Friday, September 30, 2011

SFL Friday -- I Hope You're Happy Now.

Boy what a week -- what a year for that matter!

I can only tell you when I did Tashlich yesterday I took two suitcases of torn-up scraps of paper, forty seven loaves of bread, and 375 rose petals (I wanted to cover my bases).

Good thing the Miami River is already hopelessly polluted with many decades of preexisting sins (and very little in the way of forgiveness, purification or redemption).

But that's why we love it here!

Have a great weekend and a very sweet New Year.

11th Circuit Affirms Judge King in Cruise Line Arbitration Decision.

From what I've seen, Judge King has been one of the more exacting SD FL judges when considering the scope and validity of arbitration provisions.

In a significant decision involving horrific allegations on a Princess cruise ship, Judge Carnes has for the most part affirmed Judge King's decision that the claims fall outside the scope of the arbitration clause and thus may proceed publicly in federal court.

As usual, Judge Carnes begins with a snazzy introduction:
On its website, Princess Cruise Lines proclaims to the world, as one of its “core values,” that: “The safety and security of our passengers and employees is our most important responsibility.”  The cruise line says that it recognizes crew members as its “greatest asset,” and shows its appreciation to them by making their “life onboard the best it can be.”  It boasts of making “every effort possible to offer its crew members an enjoyable environment and a rewarding career.”
All of those statements are but empty words, and cynical ones at that, if the allegations in the complaint that is before us are to be believed.
See kids, this is why you have to add this type of flavor to a well-pled complaint.

I also like Judge Carnes' discussion of "invited error":
Princess Cruise Lines contends that we should reverse the district court’s denial of its motion to compel arbitration for two reasons. One of those reasons is its contention that the district court should not have decided the arbitrability issue but instead should have sent that issue, along with the others, to an arbitrator for decision. This contention is a non-starter because, as the cruise line concedes, it asked the district court to decide for itself whether the dispute was subject to arbitration. Only when the matter was illuminated by the light of an unfavorable decision from the district court did the cruise line suddenly see that the court ought not have answered the question after all.

The invited error doctrine stands for the common sense proposition that someone who invites a court down the primrose path to error should not be heard to complain that the court accepted its invitation and went down that path.
In other words -- chutzpah. 

BTW the Arbitration Fairness Act, introduced in 2009 and reintroduced earlier this year, remains stalled in Congress (what else is new?).

Thursday, September 29, 2011

Gene Stearns Moves to Reconsider Rosh Hashanah Sanctions Motion!

Our post yesterday on Judge Freeman's sanctioning of Stearns Weaver for refusing to move a deposition scheduled for Rosh Hashanah was picked up by ATL (thanks Staci!).

Now Gene Stearns is back before Judge Freeman, asking her to reconsider baby:
The Court should reconsider and vacate the portion of its September 27,2011 Order Granting Dupont's Motion for Protective Order, to the extent that it awards attomeys' fees against Plaintiffs' counsel, without permitting Plaintiffls counsel to explain the circumstances that led to its position. In his entire career, Plaintiff's counsel has never been sanctioned. A finding of sanctions here, without even hearing Plaintiff s explanation of the circumstances, is not consistent with Florida law.
Read it and decide for yourself. 

If the judge grants this someone please let me know.

Wednesday, September 28, 2011

3d DCA Watch -- How Big Are Your Congeries?

Hi kids, we have a bunker-bustin' load of opinions to get through today, so swill your coffee excitedly just like the Robed Ones and let's dig in:

Flueras v. Royal Caribbean:

A "congeries of negligent acts" may render the Explorer of the Seas unseaworthy.

(I thought that was a curse word in Spanish?)

Harris v. Grunow:

Senior Judge Payne's new trial order is reversed, and jury verdict reinstated.

Judge Salter fees the heat:
The normally-cold record on appeal in this case reflects considerable heat. The parties were neighbors disputing civil liability for the consequences of repugnant environmental violations. The witnesses allegedly involved in the mangrove decimation had obvious reasons to prefer to be somewhere other than the courtroom.

The heat of the battle is also reflected in the strident findings warranting a new trial as submitted by counsel for Grunow and O.R. Golf and entered by the trial court. But applying even the strict standard we impose upon ourselves for the review of a trial court’s exercise of discretion in ordering a new trial, those findings are not supported by the record. The Harrises obtained a verdict without violating the order in limine regarding settlements, without engaging in prohibited impeachment, and without improper “empty chair” commentary regarding witnesses not called. Counsel for Grunow and O.R. Golf estimated that the jury took less than an hour to reach their verdict after a two week trial, and that is its own commentary on the weight of the evidence. The parties did not receive a perfect trial, but the record demonstrates unequivocally that they received a fair trial.
Two out of three ain't bad?

