VISTA MARKETING, LLC, Plaintiff-Appellant Cross-Appellee, v. Terri A. BURKETT, Defendant-Appellee Cross-Appellant.
No. 14-14068.
United States Court of Appeals, Eleventh Circuit.
Feb. 4, 2016.
812 F.3d 954
Before ROSENBAUM and FAY, Circuit Judges, and MIDDLEBROOKS, District Judge.
Dorothy Easley, Easley Appellate Practice, PLLC, Miami, FL, Richard C. Alvarez, Alvarez Garcia, Tampa, FL, for Plaintiff-Appellant Cross-Appellee. Jeffrey W. Gibson, Macfarlane Ferguson & McMullen, PA, Tampa, FL, Joshua Magidson, Macfarlane Ferguson & McMullen, PA, Clearwater, FL, for Defendant-Appellee Cross-Appellant.
F. The Board Cоrrectly Applied the Law to Its Other Findings of Fact.
[REDACTED] The Board made three findings of fact that it correctly concluded weigh in favor of a determination that the stagehands are independent contractors. First, the stagehands “provide their own basic supplies on the jobs.” Under the Restatement, this arrangement is characteristic of an independent contractor relationship. Restatement (Second) of Agency § 220(2)(e). Second, the stagehаnds “receive no benefits.” The lack of employee benefits is evidence of the intent of the parties to form an independent contractor relationship. See FedEx Home Delivery, 563 F.3d at 498 n. 4. Third, workers’ compensation insurance “is provided at the behest of clients and the associated costs are charged to the client,” not Crew One. This fact is also evidence that the parties intend to form an independent contractor relationship.
[REDACTED] The Bоard made one other finding of fact that supports a determination of employee status. The stagehands were paid by the hour, and the Board is correct that this arrangement is a recognized consideration in the law of agency. See id. § 220(2)(g).
G. The Stagehands Are Independent Contractors.
When we consider all of the factors, we must conclude that the stagehands are independent contractors. The most important factor, control, supports only this conclusion. The failure tо withhold taxes, the independent contractor agreements, the nature of Crew One‘s business, the absence of benefits, the tools, and the insurance provided by the clients also support only this conclusion. The only factor that weighs in favor of the opposite result is the hourly payments, but this factor is outweighed by the totality of the other factors, especially the lack of control. Based on the factual findings of the Board, the stagehands are independent contractors and the decision of the Board was contrary to law.
IV. CONCLUSION
We GRANT the petition for review, DENY the cross-application for enforcement, and VACATE the decision of the Board.
The Founders of our country had great faith in the jury system. See
In this SCA casе, the jury concluded that Defendant-Appellee-Cross-Appellant Terri Burkett violated the Act when, in accordance with her lawyer‘s advice, she viewed her ex-husband Plaintiff-Appellant-Cross-Appellee Franklin Burkett‘s emails in an effort to prove to the divorce court that Franklin1 was lying about and hiding assets. But, under the circumstances, the jury decided not to award
Dissatisfied with the jury‘s verdict, Frаnklin appealed to the district judge to award him hundreds of thousands of dollars in statutory damages. The district judge declined, awarded a more modest amount, and refused to award Franklin attorney‘s fees.
Now Franklin asks us to give him punitive damages, increase his award of statutory damages to at least $450,000, and award him attorney‘s fees. But the jury and Congress have spoken. And we have no authority to award actual or punitive damages when the jury has rejected the entry of such an award. Nor, under the SCA, do we (or the district court) have authority to award statutory damages in the absence of actual damages. For these reasons, we affirm the determination of the district court not to award punitive damages, and we vacate the district court‘s judgment to the extent that the court awarded statutory damages in the absence of actual damages. Finally, we find no abuse of discretion in the district court‘s denial of attorney‘s fees, so we affirm that ruling.
I.
A.
Franklin and Terri Burkett were married on January 21, 1995. The Burketts had their share of turmoil during their marriage, although they were able to stay together for as long as they did with the assistance of counseling. According to Terri, as part of the counseling, the Burketts’ counselor recommended that the couple share everything, including passwords to email accounts in an effort to make their marriage an “open book.” So Franklin gаve Terri his password to his Vista webmail account and authorized her to access it.
Time passed, and a few years later, after discovering that Franklin allegedly had an extramarital affair, Terri filed for divorce on February 17, 2010. The divorce proceedings were extremely contentious, lasting over three years, with great animosity between the Burketts. As Franklin explained in his own words, “I will stay the course, fight for every penny I can get at all costs....” Franklin threatened to leave his wife “penniless” even though the couple had three children together,2 including one with special needs. He also promised to “accuse [Terri] of doing all kinds of stuff and [to do] anything [Franklin could] do to make [Terri] uncomfortable.”
B.
