11th Circuit Weighs in on Split Re Impact of Jury's Finding on Limitations Period Question in an FLSA Case

Per Perez v. Sanford-Orlando Kennel Club, Inc., --- F.3d ----, 2008 WL 220070 (11th Cir. Jan. 29, 2008):

We conclude, based on the reasoning and holdings of our Glenn and Castle decisions, that in an FLSA case a jury's finding in deciding the limitations period question that the employer acted willfully precludes the court from finding that the employer acted in good faith when it decides the liquidated damages question. Our conclusion puts us on what appears to be the majority side of the circuit split on this issue. Compare Singer v. City of Waco, Tex., 324 F.3d 813, 823 (5th Cir.2003) (affirming an award of liquidated damages where the jury had found that the defendant's violation of the FLSA was willful, because the defendant could not show it had acted in good faith), and Chao v. A-One Med. Servs., Inc., 346 F.3d 908, 920 (9th Cir.2003) (affirming an award of liquidated damages under the FLSA where there had been a finding of willfulness, and noting that “a finding of good faith is plainly inconsistent with a finding of willfulness”), and Herman v. Palo Group Foster Home, Inc., 183 F.3d 468, 474 (6th Cir.1999) (affirming a district court's award of liquidated damages for violations of the FLSA and concluding that “a finding of willfulness is dispositive of the liquidated-damages issue”), and Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 120 (2d Cir.1997) (finding in an EPA case that an employer had acted willfully for purposes of the statute of limitations, “and the resulting compensatory award should be doubled pursuant to the Fair Labor Standards Act's liquidated damages provision” under 29 U.S.C. § 260), and Brinkman v. Dep't of Corr., 21 F.3d 370, 372 (10th Cir.1994) (determining that the district court “properly awarded liquidated damages based upon the jury's finding of willfulness” because “when fact issues central to a claim are decided by a jury upon evidence that would justify its conclusion, the Seventh Amendment right to a jury trial prohibits the district court from reaching a contrary conclusion”), with Broadus v. O.K. Indus., Inc., 226 F.3d 937, 944 (8th Cir.2000) (noting in an EPA case that the “jury's decision on willfulness is distinct from the district judge's decision to award liquidated damages” (citation omitted)), and Fowler, 978 F.2d at 163 (determining in an EPA case that in light of “the explicit language of section 260, expressly vesting discretion to award liquidated damages in the hands of the trial judge ... Congressional intent would [not] be effectuated by a scheme in which, in every case, the trial court's discretion to award liquidated damages would be completely constrained by the jury's determination on ‘willfulness' for purposes of the statute of limitations”).

M.D. Fla. Notes Split Re Whether a Plaintiff Alleging Retaliation under ADA Has Right To Seek Compensatory and Punitive Damages and to Jury Trial

Per Rumler v. Department of Corrections, Florida, Slip Copy, 2008 WL 215699 (M.D. Fla. Jan. 24, 2008):

[T]he Court must determine whether a plaintiff alleging retaliation under the ADA, arising from the plaintiff's employment, has the right to seek compensatory and punitive damages, and to request a trial by jury as to these issues.

The Court acknowledges that circuit and district courts are split on this issue. On one hand, the Seventh Circuit held, in a case of first impression among the federal appellate courts, that the ADA authorizes only equitable relief for retaliation claims. See Kramer, 355 F.3d at 965. Thereafter, the Fourth Circuit, citing Kramer, held in two unpublished per curiam opinions that compensatory and punitive damages were unavailable to ADA retaliation claimants. Bowles v. Carolina Cargo, Inc., 100 Fed. Appx. 889, 889 (4th Cir.2004) (per curiam); Rhoads v. FDIC, 94 Fed. Appx. 187, 188 (4th Cir.2004) (per curiam). On the other hand, the Second, Eighth and Tenth Circuits have affirmed awards of compensatory damages in ADA retaliation cases, although none independently examined whether such damages are available under the act. See Muller v. Costello, 187 F.3d 298, 314 (2d Cir.1999); Foster v. Time Warner Entertainment Co., 250 F.3d 1189, 1196-98 (8th Cir.2001); Slitros v. Chrysler Corp., 306 F.3d 562, 570 (8th Cir.2002); EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1244-43 (10th Cir.1999). As the Eleventh Circuit has not addressed the question of whether compensatory and punitive damages are available under the ADA's anti-retaliation provision, the Court's decision is informed by persuasive authority from the circuit and district courts that have considered the issue, as well as the Court's analysis of the applicable statutes.

