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When a defendant has attempted to persuade a minor to engage in sexual activity that could potentially violate multiple criminal statutes, the jury is not required to unanimously agree as to which statute the defendant's completed conduct would have violated so long as the jury unanimously agrees that the sexual activity being encouraged would violate one of these statutes. The Eleventh Circuit affirmed defendant's conviction in this case, holding that the district court did not abuse its discretion by rejecting defendant's proposed jury instruction that the jury must unanimously agree as to which sex acts defendant would have attempted to persuade the minor girl to perform, had he not been interrupted by arresting officers and had there been a real girl. In this case, the jurors were necessarily unanimous that defendant could have been charged with second-degree sexual abuse. View "United States v. Jockisch" on Justia Law

Posted in: Criminal Law

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The low-end exception to a presumption of prejudice no longer applies in the post-Booker, advisory guidelines era where a sentence outside the guidelines range is not the extraordinary event that it once was. In this case, the district court's failure to address defendant personally about whether he wished to make a statement to the court was error; defendant was entitled to a presumption of prejudice; the district court could have varied downward from the sentence it imposed if convinced by defendant during allocation to do so; and thus the court vacated and remanded for resentencing so that defendant may have an opportunity to allocute. View "United States v. Doyle" on Justia Law

Posted in: Criminal Law

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Georgia law by its terms does not provide for negligence actions directly against dogs. In this case, plaintiff filed suit against a police canine, Draco, and others after Draco inflicted serious damage to plaintiff when Draco refused to release his bite. The Eleventh Circuit held that the officers were entitled to qualified immunity because no binding precedent clearly established that their actions in allowing Draco to apprehend plaintiff violated defendant's Fourth Amendment rights; the County and Chief Ayers in his official capacity have sovereign immunity; and Defendants Fransen, Towler, Ross, and Ayers were entitled to official immunity for the claims against them in their individual capacities View "Jones v. Officer S. Fransen" on Justia Law

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Federal tobacco laws do not preempt state tort claims based on the dangerousness of all the cigarettes manufactured by the tobacco companies. The Florida Supreme Court upheld the jury verdicts of negligence and strict liability in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006) (Engle III), and decertified the class to allow individual actions about the remaining issues. In this case, R.J. Reynolds and Philip Morris challenged the jury verdict against them in one of the individual actions. The Eleventh Circuit affirmed its holding in Walker v. R.J. Reynolds Tobacco Co., 734 F.3d 1278 (11th Cir. 2013), and concluded that giving full faith and credit to the Engle jury findings of negligence and strict liability does not deprive R.J. Reynolds and Philip Morris of property without due process of law, and that federal law does not preempt the Engle jury findings. Accordingly, the court affirmed the judgments against R.J. Reynolds and Philip Morris. View "Graham v. R.J Reynolds Tobacco" on Justia Law

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Registration of a copyright has not been made in accordance with 17 U.S.C. 411(a), until the Register of Copyrights registers the claim. Filing an application does not amount to registration. Fourth Estate filed suit against defendants, alleging that Fourth Estate had filed an application to register its allegedly infringed copyrights, but that the Copyright Office had not registered its claims. The Eleventh Circuit affirmed the district court's dismissal of the action where Fourth Estate has not alleged infringement of any registered work, and this appeal did not involve the ongoing creation of original works, or potential future infringement of works not yet created. View "Fourth Estate Public Benefit v. Wall-Street.com, LLC" on Justia Law