Public Health Trust v. Rolle:

Judge Shepherd pulls out his Palsgraf:
Based on Wallace, just days ago in Miami Dade County v. Rodriguez, No. 3D10-856, slip op. at 5 (Fla. 3d DCA Aug. 31, 2011), we clarified our own decisional law in this area, stating we “will no longer exercise our certiorari jurisdiction to review orders either denying motions to dismiss or denying motions for summary judgment where the sovereign argues that it is not liable as alleged because no duty can be demonstrated.” As Professor Prosser succinctly stated, “Duty is only a word with which we state our conclusion that there is or is not to be liability.” William L. Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 15 (1953).
 Ahh yes, Rodriguez is already an instant classic!

Rey v. Philip Morris:

SJ in favor of Big Tobacco reversed in Engle-progeny case:
In this appeal, we are asked to review the trial court’s determination that summary judgment in favor of those three companies was also appropriate under Engle on the “civil conspiracy to fraudulently conceal” claim asserted by Mrs. Rey against all defendants. We reverse the final summary judgment in favor of the three tobacco companies as to that claim and only that claim (Count IV of the Amended Complaint), based on our reconciliation of the holdings by this Court and our Supreme Court in Engle.
Interesting cause of action -- is there still room for innovation in tobacco litigation?

L'Shana Tova, Plebes!

To my many fellow Jewish brethren, you now have two weeks to undo everything you did wrong last year -- better hurry!

All kidding aside, thank you readers, tipsters and commenters for making this occasionally fun and every now and again even mildly informative.

If I offended any of you it certainly was not intended and I do sincerely apologize.

And if you can't make it to shul tonight but you must have your Shofar fix -- of course there's an app for that!

Who's cutting out of temple early tomorrow with me to go see Bryan Ferry?

Oy with the Jews.

UPDATE -- What kind of lawyer insists on a deposition going forward on Rosh Hashanah?

Check out this motion, which Judge Freeman just granted, imposing sanctions to boot.

The book stays open only two weeks folks!

Tuesday, September 27, 2011

Corporations Don't Like When Their Lawyers Switch Sides?

Corporations are so "in" these days.

Mitt Romney thinks they are people, the Supreme Court thinks they can vote, and Rick Perry thinks Texas should be able to execute one.

(Unfortunately, only one of the above is a joke.)

Even worse, according to Miami attorney and non-legendary comedian Robert Klein, corporations don't like it much when their lawyers switch sides:
Klein represents lawyers who faced resistance from former clients when they switched sides. In recent years he's witnessed a dramatic increase in suits and disqualification motions by corporations against former lawyers. He says the complaints are often strategic, and many are lodged by insurance companies.

Klein recently represented a medical malpractice defense lawyer who changed allegiance after representing doctors—through their insurance companies—for more than 25 years. When the work dried up as a result of tort reform, he decided to apply his expertise to plaintiffs cases. The first one he filed was met with a motion to disqualify from the insurance company. "They basically said to him, 'You can't do this line of work,' " Klein explains.

Efforts to prevent switching sides aren't limited to the insurance industry. In the past year, Klein has represented several lawyers who have been challenged by former corporate clients. Last year Klein was hired by Jonathan Aronson to defend him in three separate cases on motions to disqualify filed by Royal Caribbean Cruises Ltd.
 In Aronson's case, the cruise line apparently forgot that once they rolled up all their cases in-house, their former counsel would still need to "make a living."

So corporations can be mean-spirited, neglectful, and insensitive jerks -- in other words, they really are just like us!

Monday, September 26, 2011

"Move and Shake" With Spencer Aronfeld!

At the upcoming 2011 Movers and Shakers dinner, where Spence is the Keynote Speaker:
A Coral Gables attorney who won one of the largest ever settlements against Walt Disney World will be the keynote speaker at Business Leader's Movers and Shakers Award Dinner on Oct. 13.

Spencer Aronfeld founded and has led Aronfeld Trial Lawyers since 1991. He garnered Business Leader's Movers and Shakers award in 2010. He has appeared on the NBC's Today Show, Court TV, Primer Impacto, Montel, Tyra, Dateline NBC, America's Most Wanted, The Insider, CNN and HLN.

Aronfeld earned international recognition after his first jury trial, when an Orlando jury awarded his Uruguayan clients a $100,000 verdict against Walt Disney World. Before trial, Disney had offered his clients $1,200. That verdict remains one of the largest in a personal injury case against the Mouse. Aronfeld's legal battle was recounted in the book, "Disney, the Mouse Betrayed."

The Business Leader's Movers and Shakers Award Dinner will be held 6-9 p.m. at The Bankers Club, One Biscayne Tower, 14th Floor, Miami. Reservations for the dinner can be made online.
And don't worry -- if the speech doesn't do it, Spence personally guarantees to move and shake each one of you with a demonstration of his patented, truly unforgettable "Sushi Lawyer" litigation technique.

(Sorry, it just doesn't get old.)

Your Monday Morning Digital Dump.

Good morning!

