Wednesday, August 31, 2011

3d DCA Watch -- Let's Party Like It's 2007!

Hi folks, sorry I'm late but it's hard to blog and take a deposition (though I'm getting better at it).

Onward to the bunker, where once again we get to learn life legal lessons courtesy of the most fabulous denizens of the most fabulous bunker in all the most fabulous of lands (hey, I may someday run for political office).

From the darkest recesses of the deepest crevices -- at a purely arbitrary date and time -- written utterances will erupt full force into the atmosphere, like Old Faithful, to the great delight and occasional dismay of the adoring schleppers who keep begging for more:

Jurasek v. Jurasek:

News travels slow in the divorce bar -- they're still getting used to Palm Pilots just as tech-savvy lawyers are dazzling clients with an obscure, little known device put out by a scrappy upstart and known only to the select few as "iPad" (did I spell that right)?

Anyways, they still think it's 2007 down there: 
We agree with the wife that the trial court erred and abused its discretion in awarding the husband a “special equity” in the parties’ jointly owned marital residence. The husband contends that he has greater entitlement to the parties’ jointly titled home based on his investment of his share of his inheritance fund in the marital home. This argument is insufficient as a matter of law. “Special equity” was abolished in 2008 and was replaced by the term, “a claim for unequal distribution” of marital property. See § 61.075 (11) Fla. Stat. (2008).
 Once again political correctness has killed a perfectly fine phrase!

Regions v. Mercenari:

Surprise -- Judge Adrien affirmed on appeal!

But not according to Judge Shepherd's serendipitous dissent:
The only connection this case has to Miami-Dade County is the serendipitous fact the plaintiffs live in Miami-Dade County. While the plaintiffs choice of venue is an important consideration, the trial court must balance this choice with the convenience of all the parties and witnesses.
But that's a pretty big serendipitous connection, no?

All of the activity relating to this case occurred in Bay County, Florida. Both the purchase and termination agreements were signed there, and all the activity relating to the escrow agreements occurred there. All of the defendants’ witnesses are located in Bay County.
For good measure Judge Shepherd pulls out and bolds some language from Kinney.


But whatever happened to the vaulted and much-praised-while-holding-your-nose "abuse of discretion" standard?

Tuesday, August 30, 2011

Someone Is Not Reading David's Blog.

Here we go again:

Notices of Unavailability.

There, I said it.

Practitioners, let me be your (mostly secular) Rabbi.

When you are about to tell a federal judge not to do anything in your case for a month -- nothing at all, don't do a single thing even if she is about to grant your summary judgment motion and end the case in your favor -- DON'T DO IT JUDGE because I plan to be (a) in Aruba (b) having my goiter removed (c) farting around the house watching internet porn or (d) going to a Star Trek convention.

Ok, maybe the last one.

But otherwise, don't do it.

Do you really think Judge King is going to care about your personal schedule?

Last summer when I had the pleasure and honor of filling in for DOM, we discussed this thanks to a fantastic order on the subject by Magistrate Judge Brown:
The parties should note that there is no local rule in our Court providing for the filing of same, and no federal rule supporting same.  While the Court is not precluding anyone from filing same, and as a matter of professionalism and courtesy they should be considered, the parties should understand that these filings have no legal significance.
Although there were several valid points made in comments worth considering, I stand with Judge Brown on this -- unless you know of an imminent date scheduled in your case that you currently have a conflict with, then why are bothering the Judge with the possibility that at some theoretical point in the future there may be a development in the case, and if and only if that were to happen, and the event required my physical appearance, and no one in my office could cover it, and I can't get back to deal with it, and my magical iPad stopped working and I can't download your orders anymore, then and only then it could be a problem and I just wanted you to know my personal comings and goings because there exists a remote possibility that this incredible confluence of events could somehow come together over the next thirty days and thereby create a personal problem for me.

Other than that, Judge, carry on!

Monday, August 29, 2011

Yes, Virginia, Parties Can Plead in the Alternative.

You would think after forty-seven thousand gazillion years of jurisprudence, litigators would be savvy enough to not argue the same redundant or pointless things over and over again.

Yet, like the sunshine of a new day, they come back again bright and fresh in a spankin' new motion, as if there's no context, or history, or....caselaw....

Case in point:  pleading in the alternative.

Here's Judge Altonaga having to -- once again -- explain how this whole pleading thing works:
Under the Federal Rules of Civil Procedure, a Plaintiff may plead claims in the alternative. See FED. R. CIV. P. 8(d);3 United Techs. Corp. v. Mazer, 556 F.3d 1260, 1273 (11th Cir. 2009) (“Rule 8(d) of the Federal Rules of Civil Procedure expressly permits the pleading of both alternative and inconsistent claims.”). A party need not use any special words to properly plead in the alternative; it only must be “‘reasonably inferred that this is what [it was] doing.’” G-I Holdings, Inc. v. Baron & Budd, 238 F. Supp. 2d 521, 536 (S.D.N.Y. 2002) (alteration in original) (quoting Holman v. Indiana, 211 F.3d 399, 407 (7th Cir. 2000)). Breach-of-contract and declaratory-relief claims may be pleaded alternatively. See Great Am. Ins. Co. v. Sch. Bd. of Broward Cnty., Fla., No. 09-61636-CIV, 2010 WL 4366865, at *24 (S.D. Fla. July 30, 2010); In re Andrew Velez Const., Inc., 373 B.R. 262, 275 (Bankr. S.D.N.Y. 2007). If any inconsistencies exist, they can be dealt with at summary judgment or through jury instructions. See Formula LLC v. RSUI Indem. Co., No. 09-60592-CIV, 2009 WL 2342455, at *3 (S.D. Fla. July 28, 2009).

Somebody made her write this one more time?

Like Droz says to Gutter in PCU, "don't be that guy."

Don't be that guy.

Your Monday Morning Digital Dump.

Hi kids, it sure felt like we had a monumental weekend, is everyone ready to get back to work?

Here are a few random things I am thinking about at this moment:

RKRPEVN Rasco Klock (hey, they took up my suggestion!) partner Jack Shawde is a pretty damn fine guitarist.

Check him out with Magda Hiller, above.

