Tuesday, April 15, 2014

Monday, April 14, 2014

Question: Do You Get Any News or Information Via the Internet?



If so you'll be happy to know that the 5th DCA thinks the internet is an "other medium" for purposes of Florida's required pre-suit notice when filing a defamation lawsuit.

Not only that, but the statute applies whether you are a fancy newspaper or even a lowly blogger who posts under a pseudonym:
There are many outstanding blogs on particular topics, managed by persons of exceptional expertise, to whom we look for the most immediate information on recent developments and on whom we rely for informed explanations of the meaning of these developments. Other blogs run the gamut of quality of expertise, explanation and evenhanded treatment of their subjects. We are not prepared to say that all blogs and all bloggers would qualify for the protection of section 770.01, Florida Statutes, but we conclude that VanVoorhis’s blog, at issue here, is within the ambit of the statute’s protection as an alternative medium of news and public comment.
Nice job Marc Randazza!

For more analysis and comment on this case, check out Marc's post here. 

Now listen to this (happy Pesach)!




Friday, April 11, 2014

Eleventh Circuit ♥s Judge Ungaro, Too!



In this unpublished opinion, Judges Pryor, Martin and Kravitch affirm my muse Judge Ungaro on her dismissal of a complaint against the government of Nicaragua for lack of subject matter jurisdiction pursuant to the Foreign Sovereign Immunities Act ("FSIA"), proving once again that Judge Ungaro's curiosity intellectual curiosity and willingness to keep an open mind make her even more attractive make her an even better draw in any complex case.

Judge Ungaro initially granted a motion for default against Nicaragua and awarded the plaintiffs 12 million in damages. The Court, however, granted Nicaragua's motion to vacate and dismiss. The Eleventh Circuit's opinion affirming Judge Ungaro contains a nice overview discussion of jurisdictional questions under FSIA, relying on cases involving Banco Latino International, Calzadilla, Aquamar, Argentina, Petrolio Brasileiro, Guevara, Peru, oh hail you get the idea. (Had the Court heard oral argument, I think it would have been fun to watch!)



Have a great weekend. The weather continues to be amazing. Enjoy it.

Thursday, April 10, 2014

Judge Tjoflat Shoots the S*%t Out of Shotgun Pleadings!


 We've certainly had our fun over the years with shotgun pleadings.

Just the simple inanity of them, in direct proportion to how easy they are to correct and/or avoid, and the mind-numbingly stupid and pointless pleadings practice they engender.

Well I see I'm not alone.

In fact, I believe Judge T (who has written about this in the past) may have even exceeded our level of ire.

So........are you in the mood for a good old-fashioned Judge Tjoflat rant?

Then sit back and enjoy:
We add, as a final note, that the attorneys in this case could have saved themselves, their clients, and the courts considerable time, expense, and heartache had they only paused to better identify the issues before diving into discovery. . . .

That such a straightforward dispute metastasized into the years-long discovery sinkhole before us on appeal is just the latest instantiation of the “shotgun pleading” problem. See Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 979 (11th Cir. 2008) (“[T]his court has been roundly, repeatedly, and consistently condemning [shotgun pleadings] for years, long before this lawsuit was filed.”)

 The story is, by now, a familiar one: the plaintiff kicks things off with a shotgun pleading, where “each count . . . adopts the allegations of all preceding counts. Consequently, allegations of fact that may be material to a determination of count one, but not count four, are nonetheless made a part of count four . . . . [I]t is virtually impossible to know which allegations of fact are intended to support which claim(s) for relief.” Anderson v. Dist. Bd. of Trs. of Cent. Florida Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996).

In this case, Paylor’s counsel conceded outright at oral argument that Paylor’s complaint “doesn’t meet the [Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)] standard.” And indeed, both the complaint and the amended complaint are almost totally useless. The reader learns that there is a statute called the Family Medical Leave Act, and hears in Counts II and III the allegation that “[Hartford] violated the Family Medical Leave Act by interfering with and/or denying [Paylor’s] leave under the act and by ultimately terminating [Paylor],” and that “[Hartford] has violated the FMLA by retaliating against [Paylor] for [Paylor’s] exercising and/or attempting to exercise [her] rights under the Family Medical Leave Act,” but that is all the reader learns. No specific factual allegation informs the reader how, precisely, the defendant interfered with or retaliated against the plaintiff.

Defense attorneys, of course, are not helpless in the face of shotgun pleadings—even though, inexplicably, they often behave as though they are. A defendant served with a shotgun complaint should move the district court to dismiss the complaint pursuant to Rule 12(b)(6)3 or for a more definite statement pursuant to Rule 12(e)4 on the ground that the complaint provides it with insufficient notice to enable it to file an answer.

 Rather than availing itself of the protective tools in the Federal Rules of Civil Procedure, Hartford responded to Paylor’s shotgun pleading with a shotgun answer: 19 one-line affirmative defenses, none of which refers to a particular count, and none of which indicates that Hartford was even aware of when the retaliation and interference allegedly occurred. At oral argument, Hartford’s counsel acknowledged that the complaint was totally lacking in specifics, but maintained—in essence—that all’s well that ends well: after all, the parties were able to sort things out through discovery. Even if that were true—and it isn’t, as evidenced by the parties’ ongoing bickering over even the most picayune facts in the case—why should parties wait until discovery to identify, with precision, the subject of the litigation? That is exactly backward. Civil pleadings are supposed to mark the boundaries for discovery; discovery is not supposed to substitute for definite pleading.

