Latest 5 Cases: Tufts v. Hay (Bankruptcy), J-B Weld Co., LLC v. The Gorilla Glue Co. (Business Law), McGroarty v. Swearingen (Civil Rights)

He Said/She Said, Save Our Sons, and the Stories that Stick: Part Two of a Two-Part Series of Columns

SHERRY F. COLB

In this second in a series of columns on the U.S. Department of Education’s recent push toward a higher burden of proof in determinations of sexual harassment or assault under Title IX, Cornell Law professor Sherry F. Colb suggests that gendered narratives play a role in people’s willingness to regard an acquaintance rape case as “he said/she said.” Colb describes several examples in which people prefer a story that confirms a pre-existing bias over truth based on evidence.

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Tufts v. Hay

Dockets: 19-11496, 19-11603

Opinion Date: October 20, 2020

Judge: Martin

Areas of Law: Bankruptcy, Civil Procedure, Legal Ethics

This case arose out of a dispute between two sets of lawyers who provided legal work for a mutual client. Thomas Tufts and the Tufts Law Firm, PLLC appealed the district court's order granting a motion to dismiss on grounds of subject matter jurisdiction. Edward Hay and Pitts, Hay & Hugenschmidt, P.A. also filed a second motion to dismiss Tufts's action against them on the additional ground that the district court lacked personal jurisdiction over them. After the district court found personal jurisdiction, Hay and his firm cross appealed. The Eleventh Circuit held that the district court erred by dismissing the action for lack of subject matter jurisdiction under the Barton Doctrine. In this case, Tufts counsel initiated their action against Hay—court-approved counsel—and Tufts did not obtain leave of the bankruptcy court before doing so. The court held that the Barton doctrine has no application when jurisdiction over a matter no longer exists in the bankruptcy court. Thus, the bankruptcy court was properly vested with jurisdiction to consider this action if it could conceivably have an effect on the client's bankruptcy estate. Here, the action could not conceivably have an effect on the client's bankruptcy estate and thus the Barton doctrine does not apply. The court also held that the district court properly exercised personal jurisdiction over Hay. The court reversed the district court's ruling on subject matter jurisdiction and remanded.

J-B Weld Co., LLC v. The Gorilla Glue Co.

Docket: 18-14975

Opinion Date: October 20, 2020

Judge: Tjoflat

Areas of Law: Business Law, Intellectual Property

J-B Weld filed suit against Gorilla Glue, alleging claims for trade dress infringement under the Lanham Act, Georgia law, and the common law of unfair competition; trade dress dilution under Georgia law; and false advertising under the Lanham Act and Georgia law. The Eleventh Circuit affirmed the district court's grant of summary judgment for Gorilla Glue as to the false advertising claims, agreeing with the district court that J-B Weld has not shown that the inclusion of "steel bond epoxy" on GorillaWeld's packaging is material to consumers. However, the court reversed and remanded with respect to the trade dress infringement and trade dress dilution claims. In regard to the trade dress infringement claims, the court held that, although the posture of the case required the district court to view the evidence in the light most favorable to J-B Weld, the district court failed to do so in analyzing the "likelihood of confusion" between J.B. Weld Original's trade dress and GorillaWeld's trade dress. In regard to the trade dress dilution claims, the court held that the district court's abbreviated treatment of this claim leaves it with serious doubt that it applied the correct standard in concluding that J-B Weld was unable to show trade dress dilution. In this case, the district court's remarks about the indistinguishability of the applicable standards indicates that it applied the elements of the trade dress infringement claims to the trade dress dilution claim, thus conflating the two different sets of requirements.

McGroarty v. Swearingen

Docket: 19-10537

Opinion Date: October 20, 2020

Judge: Branch

Areas of Law: Civil Rights, Constitutional Law

The Eleventh Circuit affirmed the district court's dismissal of plaintiff's 42 U.S.C. 1983 action alleging that defendant, in his official capacity as the Commissioner of the Florida Department of Law Enforcement (FDLE), violated his constitutional rights by continuing to publish his personally identifiable information on FDLE's sex offender registry website even after plaintiff had completed probation and was no longer subject to Florida registration laws. The court held that, although plaintiff has not waived his continuing violation argument, his claims are time-barred because there was no continuing violation. Furthermore, Nichols v. United States, 136 S. Ct. 1113 (2016), does not affect the accrual of plaintiff's claims under Florida's statute of limitations.

Stryker v. City of Homewood

Docket: 19-10495

Opinion Date: October 20, 2020

Judge: Grant

Areas of Law: Civil Rights, Constitutional Law

The Eleventh Circuit reversed the district court's grant of summary judgment based on qualified immunity to defendants in an 42 U.S.C. 1983 action brought by plaintiff, alleging that police officers used excessive force, among other things, when they tased, beat, and broke plaintiff's jaw after a routine accident investigation. The court held that the district court did not view the evidence in the light most favorable to plaintiff before ruling against him. The court stated that, at the summary judgment stage, the Graham factors favor an excessive force finding for both the tasing and the later force applied when plaintiff was taken out of the truck. Furthermore, striking a compliant suspect who has surrendered his hands and stopped all resistance amounts to a clearly established constitutional violation.

Torres v. First Transit, Inc.

Docket: 18-15186

Opinion Date: October 20, 2020

Judge: Tjoflat

Areas of Law: Personal Injury

After a bus owned by First Transit struck a vehicle occupied by plaintiffs, they filed a claim for damages against First Transit, alleging that the driver of First Transit's vehicle was negligent and that First Transit was responsible for the their injuries. First Transit admitted liability and the jury awarded damages to both plaintiffs. The Eleventh Circuit vacated the district court's order denying First Transit's motion for a new trial, holding that when a party moving for a new trial based on a juror's nondisclosure during voir dire makes a prima facie showing that the juror may not have been impartial and thus was plausibly challengeable for cause, the district court must hold an evidentiary hearing prior to ruling on the motion for a new trial in order to adequately investigate the alleged juror misconduct. In this case, First Transit presented the district court with "clear, strong, substantial, and incontrovertible evidence that a specific, nonspeculative impropriety" occurred—namely, court documents that, on their face, showed that two jurors gave dishonest and misleading responses on their juror questionnaires and on voir dire. The court concluded that the district court's failure to conduct an evidentiary hearing constituted an abuse of discretion and remanded for an evidentiary hearing on the question of juror impartiality.