Notice of Appeal

More Eleventh Circuit News

First, the Supreme Court today issued an opinion with the style Scott v. Harris which, interestingly, reverses the Eleventh Circuit (not usually known for being hard on police) in a Fourth Amendment police chase case, Harris v. Coweta County [and Scott], finding that ramming into the fleeing car to cause a wreck is justified because the chase itself is dangerous to the public. (The opinion reviewed by the Supreme Court was issued in place of the original opinion, which was vacated sua sponte by the panel.)

As SCOTUSBlog notes, this is the first time the Supreme Court has provided a link to a video (the police dashboard video, a la 'Cops') related to the opinion. Read other interesting commentary about the issues in this case (including, whether the rule that courts should rule on the underlying constitutional issue first, before determining whether it was clearly established, in qualified immunity cases should be overturned) as SCOTUSBlog here.

In other news, today, the Eleventh Circuit issued an opinion in Hanley v. Roy resolving an international child custody dispute under the Hague Convention on Child Abduction and the International Child Abduction Remedies Act.

En banc/cert issue alert

On Friday, the Eleventh Circuit issued a lengthy opinion about federal courts' jurisdiction to decide a petition for arbitration under the Federal Arbitration Act ("FAA"), and an even longer special concurrence by Judge Marcus discussing why the issue should be reviewed by the Eleventh Circuit en banc, or by the Supreme Court. The description that follows is lengthy, but the case contains some interesting and important issues.

The case, Community State Bank v. Strong, arises out of a Georgia payday loan class action against Georgia Cash America and affiliates.

Georgia Court of Appeals Roundup

The Georgia Court of Appeals issued a steady fare of opinions this week -- 5 civil and 13 criminal cases.

Starting with the civil cases, the court issued an interesting pair of cases involving Dwain Lee Kirkland.  The facts of each case shed some light on the other. The overall picture is this: Kirkland, now 49, accuses his parents of abusing him to the point where he claims to have PTSD (just diagnosed in 2004). At the age of 22, he moved away from home, although it appears he has returned to the state, and his father has died. His cousin allegedly said false things about him to Dwain's father, such as that he wrote a book so violent that it will never sell, and that he spends all his money on strippers and doesn't have a girlfriend, and also menacing things like "what goes around comes around" (in a "murderous tone" of voice). Also, unnamed persons called him and told him his criminal and psychological records had been filed in probate court.

Georgia Newly Enacted State False Medicare Claims Act, O.C.G.A. § 49-4-168

On April 13, 2007, the Georgia General Assembly passed a bill titled "State False Medicaid Claims Act" ("SFMCA"), HB 551, which is widely expected to be signed by Georgia Governor Sonny Perdue by mid-summer. The SFMCA will add a new statute (i.e., O.C.G.A. § 49-4-168) to Title 49, Chapter 4 of the Georgia Code, which relates to state public assistance.

Georgia’s SFMCA includes a qui tam provision that allows private citizens to file actions against any party that recklessly submits false or fraudulent claims for payment of Georgia Medicaid funds to the state or any other party handling such funds. As an incentive to bring an action under the act, the Georgia SFMCA allows these private plaintiffs -- commonly known as “relators,” see Cook County, Ill. v. U.S. ex rel. Chandler, 538 U.S. 119, 122 (2003) -- to recover a percentage of the proceeds obtained by the state government. In general, this percentage varies between 15-30% of the proceeds recovered by the state  depending on (1) whether the government intervenes in a case and handles the litigation (rather than the relator) and (2) the relator’s overall contribution to the action.

National Wave of Similar State False Claims Acts Passed in Response to the DRA

Georgia’s passage of a state false claims act targeting Medicaid fraud is part of a national wave of similar state enactments over the past 18 months.

Eleventh Circuit today

There was one lonely Eleventh Circuit opinion today: it reversed the district court's dismissal for lack of personal jurisdiction in an intellectual property case. Vax-D Medical Technologies v. Texas Spine Medical Center. The procedural history is tangled: the plaintiff, Vax-D, first served an individual, David Boudreau, as the defendant, properly serving him. It then amended its complaint, naming Texas Spine (a Texas resident, as you might have guessed), and David Boudreau as an officer of Texas Spine. Again, Vax-D properly served the amended complaint. Boudreau answered without raising a defense based on lack of personal jurisdiction, and participated in the litigation and discovery. Only when Vax-D served a second amended complaint, alleging that Texas Spine was a fictitious name under which Boudreau did business, did a personal jurisdiction issue suddenly arise. Having already served both defendants, Vax-D this time only mailed the second amended complaint to Boudreau's last known address, and the defendants contended they had not received it, and did not participate further in the litigation. The district court dismissed for lack of personal jurisdiction due to improper service.

