Friday, July 29, 2011

My Baby Steve Zack, He Wrote Me A Letter!

Not one to simply let Chief Judge Moreno hog all the spotlight, ABA Prez Steve Zack (captured mid-phone above) has jumped in with his own letter about all those darn federal judicial vacancies, and why can't the Senate just get along pre-recess and confirm a few of these folks so that whole system of laws thing doesn't break down, don'tcha know:
Thirty-eight of the present vacancies have existed for so long and created such untenable workloads for the remaining judges on the courts that the seats have been declared judicial emergencies by the Administrative Office of the U.S. Courts. As lawyers who practice in federal courts across this nation, ABA members know firsthand that long-standing vacancies on courts with staggering caseloads impede access to the courts and create strains that will of the courts to vindicate constitutional rights or render fair and timely decisions. In Arizona, for example, the Speedy Trial Act has been temporarily waived, and criminal defendants wait up to 6 months for a trial, while businesses and individuals wait up to 2 years before their cases are heard.
So far so good (I mean bad).

But then Steve continues:
We realize that the aging of our federal judiciary has contributed to the growing vacancy crisis.
 Hey now!

Being the silver-tongued devil that he is, Steve politely refers to the nationwide decaying judge issue as "attrition":
According to Department of Justice estimates, 60 new vacancies will be created through attrition each year for the next decade. Obviously, progress toward reducing vacancies requires a confirmation rate that outpaces the attrition rate; at present, it is barely keeping abreast of it.
So I believe what Steve is saying is we either need to develop new methods of preserving and extending the lives of our aging federal judges -- perhaps through alien intervention, cloning, cryonics, or sophisticated and groundbreaking time-travel technologies that are currently beyond our scientific capabilities -- or we just need to confirm some of these nominees.

Hard to tell which is a more realistic and practical course of action given what's happening in DC at the moment.

Thursday, July 28, 2011

Is it Possible to Write a Boring Letter About Hard Core Porn?

I never thought so, but attorney Keith Lipscomb pushes the envelope in this impassioned yet detailed and somewhat technical defense of his client, a South Florida porn producer, and its efforts to go after people who may have illegally downloaded their provocative content:
Attorney Keith Lipscomb, with the Miami law firm of Lipscomb Eisenberg, PL, insists that his client Patrick Collins, Inc., says they have a strong legal case against Claudette and the 999 others named in their suit.

"Unless my client enforces its copyrights, the public will come to learn that it can infringe my client’s copyrights with impunity. When that happens, my client fears that it’s business will suffer more or even fail since its primary product is a movie capable of being converted into a digital media file and downloaded illegally through the internet. The way I see it, PCI’s decision to enforce its copyrights is really no different, except that PCI’s store is online, than Home Depot’s decision to prosecute every person who shoplifts from it," said the lawyer whose client is better known as Elegant Angel Productions, which produces hard-core porn videos.

"First, by establishing that the subscriber’s IP address was used to commit the infringement, we have pled a prima facie case for copyright infringement," he wrote me. "If Claudette wants to claim her Wi-Fi was unprotected and someone else used her IP address to download the movie, she will have to prove it. In response to our prima facie case, a Doe can defend on the basis that its Wi-Fi was hacked pleading it in an answer and affirmative defenses," he said.

"Should that defense ever be raised in a litigation then, among other things, my clients would investigate by verifying how far the subscriber’s Wi-Fi signal carries. Most modems don’t project signals far enough to establish a good connection into a neighboring house. If it did carry a signal to another house then we would, subpoena and depose the Doe’s neighbors to ascertain whether: (a) they have a computer, (b) they have internet service, and (c) they have ever used a neighbor’s open access Wi-Fi connection. If the neighbors have a computer and internet then there is no reason to hack."

"Here is the bottom line, however, merely because a Doe could possibly prove that its Wi-Fi was hacked and that it was not the infringer does not make my client’s copyright enforcement campaign overbroad, unlawful or unethical. To underscore the point, let me pose the question back to you: What would you do if your revenue model was pay per download and your articles were being illegally downloaded on the scale that my client’s digital movies are being illegally downloaded? I think you would do the same thing. I know I would and I am personally very proud to be defending my client’s copyrights to the best of my ability."
Ok ok you've made your point, but deposing Claudette's neighbors and seeing whether they tapped into her Wi-Fi to download hard-core porn videos?

Well it is Connecticut, and I'm pretty sure The Ice Storm is 100% accurate and exactly how all wealthy suburban families behave.

Key party, anyone?

Judge Hurley Strikes World's Worst Errata Sheet (About Anthrax).

We previously discussed the ridiculous "errata" sheet filed by the Justice Department in the wrongful death suit arising from the feds' decade-long anthrax investigation.