Let's get your strap-on you strapped on and ready to hit the ground running this week:

1.  We're just like New York, only cheaper:
Longtime international attorney, George Rocky Harper of Harper Meyer, believes the perception of Miami’s legal market has changed. “Miami is viewed as a lower-priced alternative to New York with equally as sophisticated lawyers.”
2.   Mike Kosnitzky suggests that all that glitters may not be Asian casino mega gold:
I was troubled to learn that several South Florida business leaders were taken on junkets to see other Genting properties in Asia without full disclosure of who attended, what they saw and the cost of these trips paid for by Genting. I am not suggesting that these trips are improper. However, in our rush to love the proposal and Genting we must not lose sight off the public’s need to know who is influencing the process and why.
Come on, Mike -- this is Miami we're talking about.

3.  Magistrate Judge Goodman is a better researcher than the lawyers who appear in his courtroom:
Both parties provided the Court with citations to a variety of federal circuit and district court opinions at the hearing in support of their positions. But no party provided the Court with a case from either the Eleventh Circuit or any district herein that specifically addresses this question (i.e., whether a treating physician may provide opinion testimony on causation, future treatment, and extent of a disability without the submission of an expert witness report). Nonetheless, this Court was able to find authority from within this circuit that squarely addresses the issue presented here.
Way to rub it in, Judge.

Friday, September 23, 2011

Rare Footage of SFL!

I was thinking back to some of the crazy things I did in the 70s and came across this somewhat rare footage of me joining in with the band Starbuck.

(In case you didn't guess, that's me in the brown jumpsuit about 1:49 in, working the pipes.)

Ahhh, good times.

Have a great weekend!

"Did You Get a Cease and Desist Letter"? Click.

Much like a certain peg-legged captain, The Intrepid One™ has been doggedly hunting an angry white sperm whale reporting on the recent travails of prominent attorney Jeremy Alters.

In today's DBR Julie reports on what happens when you ask the wrong question:
Plaskett of Duane Morris said he sent a cease-and-desist letter to Alters ordering him to remove Taylor's photos and any mention of him from No Ceilings' website several weeks ago. The website was out of commission today with a notice saying, "Updated site coming soon!"

Alters denied ever claiming Taylor was a client.

"He's represented by CAA," Alters said today. "He's a friend of mine."

Alters hung up when asked whether he received a cease-and-desist letter from Plaskett.
Hung up?  On Julie?

Now that's just wrong.

Use your sweet tongue, your gifts of subtle persuasion, the art of misdirection, ply her with roses -- anything -- but to simply pull the rip cord on the entire conversation?

Do you really want to make Julie mad?

Thursday, September 22, 2011

I Don't Feel Like Working Today.

Do you?

Judge Seitz Spares Robert Ingham Further Sanctions.

In the very long saga of Fort Lauderdale attorney Robert Ingham's doomed representation of MCS against Essent Healthcare, Judge Seitz has elected to not award Essent the $87k in fees recommended by Magistrate Judge O'Sullivan as an additional sanction for vexatious litigation conduct.

Judge Seitz' order is instructive and worth quoting at length:
Considering all of the record evidence, the Court believes the proper exercise of both restraint and discretion requires no monetary sanctions against lngham under the Court's inherent powers or section 1927. While not awarding monetary sanctions, the record reflects that the questionable litigation tactics Ingham employed during the course of this litigation have resulted in adverse consequences to him . The Court referred Ingham to The Florida Bar for a psychological and competency evaluation because his conduct evidenced a fundamental incompetence and questionable connection with reality that can best be addressed through the pending discipline process. The Court also referred him to the Chief Judge of this Court and the peer review committee to determine whether Ingham should be removed from the Bar of the Southern District of Florida. MCS terminated lngham and filed a complaint with The Florida Bar against him. And while the words of this Order might not constitute a formal sanction, harsh words that reflect adversely on a lawyer's professionalism always should be treated as a form of punishment for attorney misconduct.
Can't argue with that.

Wednesday, September 21, 2011

3d DCA Watch -- Mad as a Hatter Edition.

Hi kids, in order to help the Post Office from going bankrupt, the bunker is requiring you to cover their postage and actually mail things just like your grandpappy used to:
Counsel are to provide self-addressed, stamped envelopes with all motions filed with the Court. In addition, when filing a motion for extension of time to file a brief, counsel are to provide copies of the motion for all parties involved in the appeal.

If counsel does not provide copies of the motion for extension of time to file a brief and self-addressed, stamped envelopes, the Clerk will not notify counsel whether the extension of time for the filing of the brief has been granted. However, if the extension of time has been granted, the extension will be posted on the Court’s on-line docket.
A little practice tip:  go for the Mad Hatter matching stamp and envelope collection -- it really sends opposing counsel a message (that one of you is a crazy loon).

 Keep 'em guessing, I always say!


Optimum Nutrition v. Performance Trading:

Judge Suarez gives a math lesson in how to calculate time deadlines when mailing Mad Hatter stationery.

Roberts v. Nine Island:

Judge Shepherd invites you to take a "sojourn through the interstices....."

