Skip to main content
James Robert Fletcher II

James Fletcher’s Answers

39 total

  • Can a Hair salon owner audio tape employees and clients convesations in the state of Georgia?

    video cameras is good for sercurity I understand but, having cameras everywhere so you can zoom in is a bit crazy. Calling in the shop to tell the employees what you can discuss with your client is also a bit much. So not only are we being video t...

    James’s Answer

    It is possible that the recording may not be permissible.

    The Federal Wiretap Act at 18 U.S.C.A. § 2510, et seq. or the Georgia Wiretap Act at O.C.G.A. §§ 16-11-60 through 16-11-70 may be implicated. Additionally, certain privacy torts may also be implicated.

    Interception of communications generally may implicate a myriad of possible laws. See, e.g., The Computer Fraud and Abuse Act (CFAA) and the National Information Infrastructure Protection Act (NIIPA) (8 U.S.C § 1030, et seq.); Electronic Communications Privacy Act; Cyber Security Enhancement Act; Digital Millennium Copyright Act; Economic Espionage Act; copyright infringement statute (17 U.S.C.A. § 506); National Stolen Property Act; Fraudulent Online Identity Sanctions Act (FOISA) (amending Section 35 of the Lanham Act); US Communications Act (47 U.S.C.A. § 605) (prohibiting one from divulging the existence of or contents of intercepted wire or radio transmissions).

    The Federal Wiretap Act provides that a person who “intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication” is subject to criminal sanctions and civil liability. 18 U.S.C.A. § 2511(1)(a). The Act also subjects to civil and criminal liability anyone who discloses the contents of an illegally intercepted communication, see 18 U.S.C.A. § 2511(1)(c), or uses the contents of an intercepted communication, knowing or having reason to know that it was illegally obtained, see 18 U.S.C.A. § 2511(1)(d).

    The Wiretap Act provides for three forms of relief including:
    (1) Preliminary and other equitable and declaratory relief,
    (2) statutory, actual and where appropriate punitive damages, and
    (3) reasonable attorney’s fees and litigation costs reasonably incurred.
    18 U.S.C. §2520(b).

    Statutory damages are calculated at “$100 a day for each day of violation or $10,000" whichever is greater. §2520(c)(2)(B).

    If one is a party to the communication, or one of the parties to the communication has given prior consent to an interception, then the interception is generally not illegal unless the communication is intercepted for the purpose of a criminal or tortious act in violation of either Federal or State law. See U.S.C.A. § 2511(2)(d). Consent may be express, or inferred from the surrounding circumstances indicating that the party knowingly agrees to surveillance.

    A key question is whether the parties were given sufficient notice. However, knowledge of the capability of monitoring alone has been held not to constitute implied consent, and courts have warned against cavalierly implying consent to interception of one’s communications given the Act’s purpose of protecting individual privacy by limiting the occasions when interception may lawfully take place. See In re State Police Litigation, 888 F. Supp. 1235 (D. Conn. 1995); Ali v. Douglas Cable Communications, 929 F. Supp. 1362 (D. Kan. 1996); Watkins v. L.M. Bere ry & Co., 704 F.2d 577 (11th Cir. 1983).

    The Georgia Wiretap Act, and Georgia’s relevant wiretapping and surveillance provisions, are codified in the “Invasions of Privacy” criminal code article at O.C.G.A. § 16-11-60, et seq. and are not preempted by the Federal Acts. Bishop v. State, 241 Ga. App. 517 (1999). Georgia’s privacy laws have some features which are more restrictive than the federal law, and some which are less restrictive.

    Other laws may also apply. Additionally, the events you describe might implicate certain "invasion of privacy" torts (civil wrongs), such as Intrusion of Solitude, or Public Disclosure of Private Facts.

    I would recommend that you consult with an attorney regarding any remedies that you might have.

    See question 
  • I was in default on a civil lawsuit. Plaintif didn't pursue case and judgement was never given. What is needed to dismiss?