Well, Judge Hurley this week noticed that there was nothing "errata" about the proposed changes to the sworn testimony, and that something called "good cause" would be needed to amend or revise asserted "facts" of this magnitude:
While deposition transcripts are occasionally accompanied by “errata” sheets intended for the correction of stenographic errors in interpretation, there is no authority under the Federal Rules of Civil Procedure or local rules of this court allowing for unsolicited submission of “errata” sheets purporting to correct editorial errors in legal briefing. The court is thus not inclined to accept the defendant’s invitation to red-line its earlier submitted papers in the manner suggested. See generally Norelus v Denny’s, Inc., 628 F.3d 1270 (11th Cir. 2010).

If there are substantive errors of material fact in the earlier filed papers that the government wishes to withdraw or correct at this juncture, the appropriate mechanism for bringing this to the attention of the court is by motion seeking permission to file an amended motion or supporting statement, supported by good cause shown. While this order is without prejudice for the defendant to file such a motion, counsel is advised that merely finding a different, better or more detailed way to express a thought does not constitute “good cause” shown for the submission of amended pleadings or motions before this court.
 I'll leave it up to the reader to decide whether the Gov's subsequent filing meets Judge Hurley's standard.

(Wait a second -- I just found a better way to express that thought, time for another "errata" post!)

Wednesday, July 27, 2011

Come Back to the Five and Dime Bunker, 3d DCA 3d DCA

Gosh it's slow around here and I'm sitting on so many juicy tips but sometimes you have to suck it up and pay people the respect they deserve.

(BTW, I love this clip but let's be serious -- Greg Hawkes should be rocking the Keytar.)

3d DCA Watch -- Literally, I've Got Nothing.


AffirmedSee cite from a few years ago that I won't provide any context about, won't care to explain its relevance (if any) to the legal dispute at hand, and won't even bother to do a parenthetical over because its meaning and plain applicability should be exceedingly obvious to any moron with a law degree.

Hey, the Robed Ones are artists too!

Tuesday, July 26, 2011

Senator Leahy Speaks Out on Behalf of Stalled SD FL Judicial Nominations

As David noted the other day, Chief Judge Moreno has started writing letters in hopes of getting Kathy Williams and Bob Scola confirmed as judges sometime this century.

And Glenn Sugameli, a DC wonk who has done great work on this issue, passed along this floor statement by Senator Leahy in which the Senator quotes Judge Moreno's letter and highlights the larger context in which very qualified nominees are being held up for no good reason:
Recently, Chief Judge Moreno of the Southern District of Florida wrote to the Senate leaders urging that they expedite action on two nominations to fill judicial emergency vacancies in that district. Both Kathleen Williams and Robert Scola are among the many judicial nominees who were reported unanimously by the Judiciary Committee, yet both are being delayed for no good reason.

Chief Judge Moreno writes:
 [T]he judicial shortage with three vacancies in our district is becoming acute. For this reason, I ask your assistance in expediting both confirmations. The Judiciary Committee has found the nominees qualified and the people of South Florida eagerly await their service. 
Both of these nominees have the support of their home State Senators— Senator NELSON, a Democrat, and Senator RUBIO, a Republican. The two Senators have set aside partisan actions, and the Senate Judiciary Committee has set aside partisan actions by voting for the nominees unanimously. Why should they be held up because of partisan actions on this floor?
 Good question -- anyone have an answer?

Magistrate Judge Torres Explains the Legal Caste System!

This is a great R&R from Judge Torres awarding fees pursuant to 28 U.S.C. § 1920 to H&K in defending an "objectively unreasonable" copyright suit.

There are so many interesting things in this order I don't know where to begin.

Let's start with the fact that it took 19(!) H&K lawyers in four cities (Miami, Atlanta, DC, and Boston) to handle an objectively unreasonable lawsuit.

Then there's the whole billing rate problem:
To be fair, the record shows that various Florida lawyers were indeed involved and billed extensively on the file, including highly experienced and respected lawyers like Sandy Bohrer and Chris Bellows, who are seeking even higher rates. But that then leads to the question whether their billable rates are necessary to attract competent counsel in this community to represent Coca-Cola. Clearly they are not.
Judge Torres continues by way of analogy:
In other words, one can drive from point A to point B in a Ferrari, a BMW, or a Ford Fusion. Which car one chooses is ordinarily a matter of personal style coupled with financial freedom. The successful personal injury or criminal defense lawyer may choose the Ferrari. The average corporate defense lawyer will wisely choose the BMW. But a successful attorney fee applicant can only choose the Ford Fusion. It is quite reliable, consistent, and effective for the task at hand, and will not break the bank. And because of that only the cost of a Ford Fusion is compensable under an attorneys’ fee statute based on the American Rule that governs federal litigation.
A few questions:

1)  Why is the successful PI and criminal defense lawyer lumped together, both driving a Ferrari?