Me and my girlfriend did that once in college, and eight hours later all I could remember was the girl's voice from Dark Side of the Moon and thinking that the ceiling tiles in my bedroom looked exactly like Gaudi's Sagrada Familia cathedral.

(But that's a story for another time....)

Tuesday, September 20, 2011

To the Moon, Gleason!

Well, for at least 60 days.

Judge Jordan Completes Senate Testimony!

Here is the Senate Judiciary Committee agenda (there was a live webcast too).

From a well-placed source:

He finished – no hard questions- both FL senators spoke very strongly in favor and Sen. Hatch on the Committee said “I am certainly going to support you” and that the Committee is doing a good job in moving judicial nominees and “should do even better.”


After Pleadings Are Struck as a Sanction, Can You Recover Costs?

This is a situation you don't want to find yourself in:

1.  Your pleadings are struck as a sanction.
2.  Court refuses to award fees and costs as part of the sanction.
3.  Nonetheless, Defendant seeks award of costs as "prevailing party."

Are they recoverable?

Judge Seitz says yes:
Plaintiff first argues that the Sanctions Order precludes an award of costs. Plaintiff relies on the Court's conclusion, in the Sanctions Order, that "assessing attorneys' fees and costs against Aguiar in addition to the dismissal of his claims and pleadings would amount to an abuse of the Court's discretion and would not be an appropriate sanction under the circumstances." See DE-301 at 28. Plaintiff argues that to impose costs would violate the Court's previous ruling and would add additional monetary sanctions to the Sanctions Order. Despite Plaintiffs Objection, the Sanctions Order does not foreclose the awarding of costs pursuant to Federal Rule of Civil Procedure 54(d)(I) and 28 U.S.c. § 1920. The Sanctions Order specifically declined to award costs as a sanction; it did not address awarding costs to the prevailing party. Plaintiff has not objected to the finding that Katten was a prevailing party. Thus, this objection is overruled and Katten is entitled to costs as a prevailing party.
On a positive note, however, the plaintiff was not assessed costs for bates-numbering, so you could look at it as a partial-victory.

Monday, September 19, 2011

SEC Loses Summary Judgment Motion Against Pro Se Defendant?

How does the SEC lose an sj motion against a pro se defendant?

It's like shooting fraudulent fish in a barrel!

Actually it's not, as Judge Marra explains:
I'm sorry I'd like to quote from the opinion but I see it makes repeated reference to the "risk-enhancing" features of an "Inverse Floater" -- which apparently is a defined term(!).

Ahh, thanks but no thanks.

(No wonder this guy had to proceed pro se.)

Friday, September 16, 2011

Not Exactly How You Should Be Practicing Law.

I hate to be all Debbie Downer today but when you read an order like this your mouth goes agape and pretty much stays that way until you obtain and down a shot of whiskey to help forget what you just read.

Can't anyone ever send over some good news?

(Don't) Teach Your Children.

I received a message this morning from the otherwise always-delightful CABA President Victoria Mendez:
It has come to our attention that The Florida Department of Education is scheduled to eliminate all Law Electives from the course code directory in the near future.  The elimination of these codes means that any student with an interest in any legal, judicial or law enforcement career will not be able to take classes or participate in programs like the Florida Mock Trial Competition and the local/state We the People Competition -- programs which our members have assisted in coaching and judging and that our local Miami Dade County schools have been recognized for their achievement at the local, state and national levels.

The elimination of these courses/programs would significantly affect the Social Studies curriculum at our local schools.  CABA encourages you to contact Trinity Colson.
This really sucks.

As anyone who has ever volunteered to coach or judge the Florida Mock Trial Competition or the fantastic We the People programs know, this is a major blow to education in our public schools.  These programs -- made possible through the hard work of selfless educators and local judges and attorneys -- provide fundamental advocacy training in core American democratic values -- minor things like the Constitution, the justice system, and the rule of law.

Not that any of that seems very important anymore.

Take a moment to email Trinity Colson and let her know how vital these programs are to producing educated, engaged citizens, and thank you to all who have helped make these programs such a tremendous success over so many years.

Thursday, September 15, 2011

Spencer Aronfeld Offers His "Recipe for Disaster"!

Our own knife-wielding Spencer Aronfeld gets front-page USA Today coverage on his botched-surgery cases:
"They've created these kind of fast food courts where people go in, pick from a menu of what they want done and the physician who meets with them is not necessarily the doctor who operates on them and he's not the one who follows up with them," says Soto's lawyer here, Spencer Aronfeld, who is representing other Strax patients. "This is a recipe for disaster."
 Great article Spence, but why so much food imagery?

I recall reading a fantastic essay once on why so many of Paul Mazursky's films have scenes that center around food -- the pot brownies from I Love You, Alice B. Toklas; the dinner scenes from Moscow on the Hudson or the bagels and lox from  Down and Out in Beverly Hills -- the list goes on.

This essay from Nathan Abrams (starts on page 87) offers a clue.

Good luck with the cases!

Wednesday, September 14, 2011

Don't Blink -- Your PACER Costs Just Went Up!