During the divorce proceedings, the valuation of Vista became a primary issue. Previously, in 2007, the Burketts had established Vista, a telemarketing company. Franklin was the managing member of Vista. As for Terri, while she described herself as an owner of Vista, she was not a managing member, director, or employee of the company. Nevertheless, Terri assisted in the formation of Vista by helping to find a location for the business, contributing to furnishing the office space, and writing scripts for the telemarketers to use during business calls.
In late September of 2011, Franklin filed a financial affidavit in which he asserted that Vista was likely going to close due to a continued downturn in its salеs and losses and invoked this alleged circumstance as a reason to reduce his support obligations. In response, the divorce court held a hearing on October 4, 2011, during which Franklin testified that Vista had
Terri suspected that her estranged husband was lying about the financial status of Vista and sought to obtain information to prove that Vista was a thriving business. She recalled the Vista webmail account and decided to begin accessing her husband‘s Vista email account, frank@vistamktg.net. According to Terri, she had had the password since 2007, when the business first opened, and had accessed the email previously during their marriage.
Terri began regularly accessing the Vista webmail account to read her husband‘s emails from October 2011 until Mаy 2012. As Terri explained her practice in reviewing the emails, she “may have” looked at emails before Franklin opened them, “but most of the time” she did not read them until after he had opened them first.
After viewing the emails, Terri concluded that Franklin had been lying about Vista‘s financial health. As Terri described the emails, they showed that Franklin had signed new contracts, and they evidenced discussions between Franklin and his brother about switching salaries, taking business offshore, аnd opening new offices.
Terri informed her divorce attorney, Park, that she had been accessing her husband‘s work emails through Franklin‘s email password. When Park asked Terri for how long she had had access to the emails, Terri responded, “Since 2007.” After a discussion, Park advised Terri that she could legally continue to access the email account as long as she did not read any communications between Franklin and his divorce attorney. Park also instructed Terri to print all relevant emails and place them in a notebook organized by subject and date.
Terri followed Park‘s instructions and later gave the emails to Park, who then provided them to an expert to value the marital assets, including assessing the financial health of Vista. Contrary to Franklin‘s contentions that Vista was virtually worthless, Terri‘s expert in the divorce proceedings valued the business at approximately $3 million, after reviewing the emails and other materials.
During Terri‘s May 8, 2012, deposition, Park provided Franklin‘s counsel with a binder containing copies of all of the Vista emails that Franklin had accessed.
Following the production of the emails, Franklin‘s divorce lawyer sought for Terri to produce the computer on which she had accessed Franklin‘s emails. Terri was unable to produce the hard drive since her stepfather Robert Fischer had disposed of it. She had asked her stepfather to take her personal computer to a computer business to have it “cleaned” on the day of her May 10, 2012, deposition. Fischer took the computer to Safety Harbor Computers to obtain a new hard drive, and he disposed of the old hard drive by throwing it out in a dumpster. No backup copy existed. Terri stated that she neither instructed nor intended for her stepfather to dispose of the old hard drive. Rather, she sought to “clean” the сomputer of certain materials that her husband had placed on it so that her children would be able to use the computer. She further indicated that she thought that the old hard drive had been “backed up.”
C.
On June 28, 2013, the divorce court entered a final judgment of dissolution of marriage. In its judgment, the divorce court found that both Burketts owned Vista. The divorce court valued the business
Elsеwhere in the Judgment, the divorce court noted that it had examined the emails and text messages. Based on its review and the evidence adduced at trial, the divorce court concluded that Franklin had “[l]ied and misled the [divorce court] by testifying that [Vista] had ‘closed’ even though there was evidence that it continued to operate” and that Franklin had “swor[n] that his income had significantly decreased when in fact there was written evidence that his income remained the same throughout the applicable time period.” The divorce court further found that during the time when he claimed Vista would be closing and his income was diminishing, Franklin was actually shopping for homes valued between $800,000 and $975,000; traveling extensively, including to Monaco and the French Riviera; and seeking to buy an engagement ring valued at more than $100,000 for his girlfriend. In addition, the divorce court determined that Franklin had “[m]anipulated witness testimony during his brother, Tom Burkett‘s, deposition by text messaging him the desired answers from another room” and had engaged in other deceitful behavior during the course of the divorce proceedings. Finally, the divorce court found that Franklin had “[c]onspired to secrete and dissipate assets by moving them to offshore accounts.”3
Franklin appealed the Judgment of the divorce court, and Florida‘s Second District Court of Appeal later affirmed.
D.
About a month after the divorce court entered its final judgment, on July 23, 2012, Vista sued Terri, alleging that she violated the Stored Communications Act,
The case proceeded to a three-day jury trial. Prior to trial, however, Terri filed a motion in limine seeking to prevent Vista from introducing at trial testimony or exhibits on the issues for which its
Vista also filed a pretrial motion, seeking to exclude evidence based on the divorce proceedings. More specifically, Vista asked the district court to enter an order precluding Terri from entering into evidence the final judgment from the divorce proceedings or from testifying to the fact that the divorce court found Terri to be an owner of Vista. Terri opposed the motion, contending that the final judgment demonstrated that Terri was authorized to access its emails. The district court granted Vista‘s motion to exclude the divorce judgment.
