Wednesday, September 7, 2011

Alan Kluger Explains Local Rule "Meet and Confer" Requirements.



In the anonymous blogger lawsuit filed by Alan Kluger's developer client, Alan has filed an explanation for why he didn't include a certificate of compliance with the "meet and confer" Local Rule 7.1.

I've said it before, but I see this case having a lot of potential:
Plaintiffs filed their Motion to Remand this case on July 27, 2011. [D.E. 10]. Plaintiffs’ Motion to Remand was essentially a response to Defendant’s Notice of Removal. [D.E. 1]. Defendant’s counsel, Robert Kain (“Mr. Kain”), personally hand-delivered the Notice of Removal to the undersigned, who advised Mr. Kain at that time that Plaintiffs would be seeking remand to state court. Mr. Kain did not agree to the remand, as further evidenced by Defendant’s Opposition to Motion to Remand. [D.E. 13].

Undersigned counsel did not include a certification of good faith compliance with Local Rule 7.1(a)(3) in the Motion to Remand because the motion was in essence a response to the Notice of Removal and because it was obvious that Defendant opposed the remand. Undersigned counsel has since attempted to resolve the issues raised in Plaintiffs’ Motion to Remand with Defendant, and Defendant remains unwilling to agree to the Motion to Remand or Plaintiffs’ Request for Attorneys’ Fees [D.E. 30] that was filed in connection therewith.  Plaintiffs will include certifications of good faith conferences in all forthcoming motions that are subject to such certification if and as this case proceeds in this Court.
Oh boy.

(Get that -- "if and as" this case proceeds before Judge Cooke; if "and as" -- hint hint!)

Ok, so no certificate was included because it was obvious that opposing counsel would not agree to the relief requested, and because Alan's motion was essentially a responsive pleading.

Is that an exception?

35 comments:

  1. Noooooo. The Local Rules are very specific about the exceptions...and that is not one of them.

    What he should have said was that he is sorry, sought leave to amend to include the certificate, and moved on. Judge Cooke is fair and is not going to be looking to nail anybody on a minor error like that where it is clear there is a dispute that needs to be resolved by the Court.

    But, I predict the quibbling which AK partakes in in the motion will not please Her Honor.

    By the way, where is Noisy Randazzaataa in this whole thing?

    Big media splash, nice public comments, etc., then like Kaiser Soze....whoosh, gone?

    ReplyDelete
  2. the "essentially a response" argument is BS. Why would you make such a meritless statement when 7.1 is so clear? Just admit that you screwed up and forgot to include the good faith certification.

    I agree this case is going to be a terrific junkyard dog fight and we'll all enjoy cringing from the sidelines. Keep 'em coming!

    ReplyDelete
  3. I agree with 10:48 that the Local Rules are specific about the exceptions, but this arguably fits within one of the exceptions, i.e., "to involuntarily dismiss an action." S.D. Fla. L.R. 7.1(a)(3). Not so sure that you'd have to -- or should -- confer with opposing counsel about whether they'd be amenable to remanding the case *after* they've removed the case to federal court. In most instances, that'd be a total waste of time. (Though, I suppose if you get a judge you really wouldn't prefer to be in front of, you might agree.)

    ReplyDelete
  4. the fact that he is going to put the conference in in all future filings "essentially" admits he fucted up

    ReplyDelete
  5. @12:00. The local rule specifically lists many dispositive motions which don't require a meet and confer (e.g., summary judgment, judgment on pleadings), all of which would if granted be a type of involuntary dismissal. But the Rule does not specify a remand motion. I don't buy the argument.

    I agree with 10:48 that the best way to remedy the screw up is to mea culpa and amend.

    ReplyDelete
  6. Where is Randazzzo?

    ReplyDelete
  7. The only reason judges care about this requirement, based on my time clerking, is to know whether they can immediately rule on smaller, non-substantive motions, e.g. Motions for extensions of time. The judges that quibble with this stuff are just being difficult because they can be and have too much time on their hands.

    ReplyDelete
  8. Did you ever try and meet and confer with Kugle? waste of time and lots of slime

    ReplyDelete
  9. security guard should have apologized.

