Florida/Georgia Personal Injury & Workers Compensation

...n employee's pursuit of a workers' compensation claim, which action is cognizable in a court of competent jurisdiction. See Smith, 427 So.2d at 183-84. The legislature has also provided for civil actions in other employment-related areas. See, e.g., § 40.271, Fla....

...However, as to their codefendant Chu, the court did not err by failing to direct the verdict on the defamation issue. Therefore, on remand the claims against Chu and his employer, Pier 66 may be retried. On the wrongful discharge claim, the individual appellants contend that section 40.271, Florida Statutes, creating criminal and civil actions for discharging an employee for jury service, imposes liability only on the corporate employer. The statute provides: 40.271 Jury service....

...ney's fees as an addition to the recovery of actual or compensatory damages. These provisions would be pointless if the legislature had truly intended its definition of actual or compensatory damages to include the recovery of attorney's fees. E.g., § 40.271, Fla....

...ce of a list of remedies. A person dismissed from employment because of jury service is "entitled to collect not only compensatory damages, but, in addition thereto, punitive damages and reasonable attorney fees for violation of this act." Fla.Stat. § 40.271(3)....

...y discharge of a juror required the statutory creation of such a right with an express reference to the punitive damages remedy. If punitive damages may be implied as a remedy in addition to any already enumerated in a statute, then the reference in § 40.271(3) is superfluous....

...ns in which punitive damages could be expected to be otherwise available. Far greater significance should be placed on the many instances in which punitive damages are expressly opted into the remedies available for a civil action. E.g., Fla.Stat. §§ 40.271(3) (retaliatory discharge for jury service); 320.838 (warranty claims on mobile homes); 495.121 (false registration of mark); 497.056 (violation of cemetery regulations); 540.09(1) (unauthorized publication of certain photographs); 686.417(...

...3d DCA 1990), however, Florida courts have concurrent jurisdiction with federal courts to adjudicate suits under 28 U.S.C. 1875, Aszkenas v. J.B. Robinson Jewelers, Inc., 560 So.2d 1193 (Fla. 3d DCA 1990). Further, the Florida statute by its language is restricted to cases involving discharge. Specifically, section 40.271, Florida Statutes (1993), provides: (1) No person summoned to serve on any grand or petit jury in this state, or accepted to serve on any grand or petit jury in this state, shall be dismissed from employment for any cause because of the nature or length of service upon such jury....

...The employee had been summoned for jury duty and was thereafter selected to sit as a member of a jury in a trial that lasted five weeks. Thereafter, the state filed a motion with the court charging Pier 66 and the employee's supervisor, Patrick Blangy, the appellants herein, with having violated section 40.271, Florida Statutes....

...inal court proceeding, so too may it be considered as a proper tool or factor in a trial court's efforts to deter other employers from intimidating possible future jurors who might be summoned for jury service in connection with cases in the future. Section 40.271, Florida Statutes, provides as follows: 40.271 Jury service....

...o protect the Court from acts which obstruct, interrupt, prevent or embarrass the administration of justice, we find that the trial court's holding in this case is also supported by the above statutory language. We reject appellants' contention that section 40.271(2), Florida Statutes, only provides for contempt as a punishment for someone who threatens dismissal from employment, but does not allow for contempt proceedings to be implemented when a dismissal from employment has actually taken place....

...s not punishable by contempt and is, therefore, to be tolerated by the courts. In the case at bar, the trial court was eminently correct in reaching a contrary result by finding that the conduct of the appellants herein was committed in violation of section 40.271, Florida Statutes....

...Aszkenas was summoned for service on a federal grand jury, which required him to sit one work day per week for eighteen months. Aszkenas alleged that Robinson discharged him on account of the protracted grand jury duty. He brought suit against Robinson under section 40.271, Florida Statutes (1987), requesting compensatory and punitive damages....

...rand jury service. Robinson moved for summary judgment, arguing that the Florida law did not apply to claims based on alleged discrimination in federal jury service. Robinson also contended that Congress had, by enacting 28 U.S.C. § 1875, preempted section 40.271 to the extent it might otherwise apply to a federal juror....

...The trial court entered summary judgment in favor of Robinson and denied leave to amend, reasoning that the federal courts have exclusive jurisdiction of suits under 28 U.S.C. § 1875. By separate opinion in Scott v. Estalella, 560 So.2d 1192 (Fla. 3d DCA 1990), a panel of our court has held that section 40.271, Florida Statutes, does not apply to claims arising out of federal jury service....

...We conclude there is not. The legislative history of the federal enactment indicates that Congress drew on the experience of the states in developing the federal law. 1978 U.S.Code Cong. & Ad.News at 5488. The terms of Florida's counterpart statute, § 40.271, Fla....