. . .

[T]he Court finds that Plaintiff is entitled to seek compensatory and punitive damages, and entitled to demand a trial by jury on her ADA retaliation claim.

Sixth Circuit Notes Split Re Whether 18 U.S.C. whether § 3583(i) Nevertheless Contains an Implicit Sworn-Facts Requirement

Per U.S. v. Madden, --- F.3d ----, 2008 WL 199540 (6th Cir. Jan. 25, 2008):

At the outset, we note that the plain language of the statute does not require that a warrant or summons relating to a supervised-release violation be supported by probable cause. See 18 U.S.C. § 3583(i) (requiring only that “a warrant or summons has been issued on the basis of an allegation of such a violation”). There is a dispute among our sister circuits over whether § 3583(i) nevertheless contains an implicit sworn-facts requirement. Compare United States v. VargasAmaya, 389 F.3d 901, 904 (9th Cir.2004) (concluding that, by its terms, a “warrant” is a “document that is based on probable cause and supported by sworn facts”), with United States v. GarciaAvalino, 444 F.3d 444, 445 (5th Cir.2006) (rejecting the notion “that there is an implicit sworn-facts requirement embedded in the very meaning of the word ‘warrant’ as a legal term,” and concluding that the district court had jurisdiction over the defendant under § 3583(i) regardless of whether the warrant was supported by sworn facts). We have no need to resolve this question in the present case because, even if we were to decide that the district court's reliance on a warrant not supported by probable cause constituted an error, the very existence of a reasonable disagreement on this point precludes the conclusion that the error was plain. See United States v. Alexander, 217 F. App'x 417, 422 (6th Cir.2007) (citing the “conflicting precedents” among the circuits to conclude that an error was not plain); United States v. Williams, 53 F.3d 769, 772 (6th Cir.1995) (concluding that a “circuit split precludes a finding of plain error”).

S.D.N.Y. Discusses Split Re Meaning of “Arise out of or Relate to” in the Context of a Personal Jurisdiction Analysis

Per Del Ponte v. Universal City Development Partners, Ltd., Slip Copy, 2008 WL 169358 (S.D.N.Y. Jan. 16, 2008):

What does it mean for a cause of action to “arise out of or relate to” a given defendant's conduct in a forum? As the Second Circuit has observed, there is little consensus on this issue. See Chew v. Dietrich, 143 F.3d 24, 29 (2d Cir.1998) (“[T]here appears to be a split in the Circuits on the standard to be applied in determining if a tort claim ‘relates' to the defendant's activities within the state.”). The Supreme Court has resisted explicating the scope of the “arise out of or relate to” requirement. See Helicopteros, 466 U.S. at 415 n. 10 (“We do not address ... whether the terms ‘arising out of and ‘related to’ describe different connections .... Nor do we reach the question whether, if the two types of relationship differ, a forum's exercise of personal jurisdiction in a situation where the cause of action ‘relates to,’ but does not ‘arise out of,’ the defendant's contacts with the forum should be analyzed as an assertion of specific jurisdiction.”); Carnival Cruise Lines, Inc., v. Shute, 499 U.S. 585, 589 (1991) (holding that construction of a forum selection clause was dispositive of the case, thus permitting the Court to punt on the issue for which certiorari was granted: whether plaintiff's claim arose from or related to defendant's contacts with the forum); see also O'Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 318 (3d Cir.2007) (collecting Supreme Court cases commenting on the “arise from or relate to” language).