Wife responsible for not turning in husband's fraud?
On Friday, surrounded by family and friends, Gamblin was sentenced to 15 months in prison for being loyal to Roger Gamblin, her husband of 28 years, instead of turning him into authorities and admitting what she knew about the spectacular collapse of Flagler Title Co.

"I'm a good person," the much thinner and grayer version of the once bubbly blonde told U.S. District Judge Kenneth Marra. "I just made some really bad decisions. I'd do anything I could to make it right."
After listening to Gamblin's sister pledge to help her sibling regain her moral compass and an insurer criticize Roger and Peggy Gamblin for the widespread damage they caused, Marra chose a middle ground.
Girl in a Bar, your thoughts please.

Somebody in Indiana (ok, it's the AG) isn't buying what Palm Beach foreclosure defense attorney Thomas Matevia is selling.

And finally, today is is the anniversary of the Beatles' last live concert (not counting the Apple rooftop), in Candlestick Park, San Francisco in 1966(!).

Thirty three and a third minutes of off-key screaming adulation.

(Just like when I make an appearance at calendar call.)

Rock on John and Georgy!

Friday, August 26, 2011

"The Situation" Strikes Back!

We've previously covered the various and sundry litigation involving Mike "The Situation" Sorrentino, who has been ably assisted in his legal efforts by our own Richard Wolfe.

(FYI, the suit against "The Dad" settled quietly back in July.)

Now, fresh off a brawl to be broadcast on MTV, The Abbed One is striking back -- this time at at a clothing manufacturer who has sued The Sit in Miami-Dade circuit court over a licensing deal gone wrong.

Mike says "I ain't done you wrong, you done me wrong!" (I'm paraphrasing).

You can read the answer and counterclaim here.

I'd like to see how the depositions proceed in this one.

Check Out This Cool WH Infographic!

How boring are judicial confirmations to the general public?

It's amazing to me that Democrats continue to be stuck with horrible branding on issues of tremendous importance, like "the mandate," "entitlements," or "Harry Reid."

Still, they keep trying.

In yet another effort to spiff up the exciting "judicial confirmation crisis" the WH has released the above nearly impossible to read infographic (actually, you need to click on the image or click here to expand), which sets forth in neat flow charts how disastrous the current situation is with our federal judiciary.

Here's some of the rosy news:
Unfortunately, the delays these nominees are encountering on Capitol Hill are equally unprecedented: earlier this month, the Senate left for its August recess without considering 20 eminently qualified candidates, 16 of whom had passed through the bipartisan Senate Judiciary Committee completely unopposed, a development the Washington Post called “not only frustrating but also destructive” in an editorial published yesterday.

The victims of these delays, of course, are the American citizens who are being denied the fair and timely judicial proceedings they deserve because of the chronic shortage of federal judges on the bench.  Stephen Zack, president of the American Bar Association, told Senate leaders in a recent letter that the abundance of vacant federal judgeships “create strains that will inevitably reduce the quality of our justice system and erode public confidence in the ability of the courts to vindicate constitutional rights or render fair and timely decisions.”
I know I know -- your anecdotes about how slow things seem at the federal courthouse and one time you saw a judge leave work early trump all these stupid "statistics" and "data" so problem solved.

But question -- is there any reason to delay Judge Jordan's confirmation to the 11th?  Would it be good if he didn't make it?

If the answer is no maybe we should try to help accelerate this process.

Thursday, August 25, 2011

Hand-Pulled Noodle Update: And the Chow Goes On!

Will we ever see an end to the hand-pulled noodle contretemps?

This case has seen some of my favorite lawyers leave (Alan, Lyle), new ones brought in (Curt), yet the Chow goes on.

After next to no activity since March, the parties now want to stretch the noodle even further, asking Judge Hoeveler to continue the pre-trial conference to January 2012!

In the words of the immortal Carol Leifer, whose very funny, very hamisher short-lived WB show was way ahead of its time, Alright Already!!

I have the feeling this case will outlast all the restaurants involved.

Oh well, again with the rain -- stay dry, mespucha!

(Wow, I have officially become my grandparents.)

Wednesday, August 24, 2011

3d DCA Watch -- Rules Are Stubborn Things Edition.

Did you realize that standing up, raising your hands and exclaiming "IF YOU KNOW" in a loud, really obvious way after a question is posed to your client at a deposition could somehow be construed as coaching?

What, little 'ole me?  I was just clearing my throat.

But PA attorney Max Kennerly in a fine article here thinks obstructing the deposition any way you can in order to save your client from telling the truth may not be permissible after all:
Federal Rule of Civil Procedure 30(c)(1) is quite clear: “The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence …” If an attorney has an objection to a question, then what they must do is also quite clear under Fed. R. Civ. P. 30(c)(2):
An objection at the time of the examination–whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition–must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).
That is to say, the defending attorney is indeed a “potted plant” with only two exceptions: they can raise objections in a concise, nonargumentative and nonsuggestive manner, and they can instruct a deponent not to answer a question when necessary to preserve a privilege or enforce a court order.
Could you imagine how depositions in South Florida would proceed if everyone simply abided by these rules?

(Then again, what fun would that be?)

Speaking of rules, our bunker buddies remind us this week that -- yes, they exist; and yes, you should probably follow them:

Clarke v. Henderson:

For all you fine jurists taking notes at home, here is the correct legal standard for reviewing a motion for judgment on the pleadings:
It is well settled that a Rule 1.140(c) motion for a judgment on the pleadings must be decided wholly on the pleadings—which includes consideration of exhibits attached thereto—and may only be granted if the moving party is clearly entitled to a judgment as a matter of law....In making this determination, all material allegations of the opposing party’s pleadings must be taken as true, and all those of the movants, which have been denied, must be taken as false.
It's that second part you have to watch out for.

940 Lincoln Road v. Hernandez:

This is an unemployment appeals commission appeal in which the employee testified that she was sexually harassed and the employer did not participate:
Employer did not participate in the hearing; consequently, Claimant’s testimony was unrebutted. Nevertheless, the appeals referee concluded that Claimant was disqualified from receipt of benefits because she left voluntarily without good cause attributable to Employer. Apparently, the appeals referee rejected the claim because Claimant did not complain to the police or seek medical or psychological attention as a result of the harassment.
What's that rule on unrebutted testimony again?