If you're like me and you like to waste hours reading about broken yacht cases and whether you need to "meet and confer" before telling a federal judge that opposing counsel is a big fat liar, the costs of entertaining yourself just went up:
The judicial conference, Sentelle said, today also increased miscellaneous fees for federal courts, a move designed to create an estimated $10.5 million in additional revenue for fiscal year 2012.

The panel approved a fee increase for electronic public access to court records, from $.08 to $.10 a page. The fee for the Public Access to Court Electronic Records (PACER) system had not been increased since 2005. Sentelle said local, state and federal government agencies will be exempted from the fee increase for three years.
I remember 2005 --  that was the year Ghost Whisperer made its debut!

(I'm sure something else happened that year but that's all I can think of right now.)

Darn I really have TV on the brain today....

3d DCA Watch -- I Hate Dicta.

Dicta is like judicial gossip -- interesting sometimes but legally irrelevant and prone to subsequent misunderstandings, mistaken assumptions, and outright misinterpretations -- just like a good Three's Company episode!

Did you know...Oscar-nominated actress Sally Kirkland appeared in the 1977 episode "Jack Looks for a Job", shocking audiences by revealing more skin than had ever been seen on a prime time television sitcom at the time. 

I did not know that!

Anyways, someone dropped a big chunk of chocolate dicta into the coffee-swillers' brew this week in our patented 3d DCA Watch -- let's take a look:

Stand Up for Animals v. Monroe County:

A "prejudgment, ex parte injunction freezing the assets" of the defendant before any adjudication on the merits at all?

That's just not cool.

It's also really hard to obtain and the standard is pretty high (but you knew that):
The County’s claims in this case, while sounding in equity, are no more than a claim for damages stemming from a breach of contract: Count I of the complaint seeks a declaration determining whether SUFA charged and collected fees in excess of that allowed by the parties’ contract and, if so, whether the County is entitled to any portion of the excess collected; Count II seeks an accounting to determine whether any fees collected by SUFA should have been paid to the County; and Count III seeks only to freeze SUFA’s bank accounts because “[o]n information and belief,” SUFA had been collecting fees in excess of that allowed and had been either misusing these funds or failing to remit them to the County as alleged in Counts I and II of the complaint. Because the allegations assert no more than a breach of contract compensable by a damage award, no irreparable harm essential to secure injunctive relief freezing SUFA’s bank accounts could be demonstrated.
Eidessen v. Royal Caribbean:

This is a cert review of an order granting a motion to amend to add punis, let's see what the 3d has to say:
Royal Caribbean Cruises, Ltd. seeks certiorari review of an order granting Bjoern Eidisson’s motion to amend his complaint to add a claim for punitive damages. While we agree that the evidence adduced and proffered is legally insufficient to support a punitive damages claim, we deny the petition as we are without jurisdiction to address this determination on the merits.
Hmm, Chief Judge Wells -- does the first part of the sentence know what the second part of the sentence is saying?

Because I'm pretty sure you just determined the merits of the punitive damages claim somewhere in there?

Oh hail let's let Judge Ramirez explain what just happened:
I concur with the majority that the petition should be denied. In my view, the trial court followed the procedure required under Globe Newspaper Company v. King, 658 So. 2d 518, 519-20 (Fla. 1995) and Solis v. Calvo, 689 So. 2d 366, 368 (Fla. 3d DCA 1997). We should stop there, without commenting on whether we agree or disagree that the evidence proffered was insufficient to support a claim for punitive damages. That is not the function of a certiorari petition at this stage, and furthermore, it is a comment with which I disagree.
That was perfect, I mean he's so....wait a second -- why didn't you stop after the word "stage" -- didn't you also just pass judgment on the merits?

Forget it, I'm headed back to the Regal Beagle -- don't you think Jack and Janet always belonged together?

Tuesday, September 13, 2011

Alan Kluger Further Explains the "Meet and Confer" Requirement.

The parties in the anonymous blogging case could have had ten thousand "meet and confers" in the amount of time (not to mention money) they have spent debating the finer points of the Local Rule.

In our latest installment, The Kluginator further elucidates the difference between a "motion" and a "request" for purposes of the governmental mandate to actually communicate with opposing counsel:
Defendant argues that Plaintiffs failed to comply with the local rules regarding pre-filing conferences for not only the Request, but also for their Request for Oral Argument on Defendant’s Motion to Dismiss [D.E. 27] and their Request for Oral Argument on  Plaintiff’s Motion to Remand [D.E. 29] (collectively, the “Requests for Oral Argument”). This is incorrect. Plaintiffs filed the Requests for Oral Argument pursuant to Local Rule 7.1(b)(1), and they are not subject to the provisions of Local Rule 7.1(a)(3). Moreover, the Request is merely a supplement to Plaintiffs’ Motion to Remand. Accordingly, Plaintiffs’ Requests for Oral Arguments and the Request are proper, and this Court should reject Defendant’s argument to the contrary.
Ok, stop:  what exactly is a "supplement" to a motion for remand?