Without explicit guidance from the Supreme Court, the various Circuits have reached different conclusions on what standard should be applied in determining whether a claim “arises from or relates to” a defendant's contacts with a forum. Some circuits have held that jurisdiction over a defendant is proper only when the defendant's conduct within the forum is the “proximate cause” of the plaintiff's injury. See Chew, 143 F.3d at 29 (noting use of the “proximate cause” test by the First and Eighth Circuits). Other circuits have offered a more relaxed test, holding that minimum contacts exist when a defendant's conduct is a “but for” cause of the plaintiff's injury. See id. (noting use of the “but for” test in the Sixth, Seventh, and Ninth Circuits).

The Second Circuit, however, has eschewed commitment to either test. The court in Chew contrasted the “but for” and the “proximate cause” tests, but explicitly rejected the “dichotomy” of these two tests. Id. Instead, the Court proposed a more flexible application of minimum contacts, which would view “relatedness” as but one aspect of a “general inquiry ... designed to determine whether the exercise of personal jurisdiction in a particular case does or does not offend ‘traditional notions of fair play and substantial justice.’ “ See id. (quoting Int'l Shoe, 326 U.S. at 316). . . . Under [the Second Circuit] test, if a defendant has scant contacts with the forum, a court may demand a proximate relation between the defendant's contacts and the plaintiff's injury. If, on the other hand, the defendant has substantial contacts with the forum (even if not sufficient to establish general jurisdiction), the court may accept a more attenuated relation between the defendant's contacts with the forum and the plaintiff's cause of action.

Federal Circuit Discusses Split Re Appellate Jurisdiction over Dismissals Without Prejudice

Per Doe v. U.S., --- F.3d ----, 2008 WL 170188 (Fed. Cir. Jan. 22, 2008):

[T]he government contends that the judgment is not final because the claims that were not dismissed for failure to state a claim were dismissed voluntarily and without prejudice. In the government's view, the judgment is not final because the claims that were dismissed voluntarily and without prejudice were not adjudicated. In support of its argument, the government relies on cases from the Second, Fifth, Seventh, and Eleventh Circuits that have found jurisdiction lacking when unresolved claims are voluntarily dismissed without prejudice. See Rabbi Jacob Joseph Sch. v. Province of Mendoza, 425 F.3d 207, 210 (2d Cir.2005) (“immediate appeal is unavailable to a plaintiff who seeks review of an adverse decision on some of its claims by voluntarily dismissing the others without prejudice.” (emphasis in original)); Marshall v. Kansas City S. Ry. Co., 378 F.3d 495, 499-500 (5th Cir.2004) (“a party cannot use voluntary dismissal without prejudice as an end-run around the final judgment rule” (emphasis in original)); West v. Macht, 197 F.3d 1185, 1189 (7th Cir.1999) (“The recent cases disallowing a sort of manufactured finality like that found in the present lawsuit are consistent with the fundamental policy disfavoring piecemeal appeals. Hence, West's voluntary dismissal without prejudice is under current law insufficient to create a final judgment.”); State Treasurer v. Barry, 168 F.3d 8, 11 (11th Cir.1999) ( “appellate jurisdiction over a non-final order cannot be created by dismissing the remaining claims without prejudice”).

Our court has not adopted that position. In Nystrom v. Trex Co ., 339 F.3d 1347 (2003), we addressed a claim of patent infringement that was dismissed on summary judgment of noninfringement. Id. at 1349. The defendant had filed a counterclaim for a declaratory judgment of invalidity and unenforceability, but the district court did not reach those issues. Id. Instead, the court entered judgment for the defendant and stayed the counterclaim pending appeal. Id. Because the counterclaim remained pending, we held that the summary judgment order was not an appealable final judgment. Id. at 1351. We discussed, however, four “avenues of appeal” that the district court could have followed for the parties to have an appeal “as a matter of right.” Id. at 1350-51. One of those avenues was that “the district court could have dismissed the counterclaim without prejudice (either with or without a finding that the counterclaim was moot) following the grant of summary judgment of non-infringement.” Id. at 1351.

