Today, Florida Attorney General Bill McCollum filed a lawsuit in Leon County against "Expedia, Inc., Orbitz, LLC, and Orbitz, Inc., the leading internet travel companies, asking for a declaratory judgment that the companies’ failure to remit the appropriate amount of taxes on hotel room rentals is a violation of Florida law." The quote is from the Attorney General's press release which can be found here. An article in the Palm Beach Post can be found here. The Palm Beach Post article states "For example, if the company pays $70 for a hotel room that it resells for $100 plus taxes, it is remitting taxes for the lesser amount, the state says. The lawsuit, said to be the first of its kind filed by a state, is similar to one Palm Beach County filed in July and by dozens of municipalities and counties across the nation." Other articles can be found in the Miami Herald, Tampabay.com, and the South Florida Business Journal. The complaint is below:
Complaint Against Expedia and Orbitz
Tuesday, November 3, 2009
Southern District Of Florida Has New Attorney Resources Page
The Southern District of Florida has a new "Attorney Resources" page which can be found here.
"11th Circuit Obscenity Case Tests Community Standards on the Internet"
How Appealing has a post and links to a story about a pending Eleventh Circuit case relating to pornography. The post is below:
"11th Circuit Obscenity Case Tests Community Standards on the Internet; Prosecutors have described the films at issue in the case as 'sadistic, masochistic and violent'": Alyson M. Palmer has this article today in the Fulton County Daily Report.
And online at Reason, Greg Beato has an essay entitled "In Defense of Extreme Pornography: Why Janet Romano and Rob Zicari have no business being in federal prison."
"Man on riding mower charged with DUI"
The bLAWgger.com blog links to an interesting story from Tampa Bay Online titled "Man on riding mower charged with DUI." The article can be found here. The article begins "A central Florida man was charged with driving under the influence after authorities say he crashed a stolen riding lawnmower into a school bus."
More On UM Law Professor's False Light Suit Against abovethelaw.com
I had a post last week titled "UM Law Professor Files False Light Suit Against abovethelaw.com." The complaint can be found within the original post here. Today, David Lat at Above the Law had a post today about the suit titled "Lawsuit of the Day: Jones v. Minkin (Or: Above the Law gets sued!)." The Above The Law post is copied below:
For the first time in over three years of operation, Above the Law has been sued. We feel the lawsuit has no merit, but we will not comment further on this ongoing litigation. To access the pro se complaint, coverage by other news outlets and blogs, and ATL’s prior posts about Professor Donald Jones, click on the links collected after the jump.
Please note that we have closed comments on this post, out of respect for the judicial process. Thank you.
UPDATES (1:30 PM and 2:30 PM): Additional links have been added since the original publication of this post. They also appear after the jump.
Here are links to the complaint and other outlets’ coverage:
Jones v. Minkin [Southern District of Florida (PDF)]
Prior ATL coverage of D. Marvin Jones (scroll down to view all posts)
Law Professor Sues Above the Law Blog, Alleging ‘Viciously Racist Series of Rants’ [National Law Journal]
Law Professor sues Above the Law blog; time to go back to complaint drafting school [Copyrights and Campaigns]
UM Law Professor Files False Light Suit Against abovethelaw.com [Florida Legal Blog]
Blog Sued: Abovethelaw.com not above the law [Law and More]
Law Professor Sues “Above the Law” [Point of Law]
UPDATE (1:30 PM): Here are additional links not included in the first version of this post:
Law Prof Sues Above the Law, Claims ‘Racist Series of Rants’ About His Arrest [ABA Journal]
Law Professor Sues Above The Law For $22 Million [Law Review]
Law Professor Sues Above the Law Blog for “Nutty Professor” Post [Blogonaut]
UPDATE (2:30 PM): More links:
Supreme Court Grants Cert In Three Cases
The Supreme Court's order list for November 2, 2009 is below.
The SCOTUS Blog had the following regarding the orders:
The Court has granted certiorari in Hamilton, Chapter 13 Trustee v. Lanning (08-998), New Process Steel v. National Labor Relations Board (08-1457), and Levin, Tax Commissioner of Ohio v. Commerce Energy, Inc. (09-223). As of this grant, Akin Gump represents the respondent in Hamilton v. Lanning.
The Court invited briefs from the Solicitor General in four more cases, listed below the jump.
The full order list is here.
Docket: 08-998
Title: Hamilton, Chapter 13 Trustee v. Lanning
Issue: The Court limited the question presented to the following: “Whether in calculating the debtor’s ‘projected disposal income’ during the plan period, the bankruptcy court may consider evidence suggesting that the debtor’s income or expenses during that period are likely to be different from her income or expenses during the pre-filing period.”
Opinion below (10th Circuit)
Amicus brief of the United States (recommending that cert. be granted)
Note: Akin Gump now represents the respondent in this case.
Docket: 08-1457
Title: New Process Steel v. National Labor Relations Board
Issue: Whether Section 3(b) of the National Labor Relations Act, 29 U.S.C. § 153(b), authorizes the NLRB to act when only two of its five positions are filled, if the Board has previously delegated its full powers to a three-member group of the Board that includes the two remaining members; does the NLRB have authority to decide cases with only two sitting members, where 29 U.S.C. § 153(b) provides that “three members of the Board shall, at all times, constitute a quorum of the Board”?
Opinion below (7th Circuit)
Docket: 09-223
Title: Levin, Tax Commissioner of Ohio v. Commerce Energy, Inc.
Issue: Does either the Tax Injunction Act, 28 U.S.C. § 1341, or comity principles bar federal court jurisdiction over a case alleging federal equal protection and dormant commerce clause claims when the plaintiffs do not challenge their own tax assessment and the relief sought is directed to specific tax exemptions or exclusions applicable to only four other taxpayers?