...As to Neidhart's appeal, we affirm; as to the cross-appeal by Pioneer, we reverse. Neidhart sued Pioneer for wrongful dismissal from employment. He sought compensatory and punitive damages from Pioneer, contending that Pioneer discharged him because he responded to a summons for jury duty. He based his cause of action on section 40.271, Florida Statutes (1985), which prohibits employers from dismissing employees for jury service....

...Thus, the trial court was correct in directing a verdict in favor of Pioneer. Accordingly, we find no merit to the four points raised by Neidhart and reject his appeal. We now turn to Pioneer's cross-appeal. Pioneer contends the trial court erred in granting summary judgment on the issue of Pioneer's liability under section 40.271....

...on of the substantive issues of the litigation. See Hittel v. Rosenhagen, 492 So.2d 1086, 1089-90 (Fla. 4th DCA 1986). Here, identity of the thing sued for and identity of the cause of action are lacking. The issue of whether Pioneer is liable under section 40.271(3) is not identical to the finding of the Unemployment Compensation Appeals Referee that Neidhart was not discharged for misconduct, as defined in section 443.036(24), Florida Statutes (1985)....

...efits. Here, however, he sought compensatory and punitive damages against Pioneer for having been wrongfully discharged from employment for responding to a jury summons. Thus, he had to show that his discharge from Pioneer resulted in a violation of section 40.271(3) for which he was entitled to compensatory damages distinct from unemployment compensation benefits. As noted, to receive punitive damages, he had to show that his discharge involved malicious or wilful conduct on the part of Pioneer. Section 40.271(3) contemplates that any aggrieved person has a right of action in a court of competent jurisdiction....

...Count I of plaintiff's complaint alleges that the conduct of defendant following plaintiff's services as a federal juror violated the Jury Systems Improvements Act of 1978, 28 U.S.C. § 1875. Count II alleges that defendant's same acts violated Fla. Stat. § 40.271. Section 40.271 provides: No person summoned to serve on any grand or petit jury in this state, or accepted to serve on any grand or petit jury in this state, shall be dismissed from employment for any cause because of the nature or length of service upon such jury....

...The issue before the Court is whether the language "in this state" applies to jury service in federal as well as state courts. Upon a review of the relevant statutory scheme of Title V, the Judiciary Department, and Chapter 40, Jurors and Payment of Jurors and Witnesses, of which § 40.271 is a part, the Court finds that § 40.271 was never intended by the Florida Legislature to apply to federal jurors....

...While it is true, as plaintiff contends, that a court must give primacy to the "plain meaning rule" of statutory construction, such rule is applicable only where the statutory language at issue is unambiguous. Rickard v. Auto Publisher, Inc., 735 F.2d 450, 454-55 (11th Cir.1984). In the instant case, the Court finds that § 40.271 is not unambiguous. Although the legislative history of § 40.271 is unenlightening, principles of statutory construction support this Court's determination that the statute does not apply to federal jury service....

...clear reading of the remainder of Chapter 40 reveals that the Florida Legislature clearly was addressing jury service within the state court system. Accordingly, it would be incongruous and contrary to the intent of the Florida Legislature to apply § 40.271 to federal jury service. Additionally, the use of parallel language requires parallel construction. Doctors Hospital, Inc. v. Bowen, 811 F.2d 1448, 1452 (11th Cir.1987); Fortin v. Marshall, 608 F.2d 525, 528 (1st Cir.1979). When § 40.271 was enacted, § 40.34(1), which describes the method by which the clerks of the Florida state courts prepare jury payrolls, contained the language "clerks of the several courts of record in this state." Section 40.271 should be reasonably construed in an identical fashion to refer solely to state court jury service....

...of the United States" to specify the federal courts. As the Florida Legislature used express language in Chapter 40 and elsewhere in Title V where it intended to include within its provisions federal courts, the Court believes that the better construction is to apply § 40.271 solely to state court jury service....

...Before SCHWARTZ, C.J., and HUBBART and COPE, JJ. SCHWARTZ, Chief Judge. The appellant Scott was allegedly wrongfully discharged by her employer as a result of her service as a petit juror in the Federal District Court. She brought this action solely [1] under section 40.271, Florida Statutes (1985) [2] to recover damages provided by that act....

...The lower court dismissed the complaint with prejudice. We affirm that ruling on the basis of our complete agreement with Hill v. Winn-Dixie Stores, Inc., 699 F. Supp. 876, 877-78 (M.D. Fla. 1988), [3] which squarely and simply holds *702 that, as a matter of statutory construction, section 40.271 does not apply to federal jury service....