2)  What is "wise" about the average corporate defense lawyer's choice of a BMW, and don't some (many) also drive fancy sports cars or even Ferraris?

3)  This is not good publicity for Ford Fusions.

The Judge is not done:
That is why premium-rate lawyers who work at large high-powered law firms like H&K exist. They are lawyers who graduated from the best law schools like Georgetown, at the top of their classes at schools like Columbia or the University of Miami, who clerked for distinguished federal judges, who work night and day, 365 days a year, in the interest of that corporate client that demands perfection 100 percent of the time. These lawyers are (in very rare cases) the Ferraris and (in most cases) the BMWs of their profession who would never market themselves as merely “competent” or “average” or “reasonably priced.” These lawyers market premium legal service, which carries with it premium hourly rates.
Hmm, that's an awful lot of assumptions in one paragraph.

Georgetown, heh?

Hey, I know a Magistrate Judge who graduated from there!

BTW, I'm sure Coke's shareholders are happy they hired a firm who put 19 lawyers from around the country (plus another firm out of LA) on a case that had absolutely no merit whatsoever.

Oh well, $425 an hour's not bad for the ham-and-schleppers stuck driving around the South Florida legal community in their crappy Ford Fusions.

Beats the Ford Pinto, I guess.

Monday, July 25, 2011

Should You Include Reasons in Your Motion to Dismiss?

Judge Altonaga tackles a hot-button issue that is all the rage among us civil litigators -- when you prepare a motion to dismiss, should you include reasons why the action should be dismissed as to your client?

My own feeling is as follows:

I'm an artist.  You wouldn't ask John Coltrane to explain one of his mind-blowing sax solos, nor would you ask Chagall to explain one of his paintings or James Joyce to explain Finnegans Wake.

Likewise, my 12(b)(6) motion stands on its own, inviting -- nay, challenging -- the reader to find his or her own meaning in my random collection of important-sounding legal words, and arrive at the correct conclusion in spite of (and most definitely not because of) my brillant if maddeningly obscure wordcraft.

Isn't that the very definition of transcendent art?

Alas, Judge A has a different view:
As a general observation, the Court notes that, in their Individual Motion, Barillas and Chaveco address the 12 counts of the Complaint in a cursory fashion. They argue, without citation to any authority or analysis, that the Complaint fails to allege with specificity what it is they did to be liable in all 12 counts. In their Reply [ECF No. 36], Defendants attempt to make concrete arguments relating to some of the counts, for instance by pointing out that the Complaint does not allege what actions they took to make them personally liable under the FDUTPA or for unfair competition. Nonetheless, they cite to no law and do not provide any legal argument addressing the sufficiency of the non-Lanham Act claims. As the court noted in Rux v. Republic of Sudan, “a moving paper makes a specific request for relief of some sort . . . [a] memorandum of law in support, on the other hand, supplies the reasons why the moving party is entitled to that relief.” No. Civ.A. 2:04CV428, 2005 WL 2086202, at * 14 (E.D. Va. Aug. 26, 2005) (emphasis in original). In the absence of any meaningful legal analysis regarding the sufficiency of the remaining claims stated against these Defendants, the Individual Motion fails to persuade.
 Ok, perhaps she has a point, but how bourgeois is that?

Friday, July 22, 2011

Judge Moreno Denies William Levy Motion to Dismiss!

William Levy, the Latin hearthrob recently in the news for allegedly canoodling with Jennifer Lopez, just got another piece of good news -- Judge Moreno has denied a motion to dismiss in a defamation action Levy filed against an CA attorney arising from an alleged underage sex scandal.

Celebrities -- they really are just like us.

New GT Offices Just Like Home!

The Miami Herald takes a look at GT's new office space, which is designed to be comfortable and just like home, if your home is a huge office building downtown:
“What this space does is embody the old adage of home away from home. Think about it. At home today, no one goes to a ‘home office’ to sit and work on a computer. They have wireless. They sit in the most comfortable space they can find."
Hmm, I like this concept, but fellas please -- no emailing from the bathroom, ok?
“Again, the desired effect is similar to home, in that you want to feel like you’re mobile.”

Indeed, everything at Greenberg is mobile. Even the walls slide on tracks.

My home is so mobile, not only my walls slide on tracks, my whole home slides on tracks.

(In fact, I actually live in a dilapidated trailer park right next to the railroad tracks, so what I'm understanding is GT's new space is pretty much a giant, moveable, wall-sliding mobile home/portable wifi station attached to its own Starbucks/sports bar.)

That does sound warm and comfy!

Wednesday, July 20, 2011

Your Daily Anthrax Errata Sheet!

Is anyone besides Glenn Greenwald following the civil suit before Judge Hurley regarding the FBI's allegedly bungled anthrax investigation?