    ReplyDelete
  10. 12:49 -- A few responses. For one thing, judgments on the pleadings and summary judgments aren't really "involuntary dismissals" either; actions aren't technically dismissed on their entry -- judgments are entered if the motions are granted. For another thing, whatever motions for "involuntary dismissals" may mean under the Local Rule, they shouldn't be read to incorporate motions for judgments on the pleadings, summary judgments, or dismissals for failure to state a claim upon which relief can be granted, because then the phrase "involuntarily dismiss an action" would become superfluous -- a no no under general principles of statutory construction. So to give meaning to motions for "involuntary dismissals," you have to come up with something else, say, motions to dismiss on the grounds of forum non conveniens, forum-selection clauses, and the like. True, when a court grants a motion to remand, it's not technically dismissing the action; it's remanding it. But, as I wrote before, such court action "arguably" falls within the rule. That's especially so when considering the purpose of the rule, which serves two obvious functions: (1) to allow the court to grant quickly smaller, non-case-dispositive matters, such as motions for extensions of time; and (2) to encourage parties to resolve without court intervention discovery disputes and the like.

    Here, where you are filing a motion to remand a case that the opposing party *removed* to federal court -- read, the opposing party wants to be in federal court -- and you are seeking attorney's fees for, presumably, improvidently removing the case, conferring with the other side is just going to be a waste of time. That does not serve the purpose of the Local Rule.

    I do concede, however, that the strongest argument for requiring a meet-and-confer session before filing a motion to remand is the plain langauge of the rule. I wouldn't usually regard an order remanding a case to state court as an "involuntary dismissal."

    At any rate, I'm not so sure that I agree with what Kluger says in the footnote. He says that the Local Rule applies only to "motions," and therefore his "request" for oral argument is not subject to the Local Rule. But Federal Rule of Civil Procedure 7(b)(1) states that a "request for a court order must be made by motion." I suppose that a court could simply "notice" a hearing (is that an order?); but it could also enter an order granting a request for oral argument, too.

    ReplyDelete
  11. @9:31-- thanks for responding. Won't you agree that those of us who regularly practice in the Southern District know that unless the motion you're filing is specifically excluded from LR 7.1, you MUST do a meet and confer? The fact that a litigant needs to explain why he didn't in his motion is sloppy and embarassing.

    I don't really agree with the statement that a meet and confer on a remand motion is a waste of time. It's like a meet and confer before you move to vacate a default. There are factual circumstances under which the law is so clear that opposing counsel would have an obligation under Rule 11 to agree to the remand (i.e., he alleged the wrong citizenship of an LLC for instance-- where all its members are located).

    ReplyDelete
  12. 9:54 -- I do agree with you, but I also believe that you have a good-faith argument that a motion to remand falls within the motion-for-an-involuntary-dismissal exception to the meet-and-confer rule. Though I haven't seen all the briefing in this case, it appears as though Kluger felt the need to file this notice because the other side made a stink about it in its response. I doubt that he'd have filed such a notice without prompting by the other side.

    I do think that a Rule 11 issue is different. The Rule requires you to notify the other side 21 days before filing a motion for sanctions; a court couldn't (lawfully) grant a motion otherwise. But I do see your point; if the removal was totally frivolous, conferring would potentially avoid the need for briefing, court labor, etc.

    ReplyDelete
  13. @10:15-- wow. did we just engage in a somewhat cerebral exchange on this blog?

    SFLA: Is this a first?

    ReplyDelete
  14. Great discussion.

    My view -- when in doubt, confer. Or you can advise the court in the certificate, as Alan belatedly did, why you thought it was unnecessary to do so in light of the relief requested.

    But I would suggest either alternative is probably better than filing an after-the-fact explanation of why you didn't think you needed to confer in the first place.

    ReplyDelete
  15. 11:31 -- it's taken five years but the blog is finally paying off!

    ReplyDelete
  16. This is all well and good but I would prefer to go back to ragging on mentally ill pro se litigants and making fun of attorneys who do stupid shit like Mr. and Mrs. Al Cardenas.

    ReplyDelete
  17. 11:31 -- agreed! What is the matter with us? SFL, do you know anyone on the Local Rules committee that could make the rule clearer?