...service in state courts only, it would have employed the phrase "of this state" instead of "in this state." That conclusion is compelled by the fact that the statute has, from the time of enactment in 1974, employed both phrases. The 1974 version of section 40.271 provided: (1) No person summoned to serve on any grand or petit jury in this state, or accepted to serve on any grand or petit jury in this state, shall be dismissed from employment for any cause because of the nature or length of service upon such jury. (2) A civil action by the individual who has been dismissed may be brought in the courts of this state for any violation *703 of this section... . [1] § 40.271, Fla....

...The distinction is clear: the substantive proscription of subsection (1) applies to jurors — state or federal — seated "in this state," while subsection (2) confers jurisdiction on the courts "of this state" — Florida courts — to redress violations of the act. Those provisions are now found in subsections 40.271(1) and (3), Florida Statutes (1987)....

...Gordon, 50 So.2d 179, 184 (Fla. 1951) (en banc); Curry v. Lehman, 55 Fla. 847, 854, 47 So. 18, 20 (1908). Likewise pertinent is the state of the law already in existence which bears on the subject. Id. In the present case the mischief to be prevented by the enactment of section 40.271 is the discharge of jurors from their employment "because of the nature or length of service upon such jury." The harm is the same for any employee discharged by reason of jury service regardless of whether the service is on a state or federal jury. In 1974, when section 40.271 was enacted, no comparable federal statute existed. As section 40.271 was at that time the sole remedy for discharge by reason of jury service, it is reasonable to suppose that the drafters of the statute chose the phrase "in this state" in order to provide a remedy for citizens summoned to serve on federal, as well as state, juries. [2] By contrast, the reasoning of Hill v. Winn-Dixie Stores, Inc., 699 F. Supp. 876 (M.D.Fla. 1988) is unpersuasive. Hill argues that placement of section 40.271 in chapter 40, Florida Statutes, signifies an intention to confine section 40.271 to jury service in the state court system. Since chapter 40 deals with the subject of jurors, it is the most logical location for codification of section 40.271, and that would be true even if section 40.271 expressly referred to service on federal, as well as state, juries. The fact that section 40.271 was codified in chapter 40 does not, therefore, shed light on its proper interpretation. In support of its reasoning, Hill also cites two statutes which were in existence when section 40.271 was enacted....

...." Since the statutory language included the phrase "the several courts of record," and since the statutory subject matter could only apply to Florida courts, it sheds no light on interpretation of the different phrase, "grand or petit jury in this state." § 40.271(1), Fla....

...In context it is clear that the phrase "any federal court" was specifically chosen so as to include any federal conviction wherever occurring, whether inside or outside Florida, and that the phraseology was chosen in order to address a different problem than the one involved in section 40.271....

...NOTES [1] Compare Aszkenas v. J.B. Robinson Jewelers, Inc., 560 So.2d 1193 (Fla. 3d DCA 1990), in which the plaintiff also asserted a claim under the federal act, 28 U.S.C. § 1875 (1985), which provides a remedy for discharging employees because of federal jury service. [2] § 40.271 provides: 40.271 Jury service — (1) No person summoned to serve on any grand or petit jury in this state, or accepted to serve on any grand or petit jury in this state, shall be dismissed from employment for any cause because of the nature or length of service upon such jury....

...Count I of plaintiff's complaint alleges that the conduct of defendant following plaintiff's services as a federal juror violated the Jury Systems Improvements Act of 1978, 28 U.S.C. § 1875. Count II alleges that defendant's same acts violated Fla. Stat. § 40.271. Section 40.271 provides: No person summoned to serve on any grand or petit jury in this state, or accepted to serve on any grand or petit jury in this state, shall be dismissed from employment for any cause because of the nature or length of service upon such jury....

...The issue before the Court is whether the language "in this state" applies to jury service in federal as well as state courts. Upon a review of the relevant statutory scheme of Title V, the Judiciary Department, and Chapter 40, Jurors and Payment of Jurors and Witnesses, of which § 40.271 is a part, the Court finds that § 40.271 was never intended by the Florida Legislature to apply to federal jurors....

...While it is true, as plaintiff contends, that a court must give primacy to the "plain meaning rule" of statutory construction, such rule is applicable only where the statutory language at issue is unambiguous. Rickard v. Auto Publisher, Inc., 735 F.2d 450, 454-55 (11th Cir.1984). In the instant case, the Court finds that § 40.271 is not unambiguous. Although the legislative history of § 40.271 is unenlightening, principles of statutory construction support this Court's determination that the statute does not apply to federal jury service....