Is that what happens when you forget to ask for fees in the actual remand motion, and then you have to file another document later asking for fees should the remand be granted?

Given the precarious nature of the "supplement" in the first place, how would it have hurt to get an angry polite response (ed. -- new oath and all) email from opposing counsel advising you to go to hail?

Now let's talk "requests" for oral argument.

Again, what if opposing counsel also wanted a hearing?  Wouldn't your request be stronger if the parties were united in their view that Judge Cooke should hold a hearing?

How would it have hurt to conferred?

Monday, September 12, 2011

Say Hello to the New Head of the PSC!

 Wow what a weekend.

A lot going on today -- first, the Tannebaum Express cogently explains why Judge Gold was right and the 11th Circuit was wrong wrong wrong in reversing the sanctions order David O obtained on behalf of Dr. Shaygan.

Note to social marketers -- amazingly, this intelligent piece of legal advocacy does not once mention the words "iPad"; "social media"; "cloud computing"; or "Joseph Rakofsky."

Next --the attorney currently in Judge Seitz' cross-hairs explains herself here, and Robert Kain explains himself here.

OK, once more, but only to appease the many requests:

Finally, Rick Scott has appointed Miami attorney Braulio Baez to head the PSC:
Baez, an attorney for a private law firm, has a law degree from Nova Southeastern University in Fort Lauderdale. He was a commissioner until January 2006 and a chief policy aide for a commissioner before that. He worked for the Akerman Senterfitt law firm for less than a year with clients that included companies in the energy and telecommunications and water industries. He spent nearly four years before that at Holland & Knight law firm where, among other things, he shaped strategies for a Fortune 500 electric utility.

He was fined a $1,170 in 2007 for allegedly accepting gifts from regulated companies during a 2002 utility conference in Miami when he was a commissioner.

That's what troubled Graham, who said he's concerned about "the big battle we're going to have to fight to having to justify a decision like this."

The PSC has been criticized in the past few years for its ties to utilities.
Now why in the world would anyone say that?

UPDATE -- On top of everything else we have to worry about, now the Florida Supreme Court wants us to actually, you know -- gulp -- be nice to each other:
To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications;
 Change starts one email at a time.

Friday, September 9, 2011

Gaze Upon Judge Ungaro's Fair Districts Order!

I had the pleasure at lunch to catch the always intrepid Julie Kay on the airwaves today, on the publicly-funded radio station that has single-handedly brought America to her economic knees (you know, the same one that airs "Wait Wait Don't Tell Me").

Julie was informative and knowledgeable as always.

But during the course of the discussion Jim DeFede made a good point -- why is it that the Florida legislature is overwhelmingly Republican, often by lopsided majorities and populated with quite conservative lawmakers, yet in the Florida general elections (President, Senator etc.) the splits are more 50/50 and the majorities typically razor-thin?

Short answer: gerrymandering.

That's a nice segue for Judge Ungaro's order upholding on summary judgment the Fair Districts constitutional amendment, which starts off pretty old-school (as in The Framers old-school):
Both sides agree that the case turns on the Elections Clause, and both make passing references to the intent of the Framers. Yet absent in the briefs of both sides is any true attempt to analyze the origins of the Elections Clause. It is as if the proceedings of the Constitutional Convention, the state ratification debates, and the First Congress lay somehow beyond the reach of these litigants.
The Judge then jumps into the old Constitutional Convention time machine, determines that Smiley Smiley was a pretty good Beach Boys album after all (read the order!), and concludes that Florida voters can pretty much screw around with their own Constitution however the hail they like.

Have a great weekend!

Your Friday Morning Digital Dump.

Hi kids, are you interested in watching Alvin Davis masticate flagellate lay prostate orate?

(Ok, let's go with the last one.)

You can see the red-glassed Jedi at work -- actually traveling to (ick!) Tallahassee -- to deliver a master class before the Florida Supremes on the various forms of equitable estoppel, promissory included.

And he did it all for Don King!

(Oral argument transcript here, and the well-written briefs are here.)

In other news, the 11th Circuit finds that filing an amended complaint that expands the class definition revives an otherwise waived right to arbitrate; and Judge King is reversed because he excluded plaintiff's expert testimony in a cruise passenger injury case.

Finally, more bad news for the lawyer whose response to Judge Seitz' order to show cause is due today -- apparently David Mandel thinks she may have a conflict of interest and her law firm possibly disqualified.

When it rains it rains.....

Oh hail it's Friday, let's misbehave:

Thursday, September 8, 2011

World's Worst Motion for Judgment on the Pleadings?

I must admit I'm no fan of motions for judgment on the pleadings.

Although I can appreciate their merit in certain situations, oftentimes they are used like "gotcha" moves in a chess match, preying upon technical or innocent errors that are not usually very substantive and which can (and should) be readily fixed in an amended pleading.

For that reason they can be timewasters, and thus frequently pointless.