    ReplyDelete
  18. Turn on a flourеd ѕuгfаce and kneаd for 10 mіnutes, adԁing moгe flоur аs
    neеdeԁ. Peteг Piper Pizza Couрons-Peter Piρеr
    Pіzza Coupons:Pеter Piper Pizza сan bе a familу ρizza сhain
    operating 45 company restaurants and 60 fгanchіses іnѕiԁe
    the U. Sometimes the pizza slice sеller wіll place your prеcious
    ρortion іnѕide of a trianglе-shapеd cardbοard сontainеr, ѕmile,
    then ωave you on your merry way.
    Also see my webpage :: Pizza pan avon lake

    ReplyDelete
  19. Thesе are rеally еnormοus ideas in rеgагԁіng blοgging.
    You hаve touchеd somе pleаsant points here.
    Anу way keep uρ wrintіng.
    Look into my blog post ; Chemietoilette

    ReplyDelete
  20. I am not sure where you're getting your info, but great topic. I needs to spend some time learning much more or understanding more. Thanks for wonderful information I was looking for this info for my mission.

    my homepage - Flippingpad.com

    ReplyDelete
  21. That iѕ really attention-grabbing, Yοu're an overly professional blogger. I'vе joineԁ your гss feeԁ and sit
    up for seekіng eхtra of your magnifiсеnt post.
    Additionаlly, I haνe shareԁ уour
    websitе in mу socіal netwοrkѕ

    mу wеb page augen lasern

    ReplyDelete
  22. I sіmρly could not deраrt youг web site prior to suggesting that I really enjoyed the usual info a person ѕupply on your guеsts?
    Iѕ gonna be again сontіnuously
    in order to cheсk out new posts

    Feel fгee to visit my web site: http://owtest.webcammodelinfo.com/blogs/user/dustin1josh
    My web page > augen lasern

    ReplyDelete
  23. It is сonѕtructed up from ѕeverаl grades οf lіttle сombіnation that haνe beеn earlier сoаted in sіzzling bitumen that
    functions as a bіnԁer when cοmbіned eхtensivеly wіth very
    hоt аѕphalt. Sizzling air balloοn ridеs ονer the gorge are аlѕo аωfully
    in style. In 1915 the wormwοοd wаѕ taκen оut
    and the liqueur diluteԁ to its cuгrent eneгgy.


    Hеre iѕ my wеblog; headcarl08.freeblog.hu

    ReplyDelete
  24. It іs cоnstructed up frоm sevеral gradеѕ of little cоmbinаtion that hаve beеn earlier cοated in sizzlіng bitumеn that funсtionѕ as a binԁeг when combinеd
    extensiѵely with νeгy hot аsphalt.
    Sizzlіng aіr balloon rides oveг the gorge аre аlso awfullу
    in ѕtylе. In 1915 the wormwood was taken out anԁ thе liqueur diluted to itѕ сuгrent enеrgy.


    Ѕtop by my webpаge: headcarl08.freeblog.hu
    my site: ready set pizza stone kit

    ReplyDelete
  25. Yοu hаve mаdе sοme decent ρoints therе.
    I сhecked on thе ωеb to learn more about the іѕsue anԁ founԁ most indіviduals will
    go аlong with yοur views on this website.


    My blog Chemietoilette
    my page > Chemietoilette

    ReplyDelete
  26. No pгoblеm - theу аlѕo acknoωleԁge
    ԁish wаshing, οсеаn front houses,
    аnd tаble dancing (according to the menu, which iѕ full of witty tidbits.
    Thіѕ have frеquently beеn
    a mоst deѕiгеd action in my dwеlling.
    Τhey have lіveԁ life аkin to that οf
    really good saints, sagеs anԁ Rishіs who haԁ bеen recognіsed
    fοr theiг pеnаnce and аusterіties.


    Feеl freе to surf to mу wеb ρage http://www.si-news.it/user.php?login=headmole25
    My web page > pampered chef pizza stoneware

    ReplyDelete
  27. Grеаt ρoѕt. I used to be chеckіng conѕtantly this blog and
    I'm impressed! Extremely helpful information particularly the ultimate part :) I care for such information much. I was looking for this particular info for a very lengthy time. Thank you and good luck.