Oh yeah:
Uncontroverted testimony which is not illegal, inherently improbable or unreasonable, opposed to common knowledge, or contradictory within itself, should not be disregarded by the trier of facts.
Duly noted!

Tuesday, August 23, 2011

Judge Carnes, Karaoke Singer?

It must get frustrating up at the 11th, constantly ruling on sentencing appeals, habeas petitions, and other important matters I instantly forgot about after booking crim pro.

That's why I totally understand Judge Carnes' saying "screw it" and just moving on to some cool old-school karaoke:
It may be true, as the song lyrics say, that “When the moon is in the Seventh House / And Jupiter aligns with Mars / Then peace will guide the planets / And love will steer the stars,” but there was no peace and love between these parties after their contractual dispute arose.
 Oh man, that's a mighty long reach-around.

But I respect the effort.

Hold on -- Karaoke Carnes is not done:
Nothing plus nothing is nothing, just as “nothing from nothing leaves nothing.”
 Billy Preston?

The Fifth Beatle??

The 14th Rolling Stone???

Ok, I gotta give him that one -- well done, Your Honor!

Alan Kluger vs. Marc Randazza in Anonymous Blogger Free Speech Fight!

I've not been shy in my admiration for the clever, snarky wit and attendant legal and writing skills of internet warrior/trailblazer Marc Randazza.

(Note to Surfside city attorney Lynn "Rage Against the Bloggers" Dannheiser -- your hilarious funny confusing Marc with the Italian place Randazzo's in the Gables remains a kneeslapper -- keep 'em coming!)

As Popehat documents, it is also a fact that Marc happens to find himself in the middle of lots and lots of interesting cases.

Marc's latest finds him before Judge Cooke in an important battle to preserve the rights of citizen journalists to blog anonymously -- does that sound too high-faluting for the kind of crap that passes for content here on this humble, time waster of a blog?

Yes, it does.

(Tim Elfrink provides all the background here).

But Marc eloquently lays out the larger principles involved in his motion to dismiss:
Plaintiffs, a series of real estate holding and management companies, and their directors,
accuse DOE of publishing defamatory statements concerning their business practices and other dealings through Google's Blogger service. Blogger is a service that allows users to create their own web blogs, or "blogs," on which they can express their opinions on numerous issues. Some blogs are general interest, while others may address specific, local issues, such as problems within a community, political matters, or topics of concern to consumers. Users of Blogger who create content - themselves known as "bloggers" - have the option of publishing their writings anonymously, as DOE has done in this case. Plaintiffs sued DOE for alleged defamatory material in a blog located at and for false advertising under the Lanham Act 15 U.S.C. 1125(a).1 Plaintiffs have subpoenaed Google for its records relating to DOE in an
effort to learn his true identity. Plaintiffs' request is improper, and implicates fundamental Constitutional protections.

Free speech is a central Constitutional value, and one of great historical significance. The Federalist Papers, for instance, were all written anonymously while being pointedly critical of the policies and leaders many people championed during America's move toward adopting a written constitution. The United States Supreme Court has further sanctified anonymous speech in an honest and open society through decisions including McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) and Talley v. California, 362 U.S. 60 (1960). See also City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994) (noting that "the identity of the speaker is an important component of many attempts to persuade").

With these principles as a backdrop, courts have grappled with the First Amendment significance of subpoenas used to unmask anonymous speakers who speak via the internet on message boards, review services and other forums. Here, Plaintiffs' Complaint demonstrates no basis upon which a defamation or false advertising action can proceed, and they have not made the required prima facie showings.
Marc's adversary is longtime fave Alan Kluger, ably assisted by Todd Levine, who warned Tim over at New Times to be very very careful -- did I mention careful? about what he writes concerning the case: 
In the meantime, Levine has strong words for anyone who would consider writing about Katz's lawsuit. "I'd ask you not to publish anything about this," he says. "Even pointing people toward that blog could constitute further defamation."
How precisely?

Or will that just lead to another interesting Randazza defense?

Alan's vigorous response to the motion to dismiss is here, in which he describes Marc's argument as "specious" and his client's blog postings as "vile and defamatory per se."

To which I simply say -- carry on gentlemen, the yacht case can't continue forever!

Dear Irene: Say Goodnight Already.

Monday, August 22, 2011

Judge Seitz Thinks Lawyers Should Do Their Job!

 What a kvetch, always with the teaching, the instruction, the high aspirations.

Now the Court wants us to do our job, can you imagine?
After carefully reviewing the Complaint and the Amended Motion for Final Default Judgment, the Court still cannot ascertain on what lawsuits MCC seeks a declaration. MCC has not identified the homeowners' claims for which it seeks a declaration in either the Complaint or the Amended Motion for Final Default Judgment, and MCC did not identify the paragraphs in the four class action complaints that are pertinent to this lawsuit. Including exhibits, the four complaints total 1252 pages. There are thousands of allegations and hundreds of parties in these four class actions, and most have nothing to do with the declaration that MCC seeks. This is the very problem for which shotgun pleadings are criticized.

The Court can either sift through hundreds of pages and decide for itself which allegations are material to this cause or simply deny the motion. Because the Court relies on counsel seeking requested relief do their job and focus the Court on the relevant facts, the Court will deny the motion.
 Second amended motion for final default judgment, anyone?

Third time's the charm!

(Better get it right this time.)

Do You Have Big "Books of Business"?

I do!

They consist of the following:

1.  All I Really Need to Know I Learned in Kindergarten; and

2.  Mob Rules:  What the Mafia Can Teach the Legitimate Businessman.

Oh yeah, I forgot about this one (you'd be surprised how much business can get done with it).

So if you're like me and you have huge, heavy "books of business," you can apparently get hired by a big firm where nobody will ever try to steal or otherwise claim credit for your personal business books:
Law firms are hiring lawyers who can bring their "book of business," said Matt Gorson, president of Greenberg Traurig, which has offices in Miami, Fort Lauderdale, Boca Raton and West Palm Beach.

The firm has hired 20 lawyers so far this year, compared with 14 lawyers in 2010.

