Eleventh Circuit affirmed, holding that the district court did not err by dismissing the complaint as untimely and enforcing the contractual one-year limitation period. In this case, the agreement's limitation provision was reasonable, clear, and unambiguous. Furthermore, the district court did not abuse its discretion when it denied Cita leave to amend its complaint, because Cita did not properly move for leave to amend. View "Cita Trust Company AG v. Fifth Third Bank" on Justia Law

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When a litigant files a shotgun pleading, is represented by counsel, and fails to request leave to amend, a district court must sua sponte give him one chance to replead before dismissing his case with prejudice on non-merits shotgun pleading grounds. In the repleading order, the district court should explain how the offending pleading violates the shotgun pleading rule so that the party may properly avoid future shotgun pleadings. Plaintiff appealed the district court's dismissal of his Second Amended Complaint (SAC) with prejudice. In this case, the district court sua sponte gave plaintiff a chance to replead and remedy his shotgun pleading issues. Therefore, the Eleventh Circuit affirmed the district court's dismissal with prejudice. The court remanded for the limited purpose of clarifying that the dismissal of the state law claims was without prejudice as to refiling in state court. The court affirmed on all other issues. View "Vibe Micro, Inc. v. Shabanets" on Justia Law

Posted in: Civil Procedure

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An order denying a motion to quash a subpoena is a final, appealable order in proceedings brought under 28 U.S.C. 1782. Applicants, minority shareholders of Acheron, applied to the district court under 28 U.S.C. 1782 for an order requiring Litai to produce certain discovery for use in foreign proceedings. The district court granted the application and issued subpoenas. On appeal, Litai challenged the district court's order denying its motion to quash and granted Applicants' cross-motion to compel. The Eleventh Circuit determined that it had jurisdiction over the appeal and held, on the merits, that the district court did not err by concluding that the discovery sought was for use in a proceeding in a foreign or international tribunal. As part of the process, Applicants have the right to submit information for the investigating judge's consideration. View "In re Application of Furstenberg Finance SAS v. Litai Assets LLC" on Justia Law

Posted in: Civil Procedure

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In 2011 and 2012, a number of individuals and closely held corporations known as Treasure Your Success (TYS) operated a fraudulent credit card interest reduction scheme. Universal Processing Services of Wisconsin, LLC (Universal) violated the Telemarketing Sales Rule (TSR), 16 C.F.R. 310.1 et seq., by providing substantial assistance to the TYS schemers. The district court found that a violation of the TSR constitutes an “unfair or deceptive act or practice” in violation of the Federal Trade Commission Act. As such, the district court was authorized to order restitution and disgorgement. Furthermore, the court clarified that substantial assistance under the TSR was itself sufficient to justify joint and several liability. The court reaffirmed its order holding Universal jointly and severally liable; Universal contended that was error and joint and several liability can only lie where the defendant is a participant in a common enterprise with the primary violators. The Eleventh Circuit concluded after review the district court did not abuse its discretion in holding Universal jointly and severally liable with the members of the TYS scheme. View "Federal Trade Comm'r v. Universal Processing Services of Wisconsin, LLC" on Justia Law

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Plaintiff, an inmate, filed a pro se complaint against a Peace Officer and others under 42 U.S.C. 1983. Plaintiff filed suit more than two years after the alleged incident giving rise to his claim occurred, but filed his renewed suit within six months of filing his initial suit. The Eleventh Circuit affirmed the district court's dismissal of plaintiff's claim and held that the Georgia Supreme Court would construe O.C.G.A. 9-11-41(d) to require payment of costs before involuntary dismissals may be renewed under O.C.G.A. 9-2-61, Georgia's renewal statute; the court was not persuaded that the Georgia Supreme Court would allow plaintiff to rely on an extension of the good-faith exception to save his claim; and the court found no support for the assertion that the Georgia Supreme Court would construe Georgia's renewal statute to deem plaintiff to have met the cost-payment requirement under the circumstances of this case. View "Hancock v. Cape" on Justia Law

Posted in: Civil Procedure

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Cin-Q filed suit in 2013, alleging that Buccaneers was responsible for unsolicited faxes that violated the Telephone Consumer Protection Act, 47 U.S.C. 227 (the Cin-Q case). Medical & Chiropractic Clinic eventually joined the Cin-Q case as a second named plaintiff. Plaintiffs in this case filed suit on behalf of the same class based on the same allegedly unlawful acts by Buccaneers and eventually settled their claim for nearly $20 million in damages. Cin-Q and Medical & Chiropractic Clinic moved to intervene. The Eleventh Circuit reversed the district court's denial of the motion to intervene, holding that Cin-Q and Medical & Chiropractic Clinic met the requirements of Civil Procedure Rule 24(a)(2). The court remanded for the district court to grant the motion to intervene as of right. View "Technology Training Assoc. v. Buccaneers Limited Partnership" on Justia Law

Posted in: Civil Procedure

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The Eleventh Circuit granted rehearing en banc to review the constitutionality of a municipal ordinance prohibiting the sale of sexual devices in light of several recent Supreme Court decisions. After agreeing to take the case en banc, the City repealed the challenged portion of its municipal code. The court held that the case was moot because it saw no reasonable basis for concluding that the ordinance would be reenacted and because a prayer for nominal damages, by itself, was insufficient to satisfy Article III's jurisdictional requirements. Accordingly, the court dismissed the appeal. View "Flanigan's Enterprises, Inc. v. Sandy Springs, Georgia" on Justia Law

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Plaintiffs, representatives of the estates of decedents who perished in a plan crash in Nigeria, appealed the district court's dismissal of their claims based upon the doctrine of forum non conveniens and denial of their motion for relief under Fed. R. Civ. P. 60(b). The Eleventh Circuit affirmed the judgment, holding that the district court did not abuse its discretion in either dismissing the claims or denying the Rule 60(b) motion. In this case, the district court did not abuse its discretion either in determining that the public factors also weighed in favor of dismissal or in its overall analysis under the forum non conveniens doctrine and conclusion that dismissal of the foreign decedents' claims was warranted. In regard to the denial of the Rule 60(b) motion, the district court did not apply the law in an incorrect or unreasonable manner in deciding that the procedural posture did not warrant the requested relief. Furthermore, there was no reason to believe that defendant would contest liability in Nigeria and thus there was no reason to disturb the district court's denial of reconsideration on this ground. View "Kolawole v. Sellers" on Justia Law

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The board of trustees for the University filed suit against CoMentis in federal court, asserting diversity of citizenship under 28 U.S.C. 1332(a). The district court dismissed the complaint on the merits. The Eleventh Circuit held that, because the USF Board was an arm of the Florida state government, the district court lacked diversity jurisdiction over the suit between it and CoMentis, a citizen of another state. Accordingly, the court vacated and remanded to the district court with instructions to dismiss the complaint for lack of subject matter jurisdiction. View "University of South Florida Board of Trustees v. CoMentis, Inc." on Justia Law

Posted in: Civil Procedure