In this case, we see no reason to disavow our statement in Nystrom regarding dismissals without prejudice. Several other circuits have also declined to follow a bright line rule that judgments must always be treated as nonfinal whenever unresolved claims are voluntarily dismissed without prejudice. In James v. Price Stern Sloan, 283 F.3d 1064, 1069-70 (9th Cir.2002), the Ninth Circuit reviewed the split among the circuits on this issue, and adopted a rule that “when a party that has suffered an adverse partial judgment subsequently dismisses remaining claims without prejudice with the approval of the district court, and the record reveals no evidence of intent to manipulate our appellate jurisdiction, the judgment entered after the district court grants the motion to dismiss is final and appealable.” In adopting that rule, the James court followed the Sixth Circuit's approach in Hicks v. NLO, Inc., 825 F.2d 118 (6th Cir.1987), and the Eighth Circuit's approach in Chrysler Motors Corp. v. Thomas Auto Co., 939 F.2d 538 (8th Cir.1991). See James, 283 F.3d at 1069-70. In those cases, the courts exercised appellate jurisdiction over cases in which the district court had entered final judgment at the parties' request by dismissing remaining claims without prejudice. Hicks, 825 F.2d at 120 (“we hold that plaintiff's dismissal with the concurrence of the court of the only count of her complaint which remained unadjudicated imparted finality to the District Court's earlier order granting summary judgment.”); Chrysler Motors, 939 F.2d at 540 (same). The James court also noted that, although the Seventh Circuit has declined to exercise jurisdiction in appeals following a dismissal without prejudice, “it has done so only where the record revealed that the district court and the parties have schemed to create jurisdiction over an essentially interlocutory appeal.” 283 F.3d at 1069 (citing United States v. Kaufmann, 985 F.2d 884 (7th Cir.1993), and Horwitz v. Alloy Auto Co., 957 F.2d 1431 (7th Cir.1992)).

Eighth Circuit Notes Split Re Whether Assistance to State or Local Authorities Can Be a Basis for the Govt's Filing of a Motion for Downward Departure

Per U.S. v. Fields, --- F.3d ----, 2008 WL 114850 (8th Cir. Jan. 14, 2008):

We have not previously ruled on whether assistance to state or local authorities can be a basis for the government filing a motion under § 3553(e) or § 5K1.1. Other circuits have addressed this issue, however, and the result has been a circuit split. Compare United States v. Love, 985 F.2d 732, 734-35 (3d Cir.1993) (concluding that the measure of assistance provided by the defendant should not be limited to assistance provided to federal authorities), and United States v. Emery, 34 F.3d 911, 913 (9th Cir.1994) (following Love ), with United States v. Kaye, 140 F.3d 86, 87-88 (2d Cir.1998) (a divided court declined to follow Love and concluded that assistance must be provided to federal authorities for purposes of a motion under § 3553(e) or § 5K1.1, but that such assistance may be considered by the district court under U . S.S.G. § 5K2.0). While we have not reached this issue directly, the government notes in its brief that assistance to state authorities can be the basis for filing a § 5K1.1 motion, and that in the past it has entered into agreements with defendants for the assistance of a third party in exchange for filing a motion for downward departure for the defendant.

E.D. Ark. Notes Split Re Authority to Award Attorney's Fees under Sec. 1988 After Dismissal of 1983 Claim for Lack of SMJ

Per U.S. ex rel Montgomery v. St. Edward Mercy Medical Center, Slip Copy, 2008 WL 110858 (E.D. Ark. Jan. 08, 2008):

The Eighth Circuit, applying § 1988 in a lawsuit brought pursuant to 42 U.S.C. § 1983, concluded that the district court lacked the authority to award attorney's fees under § 1988 after it had dismissed the plaintiff's § 1983 claim for lack of subject matter jurisdiction. Keene Corp. v. Cass, 908 F.2d 293, 298 (8th Cir.1990). The Keene Court specifically held that a lack of subject matter jurisdiction also deprived the court of the power to make an award of attorneys fees. It further held that the defendant could not be considered a “prevailing party” when the dismissal was based on a lack of subject matter jurisdiction. Id. In this regard, the court specifically held that “[w]here a complaint has been dismissed for lack of subject matter jurisdiction, the defendant has not ‘prevailed’ over the plaintiff on any issue central to the merits of the litigation.” Id. (omitting citation and some internal quotations).