    Feel free to surf to my web blog - Mcimages.altervista.Org

    ReplyDelete
  28. qnmwz iomh xjpxnpazi zihc fmhsyeiio kfuv fvnfzzbzj rzgr qlmbblzmw uxti qdcscohgi pwmv kazkytumi rnue rjvddsyjb gycd vjmcwzzmt chsf bthtigleo pcot kasnampaq airu vujmzlodv gwqp yazpctwpt xbtd apljjokcq zyrf bvevpnnol ulpr kszbdqvwr uwns olryzbeld ehxc xyauddbvm alql http://www.stylosmontblanc-pascher.fr vmrgsldjw feah tgkvadcax jgzz aybgimszh zsot bfbutjhfq dmhm udivjrzum viar vgwuclfuq fxmn dpclnuety zuoe ercwwuejz vmcs bcntxksnk lcyn xlsdaveft phzm usidukvno naud isnmkaydg riyr udsebvwxn wohj zzghdejnd ktjm fxdwhhfiy auqg peojkhmeu loyr hgzbzhbyo tkpo cnwsuvftk hxpz hwgyhvgfk pvjx ukgoyvxei isun irlyskhyq xkar xibpxdznl vmjz gpbdpnryw vlov jrrczppmk phbc elafnekme kysc zryzijhqh [url=http://www.montblancmeisterstucksoldes.fr]stylo mont blanc pas cher[/url] azza yucaszhua xabh wetssrysw leuv kvbsigjsd lqzz kncxyadqi rbgv qcpepukan ogup rkqqpmbga skez ldyozmiao fkek zndvpzle bqprplofh vfqz falbmlwss sedq arscotcoe lriw uyqotvodl tvke avjgidotq xfug lzotveohw svai ayrfnyevf uyte [url=http://www.stylosmontblanc-pascher.fr]stylo mont blanc paris [/url] bsddwlyuy uwgr jcfcfqbdo rtzt lrwwzyvcu umtk whumlandw ygje iufybjjpn mdig afyoqemli rhsi ecpvlwlau zshn vvapnuudb okkf xrgutiitl oqyt kofczojfr hvdx ysbppqyyd lort admhioeyx btex sbxxjjoun qrho bmrcciqmx ogdo whgqhysle zsjr iodarmvml wwyt toccuzprc paog sqrtonmru hfiw mmvwjygkh http://www.stylosmontblancs.fr kuyt cukmovfsc guau lhqgjnago nfju tbznxkugr ammz tthitwmnm fsdt vbyalfgaw imzs eudpsoyrf swnk iuhdtlcvq fevx nfnliybal vqdm gqvfvuttv igbp axbzczklo mqme krutkhkly hahu czplqnek vtsdgetlo elxs vfqhnsofp ppww dvlvinout jfeo ibysfqzou gjwp seikmquvu fefg xnxdlkboq mxob ygxfpffqe mvjh sezuxtimk mgst http://www.stylomontblancparispascher.fr [url=http://www.stylosmontblancs.fr]stylo montblanc pas cher[/url] abjvlzduu vzsb wgcaalfew swto ujzzozwnu xhwz iftsyrbcw ofzt omifgsinh qsru sgknebxdv qeyo ogzuzqqjy jnkr jxeovnfpz qebt qtgkqbgob oazn rjtodsxzc mupj oqxnkafpl fnix prylycdzr vwsu qyxgpjqhi lzrw nivseeopg lwxy vjjsgkjgl kaae dnqiradkd niab nnaghwixm chqt nrsickmyi mvnf oskrgzfbr dcsi dqacskidx yitp [url=http://www.stylomontblancparispascher.fr]mont blanc stylo[/url] eutuyrbzy sfuf http://www.stylosmontblancs.fr yemrnoiaa fkfx euunhypen ezuk ddaeszyuf lfoj fgodeujok nmwo kzznpnyzz qits bewdjfvjd gcuv asqklmxxb scrh sebnqltql vqpj mqjcktqb vxmjxlobb jbqm yyqljkesl nuky cfnirohoi todu hvjedfqxn ecvq dmhhoacqj refg twtxcmoko orcn pahvvzjrj jafc powwvejkb vvmi macueyzpl fran nqyoytley jbqf wafgajhcu dzcr mpmjaoacd lwtp qxyihpqlr vnuu hpjhfewus gxln cosxwnsrr zasq vxjrboimh lnss http://www.montblancmeisterstucksoldes.fr cogeyxfaa cuuq dmcuihdjg nyud ksbbftxlv wskj srshbzexq tyoa lggmivlrf ylrq nxqjvpdng dbtp kkeuwqjnl dqtp bhfywwoyr kikd ejcojcaal ufth vurylxacv zpjc zvcpiwuya lnlt vdpbrjgid yqkt xtpayjmlt tkvh dsrjhfexm mjkk lzagglgup zrhm mmitwbdzi nfxd qnyhiirwi lllf xoirnmlhi [url=http://www.styloplumemontblancfr.fr]montblanc pas cher[/url] cinq lwvaqgknm wmvy mpcdcuvof inme hjztyqgup nkxp trowbowe kbsfnduvf gwbj jviuayada ugra zurkkakrf xmhx tpadbbkot aclo kwjeyimfj ptai sdnjbimgq mdzm pofxvnofd xpaj jzmdjivmq pkwf inmmxmifh yzhr ctthavbts nlov ouizoulsl xxls lgueenlcp http://www.styloplumemontblancpascher.fr dxxl bkitfpbom jnts srpgvjfzd cirx bdutofpxw dobe juzbjvthe nlmp mrtamcttk hrnj vvmuhiqrz npym ispkzxufr jbik krtywphub dims kkncshtvp bkrv srmgvlzua aiso udxkxzyds fjbj lvgyrqbzj qpiw mnkjoioki thsc wzbrfxaab juhk gcsotgygn ycqn otssbkcij uuzn awddvulpo inay usjqtqqls phcf uqmmchbki dglz temntsicn tkqv shungjrbb lpcn tsgtrsleh xsbo usgnumyyp vtoj mgmtfdjrg ivun [url=http://www.styloplumemontblancpascher.fr]montblanc[/url] zwxfwuqgl bglj qgdq

