U.S. Eleventh Circuit - The FindLaw 11th Circuit Court of Appeals Opinion Summaries Blog

December 2010 Archives

Ibarra v. Swacina, No. 09-16393

Petition for Review of Denial of I-485 Application

In Ibarra v. Swacina, No. 09-16393, an action seeking review of the United States Citizenship and Immigration Services' denial of plaintiff's I-485 application for adjustment to legal permanent resident status, the court affirmed the dismissal of the action where the district court did not err in concluding it lacked jurisdiction under the Administrative Procedure Act to review the denial of plaintiff's application for adjustment of status.

Norelus v. Denny's, Inc., No. 07-14077

Sanctions Against Plaintiff's Counsel in Sexual Harassment Matter

In Norelus v. Denny's, Inc., No. 07-14077, a sexual harassment action, the court affirmed the district court's order sanctioning plaintiff's counsel for attempting to substantially modify plaintiff's deposition testimony where it was entirely reasonable for the district court to conclude that counsel acted with objective recklessness when they created the errata document and then continued to pursue plaintiff's claims after the creation and submission of that document had made her claims untenable.

US v. Gowdy, No. 09-15999

Escape Conviction Affirmed

In US v. Gowdy, No. 09-15999, the court affirmed defendant's conviction for escaping from federal custody where the custodial requirement of 18 U.S.C. section 751(a) is satisfied where a lawful judgment of conviction has been issued by a court against the defendant.

  • US v. Powell, No. 09-11612

    Drug Conspiracy Convictions Vacated in Part

    In US v. Powell, No. 09-11612, the court affirmed in part defendant's convictions and sentences for criminal conspiracy to possess and distribute cocaine and marijuana for the reasons stated by the district court.  However, the court vacated in part where the district court erred by rejecting the magistrate judge's credibility determinations without first holding a new hearing: a hearing to see as well as to hear the pertinent witnesses.

  • US v. Rodriguez, No. 09-15265

    Computer Fraud and Abuse Act Conviction Affirmed

    In US v. Rodriguez, No. 09-15265, the court affirmed defendant's conviction and sentence for violating the Computer Fraud and Abuse Act where 1) the record established that defendant exceeded his authorized access to a government computer; 2) the Act did not require proof that defendant used the information to further another crime or to gain financially; and 3) the district court was entitled to find that an upward variance was warranted based on the number of victims and the extensive nature of defendant's unauthorized access.

     

    US v. Rodriguez, No. 08-16696

    Medicare Fraud Conviction Affirmed

    In US v. Rodriguez, No. 08-16696, the court affirmed defendant's Medicare fraud conviction where, at the sentencing hearing, defendant did not object to the judge's comment about her national origin, or to anything else for that matter, and: 1) holding that the law did not require objections to statements appearing to indicate bias where there was none would be inconsistent with the law requiring objections where there is bias; and 2) such a holding would substantially undermine the important interests served by the contemporaneous objection rule.

     

    US v. Kottwitz, No. 08-13740

    Reversal of Convictions for Defrauding the IRS

    In US v. Kottwitz, No. 08-13740, on rehearing, the court reversed defendants' convictions for conspiracy to defraud the IRS where the district court was incorrect to deny defendants' accountant-reliance jury instruction because, even if it was not the only and not the most likely explanation of events leading to the guilty verdicts, an evidentiary basis existed for conviction that could have involved defendants, in fact, relying on the advice of their accountant.

     

    Castle v. Appalachian Tech. Coll., No. 10-11546

    Action Alleging Wrongful Suspension of Nursing Student

    In Castle v. Appalachian Tech. Coll., No. 10-11546, an action by a former nursing student, alleging that her suspension from the Licensed Practical Nursing Program at Appalachian Technical College violated her free speech and due process rights, because defendants allegedly: 1) suspended plaintiff in retaliation for reporting one of her instructors for falsifying attendance records, in violation of the First Amendment; and 2) suspended her without a meaningful opportunity to respond to the charges against her, judgment for defendants is affirmed where the court could not say the district court erred in deciding that, for qualified immunity purposes, school administrators in their position could have reasonably believed that suspending plaintiff would not violate her First Amendment rights under the facts of this case.