Not so fast, says the Eleventh Circuit. Boudreau and Texas Spine had already been properly served (or if they weren't, they had waived their defense), and filing a second amended complaint that actually alleged Texas Spine as a fictitious name did not invalidate the already-proper service of the complaint and amended complaint.

Georgia Supreme Court - April 24 Opinions

In contrast to the Eleventh Circuit, which again issued no opinions today, the Georgia Supreme Court just released decisions in sixteen cases, summarized here.

First, in the world of "what not to do as a plaintiff," is McConnell v. Wright. The McConnells filed a personal injury (auto accident) suit in which State Farm ultimately was added as a defendant. Everything was fine until the McConnell's attorney withdrew, and meanwhile the McConnells were scheduled for their depositions -- and rescheduled, twice, while the McConnells sought new counsel. Apparently there was a miscommunication the third time when the McConnells updated State Farm on the status of their seeking counsel, but failed to show up for their deposition. The McConnells claim they assumed the deposition would be rescheduled when they updated State Farm. State Farm moved to dismiss as a sanction for failing to appear, and the trial court granted the motion -- without a hearing.

Eleventh Circuit in the past week...

Published opinions have slowed down somewhat after the post-spring break rush. Six opinions have issued since Thursday, on a variety of issues, none of which is groundbreaking, but each contains an interesting tidbit or two. We have two criminal cases (one drug case and one white collar case), two civil rights cases, a tort case (based on Florida law) with a small federal procedural issue, and a habeas case.

1915(g)-plus?

Apologies for the delay in updating you on recent cases -- in part this is because I was preparing for oral argument yesterday in the 11th Circuit, before Judges Tjoflat, Black and visiting Judge Ebel from the 10th Circuit, in the case of Miller v. Donald.

The issues on appeal:

• whether the Southern District of Georgia's "sec. 1915(g)-plus" rule barring super-frequent-filers from filing anything IFP, even if they allege imminent danger of serious physical injury (the exception provided under 28 U.S.C. 1915(g)), unless they pay all prior filing fee debts (which, in my client's case, amounted to over $1300); and
• whether the district court could properly determine that a facially valid claim of imminent danger was actually frivolous, based on the plaintiff's prior filing history.

See Barber v. Attorney General, 458 F.Supp. 2d 1378 (S.D. Ga. 2006), for more details about the rule (as well as the 1915(g)-plus-plus rule and the 1915(g)-plus-plus-plus rule).

By way of background: the Eleventh Circuit previously found, in another case Miller brought, that his sec. 1983 and ADA injunctive relief claims survived summary judgment. It ultimately vacated the prior opinion and remanded the case so that Miller could file an amended complaint in light of the companion case of Goodman v. Georgia, which went up to the Supreme Court and reversed the Eleventh Circuit's holding that the 11th Amendment barred his ADA damages claims. (Disclaimer -- BME represented Miller in that 11th Circuit case, and I now represent Miller in the district court. Some good folks at Hunton & Williams now represent Goodman.)

Stay tuned for the outcome of this case...

Eleventh Circuit Decisions This Week

The Eleventh Circuit issued four opinions in the last two days, one yesterday and three today.  All four are civil cases that arise in a variety of contexts -- labor, civil procedure, bankruptcy, and an Alabama contract/tort case.

Georgia Court of Appeals -- April 12 decisions

The Georgia Court of Appeals handed down six cases yesterday -- two civil and four criminal.

The first of the civil cases, Johnson v. Georgia Pacific, was resolved when the Georgia Supreme Court handed down Daimler Chrysler v. Ferrante, which found OCGA 51-14-1 et seq., the asbestos and silica claims statute, unconstitutional as applied to cases accruing prior to the statute's effective date of April 12, 2005. 2007 WL 1087396.

The second case, Halligan v. Brown, a personal injury (car accident) case, affirms the trial court's determination that the defendant driver's unexpectedly passing out while driving was an "act of God" that precludes liability in spite of his running a red light (and thus being negligent per se) as a result of passing out. 2007 WL 1087415.

Two of the criminal cases (Lawton and Jones) were affirmed over claims of ineffective assistance of counsel, and one (Boileau) was affirmed over a claim of insufficient evidence as well as a challenge to admission of similar transaction evidence. However, one of the criminal cases, Mann v. State, 2007 WL 1087410, was reversed: the trial court erred in admitting evidence of cocaine use based on Roche OnTrack TesTstik, without a showing the test had the requisite accuracy to be admitted without expert testimony. The Court of Appeals reversed the trial court's revocation of the defendant's remaining 14 years of probation on the basis of that evidence.