Judge King seems to have encountered one of the type I'm complaining about:

(1) We have a premature "shotgun pleading" allegation that winds up making you look bad (instead of your opponent); and

(2) We have an Albert Brooksian "look only at paragraph 22 72" argument that asks the Court to ignore entirely the rest of the well-pled allegations in the complaint.

Other than that, I think the motion could be described as a qualified success.

Wednesday, September 7, 2011

3d DCA Watch -- Judge Salter is Back!

Oh goodness it feels like it's been years since I've read a nice, logical, clearly expressed opinion by Judge Salter, and this week the good Judge is back and his singing voice as strong as ever.

Let's dig in:

CRC 603 v. North Carillion:

This is an important case involving escrow deposits for many thousands of Florida condo buyers who got popped when the bubble burst.

Either that or, to paraphrase Judge Ramirez, concurring in result only, sometimes a cigar is just a cigar.

Note to the 3d DCA webmaster (come on Judge, we know who you are!):  as of this writing Judge Ramirez' concurrence cuts off at page 13.

(The rest was probably dicta anyways.)  UPDATE -- FIXED!

I want to make a comment on Judge Salter's opinion -- he takes very difficult subject matter (interpretation of the escrow deposit statute, amendments thereto, and their possible retroactive application to pre-existing purchase contracts; as well as the persuasiveness of a SD FL opinion addressing some of this first) -- and succinctly identifies the issues and addresses them in a very simple yet perfectly logical manner.

To me this is an exemplar for how everyone should try to tackle complex legal matters whether in briefs or opinions.

UTD v. School District of Miami Dade County:

Here Judge Shepherd reviews an order of the Florida Public Employees Relation Commission which found that UTD negotiated preferential benefits for union school employees over non-union employees.  Specifically union employees can get representation at performance evaluation hearings, while the District otherwise forbids such representation.

But how does the UTD control what the District policy is concerning non-union employees?
UTD next argues it had nothing to do with the District’s policy of not allowing employees who are not union members to have a non-union representative at their CFRs. UTD relies on the fact that no evidence has been found of specific discussions between UTD and the District relating to the implementation of the discriminatory provision. However, as UTD must know, “unless the employer is a latter day George Washington, [direct evidence of] discrimination is as difficult of proof as who chopped down the cherry tree.” Thornborough v. Columbus & Greenville R.R. Co., 760 F. 2d 633, 638 (5th Cir. 1985); see also Sch. Bd. of Leon Cnty. v. Hargis, 400 So. 2d 103, 107 (Fla. 1st DCA 1981) (finding direct evidence of discriminatory intent is “seldom present”). For this reason, it is well established in the field of discrimination that circumstantial evidence evaluated in the light of common experience may be relied upon to establish discriminatory motive. See Grigsby v. Reynolds Metals Co., 821 F. 2d 590, 594 (11th Cir. 1987) (noting that “[t]he McDonnell Douglas-Burdine proof structure ‘was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination’”).

In this case, the plain language of the CBA, in tandem with evidence of the District’s and UTD’s implementation of that language, results in the discriminatory conferral of a benefit on union members. OPS District Director Joyce Castro testified she understood the Article XXI “Employee Rights and Due Process” subsections at issue in this case only allow for UTD representation at CFRs, and during the years she has been a District Director, UTD had never appeared on behalf of a non-union member at a CFR. UTD Deputy Chief of Staff Michael Molnar testified that as long as he has been employed by UTD, since 1995, it has been UTD policy to refuse union representation to non-union members at a CFR, with full knowledge non-union members would have no representation at CFRs.  During these years, UTD negotiated at least five successor contracts with the District. It never sought to rectify the discriminatory effect of Article XXI, section 1A on non-union members. Our task on review of the final order before us is directed to whether there is competent substantial evidence in the record to support the hearing officer’s finding of intent, approved by PERC in its Final Order, not whether there is substantial competent evidence to support a different or contrary finding. See Tamiami Trails Tours, Inc. v. King, 143 So. 2d 313, 316 (Fla. 1962). Based upon the record before us, we find there is substantial competent evidence in the record to support the decision of the hearing officer in this case. Only a willing suspension of belief would liberate us to accept UTD’s urging of a different or contrary finding.
How about that, discrimination is proved circumstantially -- good to know!

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

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

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

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

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

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

Is that an exception?

Tuesday, September 6, 2011

Judge Seitz Sends Greetings and Salutations!

And invites a local attorney to federal court!

You know, for civil litigators it's somewhat rare to have actual hearings with our federal judges, so I'm sure this will be quite a treat.

Wait a second:
The Court considers the arguments advanced in the emergency motion to raise serious issues.  Walker has accused this Court of trampling Howard's constitutional rights and abusing its discretion in entering the turnover Order. The factual underpinnings for these accusations are that Howard and Perry had insufficient time to prepare for the August 23, 2011, hearing. To avoid running afoul of Rule 11, Walker should have investigated these factual circumstances before relying on them to accuse the Court of a constitutional affront. Because it appears to the Court that no such investigation occurred, it is


(1) James Howard and Sutton Capital, LLC's Emergency Motion to Stay the Order Granting Receiver's Motion Requiring Turnover and Disgorgement of Investor Funds [DE-64] is DENIED.