     

    US v. Pilati, No. 09-11978

    Order Requiring Sex Offender Registration Affirmed

    In US v. Pilati, No. 09-11978, a prosecution for willfully depriving individuals of their right to be free from unreasonable searches by one acting under color of law, the court affirmed the district court's order requiring defendant to register as a sex offender under the Sex Offender Registration and Notification Act, holding that 1) defendant waived or abandoned the majority of his arguments on appeal; and 2) defendant failed to object to the portions of the presentence report showing that he was a sex offender.

     

    US v. Cone, No. 09-13824

    Dismissal of Appeal from Forfeiture Order

    In US v. Cone, No. 09-13824, a third party's appeal from the district court's order vacating preliminary orders of forfeiture (POFs) that had become part of the final judgments entered in this criminal case against defendants, the court dismissed the appeal where, as a non-party petitioner from a vacated ancillary proceeding, appellant had no standing to challenge the district court's vacatur order.

     

    Diaz v. Jaguar Restaurant Group, LLC, No. 09-16046

    FLSA Action for Unpaid Overtime

    In Diaz v. Jaguar Restaurant Group, LLC, No. 09-16046, an action against plaintiff's former employer for unpaid overtime wages under the Fair Labor Standards Act (FLSA), the court reversed the district court's holding that plaintiff was an exempt administrative employee under the FLSA, where the administrative exemption issue was not tried by implied consent as plaintiff's testimony was relevant to another defense in this case: defendant's independent contractor defense.

  • Parzyck v. Prison Health Servs., Inc., No. 09-12483

    Action Alleging Indifference to Prisoner's Medical Need

    In Parzyck v. Prison Health Servs., Inc., No. 09-12483, an action by a prisoner alleging that prison medical personnel were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment, the court reversed the dismissal of the complaint for failure to exhaust administrative remedies where plaintiff demonstrated meticulous respect for the department of corrections' administrative grievance procedures and gave prison officials ample opportunity to respond internally before defendant was brought into court, and thus plaintiff complied with the letter and purpose of 42 U.S.C. section 1997e(a)'s exhaustion requirement.

  • Dixon v. The Hallmark Cos., No. 10-10047

    Religious Discrimination Employment Action

    In Dixon v. The Hallmark Cos., No. 10-10047, an action alleging claims of religious discrimination, retaliation, and failure to accommodate religious beliefs in violation of Title VII, and retaliation and housing discrimination in violation of the Fair Housing Act, the court affirmed summary judgment for defendants in part where plaintiffs called attention to no statutory or case law that could reasonably be believed to prohibit a private employer from keeping its own workplace free of religious references.  However, the court vacated in part where, drawing inferences in favor of plaintiffs, as was required at this stage, a reasonable jury could find that plaintiff's supervisor's alleged comment constituted direct evidence of religious discrimination.

    Digsby v. McNeil, No. 09-10978

    Felon in Possession Conviction Affirmed

    In Digsby v. McNeil, No. 09-10978, a prosecution for being a felon in possession of a firearm, the court affirmed the denial of petitioner's habeas petition, holding that petitioner did not show that collateral estoppel barred his conviction, and thus his appellate counsel was not ineffective for not raising the collateral estoppel claim on appeal.

    US v. Williams, No. 09-10091

    Assault on U.S. Marshals Conviction Affirmed

    In US v. Williams, No. 09-10091, the court affirmed defendant's conviction for forcibly assaulting, resisting, opposing, impeding, intimidating, or interfering with three U.S. Marshals, holding that the instruction read by the district court provided a correct statement of the law about the standard of proof required to convict.  However, the court vacated defendant's sentence where it was erroneous to award a reduction for acceptance of responsibility because defendant denied guilt in the face of evidence to the contrary.