...clear reading of the remainder of Chapter 40 reveals that the Florida Legislature clearly was addressing jury service within the state court system. Accordingly, it would be incongruous and contrary to the intent of the Florida Legislature to apply § 40.271 to federal jury service. Additionally, the use of parallel language requires parallel construction. Doctors Hospital, Inc. v. Bowen, 811 F.2d 1448, 1452 (11th Cir.1987); Fortin v. Marshall, 608 F.2d 525, 528 (1st Cir.1979). When § 40.271 was enacted, § 40.34(1), which describes the method by which the clerks of the Florida state courts prepare jury payrolls, contained the language "clerks of the several courts of record in this state." Section 40.271 should be reasonably construed in an identical fashion to refer solely to state court jury service....

...of the United States" to specify the federal courts. As the Florida Legislature used express language in Chapter 40 and elsewhere in Title V where it intended to include within its provisions federal courts, the Court believes that the better construction is to apply § 40.271 solely to state court jury service....

...[4] As in Hill, the basis of our holding makes it unnecessary to consider the appellees' additional argument that the existence of the federal statute on the identical issue preempts an application of the Florida law. See Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 108 S.Ct. 1145, 99 L.Ed.2d 316 (1988). [1] Subsection 40.271(2) was the subject of editorial revision by the Division of Statutory Revision prior to publication in the 1974 Florida Statutes. Compare id. with ch. 74-379, Laws of Florida. Both versions of subsection 40.271(2) used the phrase "of this state." [2] In 1978 Congress enacted a federal statute, 28 U.S.C....

...NOTES [1] On November 16, 2007, plaintiff's claim against The Oaks' property owner, LBK, LP, was dismissed. (Doc. 1-2 at 7 (Notice of Dropping Party).) [2] See, e.g., Fla. Stat. § 440.205 (2007) (for discharge in retaliation to filing a worker's compensation claim); Fla. Stat. § 40.271 (2007) (for discharge because of service on a jury); Fla....

...nn-Dixie on Tuesday, February 17, 1987. II. PROCEEDINGS BELOW On January 26, 1988, Hill filed the present action, alleging coercion, intimidation, harassment and constructive discharge by Winn-Dixie in violation of 28 U.S.C. § 1875 10 and Fla.Stat. § 40.271....

...The court may award a prevailing employer a reasonable attorney's fee as part of the costs only if the court finds that the action is frivolous, vexatious, or brought in bad faith. . The district court dismissed Hill’s claim under the Florida statute, finding that the Florida legislature did not intend § 40.271 to apply to federal jurors....

...As to Neid-hart’s appeal, we affirm; as to the cross-appeal by Pioneer, we reverse. Neidhart sued Pioneer for wrongful dismissal from employment. He sought compensatory and punitive damages from Pioneer, contending that Pioneer discharged him because he responded to a summons for jury duty. He based his cause of action on section 40.271, Florida Statutes (1985), which prohibits employers from dismissing employees for jury service....

...Thus, the trial court was correct in directing a verdict in favor of Pioneer. Accordingly, we find no merit to the four points raised by Neidhart and reject his appeal. We now turn to Pioneer’s cross-appeal. Pioneer contends the trial court erred in granting summary judgment on the issue of Pioneer’s liability under section 40.271....

...on of the substantive issues of the litigation. See Hittel v. Rosenhagen, 492 So.2d 1086, 1089-90 (Fla. 4th DCA 1986). Here, identity of the thing sued for and identity of the cause of action are lacking. The issue of whether Pioneer is liable under section 40.271(3) is not identical to the finding of the Unemployment Compensation Appeals Referee that Neidhart was not discharged for misconduct, as defined in section 443.036(24), Florida Statutes (1985)....

...efits. Here, however, he sought compensatory and punitive damages against Pioneer for having been wrongfully discharged from employment for responding to a jury summons. Thus, he had to show that his discharge from Pioneer resulted in a violation of section 40.271(3) for which he was entitled to compensatory damages distinct from unemployment compensation benefits. As noted, to receive punitive damages, he had to show that his discharge involved malicious or wilful conduct on the part of Pioneer. Section 40.271(3) contemplates that any aggrieved person has a right of action in a court of competent jurisdiction....

...Pa-tierno and Ellis challenge the court’s judgment. In holding Patierno and Ellis in contempt, the court recognized that there was no statutory requirement in Florida that an employer continue an employee’s salary during jury service. The trial judge concluded, however, that F.S. 40.271(1) provides no employee shall be dismissed from employment for any cause because of the nature or length of service on a jury .......

...dict be entered in its favor. Our disposition in favor of Southland in that appeal renders Vernal’s appeal in Case No. 85-2923 moot, and we therefore affirm in that case. These appeals arise from a cause of action brought by Vernal on the basis of section 40.271, Florida Statutes (1981)....