Other South Florida law firms have been adding to their legal staffs as well.

Holland and Knight has hired 15 lawyers so far in 2011, up from 11 in 2010 at its Miami, Fort Lauderdale and West Palm Beach offices. Morgan Lewis in Miami hired seven lawyers in 2010, and five so far in 2011; that compares with only one lawyer in 2009, said law firm partner Mark Zelek. Bilzin Sumberg in Miami has hired 9 lawyers in the past month alone, according to a spokeswoman.

Even some firms that were hard hit by the recession are adding lawyers. Fort Lauderdale-based Ruden McClosky, which specializes in real estate and land use, has hired seven lawyers in the past four months, according to a spokeswoman for the firm.

Yes, absolutely -- if your books of business are big you should head immediately to Ruden -- just ask Julie Kay!

Friday, August 19, 2011

SFL Friday -- It's Coming, It's Finally Coming!

School, that is.

Thank goodness!

Let's see, what else -- Edwards Angell defeats Carlton Fields in Vero Beach beauty contest, and more on Kevin Gleason's peace wine offering to Bankruptcy Judge Olson.

I feel the pain:

And Rumpy, your Friday photo is here -- this one's for you:

Have a great weekend, everybody!

Naples Attorney Todd Allen Gets The Daily Show Treatment!


John Oliver pays tribute to newbie Naples attorney Todd Allen and his epic take-down of Bank of America.


Thursday, August 18, 2011

Kevin Gleason Offers Wine as Peace Offering to Bankruptcy Judge Olson.

So it all comes down to this: an apology and a bottle of wine.

What, no flowers?  No chocolate?

And guess what -- those vituperative responses was all borne from frustration:
B. The Responses Are the Product of Frustration.

14. Attorney Gleason’s responses are the product of frustration due in large part to the
Court’s mistaken conclusion that his client had assented, pursuant to an agreed order, to the turnover of his commission to the plan administrator. The proper method to seek redress in such circumstances is to file an appeal, which Attorney Gleason did. During the pendency of the appeal, which was filed on November 4, 2010, the Court issued the Show Cause Order and later submitted the order for publication with Westlaw. This unfortunate turn of events escalated what was initially perceived as a mere legal conflict into something more personal in nature. The Responses, while intentional, do not reflect a dishonest or selfish motive.
I see -- the old "Westlaw-as-provocation" defense.

In other words, the judge should have kept quiet about the whole thing, but he had to go and blab about it to all our neighbors!

UM Athlete Scandal -- OF COURSE Lawyers Are Involved.

The shocking allegations involving UM booster and convicted fraudster Nevin Shapiro include an interesting legal twist -- the trustee for Shapiro's defunct investment company wants the players to give all the money and gifts back:

"The trustee, Joel Tabas, was appointed by the Justice Department to oversee the case," Miami attorney Gary Freedman said. "We have fiduciary duties to investigate these claims and, if we think we have an obligation, to try to recover them. It's not our intention to cause these athletes any further tension or embarrassment. I would prefer they reach out to me to try to resolve the claims without a lawsuit."
 Oy veh -- clawback suits??

Question -- exactly how do you give a paid sex act back?

And a related question -- can this disaster get any worse?

Answers -- I have no idea; and yes, it definitely can -- it most definitely can.

Wednesday, August 17, 2011

3d DCA Watch -- May the Schwartz Be With You!

Oh happy day, the bunker denizens have a new occupant, which of course means it's time to polish the used equipment in the mechanical room/gym, retighten the bolts so the sinks are securely fastened to the walls, and wax down the concrete -- it's party time!

 Oops!  That's the Bilzen shot put lunch club, sorry.

Here's the right image:


It's just some friendly locals enjoying a bonfire -- gotta love those old-fashioned values, I always say.

Ok, seriously now, here's the correct photograph of the bunker party planning committee:

You know what, I'm gonna quit while I'm ahead -- let's get right to the written utterances:

Robles-Martinez v. Diaz, Reus:

Ahh, what a heartwarming bedtime story:
Appellee law firm Diaz, Reus sued its client, Cesar Lindo Hoyos, for unpaid fees.
How could something like that go wrong?

Ramirez v. United Auto:

Dear United Auto, you are about to receive Maximum Schwartz:
The insurance company makes no defense, as it could not, of the merits of the order under review. Indeed, its lawyer has what some may call the candor∗ to agree that
[i]f [the insured’s attorney] had contacted undersigned prior to filing his petition in this Court, Respondent would likely have agreed to a motion for rehearing in the circuit court because the denial of his appellate attorney’s fees was legally erroneous.
Rather than confessing error, however, as this concession would seem to require, see Boca Burger, Inc. v. Forum, 912 So. 2d 561, 571-73 (Fla. 2005), United has what some may call the courage* to contend that, having sought judicial, rather than telephonic relief, by filing this completely appropriate petition, the plaintiff is out of luck. This is because, it says, the case does not meet the requirements for second tier review most recently articulated by Custer Medical Center v. United Automobile Insurance Co., 62 So. 3d 1086 (Fla. 2010).
To put it mildly, we disagree.
Here is Judge Schwartz' starred footnote:
∗ The reader, if any, is invited to substitute her own preferred equivalent expression. See, e.g., Hayes v. Guardianship of Thompson, 952 So. 2d 498, 509 n.14 (Fla. 2006) (chutzpah); Zabrani v. Riveron, 495 So. 2d 1195, 1197 n.2 (Fla. 3d DCA 1986) (same); Price v. Gray's Guard Service, Inc., 298 So. 2d 461, 464 (Fla. 1st DCA 1974) (intestinal fortitude).
Oooh, oooh, can I play?

Cajones?  S#^t-for-brains?  Extraordinarily-poor-legal-judgment?

Come on kids, you can play too!

Tuesday, August 16, 2011

Attention All Judges in Broward County Courthouse: Bill Scherer is Now Your Landlord!

You gotta love Broward -- how comical is this:
[C]ommissioners will vote Tuesday to lease about 200 parking spaces from a prominent Fort Lauderdale attorney, Bill Scherer, for courthouse parking. The spaces are in the county's own garage, where the jurors park. But the county in 1992 leased the spaces to Scherer and a group of developers, for $107,500 a year. The county will pay more than twice that, $277,536 a year, to use them now.
Wait a minute -- so property of the county, now leased by Bill, will be leased back to the county at more than double what Bill pays for them?