(2) Horecia I. Walker shall SHOW CAUSE in writing no later than September 9, 2011, and explain (1) the reasonable inquiry he performed before representing to this Court that James Howard and Mark C. Perry did not have time to prepare for the August23,2011, hearing; and (2) the results of that inquiry.
 Hmm, maybe this is not so good after all?

Judge King Denies (Again) Checking Overdraft Arbitration Agreements.

11th Circuit, 11th Schmircuit, that's what I always say.

And I see I'm not alone.

On Friday in the closely-watched Checking Overdraft litigation, Judge King has denied renewed motions to enforce bank arbitration agreements in the wake of the Supreme Court's Carlos Concepion decision, finding them both procedurally and substantively unconscionable.

Here's what plaintiff's counsel Aaron Podhurst had to say:


Ok, I'm paraphrasing; here were his exact words:
"Concepcion only said that you don’t knock out arbitration automatically,” Aaron Podhurst, the lead plaintiffs’ lawyer, said in an interview. “Concepcion said it’s a fact issue, so Judge King applied the facts. We have Judge King finding that in four different states, the arbitration agreements are unconscionable.” 
In other post-Labor Day news, Governor Scott has decided he really hates "regulations":
“Every dime a company spends on regulations is a dime they add to what you care about as a purchaser of a product or service,” he said. “You hear the stories. Why do we have to do this? What’s the benefit?

Why do I have to check for razor blades when I sell apples to the public schools?

Who can really keep track of the permissible amounts of rat droppings in Rice-A-Roni?

Why do we have to do this?  What's the benefit?

Monday, September 5, 2011

Marlon Hill Is Not Investigating Raunchy Parties.

But his client is:
Marlon Hill, lawyer for the Balare Language Academy in Miami, said principal and founder Rocka Malik is investigating after parents complained of beer bottles and the smell of smoke at the school and fliers were found advertising raunchy parties to be held in the building, The Miami Herald reported Friday.

"The school takes this type of allegation very seriously and with the highest priority," Hill said.
Hmm, Marlon's a high quality lawyer, but I think even Inspector Clouseau could put these clues together -- empty beer bottles, weed residue, and fliers advertising raunchy parties on school grounds.

Wonder what all that adds up to?

Wrong address, apparently.

Friday, September 2, 2011

Liar Liar Pants on Fire?

It's pretty rare (or should be) to see one lawyer call another lawyer an outright liar.

It's even more rare to see that kind of thing in a federal pleading.

Yet in the case of the local anonymous blogger under fire for his/her posts about R.K. Associates, the "L" word has reared its ugly head:
Defendant's motion for reconsideration and the attached Declaration of Defendant's counsel, Robert C. Kain, Jr., (the "Kain Declaration"), are infested with falsehoods and mischaracterizations of law and facts in an underhanded effort to create an issue...There is no dispute that Defendant chose not to attend the hearing (or retain counsel to do so) in the State Court on the Motion to Quash that Defendant filed and which resulted in the Order (the "Hearing").  There was no court reporter at the Hearing, and Mr. Kain never contacted Plaintiff's counsel to inquire what actually transpired at the Hearing. Incredibly, however, in the Motion for Reconsideration and the Kain Declaration (in which Mr. Kain, as an officer of the Court, swore to the truth of the matters asserted therein), Defendant and Mr. Kain argue due process concerns regarding specific matters they claim occurred or did not occur during the Hearing.  These statements are blatant lies, and were sworn to by Mr. Kain without any basis or investigation (as such would have revealed the fallacy of the statements).
The brief goes on to call the statements "material fabrications" and "willfully false assertions" -- I should add that Todd Levine's declaration is also pretty incendiary.

I have no doubt these allegations will be quickly answered.

Ever Leave a Law Firm?

This is what it feels like.

Thursday, September 1, 2011

Donald Trump To Allow Planes To Fly Over Mansion After All!

When last we checked in on The Donald's efforts to protect Palm Beach residents (him) from annoying airplane noise over Mar-a-Lago, Trump attorney Jim Beasley was proclaiming victory even though most of his claims were dismissed.

Now, through new counsel(?) John B. Marion IV, it appears victory is complete as Trump is dropping the lawsuit entirely:
“Since the reason Mr. Trump filed this lawsuit in the first place was to protect the citizens of Palm Beach County affected by unreasonable airport traffic and noise, and since it is now apparent that the county has abandoned or put the very things that threatened those citizens on indefinite hold for at least 34 years, Mr. Trump has decided to dismiss the case for now.

“However,” the letter went on, “he will not hesitate to file a similar action in the future should the county again take action which threatens county residents with unreasonable airport noise and traffic.” 
With Trump everything is always win-win, isn't it?