Marcia G. Cooke

This case concerns Flava Works, Inc., which leases a multifamily home in a Miami R-4 residential zone to operate CocoDorm.com, a website that streams live video of residents engaging in sexual activity. The City of Miami cited the property owner and Flava Works for violating zoning rules that prohibit operating a business in a residential district and restrict adult entertainment establishments. After the Eleventh Circuit held that the activity qualified as a business (though not an adult entertainment establishment) and remanded the remaining claims, the district court granted the city's renewed motion for summary judgment. The court rejected the plaintiffs' constitutional challenges—including First Amendment overbreadth and narrow tailoring claims, equal protection, regulatory taking, and dormant commerce clause arguments—finding that the zoning ordinances applied validly to the commercial use of the property and that the plaintiffs lacked standing to challenge provisions that did not affect them.

business & regulatoryfree speechpropertycivil rights

This case involves a dispute between Zaki Kulaibee Establishment, a Saudi Arabian corporation, and several Florida defendants over the performance of a consignment sales agreement for aircraft parts and a subsequent settlement agreement. The plaintiff alleged breaches including failure to provide reports, improper handling and sale of goods, and failure to share proceeds or insurance claims. The court granted in part and denied in part the defendants' motion for partial summary judgment, dismissing some claims such as equitable accounting against most defendants and certain fraudulent transfer claims, while allowing others like breach of contract, conversion against some parties, and most FUFTA claims to proceed, based on the sufficiency of evidence and legal requirements for each cause of action.

business & regulatoryproceduretorts & liability

This case is a diversity action in which Hobirn, Inc. sued Aerotek, Inc. for negligent hiring, negligent misrepresentation, and violation of the Florida Unfair and Deceptive Trade Practices Act, alleging that Aerotek failed to conduct promised background checks on a contract employee (Wayne Guthrie) who later stole from Hobirn after being hired directly. Aerotek had earlier obtained a default judgment against Hobirn in state court for unpaid fees under the services agreement. Aerotek moved to dismiss on grounds including the compulsory counterclaim rule, contractual disclaimers, failure to state a claim, and the economic loss doctrine. The court denied the motion, holding that the claims were not procedurally barred, that Hobirn had pled sufficient facts to show a duty and plausible negligence independent of the contract, and that the economic loss doctrine and disclaimers did not apply to bar the tort claims.

proceduretorts & liabilitybusiness & regulatory

This case involves a lawsuit by Ruben Reyes and other Retail Account Executives against AT&T Mobility Services LLC, alleging violations of the Fair Labor Standards Act for failure to pay overtime compensation. The plaintiffs moved to conditionally certify a collective action on behalf of all such employees who earned under $100,000 per year and were not paid proper overtime. The magistrate judge recommended granting the motion, finding sufficient evidence from multiple affidavits that the employees were similarly situated, and the district court adopted this recommendation after de novo review. The court conditionally certified the class and ordered the defendant to provide contact information for notice purposes.

labor & employment

The case involved plaintiffs Albert Segal and Marianna Chaparova suing Amazon.com, Inc. under Florida law for issues with their Amazon Marketplace seller account, including withheld funds and blocked listings after they began selling merchandise on the site in 2009. Amazon moved to transfer venue to Washington, citing a forum-selection clause in the Participation Agreement that designates exclusive jurisdiction in King County, Washington courts for disputes exceeding $7,500. The court granted the motion to transfer the case to the U.S. District Court for the Western District of Washington under 28 U.S.C. § 1404(a), holding that the clause was valid and enforceable as part of a clickwrap agreement, selected without bad faith or fraud, and that any financial inconvenience to the plaintiffs did not rise to the level required to invalidate it under precedents like Carnival Cruise Lines v. Shute.

business & regulatoryprocedure

This case involves an insurance coverage dispute arising from an underlying state court lawsuit where approximately 90 plaintiffs sued the Dania Defendants for negligence, violations of Florida's pollutant discharge laws, nuisance, and trespass, alleging bodily injury and property damage from the release of toxic contaminants during development of a former landfill site. Mt. Hawley had issued a commercial general liability policy to the Dania Defendants but refused to defend or indemnify them, citing policy exclusions. The court granted Mt. Hawley's motion for summary judgment and denied the defendants' cross-motions, holding that the policy's pollution exclusion clause barred coverage for all claims in the underlying complaint because they stemmed from dispersal of pollutants known to be on the property. The court further noted that the continuous or progressive injury exclusion also precluded coverage, as the contamination predated the policy period, and that additional exclusions applied to asbestos, lead, and silica-related claims.