No wonder Bill is so successful.

Peter Halmos -- Will His Ship Ever Come In?

That toe-tappin' crippled yacht case is slowly limping to port, as the parties prepare their post-trial proposed findings of fact and conclusions of law.

And the beat goes on.

It took me all morning to read Steve Marino's excellent 85-page brief, which sets forth in exquisite detail the mountain of commercial litigation required to get the parties to this point (and they're not even done yet).

I guess one SIMPLY AMAZING! thing that fascinates me about this case is the uncontrollable variables that have entered into what should otherwise be a straightforward insurance coverage dispute.

Between the lawyers, the rulings, the clients and the witnesses you have a near-perfect s@#tstorm of what can go wrong when parties engage in f*$k the costs, balls-to-the-wall litigation.

It's almost an ideal case study for commercial litigators in that the subject matter could be anything -- widgets, yachts, whatever -- and the disputes seem both wildly impossible yet depressingly familiar to any of us who do this for a living.

Turning back to Roy Black's intriguing suggestions for UM Law, how in the hail do you teach kids to handle crap like this?

Seriously, how do you -- or even should you -- teach law students to do this type of litigation effectively?


In such a way that they don't leave the office at night stupefied, screaming at the walls, drinking themselves to oblivion on a Tuesday, and allegedly challenging their girlfriends to naked post-shower sword fights?

Monday, August 15, 2011

UM Law Grad Challenges Girlfriend to Naked Sword Fight?

Meet Rockledge, Florida attorney Terry Lee Locy, a UM Law grad with a self-proclaimed "intensely aggressive" style of litigation:
Terry L. Locy possesses an energetic, articulate, innovative, but most importantly, an intensely aggressive style of litigation that often leaves his opponents fuming and courtroom onlookers entertained and wanting more. In just three short years after graduation from law school, this attorney has built a thriving law practice in Central Florida with ambitions for further expansion. 
Terry is energetic alright, just ask his girlfriend:
A graduate of the University of Miami law school was arrested this week in Cocoa Beach after allegedly threatening to kill his girlfriend in a naked sword duel.

"You're going to need this," a nude Terry Lee Locy, 36, said to his live-in girlfriend as he handed her a sword, according to an arrest report from the Brevard County Sheriff's Office.

The couple had been arguing about Locy's alleged excessive drinking early Wednesday morning, according to an arrest affidavit obtained by Florida Today, when Locy took a mirror off a wall and raised it as if to strike his girlfriend.

The woman took the mirror hook from the wall and flung it at Locy, accord to the police report, causing a cut to his head.

Locy then took a shower and emerged naked to challenge his girlfriend to a duel, police say.

 See, this is an example of where Roy Black's suggestion for improving UM's legal education comes in -- if they would just spend less time on esoteric academic flights of fancy, and more time on courtroom skills and sword duels, we'd be producing not only more skilled attorneys but also better sword duelists.

BTW, I think the pre-duel shower ritual is a nice touch -- say what you want about Terry, but this is clearly a man who cares about personal hygiene.

Soviet Visual Art Collective's Glorious New Work!

I'm pretty sure in addition to winning the Iowa straw poll Bachmann also managed to personally dig 102 tons of coal -- impressive!

I really do kind of miss their stuff (purely from a style perspective).

h/t -- Radley Balko

Friday, August 12, 2011

Your Daily Appellate Court HCR Ruling!

Gather round kids, the 11th Circuit has issued a ruling on HCR.

Let's see who wrote it -- hey, it's a joint opinion by Dubina and Hull!

How special!

And they drop a footnote to explain that this has happened at least twice before in 11th Circuit history, so don't go around thinking there's anything special about it, no siree.

And look at that -- the odd man out, the rugged individualist, Judge Marcus -- he wrote his own dissent!

So now everyone got to write everything they wanted on a matter that will be decided by the Supremes anyway.

And boy did they -- the majority duo wrote a crisp and tight 207(!) page opinion, and Judge Marcus decided to cut his dissent short at the otherwise pithy page 84.

Is everyone happy now?

For those who care about the substance, the Court found the mandate unconstitutional but upheld everything else.

On the mandate's constitutionality, the 11th is now squarely at odds with the always-liberal 6th Circuit, which earlier this summer found the whole enchilada to "hold water," as Vinny Gambino would say.

Someone remind me, what happens again when Circuit Courts split on important Constitutional issues?

Is it Friday Yet?

I'm a little tied up doing "litigator-type" things so feel free to use this space to bash colleagues and bad-mouth judges improve civility and foster a true sense of community.

Should be back later today.

Thursday, August 11, 2011

11th Circuit Quotes Wilde (The Other One)!

I must confess something:

Up until a very short while ago, I had absolutely no idea who Olivia Wilde was.

Yes, it's true.

I lived an entire life without having any idea who this person is.

Now, however, I can't turn around without seeing or reading something about her -- she's on TV, in the movies, at magazine check-outs, on the back of my Muesli cereal box (I had to pay extra for that!) -- literally everywhere.

Is it possible she is some kind of corporate case study -- an entirely fabricated, computer-generated visual creation that represents a super-meta, high-level marketing experiment?

(Oops, as usual I'm thinking of an old movie -- in this case that crappy Al Pacino film Simone.)

Anyways, I was happy to see the 11th Circuit cite the OTHER Wilde -- Oscar, that is -- in Judge Carnes' dissent from a summary judgment affirmance involving the proper location of insurance coverage:
Summary judgment should be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. But it is often tempting for a district court judge to grant, and for appellate judges to affirm, summary judgment even when there is conflicting evidence on a material issue. The temptation is for the judge to take on the task of finding facts and enter judgment based on what the judge believes a jury should find. By affirming the grant of summary judgment in this case, the majority follows the maxim of Lord Henry Wotton in Oscar Wilde’s The Picture of Dorian Gray: “The only way to get rid of a temptation is to yield to it.”
I have to say I agree with Judge Carnes here -- the majority gets rid of a central, disputed fact by dismissing it as "immaterial."