The Justice Department recently filed an "errata" to end all erratas, one that adds so many qualifications and modifications you finish wondering genuinely what the meaning of is is.

The deposition of whoever swore to the errata will be very interesting.

3d DCA Watch -- We Recede, We Recede.

Yes kids, it's that time of the week when the waters recede but the Resplendent Robes fly, when the coffee is swilled but the concrete abides, when the petitioners cry but the (old) thigh master lies, yes it's a good old-fashioned 3d DCA Watch:

State Farm v. Seville Place:

Rehearing en banc!

The Court recedes, in recession, then recedes some more:
To the extent that we previously have granted such a petition when irreparable harm seems possible rather than imminent, we recede from such decisions. . . .Similarly, we recede from the broad holding that “certiorari is available to challenge a premature bad faith claim or premature bad faith discovery.”
 The Court winds up "denying" the petition, rather than dismissing it, which of course brings us Judge Shepherd concurring at his wonky best:
I write to clarify my view that the more appropriate disposition of this case is a dismissal of the petition. The point is more than just academic.
Oh boy.
As previously discussed, that law in this State, as it relates to the petition before us, requires that we dismiss the petition.  The distinction made is not one without a difference.
Didn't he just say that?

Tuesday, July 19, 2011

Ed Marod Offers Legal Advice to Casey Anthony!

Should Casey Anthony buy a house in Florida?

Here is WPB attorney Ed Marod's free, unsolicited advice:
"Consider the amount of scrutiny she's getting, buying a house in Orlando is not the greatest idea for her to begin with," said Marod. "There are ways to get at, even a homestead. It's just that in the Supreme Court of Florida they're saying a homestead is a homestead. It may be a good idea for her to do that."
Ok, what exactly does this mean?
Is Ed saying she should buy a house here, or not, or just that she MAY buy a house but that the asset MAY or MAY NOT be protected?

I think what the bowtied one is saying is "sometimes a homestead really is just a homestead."

Monday, July 18, 2011

Why Would Anyone Want an Expedited Trial?

If you're a civil litigator like me, you enjoy discovery disputes, extended motion practice over the location and timing of depositions, lame and meaningless efforts at striking claims and defenses, multiple attacks on the form and content of the pleadings, lengthy expert depositions filled with high drama, sj motions at nearly every stage of the case, motions directed at jurisdiction and venue, and reams of motions in limine assuming you ever get that far.

Oh yeah I forgot the rare and elusive trial, desperately coveted by litigators but usually the result of lawyers failing to get their case into a posture where both sides can find an acceptable if imperfect resolution.

Still, there are always efforts to streamline this glorious process, the latest coming from the Northern District of California which has introduced an expedited trial program:
The nuts and bolts of the program include the following:

   •   The program is consensual and binding;

   •   A case may be tried to a judge or jury;

   •   To participate, the parties execute an “Agreement for Expedited Trial and Request for Approval”;

   •   Expedited time schedules and rules of procedure begin when the court approves the Agreement;

   •   The goal is to try the case in six months;

   •   Discovery is limited to ten interrogatories, requests for production and request for admission each and 15 hours of deposition time to be used at the party’s discretion;

   •   Experts are limited to one per side absent agreement of the parties or leave of the court;

   •   Pretrial motions require leave of court and may not exceed three pages;

   •   Neither the terms of the Agreement nor its existence may be revealed to the jury;

   •   Juries will consist of six jurors which may be reduced to five should a juror become unable to serve;

   •   The judge conducts jury voir dire and sets time limits for openings and closings;

   •   Each side is allowed three hours per side for presentation of its case, including cross-examination;

   •   Post-trial motions are limited to recovery of costs and attorney’s fees;

   •   Grounds for new-trial motions and appeals are limited.
This actually seems like a decent option for certain yacht-damage cases.

Does anyone think we should try something like this in our own district?

Citrus Canker -- The Case That Will Never End.

Anyone remember citrus canker?

I can barely remember neighborhood citrus trees, but then I got a voucher at Wal-Mart and wound up purchasing old Adam Sandler movies instead of replanting all my lost tangelo trees.

Now that's what I call high quality H2O!

Anyways, after nearly a decade of wasting taxpayer money on Don Quixote-like legal hail marys, pointless trials and fruitless appeals, the Florida AG's office has found one last place to hide:
The Florida Department of Agriculture, facing current and potential jury awards of tens of millions of dollars, says state law allows it to avoid paying judgments over actions taken to protect public health, safety and welfare, unless the Legislature appropriates the money. And the agency has no plans to make that request.
Hmm, government takings of private property without compensation, taxpayer money wasted on outside legal fees, and jury verdicts undone by legal subterfuge -- where's Rick Scott when you need him?