environmentbusiness & regulatorytorts & liability

This case involved Plaintiff Yuliana Ruiz, as personal representative of deceased Carnival employee Gregory Navarro, who filed suit in Florida state court alleging Jones Act negligence and unseaworthiness claims arising from Navarro's suicide aboard a Carnival vessel. Carnival removed the action to federal district court, asserting that an arbitration clause in Navarro's Seafarer's Agreement fell under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards and provided a basis for federal jurisdiction. Ruiz moved to remand, arguing that the clause was null and void under the Convention because it was governed by Panamanian law, which does not provide equivalent rights to those under the Jones Act, and thus operated as an improper prospective waiver of statutory remedies. The court granted the motion to remand, holding that the arbitration agreement violated public policy and was unenforceable, leaving the federal court without subject-matter jurisdiction under 9 U.S.C. § 205.

procedurelabor & employment

The case concerns a dispute between National Auto Lenders (NAL), which finances vehicle purchases and holds liens secured by GPS tracking units, and Procon, Inc., which acquired the GPS supplier and later required NAL to accept click-to-accept agreements limiting liability for defective units in order to access tracking data for about 1,900 dealer-purchased units. NAL moved for a preliminary injunction to maintain access to the tracking website without accepting the new terms. The court granted the motion, ordering Procon to provide continued tracking service for the already-purchased units at normal rates without requiring acceptance of the February 2010 agreement or blocking access. The ruling rested on findings that NAL showed a substantial likelihood of success based on prior negotiated terms granting access rights, that loss of tracking capability would cause irreparable harm to NAL’s business and loan security, and that any harm to Procon was outweighed by that injury.

business & regulatoryprocedure

In this case, a local Florida jewelry store that had used the unregistered "PANDORA" mark since 1976 for its retail services sued a multinational jewelry company that manufactures and sells PANDORA-branded products after the defendant began opening its own concept stores in South Florida. The plaintiff, who had been an authorized retailer of the defendant's goods for several years before terminating the relationship due to alleged customer confusion, sought a preliminary injunction barring the defendant from operating stores in Miami-Dade, Broward, and Palm Beach counties on claims of trademark infringement, unfair competition, and tortious interference. The court denied the motion, finding that the plaintiff's multi-year delay in suing made a laches defense likely to succeed, that the plaintiff had not shown a likelihood of irreparable injury, that the balance of hardships favored the defendant, and that the public interest supported allowing the defendant's existing and planned stores to operate.

business & regulatoryprocedure

This case involved a pro se civil rights complaint under 42 U.S.C. § 1983 filed by Frank Enriquez, a former Florida prisoner and current civil detainee, against various prison officials at South Bay Correctional Facility. The claims included excessive force and failure to intervene during a December 2000 incident involving pepper spray, deliberate indifference to a back condition by medical staff, retaliation by an officer, and due process violations related to placement in punitive segregation. After reviewing the record de novo, the district court adopted the magistrate judge's report and recommendation in full. The court granted the defendants' motion for summary judgment on all remaining claims and closed the case, finding no genuine issues of material fact supporting the allegations.

civil rightsprocedure

This case involves a commercial dispute in which National Auto Lenders, Inc. (NAL) alleged losses from defective GPS units purchased from the defendants and sought damages in federal court. The defendants moved to dismiss or transfer venue and to stay proceedings to compel mediation and arbitration, relying on click-to-accept website agreements that included arbitration and forum-selection clauses. The court denied the motion in full, concluding that the NAL employees who accepted the agreements lacked actual or apparent authority to bind the company and that NAL did not ratify the acceptances because its authorized officers had no knowledge of the agreements until the motion was filed.

procedurebusiness & regulatory

The case involved Flava Works, Inc., which operates a website broadcasting live webcam feeds of sexual activities from a residential property in Miami, challenging a city code enforcement order that found it was illegally operating an adult entertainment establishment and a business in a residential zone. The district court granted partial summary judgment to the plaintiffs on their petition for a writ of certiorari, quashing the 2007 enforcement order as void and inapplicable to the property. The core reasoning relied on the Eleventh Circuit's Voyeur Dorm precedent, which held that internet-based adult entertainment activities conducted inside a residence without public access or external displays do not constitute the operation of an adult business under similar zoning ordinances, rendering further constitutional claims unnecessary to address.

business & regulatoryfree speech

The case involved plaintiffs suing BP Products North America, Inc. for negligence after Ronald Palma was attacked and injured by third parties at a BP gas station in Miami following a dispute over gas pumps and a minor vehicle collision. The court granted BP's motion for summary judgment on the grounds that the company’s alleged breach of duty was not the proximate cause of the injuries. Under Florida law, proximate cause requires foreseeability, and the court found that the rapid escalation from a nonviolent gas siphoning attempt to a violent assault was too improbable and freakish to have been reasonably anticipated by BP. The decision focused solely on causation, without addressing duty or breach.