E.
The trial began on June 23, 2014. Vista elicited testimony seeking to establish that Terri was not an owner of Vista, while Terri testified to the opposite effect. Over Terri‘s objection, Vista also offered the testimony of its former information-tеchnology directors, William Somma and Jeff Gjoen. The two men testified regarding how Vista‘s email account was set up and how it functioned.
During his testimony, Gjoen explained that CrystalTech was the online host for Vista‘s email account. According to Gjoen, Franklin‘s Vista emails went to CrystalTech, which held the emails until the Outlook program on Franklin‘s computer requested the emails that had not previously been received. At that time, Outlook would “reach out” to CrystаlTech to get Franklin‘s emails. CrystalTech then sent any emails not previously transmitted to Franklin‘s computer. Gjoen further noted that CrystalTech stored the emails online as a backup in case Franklin‘s computer crashed. So, if Franklin accidentally deleted an email, that email would not be deleted from CrystalTech‘s online storage. In technical terms, Gjoen and Somma testified that the Vista email system was a POP3 account (which leaves the data on the server and sends a copy to Outlook) that maintains a copy for backup.
At the close of Vista‘s case, Terri moved for judgment as a matter of law pursuant to
Following deliberations, the jury found that Terri had violated the SCA when she accessed her husband‘s emails. It further concluded that Terri had committed 450 violations of the SCA. But the jury determined that Vista had sustained no actual damages as a result of Terri‘s actions. And, although the jury found that Terri‘s conduct was “willful, wanton, or malicious for the purposes of assessing punitive damages,” it awarded no punitive damages to Vista. In summary, Vista rеcovered nothing.
A few weeks after the jury returned its verdict, at Franklin‘s urging, the district court conducted a hearing to determine whether it would award statutory damages to Vista. Vista argued that it was entitled to $450,000 in statutory damages—$1,000 for each violation of the SCA. In contrast, Terri contended that the district court should not award any statutory damages to Vista because the jury found that it had not suffered any actual damages. Ultimately, the district court, in an exercise of disсretion, awarded Vista $50,000 in statutory damages. It also declined to award Vista punitive damages or attorney‘s fees,
In the same order, the district court denied Terri‘s
Vista timely appealed the district court‘s order awarding damages. Terri then timely filed her cross-appeal. Between Franklin‘s appeal and Terri‘s cross-appeal, this case raises issues relating to the following matters: (1) the interpretation and application of the SCA; (2) jury instructions; and (3) evidentiary rulings.
II.
We begin with the five issues that the appeals raise related to the interpretation and application of the SCA: (1) whether Terri accessed a facility through which an electronic communication service was provided and thereby obtained access to an electronic communication while it was in “electronic storage“; (2) whether statutory damages may be awardеd under the SCA, in the absence of actual damages, and, if so, how much; (3) whether the district court‘s instructions to the jury regarding Vista‘s SCA claim and damages were erroneous; (4) whether Vista was entitled to punitive damages, despite the jury‘s verdict declining to award such damages; and (5) whether the district court erred in not awarding Vista punitive damages and attorney‘s fees.
Many of these issues raise questions of statutory interpretation. The interpretation of a statute, in turn, presents a question of law, subject to de novo review. Rine v. Imagitas, Inc., 590 F.3d 1215, 1222 (11th Cir. 2009).
In reviewing the facts to which we apply the law, we consider all of the evidence in the record, drawing all reasonable inferences in favor of Franklin, since Terri raised most of these issues in a
A.
Vista relied on
Terri asserts that when she reviewed Franklin‘s emails, she did not use a facility through which an electronic communication service (“ECS“) was provided, and she did not access еlectronic communications that were in “electronic storage” at the time of access. To understand Terri‘s argument, knowledge of some statutory definitions is necessary. “Electronic communication service” is defined as “any service which provides to users thereof the ability to send or receive wire or electronic com-
ROBIN S. ROSENBAUM
UNITED STATES CIRCUIT JUDGE
I concur in the portion of Judge Rosenbaum‘s opinion that affirms the following decisions of the trial judge: denying Terri Burkett‘s motion for judgment as a matter of law under
This case is controlled by Doe v. Chao, 540 U.S. 614 (2004), and Fanin v. U.S. Dep‘t of Veterans Affairs, 572 F.3d 868 (11th Cir. 2009). The wording of the SCA damages section is so close to that of the Privacy Act,
The jury decided that, although there were multiple violations of the SCA, therе were no damages whatsoever—compensatory or punitive. Jury verdicts are not “overturned unless no rational trier of fact
PETER T. FAY
UNITED STATES CIRCUIT JUDGE