(On second thought, strike that.)

Saturday, July 16, 2011

Jeremy Alters Is An Obama "Bundler"?

Among the usual list of big money Obama bundlers like lawyers Chris Korge and Kirk Wagar is none other than Jeremy Alters, who despite firm squabbles still managed to raise somewhere between 50 and 100k for the President's re-election.

Small change compared to the big boys, but it'll still get you a seat at a State Dinner honoring Chancellor Merkel.

Friday, July 15, 2011

Let's Hear It for Chief Judge Wells!

Oh boy were there good times in the bunker yesterday as Judge Linda Ann Wells became the first female Chief Judge of the 3d DCA.

Much like we'll be looking back at the gay marriage wars twenty years from now, the investiture included remembering a time when there were very few woman lawyers (it wasn't that long ago) and a partial reading from Bradwell v. Illinois, the lamentable 1873 Supreme Court decision upholding the right of Illinois to exclude women from the Bar because admitting them to practice would surely destroy their "femininity."

Doesn't it feel good to be on the right side of history?

Judge Emas also led a raucous "Happy Birthday, Mr. President" to Judge Schwartz, who officially turned 39 the other day.

Congrats all around!

Jeff Epstein Wants to Muzzle Jack Scarola.

The twisted tale of billionaire Jeff Epstein rolls on, with inevitable collateral litigation arising from the original claims of underage sexual abuse.

In the latest iteration, Epsteins's complaint against former RRA attorney Brad Edwards was dismissed with leave to amend, and a motion to muzzle Edwards' counsel Jack Scarola was denied as well:
Edwards filed a counterclaim, alleging Epstein filed the lawsuit to get Edwards to back down from representing the victims.

“Mr. Epstein had to pay more to settle these cases than he would have if Mr. Edwards wasn’t out there putting all this pressure on him,” said attorney Jack Scarola, who represents Edwards. “That’s Mr. Edwards’ job ... to put as much legitimate pressure on the defendant as he possibly could and he obviously did an extremely effective job.”

Epstein pleaded guilty to two felony charges: soliciting prostitution and soliciting a minor for prostitution. He served 13 months in the county jail and has to register as a lifelong sex offender.

Representing Epstein, attorney Joseph Ackerman argued unsuccessfully for a gag order. Ackerman said Scarola has repeatedly made statements to several news organizations about the case.

“Mr. Scarola has constantly referred to Mr. Epstein as a pedophile and there’s been no proof of that anywhere,” Ackerman said. “Muzzling lawyers who may wish to make public statements has been long recognized as within the court’s inherent power ... We don’t believe it’s appropriate to wage a media campaign and taint the jury pool.”

Scarola said it would be unconstitutional to impose a gag order.

“There is a complete and total absence of proof that we have engaged in any conduct whatsoever that could be prohibited,” Scarola said.

Scarola said he and Edwards have been asked to appear on national television as well as received interview requests from the foreign press. Scarola said he has been selective in his interviews.
 Exactly -- AVN will just have to wait.

Journalist Conchita Sarnoff provides an interesting first-person report on the hearing and notes that she may or may not have been required to appear for a deposition at Fowler's offices on Brickell back in May.

So far this litigation is moving pretty smoothly I would say.

Thursday, July 14, 2011

Florida Supreme Court Reverses 3d DCA on Abestos Suit.

The 3d has had an unlucky string recently when it comes to certified conflicts with other districts, and today brings us yet another reversal in a situation where the 3d ruled in a manner eliminating the vested rights of victims exposed to asbestos.

Today the Florida Supreme Court sided with the 4th DCA in an action arising from the retroactive application of the Asbestos and Silica Compensation Fairness Act:
Based on the foregoing, we affirm the holding of the Fourth District in Williams v. American Optical Corp., 985 So. 2d 23 (Fla. 4th DCA 2008), that retroactive application of the Act to the Appellees, and other claimants who had accrued causes of action for asbestos-related disease pending on the effective date of the Act, is impermissible because it violates the due process clause of the Florida Constitution. We disapprove the decision of the Third District in DaimlerChrysler Corporation v. Hurst, 949 So. 2d 279 (Fla. 3d DCA 2007), to the extent it is inconsistent with this opinion.
Hey, if the Marlins can turn it around so can the bunker!

Lawyers, Help Your Judges Out!

Listen, you're in federal court.

You are all big corporations (McArthur Dairy, Dean Foods) so you have good lawyers to represent you.

You have filed a summary judgment motion, which is a carefully-defined pleading with technical and substantive requirements and important consequences if granted.