Opinion below (6th Circuit)
The Court has invited the Solicitor General to submit briefs in the following cases:
Docket: 09-34
Title: Pfizer Inc. v. Abdullahi et al.
Issue: Whether Alien Tort Statute (ATS) jurisdiction can extend to a private actor based on alleged state action by a foreign government where there is no allegation that the government knew of or participated in the specific acts by the private actor claimed to have violated international law. Whether, absent state action, a complaint that a private actor has conducted a clinical trial of a medication without adequately informed consent can surmount the “high bar to new private causes of action” under the ATS.
Opinion below (2d Circuit)
Note: Neither Chief Justice Roberts nor Justice Sotomayor took part in this order.
Docket: 08-1438; 09-109
Title: Sossamon v. Texas; Cardinal v. Metrish
Issue: Whether states and state officials may be subject to suit for damages for violations of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§2000cc to 2000cc-5?
For 08-1438:
Opinion below (5th Circuit)
For 09-109:
Opinion below (6th Circuit)
Note: Howe & Russell represents the petitioners in both cases.
Docket: 09-115
Title: U.S. Chamber of Commerce v. Candelaria
Issues: Whether an Arizona statute that imposes sanctions on employers who hire unauthorized aliens is invalid under a federal statute that expressly “preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens”; whether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system, is preempted by a federal law that specifically makes that system voluntary; whether the Arizona statute is impliedly preempted because it undermines the “comprehensive scheme” that Congress created to regulate the employment of aliens.
Opinion below (9th Circuit)
Supreme Court Dismisses Certified Question From The Fifth Circuit
The Supreme Court dismissed the certified question from the Fifth Circuit. The question was "What statute of limitations applies to a prosecution under 18 U.S.C. § 1201 for a kidnaping offense that occurred in 1964 but was not indicted until 2007?" The certification was previously discussed here. Justice Stevens, joined by Justice Scalia, issued a statement regarding the dismissal and indicate they would have accepted the certified question. That statement can be found here.
Sunday, November 1, 2009
Fourth District On Motions To Amend
In Quality Roof Services, Inc. v. Intervest National Bank (4D08-3382), the Fourth District reversed the trial court's order denying a motion for leave an answer and affirmative defenses. The court provided an analysis of the standard for amending :
A trial court’s denial of a motion to amend is reviewed for abuse of discretion... Florida Rule of Civil Procedure 1.190(e) states that “[a]t any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading, or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading.” A court “should be especially liberal when leave to amend is sought at or before a hearing on a motion for summary judgment.” In ruling on a motion for leave to amend, “all doubts should be resolved in favor of allowing an amendment, and the refusal to do so generally constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.”...A proposed amendment is futile if it is insufficiently pled, id., or is “insufficient as a matter of law,”
Fifth District On Assignment Of PIP Benefits And Possible Intra-District Conflict Regarding § 627.428(1), Fla. Stat.
In Progressive Express Insurance Co. v. Hartley (5D09-750), the Fifth District denied Progressive's request for second tier certiorari review.
The court stated:
Progressive issued a policy of insurance to Hartley that provided personal injury protection (PIP) benefits. On March 18, 2003, while this policy was in effect, Hartley was involved in a motor vehicle accident in which he suffered personal injuries. Hartley received medical treatment for his injuries from Michael C. Durant, D.C. Upon seeking treatment from Dr. Durant, Hartley executed an assignment of PIP benefits to "Atlantic Coast Chiropractic Clinic."
***
Dr. Durant submitted claims for payment of PIP benefits to Progressive for treatment under the name "Durant Chiropractic Clinic." Progressive paid some claims and disallowed others submitted for Hartley's treatment. In November 2003, Dr. Durant executed a document which purported to reassign and transfer to Hartley any and all causes of actions against any insurer to recover PIP benefits.
***
It was Progressive's position that the purported reassignment of benefits to Hartley from Dr. Durant was ineffective because the original assignment of benefits had been to a corporate entity, not Dr. Durant. The county court agreed and granted Progressive's motion.
The circuit court reversed, finding that the initial purported assignment of Hartley to "Atlantic Coast Chiropractic Clinic" was invalid because that entity did not exist in 2003 (and apparently at no time thereafter). Therefore, the circuit court concluded that Hartley had retained his right to claim PIP benefits due under his insurance policy.
Progressive contends that pursuant to section 865.09(9)(b), the initial assignment was valid. That section provides that the failure of a business to comply with the fictitious name registration statute does not impair the validity of any contract of such business. While that section may have supported Progressive's argument if the initial assignment was to Durant Chiropractic Clinic, Inc., d/b/a Atlantic Coast Chiropractic Clinic (notwithstanding a failure to comply with the fictitious name registration statute), it provides no relief to Progressive in the instant case. The fact remains that the assignment was made to a non-existent entity.
The court also awarded attorneys fees to the insured pursuant to § 627.428(1), Fla. Stat. should the insured ultimately prevail in the underlying case. The award of fees seems to conflict with a panel of the Fifth District's decision earlier this year in Grider-Garcia v. State Farm Mutual Automobile (5D08-3793). In Grider-Garcia, previously discussed on this blog here, the panel stated:
"Given the courts' narrow interpretation of the language of section 627.428, it appears that this Court is not authorized to grant fees to an insured who does not succeed in his or her application for certiorari. Indeed, it is doubtful that an insured would even be entitled to fees for a certiorari proceeding in which it prevails based on the interpretation of the statute that appellate courts are authorized to award fees only for an appeal that the insured wins."
Subscribe to:
Posts (Atom)