torts & liability

The case involves Flava Works, Inc., which operates a subscription-based website broadcasting live sexually explicit webcam content from a residential property in Miami, and the City of Miami's enforcement of its Adult Entertainment Ordinance prohibiting such businesses in residential zones. Flava Works sued the City and Code Enforcement Board, asserting claims that the ordinance and permitting procedures violate the First and Fourteenth Amendments, equal protection, are overbroad and not narrowly tailored, constitute a regulatory taking, and violate the Dormant Commerce Clause, while also seeking review of the Board's violation ruling. The court denied the defendants' motion to dismiss as to all claims except Count III, denied dismissal of the certiorari petition, and granted the motion without prejudice only as to the regulatory takings claim to allow repleading. The core reasoning applied the Rule 12(b)(6) standard, accepting the plaintiffs' allegations as true and determining that they stated plausible claims for relief on the surviving counts while finding the takings allegation insufficient.

free speechcivil rightspropertybusiness & regulatory

Steadfast Insurance Company, suing as subrogee of Dufry America, brought claims for negligence and breach of contract against Corporate Protection Security Group after a theft at Dufry's property during Corporate's security services. The court granted Corporate's motion to dismiss without prejudice because the service agreement attached to the complaint did not name Dufry as a party, listed a different service location than the one in the complaint, and lacked allegations showing the contracting parties clearly intended to benefit Dufry as a third-party beneficiary. The reasoning centered on the principle that exhibits control over conflicting pleadings, the failure to plead the intent element required for third-party beneficiary status under Florida law, and the resulting absence of a contractual duty to support either the contract or negligence claims; amendment was permitted within 20 days.

business & regulatoryproceduretorts & liability

The case involved a yacht owner suing the United States after their vessel struck a submerged daybeacon in Biscayne Bay, alleging negligence by the Coast Guard in its maintenance and installation that caused approximately two million dollars in damage. The court granted summary judgment to the defendant on the maintenance claim, finding no genuine issue of material fact that the Coast Guard had met its duty of care and had no duty to warn of unknown dangers, and that the inspection and maintenance practices were adequate. It also dismissed the installation/design claim for lack of subject matter jurisdiction under the discretionary function exception of the Federal Tort Claims Act, as the decisions involved policy considerations.

torts & liabilityprocedurefederal power

In Davis v. Lane Management, LLC, the plaintiff, a quadriplegic tenant using a wheelchair, sued the owner of his apartment complex under the Federal Fair Housing Act and Florida Fair Housing Act after both elevators broke down and management refused to repair them for seven months despite knowing of his disability and needs. This left him unable to leave his second-floor unit without crawling up and down filthy stairs, resulting in physical pain, humiliation, emotional distress to him and his family, and interference with daily life. After the defendant corporation ignored court orders to obtain counsel and appear, the court entered default against it. The court granted default final judgment, awarding $420,000 in compensatory damages, $420,000 in punitive damages, and attorney's fees and costs, for a total of $861,334.35. The reasoning was that all well-pled facts were admitted by default, the refusal to make feasible elevator repairs constituted unlawful discrimination and failure to accommodate under the statutes, and the defendant's callous indifference supported damages for emotional harm and punitives.

civil rightspropertyprocedure

This case involves a claim under the Fair Debt Collection Practices Act (FDCPA) filed by plaintiff Laurie Keston against defendants FirstCollect, Inc., a Maryland corporation, and its in-house counsel David Fieldstein. The defendants moved to dismiss for lack of personal jurisdiction, arguing that their debt collection activities occurred in Maryland and did not satisfy Florida's long-arm statute or constitutional due process requirements. The court granted the motion, finding that although FirstCollect held a Florida license and maintained a registered agent, these contacts were insufficient to establish jurisdiction because the relevant collection efforts were directed outside Florida and the plaintiff failed to show purposeful availment or minimum contacts. The court noted that venue would have been proper following removal but dismissed the action without prejudice for lack of personal jurisdiction. The plaintiff was advised she could refile in an appropriate district.

procedurebusiness & regulatory

In United States v. Hassoun, defendant Adham Amin Hassoun faced charges in a superseding indictment that included three counts of material support and conspiracy to further jihad overseas, which also implicated his co-defendants, along with seven additional falsity counts against him alone for alleged false statements to federal agents, perjury during immigration proceedings, and obstruction of those proceedings. Hassoun moved to dismiss the falsity counts as legally insufficient and, alternatively, to sever them from the main counts on grounds of prejudicial joinder under Federal Rules of Criminal Procedure 8 and 14. The court denied the motion to dismiss, holding that the indictment's language adequately tracked the elements of 18 U.S.C. § 1505 and related statutes without needing to incorporate definitional provisions like 18 U.S.C. § 1515(b), but granted severance because trying the narrower falsity counts together with the broader conspiracy charges would be prejudicial.

criminal lawprocedureimmigration

The case involves a laborer who sued his employers for unpaid minimum wage and overtime under the Fair Labor Standards Act and Florida statutes. The defendants moved for summary judgment, arguing that the FLSA did not apply because they were not an enterprise engaged in commerce and that the Motor Carrier Act exempted the plaintiff from overtime requirements. The court denied the motion after reviewing the record, finding that the defendants had not met their burden to show the absence of genuine issues of material fact on enterprise coverage or the applicability of the exemption, which must be narrowly construed against the employer.

labor & employment