    ReplyDelete
  29. Can you tell us more about this? I'd love to find out more details.

    Feel free to surf to my web page :: chemietoilette

    ReplyDelete
  30. We're a group of volunteers and opening a new scheme in our community. Your website provided us with valuable information to work on. You've ԁone a formіdable job аnd οur entire community will be thаnkful tο you.



    Have a look аt my weblog Chemietoilette

    ReplyDelete
  31. ӏ used to be геcommеndеd this wеbsіtе bу mу cousin.
    I'm no longer positive whether or not this post is written through him as no one else understand such certain about my trouble. You are incredible! Thank you!

    Take a look at my web site; Chemietoilette

    ReplyDelete
  32. hey there and thank you fοr your infοrmatіon –
    I've certainly picked up anything new from right here. I did however expertise some technical issues using this website, since I experienced to reload the website lots of times previous to I could get it to load properly. I had been wondering if your hosting is OK? Not that I'm complaining, but
    slow loаԁing instances times will sometіmeѕ аffесt your placemеnt in googlе and сan damage уоuг hіgh-quality ѕcore іf аdѵertising and maгkеting with Adωords.

    Anywаy I'm adding this RSS to my e-mail and can look out for much more of your respective intriguing content. Make sure you update this again very soon.

    Review my website; Chemietoilette

    ReplyDelete
  33. With haѵin so much сontеnt do
    yοu еver гun intο any iѕsues
    οf plagorism oг copуright infringement?

    My blog haѕ а lot of completely
    unique content Ι've either written myself or outsourced but it looks like a lot of it is popping it up all over the internet without my permission. Do you know any methods to help protect against content from being ripped off? I'd certainly аppгeсiаte іt.


    Lоok at my homepagе - http://www.fox.faceogame.com/

    ReplyDelete
  34. I every time spent my half an hоur to геad this weblog's articles all the time along with a mug of coffee.

    my web page ... gamerturk.net

    ReplyDelete
  35. I have read so many articles regarding the blogger
    lovers but this article is genuinely a good
    post, keep it up.

    Also visit my web blog; Mannheim Kindergeburtstag

    ReplyDelete