     

    Gooden v. US, No. 09-10499

    Denial of Motion to Compel Motion for Downward Departure Vacated

    In Gooden v. US, No. 09-10499, a prosecution for federal drug-trafficking crimes, the court vacated the denial of petitioner's motion to compel the government to file a motion for a downward departure from petitioner's sentence, holding that, because the district court failed to provide petitioner with the requisite notice and warning before re-characterizing his pro se "motion to modify" as a first section 2255 motion, the district court improperly denied petitioner's subsequent "motion to compel" as an unauthorized second or successive section 2255 motion.

     

    Oppenheim v. I.C. Sys., Inc., No. 10-12461

    FDCPA Action Concerning Debt Collection Calls

    In Oppenheim v. I.C. Sys., Inc., No. 10-12461, a Federal Debt Collection Practices Act (FDCPA) action concerning a series of telephone calls defendant made to plaintiff in an attempt to collect funds, the court affirmed the denial of summary judgment to defendant where 1) the mere fact that plaintiff consumed PayPal's services in order to facilitate a separate sale did not thereby negate his consumer status with respect to PayPal; 2) the district court correctly distinguished Arnold because plaintiff's payment obligation did arise from a transaction; and 3) since the district court did not err in denying defendant summary judgment on plaintiff's FDCPA claim, the court also correctly denied defendant summary judgment on plaintiff's Florida Consumer Collection Practices Act claim.

     

    Jean-Baptiste v. Gutierrez, No. 10-11129

    Qualified Immunity Denial to Officer Reversed in Excessive Force Case

    In Jean-Baptiste v. Gutierrez, No. 10-11129, an action against an officer for using deadly force against plaintiff, an armed suspect who was lying in wait after having fled from the vicinity of an armed burglary and robbery, the court reversed the denial of summary judgment based on qualified immunity where defendant reasonably perceived the situation as an ambush that required the use of deadly force.

     

    Jacobs v. Tempur-Pedic Int'l., Inc., No. 08-12720

    Dismissal of Antitrust Action Affirmed

    In Jacobs v. Tempur-Pedic Int'l., Inc., No. 08-12720, an antitrust action claiming that defendant illegally enforced vertical retail price maintenance agreements with its distributors and engaged with its distributors in horizontal price fixing, the cout affirmed the dismissal of the complaint where 1) the complaint failed to adequately plead a relevant market and thus did not show actual harm to competition; and 2) the potential costs of fixing prices with defendant's distributors would outweigh any benefits that defendant would realize by doing so, particularly where independent economic activity would yield the same benefits with none of the costs.

     

    US v. Forey-Quintero, No. 09-15330

    Unlawful Entry Conviction Affirmed

    In US v. Forey-Quintero, No. 09-15330, defendant's conviction for being an alien, previously removed from the U.S., who was found in the U.S. without having obtained permission to reenter, the court affirmed where the phrase "begins to reside permanently in the United States while under the age of eighteen years" contained in 8 U.S.C. section 1432(a)(5) required the status of a lawful permanent resident.

     

    Anthony v. Am. Gen'l. Fin. Servs., Inc., No. 08-15983

    Mortgage Notary Fee Assessment Action

    In Anthony v. Am. Gen'l. Fin. Servs., Inc., No. 08-15983, an action challenging defendant American General Financial Services's assessment of mortgage notary fees that exceeded the statutory maximum set by OCGA section 45-17-11(b), the court affirmed the dismissal of the complaint in part where 1) the district court properly dismissed the plaintiffs' private civil claim under the Georgia notary fee statute; and 2) the district court did not err by dismissing plaintiffs' fraud and "money had and received" claims as filed outside the statute of limitations.  However, the court vacated in part where defendant possessed an express and affirmative statutory duty to disclose the maximum statutory notary fee of $4.00.