    My now ex filed a civil suit against me several months ago. I failed to answer in the appropriate time frame and became in default. Before the next court hearing for damages to be rewarded we came to a settlement out of court and she never went fo...

    James’s Answer

    Generally, if nothing happens in a Georgia state or superior court case for 5 years, then it is dismissed by operation of law.

    Similarly, if the case comes up for a status conference and the plaintiff does not appear, a judge may dismiss the case for failure to prosecute it.

    If your former spouse is willing to sign another document, then you have them sign a document entitled "Dismissal" which recites that the plaintiff is dismissing the case. The document should be signed and dated, and filed with the Clerk of the court. The clerk should also give you a Final Disposition Form which should also be signed.

    I would recommend that you have an attorney review your settlement agreement and assist you with drafting the final documents and putting this case to bed.

    See question 
  • Media coverage of my arrest

    Long story short. Arrested 2+ years ago. Story sensationalized in the news media making it to the net before I even got home the next day.Charges never filed. Arrest record sealed by state of Florida. Articles still flooding the internet anytime a...

    James’s Answer

    For good or bad, you do not have "the Constitutional right to live my life without scrutiny."

    The First Amendment to the U.S. Constitution provides in relevant part: "Congress shall make no law ... abridging the freedom of speech, or of the press..."

    On the other hand, a newspaper may libel a person. Newspaper libel is defined under Georgia law as “false and malicious defamation of another in any newspaper, magazine, or periodical tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.” O.C.G.A. § 51-5-2.

    In January, 1997, Richard Jewell filed a complaint for libel alleging that he had been defamed by the Atlanta Journal & Constitution in stories regarding the 1996 Olympic park bombing.

    In a 2011 decision, the Georgia Court of Appeals ruled against Mr. Jewell's estate. In that case, the court noted that, to prevail in a libel action, “a plaintiff must prove that the defendant ‘published a defamatory statement about the plaintiff, the defamatory statement was false, the defendant was at fault in publishing it, and the Plaintiff suffered actual injury from the statement.” Jewell v. Cox Enterprise, 2011 Ga. App. LEXIS 662.

    I would need more details about your particular case to determine whether you could sue. Generally speaking, newspapers are entitled to run truthful stories. But, in limited circumstances, you may be able to bring a claim for libel.

    See question 
  • Motion to amend question ?

    I am a defendant in a civil case and the plaintiff filed a motion for continuance . I filed an objection and submitted it but I made a error . I said Comes Now Plaintiff instead of Comes Now Defendant . Should I wait and see if the plaintiff o...

    James’s Answer

    Generally speaking, such a mistake is considered insignificant.

    However, you may generally amend a document by correcting it, changing the style to add "Defendant's Amended" before the title, and then filing and serving the document again.

    But, as you are finding, it is not easy to represent yourself in a case. I do recommend that you consider retaining an attorney to either represent you in the case, or consult with you regarding steps you should be taking.

    See question 
  • My home will be foreclosed before I can return from out of state to remove remainder of my personal possessions, what can I do?

    Do I have any recourse to go on to what will soon be my former property to get the remainder of my personal possessions after the foreclosure date. How can I handle this.

    James’s Answer

    Even after foreclosure, a lender is typically required to pursue an eviction before your belongings are removed from your property. You may wish to return to Georgia and retrieve your belongs before the eviction process is complete.

    Alternatively, I would suggest hiring a moving company or another third-party to move your belongings for you.

    See question 
  • Motion granted/sustained

    what doe's this mean ?

    James’s Answer

    Generally speaking, a "motion" is a formal request made to a judge or court, asking for the judge or court to provide some type of relief.

    When the motion is "granted", then the judge or court has agreed to the request.

    To "sustain" is to approve. For example, when one lawyer objects to a question that was asked by the other lawyer, if the judge agrees with the objection, then he or she may "sustain" the objection, which means that the question should not be answered.

    See question 
  • Does judicial estoppel apply to foreclose and later statement of financial stability?

    My opponent had foreclosure. He received funds from me to develop business. He claimed repaying me in full and using his own source to finance business. Can the foreclosure be used as judicial estoppel or in any other way to prove his financial in...