That's a neat parlor trick but a bit of a stretch it seems to me.

Looking at it the other way, is there any chance this case would have got reversed if the district court found that fact to be material and denied summary judgment?

I also like this opinion because of its copious discussion of the doctrine of lex loci contractus, which until recently I thought was some kind of exotic bedroom maneuver.

Oh well -- what's life without learning?

"Talking Traffic" With Spencer Aronfeld!

Why does it feel as if this message is directed to one very tall, former Miami Heat basketball star?

Wednesday, August 10, 2011

3d DCA Watch -- Corporations Can Now Represent Themselves!

Hey, I remember the robot from Demon Seed Saturn 3 I, Robot Predator The Iron Giant (ed. -- he was a good robot, actually),and if robots and computers can run the world and dominate humanity, why can't faceless corporations represent themselves in court?

According to the 3d, they apparently can:
Through a non-attorney, corporative representative, United timely served a response to the complaint at issue in the form of a letter. Because this response was sufficient to require Figueredo to provide notice to United of his applications for default and final judgment, it was improper for the trial court to treat United’s response to the complaint as a nullity.
Hold on -- don't you need a lawyer to file a response to a complaint on behalf of a corporation?

Or did Citizens United do away with that musty old requirement too?

In other bunker news, in order to prevail on an unjust enrichment claim you need to actually confer a benefit, and Judge Bernstein gets reversed on a purge order.

Finally, "subject matter jurisdiction" and "standing" are not the same thing.

(But you smart guys already knew that.)


Wait a second, I totally forgot about Toby the Robot.

He was a good robot too (I think?).

Bismarck's Descendant Met With Chilly Reception at Broward Federal Courthouse.

Can't Bismarck's descendant just keep filing lawsuits against David Rockefeller/President Obama/Al Sharpton/The Pointer Sisters without continually being hassled by The Man?

(For tonight's performance, the role of "The Man" is being played by kindly deputy USMs in the Broward federal courthouse.)

After having one complaint dismissed by Judge Zloch (and his motion for in forma pauperis denied) and another dismissed by Judge Martinez and then another by Judge Cooke (but his in forma pauperis motion was granted!), it seems our erstwhile Squinky, Blinky, and Mod Nazi spy/pro se plaintiff got into a little kerfuffle while one his way to filing yet another magnum opus up in Broward federal court.

Here's the best part:
It took five (5) DUSM's to finally control DELANEY and place him under arrest as he continued to kick and throw closed fist strikes at them.
Five deputy marshalls??

And it only took two of Obama's goons to jump the poor guy as he slept fitfully on an Hawaiian beach.

It's funny I happened to be in line at the courthouse just as all this unfolded, and managed to capture the entire encounter on my smartphone (see above).

Tuesday, August 9, 2011

Checking Overdraft -- I Move to Strike Your Motion to Strike My Motion!

In light of the recent Supreme Court and 11th Circuit rulings on arbitration provisions, many of the checking overdraft bank defendants have asked Judge King to reconsider his rulings denying their motions to compel arbitration.

Naturally, the plaintiffs have responded like all good plaintiffs should -- by aggressively attacking the very motion to reconsider and moving to strike the reconsideration motion as improper.

Turns out, however, that it may be improper to move to strike a motion to reconsider as being improper:
No relief is available to Plaintiff under her Rule 12(f) Motion to Strike. First, and most important, a motion to strike applies only to pleadings, which does not include motions. See Santana v. RCSH Operations, LLC, 2011 U.S. Dist. LEXIS 21814, *2–4 (S.D. Fla. Feb. 18, 2011); see also Croom v. Balkwill, 672 F. Supp. 2d 1280, 1285 (M.D. Fla. 2009) ("To object to the substance contained in a motion, the opposing party should raise such objections in the material it submits in opposition to the motion, rather than in a motion to strike."); Mann v. Darden, 2009 U.S.Dist. LEXIS 63044, *2 (M.D. Ala. July 6, 2009); Pimentel & Sons Guitar Makers, Inc. v. Pimentel, 229 F.R.D. 201, 203 (D.N.M. 2005) ("There is no provision in the Federal Rules of Civil Procedure for motions to strike motions and memoranda."); Phinney v. Paulshock, 181 F.R.D. 185, 207 (D.N.H. 1998); Weiss v. PPG Indus., Inc., 148 F.R.D. 289, 292 (M.D. Fla. 1993); 2-12 Moore's Federal Practice, Civil § 12.37 (2011) ("Only material included in a 'pleading' may be the subject of a motion to strike, and courts have been unwilling to construe the term broadly. Motions . . . may not be attacked by the motion to strike."). Plaintiff cites no authority to the contrary. Thus, Plaintiff's Motion to Strike BB&T's Renewed Motion is not permitted and the Court should deny the Motion to Strike for this reason alone.
I hope the plaintiffs reply by moving to strike the response to their motion to strike, which will be met with a motion to strike their motion to strike D's response to their motion to strike.

And then come the reconsideration motions.

Welcome to federal court!

Happy Tisha B'Av -- Temples Destroyed, But We Got Ourselves a Denny's!

Oh South Florida legal community, why are you so hungry for malicious gossip "news"?

Does it matter, as Julie Kay writes today, that your websites will no longer comply with Bar rules?

(This, of course, assumes that they ever did.)

More importantly, now that the Palm Beach County Bar Association is moving into a former Denny's, should we feel bad for the bar or for Denny's -- all I know is Adam Rabin better make me an omelet if I show up there s@*tfaced at 3 in the morning.

And to the blog visitor who arrived here via a search for "Israel hot girls," I'll have you know that today is Tisha B'Av, only the saddest day on the Jewish calendar (that says a lot, believe me).

Sure we lost two temples, the most treasured of treasured holy sites desecrated twice by invading heathens -- plus a lot of other bad stuff happened on this date, like the expulsion of the Jews from Spain in 1492 and World War I, to name but a few lowlights.

But on the other hand, we have gained a Denny's.

Let me repeat it, slowly, in perfect....Rabbi.....diction -- we have gained a Denny's.

That reminds me -- did I mention everyone is supposed to be fasting today?