Yet you have left Judge Cooke with the following:
Rather than articulating independent legal arguments for summary judgment, McArthur and Dean Foods elected to “incorporate by reference the arguments sets [sic] forth in the memorandum in support of their motion to dismiss (ECF No. 18) and their reply in support of their motion to dismiss (ECF No. 22).” (Mem. in Support of Mot. for Summ. J. 6 n.4 (ECF No. 31)). Ordinarily, an order granting or denying a motion for summary judgment identifies the relevant factual findings related to the issues ripe for summary disposition. Unfortunately, in this case, McCowtree has failed or otherwise refused to respond to merits of the motion, with factual contentions or otherwise, and McArthur and Dean Foods have not concisely set forth all facts which are material to the resolution of the claims. The record pleadings, specifically the Complaint, Counterclaims, and answers and affirmative defenses thereto, provide even less clarity as they raise numerous issues of material fact.
Come on folks, don't you want the Judge to rule in your favor?

Wednesday, July 13, 2011

3d DCA Watch -- Your Summer PCAs Have Arrived!

Hey it's the summer and no one wants to work, especially the coffee-swillers, who per their summer ritual convert the central courtroom into an old movie palace where they play Where the Boys Are on endless loop until everyone accepts that George Hamilton should really be the bunker's next Chief Justice.

(We know who the hold out this year was, but we're not going to say!)

Oh yeah, after four or so apodictic days of continuous Connie Francis exposure, the bunker releases a few glorified PCAs and then they are on to their next summer flick, the delightful yet underappreciated Love at First Bite.

(Not often considered a summer movie, but you have to give the bunker a little leeway, it is the summer after all.....)

Are You Ready for the Casey Anthony Civil Suits?

I'm not, but they're coming anyway.

One interesting suit has been brought by a non-profit missing persons organization, Texas Equusearch, which works with law enforcement to help track down missing persons.

The suit seeks recovery of all the costs and expenses expended to help find Caylee back in 2008.

In related news, Casey plans to change her name and get plastic surgery.

Could Hollywood be far behind?

Tuesday, July 12, 2011

Spencer Aronfeld Has a View on Gay Marriage!

It's a slow news day, so let's check in on Spencer and see what he's up to -- hey look, he's in a high school classroom and he has an opinion on gay marriage!

Come on people, where are my tipsters???

Monday, July 11, 2011

Judge Cooke Denies NRA's Motion to Intervene!

You know how tea partiers want the government to get out of their lives, except when they want the government to get in the middle of the relationship between a doctor and patient, and dictate via government fiat what doctors can and can't discuss with their patients when it comes to firearms?

Well the NRA has a point of view on this (guess!) and thus want to do a little intervening of themselves, this time in the lawsuit brought by doctors over the "Firearm Owner's Privacy Law" signed into law by Governor Scott and pending before Judge Cooke.

But Judge Cooke says file an amicus, thank you very much:
The NRA seeks to defend the constitutionality of the Firearms Owner’s Privacy Law.  Governor Scott, in his official capacity, has the same objective. The NRA has not presented any evidence to suggest that Governor Scott may not adequately represent its interests.
Come on, let's have an evidentiary hearing on that!

Saturday, July 9, 2011

Judge Huck Reversed Over "Love Boat" Jurisdictional Ruling!

Did you know Judge Huck is presiding over a case involving the "Love Boat" of 70s TV fame?

Not only that, like most relics of the 70s including possibly Lauren Tewes and Ted McGinley (the ship's photographer!), it is in "deteriorating and defective condition."


Thanks for spoiling another treasured childhood memory.

Friday, July 8, 2011

BREAKING -- Florida's Offer of Judgment Law Still Messed Up!

Careful readers of this blog know my feelings on Florida's offer of judgment jurisprudence -- it's hopelessly screwed up, to the point where practitioners, litigants and certainly judges can't figure it out and actually make things worse even as they try to clarify or apply or argue about what should be a fairly straightforward legal doctrine.

In walks the 11th Circuit, as bewildered by the miasma surrounding the doctrine as the rest of us, but they have the ability to ask the Florida Supreme Court to "clarify" (yet again) how the hail you apply the stupid thing.

And the good news is they only have four questions(!) about the statute:
First, we ask whether an offer of judgment may be viable when it purports to settle “all claims,” even though it does not explicitly “state whether the proposal includes attorneys’ fees and whether attorneys’ fees are part of the legal claim” as required by Rule 1.442(c)(2)(F). Second, we ask whether the offer of judgment statute, which applies in “any civil action for damages” but generally does not apply to a case seeking both damages and non-monetary relief, applies to a lawsuit seeking damages or, in the alternative, specific performance. Third, we ask whether the FDUTPA’s fee-shifting provision applies to an action with the following procedural history: the plaintiff filed an action alleging a FDUTPA claim and prosecuted that claim for seven months; the district court ruled at summary judgment that he could not pursue the FDUTPA claim because Florida law did not apply, but allowed him to prosecute the action under Arizona’s unfair trade practices law instead; then he lost on the Arizona unfair trade practices claim at trial. Finally, if the FDUTPA’s fee-shifting provision does apply, we ask whether it applies only to fees incurred during the seven months before the plaintiff’s FDUTPA claim was defeated at summary judgment, or also to fees incurred during the subsequent litigation.
Thank goodness the law in this area is otherwise crystal clear!