In any case, the parties delivered this mess to the District Court. Instead of demanding a repleader, see Davis, 516 F.3d at 984 (“In light of defense counsel’s failure to request a repleader, the court, acting sua sponte, should have struck the plaintiff’s complaint, and the defendants’ answer, and instructed plaintiff’s counsel to file a more definite statement. The necessity for doing so should have become starkly apparent on reading the complaint.”), the District Court tossed the case overboard to a Magistrate Judge for discovery.

At that point it was too late: the discovery goat rodeo had begun. Because a Magistrate Judge has no authority to narrow the scope of discovery (because that would constitute a dispositive ruling, a power forbidden to Magistrate Judges, see 28 U.S.C. § 636(b)(A)), the parties had a free hand to take depositions and collect affidavits, business records, and interrogatories—most of which bear no obvious connection to the crux of the dispute. By the time the case wheezed its way back to the District Judge, she unhappily discovered that the record had become “voluminous,” consisting of “hundreds of pages of deposition testimony, witness affidavits, correspondence, various business records, and discovery responses.” Hollinger, No. 6:11-cv-59-Orl-19TBS, ECF Doc. 57, at 7.

The persistence of the shotgun pleading problem is particularly frustrating because the relevant actors all have it within their power to avoid it. Nothing is stopping plaintiffs from refraining from writing shotgun pleadings. Certainly nothing is stopping defense lawyers from asking for a more definite statement; indeed, their clients would be well-served by efforts to resolve, upfront, the specific contours of the dispute, thereby lessening or even eliminating the need for costly discovery. And nothing should stop District Courts from demanding, on their own initiative, that the parties replead the case.
Here here!

Even Frank Gallagher would be impressed by the depth, breadth, and sheer entertainment value of that one.

But what is Judge T talking about with the Magistrate Judges and discovery disputes -- isn't one of their main jobs to weigh in on discovery disputes and rule on the proper scope of discovery?

Wednesday, April 9, 2014

3d DCA Watch -- Deja Vu All Over Again!



Just to make my life easier, I've saved some code (ctrl/alt/bunker) so when needed I can spit out the same paragraph about the same repetitive topic -- how endlessly confusing offer of judgment law is, and how often trial judges and lawyers get it wrong.

Here it is:

OFFER OF JUDGMENT LAW #FAIL

Royal Caribbean v. Cox:

Oh goodie, look:

OFFER OF JUDGMENT LAW #FAIL

(Maritime edition).

BTW, this one required a rehearing en banc, and a substitution of a prior appellate opinion.

But at least this issue is resolved forever (or until next week, whichever comes first).


Monday, April 7, 2014

He's (Almost) Back!



I'm talking Big Hank of course:
Henry “Hank” Adorno, once an influential lawyer in Miami, is likely to get his law license back after being suspended for more than three years. A judge has recommended that the Florida Supreme Court reinstate him.

In 2010, the Supreme Court upheld a lower-court ruling that cited “reprehensible” behavior by Adorno for collecting huge legal fees while excluding almost all Miami property owners from a $7 million class-action settlement against the city over illegally imposed fire fees.

In recommending his reinstatement, Broward Circuit Judge Jack Tuter found that Adorno “showed a sense of repentance and remorse, as well as the desire and intention to conduct himself in an exemplary fashion in the future.”
Anyone know who he will partner up with?



Read more here: http://www.miamiherald.com/2014/04/04/4039802/prominent-miami-lawyer-close-to.html#storylink=cpy

Friday, April 4, 2014

11th Circuit Reverses Judge Ryskamp and Revives Fraud Case Against Lawyers!


 This seems like an interesting case that Judge Ryskamp had thrown out on a 12(b)(6) motion, but it looks like it is coming back down:
We have had the benefit of oral argument in this case, and have very carefully considered the briefs of the parties and relevant parts of the record. This case involves allegations that four lawyers, and through them their law firm, aided and abetted a client in fraudulently procuring a $7 million loan from plaintiff in April 2007. Plaintiff also alleges that the same actions constitute a civil conspiracy. The district court dismissed plaintiff’s Second Amended Complaint (“SAC”). We conclude that this was error.
The Court is careful to point out that the allegations are unproven, and vigorously contested.

Thursday, April 3, 2014

We Regret to Inform You of a Brief Spencer Aronfeld Video Shortage.

Please know we are making every effort to rectify this problem.

As a gesture of good will, we offer you this:


Our sincere apologies.

Justin Bieber Fined For Not Appearing at His Deposition!



As anyone who has seen the video of the deposition he did appear for can attest, The Biebs better keep his checkbook out:
Troubled pop star Justin Bieber was just ordered to pay the Aventura lawyer who represents a photographer suing the singer in Miami-Dade County.

The decision came down just a few minutes ago: Judge Sarah Zabel awarded $7,500 in legal fees to attorney Mark DiCowden because Bieber and his people let him sit and wait in Los Angeles in January.

On Friday, court records show, DiCowden also received a $4,000-check from Bieber for his plane ticket, hotel and meals during the four days.

Bieber was supposed to be deposed by DiCowden in the case brought by Miami Beach shutterbug Jeffery Binion, who claims he was assaulted by bodyguards last June on Bieber’s order.

Bieber, however, missed the court-mandated deposition Jan. 23 — even if he had a good reason for not being there: He was in jail in Miami after being picked up for DUI!

There was no sympathy from Zabel, who ordered the reimbursement.  Bieber showed up for another depo, in Miami this time, on March 6.

Technically, Bieber bodyguard Hugo Hesny, a co-defendant in the lawsuit, is supposed to pay his share of the legal fees because he did show up for the depo — but declined to talk.  A source close to the case says it’s likely that Bieber will absorb the entire $11,500.
It's hard to say which is worse -- having Bieber show up and act like a jackarse, or just having him skip the depo entirely and start cutting checks.

A lawyer's dilemma......