Adam, I 'll see you later tonight and I'm gonna be hungry (btw -- ham, mushrooms and cheese, thanks!).

Monday, August 8, 2011

Meaningful Things I Keep Near My Desk!

Reading this article on Steve Zack, I was struck by just how many things he keeps by his desk.

The list is diverse yet each item is pregnant with deep meaning:
Outgoing American Bar Association President Stephen Zack keeps a list of Buddhist sayings near his desk, as well as several silver gelding knives given to him by former clients.
Ok, Buddhist sayings and gelding knives.

Ying/yang, zen/warrior, got it.

What else?
To this day, Zack keeps a binder with Cuba's 1940 Constitution - first suspended by a 1952 coup and later thrown out after the 1959 revolution.

"I keep a copy near my desk to remind me that the words alone are not enough."
Hmm, evidently a smart and successful lawyer needs to make sure every item near her desk conveys an important message or signifies something that you want people to know about you.

It's like a bumper stick for your office!

So everyone please stop what you are doing (wasting time online) and take an inventory of the items in your immediate vicinity and see how you compare.

I'll go first:

1.  Framed photo of President Nixon and a drug-addled Elvis (or should that be the other way around)?

2.  Copy of deed for Chief Justice Rehnquist's Vermont home that contained restrictive covenant barring sale of property to "any member of the Hebrew race."

3. Gag gavel that makes farting noise (great for hearings!)

4.  Hand-made, partially-completed matchstick model of Peter Halmos' yacht (it's taken me seven years but I still intend to finish before the trial does).

Ok, your turn!

Denzel Washington Now Offers PIP Coverage!

There's a lot a talk each legislative session about reforming Florida's PIP laws, but I say if blockbuster Hollywood legend Denzel Washington is now offering PIP coverage, we have to be doing something right:
That at all times, the Defendant Denzel Washington was in the State to provide business, including but not limited to personal injury protection (pip) coverage.
My suggestion to Ms. Miller is that she get a hold of one of Bismarck's relatives and really learn how to load up the allegations when she amends the complaint.

(You gotta pay attention to Iqbal, folks!)

Friday, August 5, 2011

Stuart Rosenfeldt Does Good Deeds!

You don't believe me?

Just ask Stuart Rosenfeldt:
"I'm doing this because I make a living at it, and I do good deeds," Rosenfeldt, 56, of Boca Raton, told the Sun Sentinel in an interview.
Oy does this man know how to sweet-talk the press!

This is like one of those Bar proceedings where you bring in someone like Sandy Bohrer to vouch for your general good character, except here Stuart is vouching for himself.

As Alvy Singer quiped in Annie Hall, don't knock masturbation -- it's sex with someone I love.

Thursday, August 4, 2011

Al Cardenas' Wife Said Something About Gays on Facebook!

Facebook isn't just a place where Sarah Palin can free associate deep thoughts about 'Merica and you can see what your old high school girlfriend's kids look like, it's also a place where Al Cardenas' wife can share her thoughts about gays with the world.

As broken by Steve Rothaus, here are some exclamation-filled excerpts:
"Well, there is no reason not to like them or love them, the same way you would love one who has a disability, or an illness, etc.," Diana Cardenas wrote. She added: "You know I always wondered why homosexuals are referred to as 'gay', kind of an oxymoron? Nothing really 'gay' about them or their movement."
The timing turned out to be somewhat awkward, as Big Al was about to meet with GOProud about why the American Conservative Union banned their group from having a closet booth at CPAC:
Cardenas said of the previously scheduled meeting with GOProud: "It was not easy." He added: "I love my wife more than life and I think we agree on the issue of traditional marriage, but I disagree with some of the things that she said."
SAVE Dade, meanwhile, released their own statement and called on Mrs. Cardenas to retract her comments:
"For the sake of moving forward with bridging the divide in our community, and bringing together all minorities, be it ethnic, racial or religious, Mrs. Cardenas should temper her offensive and disgusting remarks. We sincerely hope she will retract her public comments that aim to hurt so many, and pauses to reflect on the pain she has caused her community;"
I don't get organizations like GOProud.

It'd be like a Jewish support group in the 1970s for the Riviera Country Club, where you support everything about the club except for the fact that the members want nothing to do with you and would rather you go away.

Unfortunately, that issue is out there and you'll just have to agree to disagree.

But on the color of the table napkins you and the club share the exact same vision!

Andy Griffith Explains the Rules of Evidence!

See ma, I did learn something from television!

(h/t Random Pixels)

Wednesday, August 3, 2011

3d DCA Watch -- Please Block Bill For This.

Gather round, children, the janitorial staff must have put a little something extra in the lukewarm warmed over cold bitter bad free coffee because we have a fully bunkerized Meaty Beaty Big and Bouncy edition of 3d DCA Watch coming your way right now:

Alvarado v. Bayshore Grove:

It has long been my contention that the only appropriate usage of the word "pretermit" is while playing Scrabble.

In footnote three, Judge Schwartz proves me right!

Hotel 71 v. Tutt:

Raise your hands if you believe (a) a non-moving party can be granted summary judgment; and (b) a non-moving party can be granted summary judgment without any advance notice to the party against whom summary judgment is entered.

Judge Ramirez, tell us who's right:
On appeal, Hotel 71 contends that the trial court erred when it granted summary judgment in favor of Tutt because Tutt had not moved for summary judgment. We agree.

Florida Rule of Civil Procedure 1.510(c) provides that a summary judgment motion must “state with particularity the grounds upon which it is based” and must be served at least twenty days from the date on which the hearing is scheduled. The motion must also “specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence . . . on which the movant relies.”

Rule 1.510(c) prevents ambush by allowing the nonmoving party to be prepared for issues that will be argued at the summary judgment hearing. See Casa Inv. Co., v. Nestor, 8 So. 3d 1219 (Fla. 3d DCA 2009). Failure to comply with the rule deprives the opposing party “of the ability to both adequately respond and prepare for the summary judgment hearing.” Id. at 1221.
Ok Judge Schwartz, dissenting, you can put your hand down now.