Thursday, July 7, 2011

Speaking of the 3d DCA and Class Actions.....

It's almost as if the Florida Supreme Court read today's 3d DCA Watch and decided to weigh in with a definitive beat down.

It's true the beat down deals with an earlier, equally tragic 3d DCA opinion (which led to a brawl between Judges Shepherd and Gersten that I wrote about here) but the unusually pointed language directed to the bunker dwellers should certainly give them pause before they dink another consumer class.

A few observations:

The FSC's discussion of how the 3d went off and did their own fact-finding, totally ignoring the trial court's actual findings of fact and giving them no deference at all, is especially ironic given that certain judges purport to really hold the proper standard of review and limited role of the appellate court to be sacrosanct:
In this matter, the Third District erred by not applying the abuse of discretion standard of review to the trial court‟s grant of class certification. See Sosa, 15 So. 3d at 9-11. Rather, the Third District conducted a de novo review, as it gave no deference to the trial court‟s factual findings and made its own independent determination as to whether Sosa satisfied the requirements of rule 1.220. See id. More specifically, in lieu of pointing to the lack of competent, substantial evidence supporting the trial court‟s order, or stating why the trial court‟s conclusions of law were erroneous, the Third District made its own findings that Sosa and the putative class members did not satisfy the commonality and predominance elements of rule 1.220, and that Sosa failed to meet section 627.835‟s “knowingly” requirement. Then, the Third District held that the trial court erred because it did not find the same. This constituted a de novo review and error.
On top of that, the FSC gives a basic jurisprudence lesson to the 3d in how to handle the easily-met "commonality" element in the class action analysis, which the 3d hung its hat on in reversing the Tire Kingdom class yesterday:
 The approach of the Third District was erroneous and conflicted with the proper application of the commonality requirement articulated in Glen Cove and Olen Properties, because it diverted the proper focus from the common and routine course of conduct and billing practice of Safeway overcharging its customers to the mere factual differences surrounding each putative class member‟s claim. The Third District did not even consider that Safeway‟s common course of conduct and routine billing practice served as the basis for Sosa‟s and the putative class members‟ claims. Rather, to negate commonality, the Third District focused only on the possibility of mere factual differences in the individual circumstances surrounding each of the putative class members‟ claims and the variances in defenses to them. This was error, as the focus of a court in reviewing a finding of the commonality requirement is on whether the class members predicated their claims on the same common course of conduct by the defendant and the same legal theory.
Finally, in another irony given yesterday's Tire Kingdom opinion, the FSC held that the 3d got totally wrong whether or not you should examine the merits at the class certification stage:
The Third District in Sosa erred when it held that the trial court improperly granted Sosa‟s motion for class certification on the basis that Sosa failed to demonstrate that Safeway knowingly overcharged him in contravention of sections 627.840 and 627.835. See Sosa, 15 So. 3d at 11. The Third District erred because whether Safeway “knowingly” overcharged Sosa is a question of fact for a jury, and, therefore, Sosa was not required to prove that element in his pretrial motion for class certification. See Lynch v. Brown, 489 So. 2d 65, 66-67 (Fla. 1st DCA 1986). When it determined that Sosa could not serve as class representative because he failed to demonstrate that Safeway “knowingly” overcharged him, the Third District improperly conflated rule 1.220‟s class certification requirements with a question for the trier of fact. Rather, at issue during Sosa‟s motion for class certification was whether Sosa and the putative class members, based on the parties‟ arguments, pleadings, and discovery, met the requirements for class certification—an inquiry that restricted the trial court‟s examination to the substance of the motion and not the merits of the cause of action or questions of fact for a jury.
This was precisely what Judge Shepherd complained that the trial court got horribly wrong in Tire Kingdom:
First, not only are the trial court’s impressions not supported by the record, but also they constitute improper incursion by the trial court into the merits of the case. Controlling precedent makes clear that a trial court considering whether an action may be maintained is not to focus on the merits of the case, but only on the requirements of the rule....
Pot, meet my friend Kettle!

3d DCA Watch -- Order Has Been Restored Edition.

 It's that time of the week folks, so let's see what's a happenin, hotstuff, in the bunker of resplendently robed love:

Tire Kingdom v. Dishkin:

Judge Shepherd on class actions.

How do you think he ruled?

In other news, it was only a matter of time before the inevitable happened -- Kendall Coffey has an opinion on Casey Anthony.

See, everything is back to normal again.