The Circuits appear to be split on this issue. The Second, Ninth and Eighth Circuits prohibit a fee award following a dismissal based on subject matter jurisdiction, while the Seventh and Tenth Circuits do not.^FN3 The Court recognizes that the Eighth Circuit has not considered the issue in the specific context of a fee award to a prevailing defendant in a qui tam action pursuant to 31 U.S.C. § 3130(d)(4). Additionally, while this Court might be inclined to agree with the Tenth Circuit's conclusion that “[t]here is no Article III roadblock” preventing a fee award in the context of § 3130(d)(4),” it is obligated to follow the precedent of the Eighth Circuit. U.S. ex rel. Grynburg v. Praxair, Inc., 389 F.3d 1038, 1057 (10th Cir.2004).

FN3. See, e.g. Branson v. Nott, 62 F.3d 287, 293 (9th Cir.1995)( “By itself, § 1988 does not provide the district court with jurisdiction to grant an attorney fee award where subject matter jurisdiction to hear the underlying § 1983 claim is lacking.”); W.G. v. Senatore, 18 F.3d 60 (2d Cir.1994)(holding that court lacked authority to consider merits of fee application under IDEA fee shifting provision where it lacked subject matter jurisdiction over the substantive claim); Citizens for a Better Environment v. Steel Co., 230 F.3d 923, 925-28 (7th Cir.2000)(finding that, even if a court lacks power to rule on the substantive claims of the plaintiff, it does not necessarily lack power to award attorney fees, but discussing cases reaching opposite conclusion); U.S. ex rel. Grynberg v. Praxair, Inc., 389 F.3d 1038, 1055-56 (10th Cir.2004)(adopting Seventh Circuit approach in Citizens for a Better Environment, supra, as “the most thoughtful approach”).

W.D. Pa. Notes Split Re Exhaustion Requirement of Prison Litigation Reform Act

Per Burkhart v. Crawford County Correctional Facility, Slip Copy, 2008 WL 65600 (W.D. Pa. Jan. 04, 2008):

The United States Court of Appeals for the Third Circuit has explicitly held that the exhaustion requirement of the PLRA includes a procedural default component, by analogizing it to the exhaustion doctrine (with its corollary procedural default component) in the habeas context. Spruill v. Gillis, 372 F.3d 218, 228-229 (3d Cir.2004).^FN2

FN2. There is a split of authority among the Circuits on this issue. Compare Berry v. Kerik, 366 F.3d 85 (2d Cir.2004), Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir.2004), and Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir.2002), with Thomas v. Woolum, 337 F.3d 720 (6th Cir.2003).

Eleventh Circuit Discusses Split Re Standards Governing the Opening of Prisoners' Legal Mail

Per Al-Amin v. Smith, --- F.3d ----, 2008 WL 60018 (11th Cir. Jan. 07, 2008):

Post- Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254 (1987), this Court has accorded “wide-ranging” and “substantial” deference to prisoner administrators in their execution of policies and practices that they consider necessary to preserve internal order and discipline and to maintain institutional security. See Bass v. Perrin, 170 F.3d 1312, 1319 (11th Cir.1999); Lawson v. Singletary, 85 F.3d 502, 509-10 (11th Cir.1996). Such deference is justified because of “the complexity of prison management, the fact that responsibility therefor is necessarily vested in prison officials, and the fact that courts are ill-equipped to deal with such problems.” Lawson, 85 F.3d at 510. Before we apply Turner 's factors to the mail-opening issue here, we review the post- Turner split in other circuits about this issue.

Subsequent to Turner, the Fifth Circuit reconsidered Taylor and Guajardo and rejected their holdings under Turner 's “reasonably related” test. See Brewer, 3 F.3d at 825. The plaintiff-inmates in Brewer complained that their legal mail was opened outside their presence, despite a prison policy requiring otherwise. Brewer involved broad “legal mail” which the Fifth Circuit described as “legal mail from various courts, attorneys, and government officials.” Id. at 818.