Claridge H v. Claridge Hotel:

This is like studying for the Bar -- raise your hands if you think a court can grant directed verdict to the plaintiff at the close of her case, without any evidence introduced into the record by the defendant?
We find that the trial court’s determination of the disputed issues in plaintiff’s favor—without first giving the defendant any opportunity to present its case—was error. Numerous cases hold that a directed verdict cannot be entered until each party has an opportunity to present relevant evidence in its case in chief.
(Bigfirmers, I hope you guys are billing for this.)

BTW, it took me .9 hours to prepare today's 3d DCA Watch.

By the 24/7 jetset calculations utilized by "premium-rate lawyers who work at large high-powered law firms" that also employ Georgetown grads, that means you should bill at least 6.7 hrs to review, analyze, and research this crappy blog post.

Don't worry -- Coke's shareholders are dying to pay for this!

Alex Acosta Joins Robert Bork in Providing Legal Support to Mitt Romney!

Oh Mitt Romney, you have the moral and political center of a mallomar (and that's what people like about you!)

Yet your high-powered, newly-assembled "Justice Advisory League Committee" has the firm rock-hard abs deadwood center of none other than former cranky old 80s pop star and "Saturday Night Massacre" alumnus Robert Bork:
On Tuesday, Romney announced his "Justice Advisory Committee" which, according to the campaign "will advise on the Constitution, judicial matters, law enforcement, homeland security, and regulatory issues." The group will even "provide legal counsel to the campaign" when it's "appropriate and permitted."

The list includes a roundup of some of the country's most conservative legal minds, and it's a possible precursor to what a Romney administration's Justice Department might look like.
At the top of the list is Committee co-chair Robert Bork, the former Reagan Supreme Court nominee who infamously began his legal career with strident attacks on the 1964 Civil Rights Act. 
Hmm, anyone from South Florida on this list?

Just everyone's favorite access-to-justice, increasing-diversity, public law school dean, FIU's Alex Acosta!

Is it fair to judge a publicly-funded law school dean by the company he keeps?

(BTW that Bork pic is now my screensaver, I just love a guy who points threateningly while speaking).

Your move, swlip.

Tuesday, August 2, 2011

Evan B. Plotka: "I Sue Jews. I Defend Muslims."

To be fair, Evan from Hollywood sues and represents lots of people of all varieties and color, and sometimes even clients who lack any color at all:
The last wills I drafted were for a Puerto Rican couple (man and woman). The last power of attorney — a Hispanic. I sue Jews. I defend Muslims. Earlier today, I drafted a motion to dismiss for an albino...
First of all, I'm really happy Johnny Winter has solid legal representation.

But I'll go you one better -- I had a client walk in the other day who I swear was a one-legged transgendered Gypsy small person Kutchi who happened to hail from the Principality of Andorra.

(BTW, I checked and there is in fact a Bar organization devoted to these people -- the OLTGSPKPA Bar Association.)

Evan, however, sees a world where all lawyers melt into a giant pot of legal stew:
I call on the presidents of the Miami-Dade Chapter of the Florida Association for Women Lawyers, the Cuban American Bar Association, the Puerto Rican Bar Association, the Gwen S. Cherry Black Women Lawyers Bar Association, the Wilkie D. Ferguson Bar Association, and the Muslim Bar Association, together with other segregated bar associations not mentioned in the article, to disband. Everyone can then meet at the DCBA like one big happy family. 
Question -- have you been to big family gatherings? 

In my experience they are rarely happy, and usually involve at least one drunk Uncle who won't stop asking about who you've been dating.

Monday, August 1, 2011


I don't do employment cases, but if I did I would be mystified at this 11th Circuit opinion constructing the statute dealing with fees to basically eliminate the role of the attorney in obtaining full relief for her client.

In a nutshell, the plaintiff -- through counsel -- filed an FLSA complaint for unpaid overtime wages.

The defendant ultimately did a full tender of the amount sought (excluding fees and costs) and then moved to dismiss on mootness grounds.

Plaintiff acknowledged the tender was correct as to the amount of overtime owed, but asked the court to retain jurisdiction to consider fees and costs.  The court did as requested but otherwise dismissed the case.

Regarding fees and costs, however, the district court held that plaintiff's counsel was not entitled to fees as a "prevailing party" because there was no "judgment" awarded to plaintiff as required by the statute.

On appeal, the 11th affirmed:
Dionne has failed to cite to any case that supports his contention that the entry of a defendant’s motion to dismiss a plaintiff’s claims as moot because the trial court no longer has subject matter jurisdiction constituted a judgment in favor of the plaintiff.
The 11th also rejected the notion that plaintiff's counsel -- through preparing the complaint and paying the filing fee and serving the defendant -- was the "catalyst" in plaintiff's recovery:
In the present case, the District Court did not approve any agreement or retain jurisdiction to enforce any settlement or order; the parties did not even reach a formal settlement agreement to present to the court.
Does this make sense?

The 11th's reasoning is contrary to my understanding of Florida's interpretation of similar statutes, and also runs counter to the public policy expressed in FLSA.

So now the defendant can bitterly contest the case for years and, on the eve of trial, tender the amount of overtime sought and walk away?

Plaintiff's counsel doesn't even get its filing fee under this logic.

What lawyer would bring such a case when the rug can be pulled out at the last minute?

Faithless Love

Just trying to get some hard details on the budget/debt ceiling deal, but the more I learn the less I like.

Bismarck's Drafting Skills Could Use Some Work!

Oh the poor hapless descendant of Bismarck's pro se travails in federal court continue.

First, Erica Jung's (sic) loving son got no love from Judge Martinez, even though he specifically namechecked the Pointer Sisters.

Now Judge Cooke offers the royal plaintiff some brief-writing tips.

Admittedly, some of her suggestions in terms of structure and flow are quite technical:
The complaint barely articulates an intelligible sentence and certainly fails to assert a colorable claim for relief. The 12-page document is a rambling collection of quotes, references to historical landmarks, celebrities, movies, and obscure and apocalyptic bible references. Throughout the body of the complaint, Plaintiff has underlined selected words, in no discernable pattern, to reveal what he has identified to be a “coded message.” These “messages” are nothing more than a random collection of words arranged together in incoherent paragraphs.

Hey, this guy's stealing my act!