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In 2014, plaintiff filed suit against NCO for violations of the Telephone Consumer Protection Act (TCPA) because NCO attempted to collect medical debts from her (Vanover I). Plaintiff then filed suit against NCO in Florida state court alleging violations of the TCPA, the Fair Debt Collection Practices Act (FCPA), and the Florida Consumer Collection Practices Act (FCCPA) (Vanover II). The Eleventh Circuit held that the district court did not abuse its discretion in denying the permissive joinder of additional parties because plaintiff's failure to timely amend her complaint in Vanover I to include these parties did not justify subjecting NCO to duplicative litigation. Furthermore, NCO had no obligation to seek consolidation of Vanover I and Vanover II. Therefore, the district court properly acted within its discretion when it denied plaintiff's motion to permissively join additional parties. The Eleventh Circuit, as a matter of first impression, agreed with the test announced by the Tenth Circuit that claim-spitting is not whether there is finality of judgment, but whether the first suit, assuming it were final, would preclude the second suit. Consequently, the district court did not err by dismissing Vanover II for improper claim-splitting. The court affirmed the judgment. View "Vanover v. NCO Financial Services" on Justia Law

Posted in: Consumer Law

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Plaintiff filed suit against U.S. Specialty for breach of contract, based on its denial of coverage of fraudulent transfer claims in an underlying suit. The district court entered summary judgment for U.S. Specialty and entered judgment against plaintiff. The Eleventh Circuit affirmed, holding that, in light of Florida law, plaintiff's fraudulent conveyance claims "arose from" wrongful acts that predate November 10, 2008, and thus fell within the scope of the Prior Acts Exclusion of the U.S. Specialty policy. Furthermore, the policy's terms were unambiguous and its coverage was not illusory. Therefore, U.S. Specialty did not breach the insurance contract. View "Zucker v. U.S. Specialty Insurance" on Justia Law

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WestRock filed suit under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. 1001 et seq., challenging an action taken by the Pace Industry Union-Management Pension Fund's Board of Trustees. The district court agreed with the Fund that ERISA provided no cause of action and granted the Fund’s motion to dismiss the complaint. The Eleventh Circuit affirmed, holding that WestRock has not properly alleged that the Amendment (the Fund's rehabilitation plan) violates 29 U.S.C. 1085 in a manner sufficient to bring a cause of action under Subsection B of 29 U.S.C. 1132(a)(10). Furthermore, the text of 29 U.S.C. 1451(a) does not support WestRock's reading that the Amendment imposes an additional liability on WestRock if it withdraws and therefore section 1451(a) provides it with a cause of action to challenge the Amendment. View "WestRock RKT v. Pace Industry Union" on Justia Law

Posted in: ERISA

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The Eleventh Circuit denied J.W. Ledford, Jr.'s motion for an emergency stay of execution, holding that Ledford's 42 U.S.C. 1983 complaint challenging Georgia's method of execution was time-barred. The court further held that, even if the claims were not time-barred, Ledford's allegations and supporting documents did not establish a substantial risk of serious harm, much less a substantial likelihood of success on the merits of his claims; Ledford has not alleged sufficient facts to render it plausible that a firing squad was a feasible and readily implemented method of execution in Georgia that would significantly reduce a substantial risk of severe pain; and, under all the particular facts and circumstances of this case, Ledford failed to show that he has met the equitable requirements for a stay of execution. View "Ledford, Jr. v. Commissioner, GA Department of Corrections" on Justia Law

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The Eleventh Circuit affirmed the district court's determination that granting Anthony Boyd leave to amend his complaint would be futile, and affirmed the dismissal of his suit alleging an Eighth Amendment violation regarding Alabama's new lethal injection protocol. Instead of identifying an alternative method of lethal injection that would be feasible, readily implemented, and substantially less risky than the midazolam protocol or opting for death by electrocution, Boyd alleged that Alabama should execute him by hanging or firing squad. The Eleventh Circuit held that Boyd has not come close to pleading sufficient facts to render it plausible that hanging and firing squad are feasible, readily implemented methods of execution for Alabama that would significantly reduce a substantial risk of severe pain. Alabama is under no constitutional obligation to experiment with execution by hanging or firing squad. Finally, Body's remaining claims were filed well beyond the two-year statute of limitations governing section 1983 claims in Alabama. View "Boyd v. Warden, Holman Correctional Facility" on Justia Law