Wednesday, June 2, 2010

3d DCA Watch -- "Legal Panache" Edition!



Is the right to a jury trial a question of great public importance?

That's the issue certified by the Resplendently Resplendent Ones today in Weisenberg v. Costa, which involved a forum selection clause that specifies admiralty jurisdiction but not that the legal consequence of being in admiralty is no jury trial.

Judge Cope's opinion certifies to the Supremes this question:
IS A FORUM SELECTION CLAUSE ENFORCEABLE IN CIRCUMSTANCES WHERE ITS EFFECT IS THAT PASSENGERS WAIVE THE RIGHT TO A JURY TRIAL BUT THE CLAUSE DOES NOT EXPRESSLY SO STATE?
Seems like it might be worth the Supreme's time, especially with all the cruise cases here in South Florida.

Plus it already divided the 3d, which dealt with this issue last year in Leslie v. Carnival Corp., 22 So. 3d 567 (Fla. 3d DCA 2009):
Compare id. at 574 (Shepherd, Gersten, Wells, Suarez, and Lagoa, JJ., concurring in denial of rehearing en banc) (“[U]nder federal maritime law, the passengers in these cases received the notice to which they were legally entitled. . . . There is no requirement under general maritime law that ticket recipients be advised of any unstated ramification of those limitations.”), with id. at 585 (CortiƱas, Ramirez, Cope, Rothenberg, and Salter, JJ., dissenting from denial of rehearing en banc) (“[W]e would grant the motion for rehearing en banc and find the federal court portion of the Forum Clause at issue here is unenforceable as it operates to deprive appellants of their constitutional right to a jury trial without notice and without consent.”).
Not so, says Judge Shepherd.

To be honest, this case is barely worth the electronic data it's printed on, let alone an issue to bother the mighty Supremes with, busy as they are with rule changes, disbarments and oh, that's right -- executions:
The case before us is a garden variety personal injury case with a contractual twist. As a practical matter, the clause in question affects a narrow class of Costa Crociere cruise ship customers—those with a dispute arising out of their cruise experience.
He also says something about the "ancient concepts of freedom of contract," "deduces" the true non-record selfish motivation of the appellant (juries are perceived to be more favorable to plaintiffs than federal judges) and then goes for the jugular:
This may be a case of some legal panache. However, in my opinion, it is not a case of great public importance. The former, of course, is not a basis for certification.
Ouch.

Take that, Judge Cope -- panache!

First of all, the word is French.

(I think that speaks for itself).

Further, according to Wiktionary, Judge Shepherd thinks the case either (1) resembles an ornamental plume on a helmet, or (2) exhibits flamboyant, energetic style or action; dash; verve.

I would agree with him that the former, of course, is not a basis for certification.

Not sure about the latter, though I have a question -- how can a case be "garden variety" yet also show some "legal panache"?

Guess we'll soon find out.

16 comments:

  1. Flamboyant Shumie!

    ReplyDelete
  2. Justice Souter on Constitutional theory-

    http://news.harvard.edu/gazette/story/2010/05/text-of-justice-david-souters-speech/

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  3. Interested in swapping the van SFL and the females inside? Got an attic full of Marvel comics. If interested-- meet me behind the sausage stall Friday night at the swap meet. I'll be the one
    in the 'porn stache and wearing an "I LOVE CHARLIE CRIST" tee-shirt.

    ReplyDelete
  4. The man will never part with his van.

    ReplyDelete
  5. Dump the blonde and the latina... I will rock your world to the tunes of Chuck Berry and Perry Como.

    Ever seen panties from the 1950's? They got pockets!

    Bubbe

    ReplyDelete
  6. Bubbe you beast.

    fake sfl

    ReplyDelete
  7. Somebody call the Shumie.

    ReplyDelete
  8. Forget Bolero-- "Boogie Woogie Bugle Boy Of Company B"

    ReplyDelete
  9. Latina, ever done the 'back seat bingo' with a older man or to the tunes of Buddy Holly?

    No longer Bubbes' Boyfriend

    ReplyDelete
  10. @ 4:34-- The swap meet in Tampa sells little blue pills...just sayin'

    ReplyDelete
  11. those are tic tacs.

    ReplyDelete
  12. I got a Troybilt Generator, trade ya for one night of using the van SFL.
    Hail I'll even throw in a pair of moccasins-- gratis.

    ReplyDelete
  13. Marion County flea market has hot bubbes.

    ReplyDelete
  14. these comments are too funny

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  15. Sorry I came to the 3d DCA watch late, but SFL how did you miss this gem by Judge Schwartz? Almost reminds me of a little trip he made to Tallahassee about 10 years ago.

    SCHWARTZ, Senior Judge, specially concurring in part.

    I heartily agree with affirmance. Indeed, I doubt that this wretched appeal, from which Mr. Anders himself would recoil with disgust, should be dignified by anything more than a PCA. However, since an opinion has been written, and while it is obvious that the defendant's motion for directed verdict was properly denied, I think the Court's reliance on the cases which involve the location of the defendant's fingerprints which (although only in legal theory) could have been innocently left on the outside of the site of a break-in is misplaced. In contrast, Rivero was identified by blood which was obviously the result of a cut on the broken window through which he entered the premises. Since that is the case, it doesn't matter whether it was found on the outside or inside of the pieces of shattered glass.

    Rivero v. State, 2010 WL 2186196 (Fla. 3d DCA June 2, 2010)

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