The Fifth Circuit acknowledged prisoners' “constitutionally protected right of access to the courts” but concluded that “what we once recognized in [ Taylor ] as being ‘compelled’ by prisoners' constitutional rights-i.e., that a prisoner's incoming legal mail be opened and inspected only in the prisoner's presence-is no longer the case in light of Turner and Thornburgh. ” Id. at 820, 825 (citation omitted). The Fifth Circuit stated that Taylor 's requirements of the least restrictive means and a substantial or important government interest “appear[ed] to have been modified” by Turner 's “instruction that when a prison practice impinges on inmates' constitutional rights, whatever those rights might be, such a practice is valid if it is ‘reasonably related to legitimate penological interests.’ ” Id. at 823-25. The Fifth Circuit noted that the prisoners did not allege “that their mail has been censored” and “they concede that such mail was opened and inspected for the ‘legitimate penological objective’ of prison security, i.e., to detect contraband.” Id. at 825. The Fifth Circuit concluded that “the violation of the prison regulation requiring that a prisoner be present when his incoming legal mail is opened and inspected is not a violation of a prisoner's constitutional rights.” Id. at 825.

In contrast, several other circuits post- Turner have concluded that opening properly marked attorney mail outside a prisoner's presence infringes the constitutional right to access to the courts. See Sallier v. Brooks, 343 F.3d 868, 877-78 (6th Cir.2003) (concluding that no penological interest or security concern justifies opening attorney mail outside prisoner's presence when prisoner requested otherwise); Bieregu v. Reno, 59 F.3d 1445, 1458 (3d Cir.1995) (disagreeing with Fifth Circuit's Brewer, and concluding the pattern and practice of opening inmate's properly marked incoming “court mail” ^FN25 outside his presence fails the Turner reasonableness standard and violates inmate's rights to free speech and access to courts) ( abrogated in part on other grounds by Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174 (1996)); ^FN26 see also Kaufman v. McCaughtry, 419 F.3d 678, 686 (7th Cir.2005) (stating, “when a prison receives a letter for an inmate that is marked with an attorney's name and a warning that the letter is legal mail, officials potentially violate the inmate's rights if they open the letter outside of the inmate's presence”); Davis v. Goord, 320 F.3d 346, 351-52 (2d Cir.2003) (noting, “[i]nterference with legal mail implicates a prison inmate's rights to access to the courts” but concluding two incidents of mail interference “are insufficient to state a claim for denial of access to the courts because [the inmate] has not alleged that the interference with his mail either constituted an ongoing practice of unjustified censorship or caused him to miss court deadlines or in any way prejudiced his legal actions”); Powells v. Minnehaha County Sheriff Dep't, 198 F.3d 711, 712 (8th Cir.1999) (concluding inmate stated constitutional claim based on officers opening legal mail when he was not present).

^{. . .}

Applying Turner 's factors to this case, we conclude that our well-established law in Taylor and Guajardo-that inmates have a constitutionally protected right to have their properly marked attorney mail opened in their presence-is not changed by Turner and remains valid, well-established law.

N.D. Fla. Notes Split Re Whether Guilty Plea Waives a Defendant's Claim under Brady

Per Wiggins v. McDonough Slip Copy, 2007 WL 457057 (N.D. Fla. Dec. 21, 2007):

There is no Supreme Court law that clearly establishes whether a guilty plea waives a defendant's claim under Brady, and the Eleventh Circuit has not decided the issue, see United States v. Matthews, 168 F.3d 1234, 1242 (11th Cir.1999).^FN8

FN8. Other circuits are divided on this issue. Compare Matthew v. Johnson, 201 F.3d 353 (5th Cir.2000) (absent a claim that a prosecutor's failure to disclose exculpatory information rendered a habeas petitioner's plea unknowing or involuntary, Supreme Court precedent does not provide that a prosecutor's non-disclosure prior to entry of a guilty or nolo contendere plea is a Brady violation or otherwise a violation of the Due Process Clause) with Tate v. Wood, 963 F.2d 20 (2d Cir.1992) (guilty plea may be collaterally attacked on grounds that the State failed to disclose material exculpatory information); White v. United States, 858 F .2d 416 (8th Cir.1988) (same); Miller v. Angliker, 848 F.2d 1312 (2d Cir.1988) (same); Campbell v. Marshall, 769 F.2d 314 (6th Cir.1985) (same).