    James’s Answer

    You are on the right track, but technically speaking I doubt the doctrine of Judicial Estoppel will be of help. I will explain why, and also describe two related "estoppel" doctrines.

    Generally speaking, the doctrine of judicial is applied to preclude a party from asserting a position in one judicial proceeding which is inconsistent with a position successfully asserted by the party in an earlier proceeding. The essential function and justification of judicial estoppel are to prevent the use of intentional self-contradiction as a means of obtaining unfair advantage in a forum provided for suitors seeking justice. The primary purpose of the doctrine is not to protect the litigants, but to protect the integrity of the judiciary. The doctrine is directed against those who would attempt to manipulate the court system through the calculated assertion of divergent sworn positions in judicial proceedings and is designed to prevent parties from making a mockery of justice through inconsistent pleadings.

    A second but related doctrine is that of collateral estoppel (also known as estoppel by judgment or issue preclusion) which precludes the readjudication of ISSUES already litigated to a conclusion in a previous action between the same parties.

    A third related doctrine is that of res judicata (also known as claim preclusion) which precludes claims that might have been litigated in the prior case, and applies when the CAUSES OF ACTION in the two cases are the same.

    Here, based upon your question,I doubt the the doctrines or collateral estoppel or res judicata will apply. First, unless the foreclosure was a Judicial Foreclosure (i.e. through a court action), then it likely took place through a lender exercising a non-judicial power of sale over the property. In that case, your opposing party did not 'take a position' in any litigation at all. Of course, just become someone gets foreclosed on does not prove that they were UNABLE to pay; it is just some indication that they DID NOT pay (but maybe could have if they so chose). Additionally, powers of sale can also be triggered by other defaults, such as the conveyance of an interest in the property to a third party without the lender's consent. Thus, there mere fact that a foreclosure occurs does not necessarily mean that the person had the financial inability to pay. Second, it does not appear that you were a party to a foreclosure action, or that the issue of "financial stability" was necessarily determined, rendering the doctrines most likely inapplicable.

    Returning to your initial question, I also doubt that the doctrine of Judicial Estoppel will apply. It does not appear that your opposing party successfully asserted a position in an earlier litigation that would be contrary to a position taken in later litigation. But if you have additional details, this might affect the analysis.

    It seems that you may be seeking to bring an action against your opposing party to recover money lent to him or her, and that you are concerned that the opposing party will raise as a defense that full payment occurred. If you can muster evidence that the person lost a property through foreclosure, this may be some indication of the financial inability to have also paid you. But it might not, as noted above. I recommend that you consult with an attorney regarding the best way to prove your case.

    See question 
  • Can my landlord evict me if I with-hold rent monies for repairs that haven't been fixed?

    When I moved in, there was needed repairs that needed to be made. He promised that all repairs would be made and allowed me to move in. Now I have a water bill that is $2,000 because of leaky pipes and a rusted hot water heater that is unusuable. ...

    James’s Answer

    Mr. Pittman is correct. Generally speaking, unless you have a lease that provides otherwise, you cannot withhold rent.
    But, you can report the conditions to appropriate authorities. If in section 8 housing you can report to the local administrating agency.
    But it sounds like you ought to find a new landlord and place to live anyhow.

    See question 

    I am an self-employed ex-occupant of a rental property, and my concern today is as follows; I have been a tenant for over 6 years in the same home and my landlord has received payment on-time for 6 years, but now my family has gotten larger so i d...

    James’s Answer

    From your description, there does not appear to be an immediate need for a lawyer. Has there been a problem?

    See question 
  • The courts recently extended my discovery period; do I have to resend the Interrogatories? I had previously sent them.

    I had sent them before but the discovery period had ended and the defendant refuse because the time had expired.

    James’s Answer

    It depends upon the language of the Order of extension, of any previous orders, and of the rules of the particular court you are in. But, out of an abundance of caution, it wouldn't hurt to resend them.

    See question