Wednesday, July 6, 2011

Tom Scott Declares Impasse in Checking Overdraft Suit Against Chase Bank.

As the prospect of the application of the Supreme Court's Concepcion decision on arbitration clauses hangs over their heads, the plaintiffs and JP Morgan Chase Bank are unable to settle their claims before mediator and former federal judge™ Tom Scott, who has declared an impasse.

You can read the plaintiffs' response to the arbitration motion here.

The response centers largely on waiver and all the litigation conduct undertaken by Chase over the last two years, and seeks to distinguish the arbitration provision at issue in Concepcion from the one utilized by Chase here.

Judge King has already interrupted merits discovery but has authorized limited arbitration-related discovery against co-defendant US Bank.

Tuesday, July 5, 2011


Michael Hanzman Gets Call While In Colorado Movie Theater!

I guess maybe that shouldn't be the headline, given that the call was about young Miami golfer Erik Compton (though it's still a great image):
Since the Mexico Open wasn’t on TV, DeLucca had to track Compton’s hole-by-hole progress on the Internet. When Compton reached 14-under on the eighth hole, DeLucca called Michael Hanzman, Compton’s longtime friend who has supported him financially and asked for nothing in return. Where was Hanzman? The only fitting place: a movie theater.

“I called him, and he was out in Colorado seeing a movie,” DeLucca said. “He answers, whispering, ‘Hi Charlie. What, Erik just tied for the lead? I can’t talk, but call and let me know how it’s going.’ When Erik finished at 17-under in the lead, I called him and he was out of the movie theater in the lobby on his cellphone watching the score.
Ok, this is actually a really nice story.

Congrats to Michael for supporting this kid and helping make his dream come true.

Sunday, July 3, 2011

Phil Parrish Strikes Back!

 Appellee's Motion for Rehearing en Banc

The Brickell Honda motion for rehearing en banc has arrived!

The Brickell Honda motion for rehearing en banc has arrived!

The Brickell Honda motion for rehearing en banc has arrived!

(I get excited by things like this.)

Notably, if Phil's brief is to be believed, the bizarre issue of class counsel's inability to fund the litigation was raised sua sponte by the Court, and was not identified as error by the Appellant or even mentioned in the briefs.

Isn't there some sort of appellate rule about that kind of thing?

Saturday, July 2, 2011

Special Judge Gersten Holiday Edition of 3d DCA Watch!

In honor of Judge Gersten's retirement, we bring you a special Fourth of July holiday edition of 3d DCA watch:

Whipple v. D&D Tree Farms:

I'm sure it's entirely coincidental that on Judge Gersten's retirement the Court has elected to issue an opinion on the "undertaker's doctrine."

Oh well, let's read on:
Whipple admits that the defendants did not have a duty to erect a fence, but he argues that according to the undertaker’s doctrine, once the fence was built, the defendants had a duty to use reasonable care to maintain that fence. We agree.
Shh, don't tell Glenn Garvin but this is called a "tort" which is an ancient concept rooted in the fundamental duty of care that one person owes to somebody else.

It's part of the glue that binds us together as a civilized society, and Glenn doesn't even have to understand or agree with the system of interlocking obligations we owe to each other to be a beneficiary.

BTW, good luck with the Mexican fireworks!

Friday, July 1, 2011

SHOCKER -- Section 1983 Does Not Protect Bismarck's Descendants!

 Pro se plaintiff Larry Delaney, the love child of Chancellor Bismarck and Erica Jung (I'm guessing he means fully liberated author Erica Jong), just can't catch a break.

Not only was he jumped -- at the personal direction of the President and Vice-President -- by a bunch of goons as he slept peacefully in his sleeping bag on a moonlit Hawaiian beach, but now Judge Martinez thinks his civil rights claims may be frivolous.

Damn you Al Sharpton:
Plaintiff does allege that he was “tied to the whipping post,” but he appears to be speaking figuratively, because he asserts this happened “in . . . coded case law.” Plaintiff also alleges that “President O’bama [sic]” and “Vice President Biden” arranged “to have the Petitioner jumped by two Hawaiians in his sleeping bag” and arranged “for a girl to poison the Petitioner at his apartment complex.” On their face, these allegations, particularly in conjunction with Plaintiff’s other allegations, appear fantastic and delusional. Even if the Court did not dismiss these allegations as frivolous on their face, the Court notes that they do not appear to assert that the President and Vice-President were acting under color of state law.
Oh I see, the old "frolic and detour" defense.

So the Prez and Veep were just having a good time on a Saturday night, I got you Judge M.

Pretty crafty I'll say that, but then again you are in fact dealing with British intelligence and/or the Pointer Sisters.

Will Otto and Erica's kid take this lying down (in his sleeping bag)?

Stay tuned.......