Wednesday, November 30, 2011

3d DCA Watch -- Eye in the Sky Edition.



Yes Virginia, Aventura can legally film you running red lights:
The Ordinance mandates that the Traffic Control Infraction Review Officer review and verify the recorded images prior to the issuance of a notice of violation which parallels the requirement that a traffic infraction enforcement officer under the Uniform Traffic Control Law observe the traffic violation and, does not conflict with the requirements of subsection 316.640(5)(a), Florida Statutes. Accordingly, we find the trial court erred in its determination that section 48-26 allowed the cameras to serve as the sole basis for issuing a notice of violation in direct conflict with section 316.007, Florida Statutes.
Ah yes, doesn't every hamlet have an Orwellian neighborly "Traffic Control Infraction Review Officer" -- just like Barney Fife!

But the dissent, well, dissents.

Sayeth The Rothenberg:
The City and the majority’s reliance on section 316.008(1)(w) as the statute’s express grant of authority is, however, misplaced. The City’s unmanned cameras placed at various intersections do not regulate nor restrict traffic, and Masone does not allege that the use of cameras to monitor traffic is preempted by or in conflict with Florida law. What Masone correctly argues is that section 316.008(1)(w) does not expressly grant municipalities the authority to: (1) enforce by ordinance, violations of traffic infractions, including red light violations, already being enforced under Florida’s uniform traffic laws; (2) punish alleged violators on an adjudication on the merits in a “court” unauthorized by the Florida Constitution or state statute; (3) create a different standard of proof and liability for red light violations than that which has been approved by the Legislature; and (4) establish penalties not authorized by chapters 316 or 318.
 She also helpfully identifies all the conflicts with state law -- the first two seem most pertinent:
(1) Whereas section 316.075 punishes drivers who commit traffic light infractions, the City’s ordinance punishes the owner of the vehicle which is observed committing a red light traffic infraction unless the owner submits an affidavit stating that at the time the infraction was being committed, his/her vehicle was being driven without his/her consent.
The affidavit must include the identity of the person who had care, custody or control of the vehicle, if known, or include a police report if the vehicle was stolen.

(2) Whereas section 316.640(5)(a) requires the traffic enforcement officer to personally observe the commission of the traffic infraction, the City’s ordinance only requires that a traffic enforcement officer review the recorded images taken by a camera installed by the City at the subject intersection.
Hmm -- "driver" vs. "owner of the vehicle"; and "personally observe" vs. "review recorded images" -- what am I missing here?

(Or are we in "meaningfully distinguishable" territory again?)

Judges Emas and Lagoa go at it over an arbitration provision.

Important PIP opinion here.

Wow, three dissenting opinions this week -- cut back on the egg nog, fellas!



Tuesday, November 29, 2011

You Now Have New Rules.



I just received this passionate and heartfelt personal message from the old man in the cave:
Administrative Order 2011-100 In re: Amendments to the Local Rules.

Amendments to the Southern District of Florida Local Rules will go into effect on December 1, 2011. To obtain a copy of Administrative Order 2011-100 which includes the amendments to the Local Rules, please visit our website, www.flsd.uscourts.gov, under Public Notices. You can obtain a copy of the new Local Rules with amendments on our website under the Attorney Resources tab, Local Rules & Procedures, as well as under the Public Notices section on the left hand column of the website.
I just tear up every time I read this!

(You can also find the new local rules here.)

Nice work Kevin and the entire "ad hoc" team!

In other news, RIP ole' Georgy -- you were a good egg.



Judge Scola's First Order as a Federal Judge?



It has to do with a massive Ponzi scheme where investors were defrauded out of more than $50 million.

How cute!

Monday, November 28, 2011

Note to Brandon -- Never Have Nothing to Say!



Brandon, you can see Spencer asking the very same question from everyone around the table, and you're the last one asked (around 2:25 in) -- dude, come on!

Friday, November 25, 2011

Checking Overdraft Settlement Approved!



Judge King's 59 page order here.

Julie Kay gets a few good quotes from Podhurst here.

Drinks on him (I certainly hope).

Wednesday, November 23, 2011

3d DCA Watch -- Jive Turkey Edition.



It's the day before Thanksgiving -- why are you still in the office?

But today is a special 3d DCA Watch, when the written utterances wafting northward from the bunker include just a seasonal hint of sage, cranberry sauce, warm fresh baked apple pie, and lingering three-day old sock sweat (I'm not saying which judge worked out last in the mechanical room/gym/storage closet before taking off for the holidays).

So absorb it all in and let the holiday commencements commence:

Gorrin v. Poker Run:

What does "meaningfully distinguishable" mean?  Is that "distinguishable minus one"?

KJB Village v. Dorne:

The sad story of the demise of North Bay Village's Siam Bagel -- a classic South Florida real estate boondoggle.

Pederson v. Boggess:

Hmm, this is a per curiam reversal in which Judge Schwartz sat on the panel.

Note the language:
Upon consideration of the appellees’ confession of error, which we find to be eminently well taken, the default money judgment under review is reversed and the cause remanded for further proceedings.
I think I know who wrote that!

Fortune Int'l v. M Resort:

So now receivers are supposed to be neutral:
When a party itself is paying substantial funds into a receivership, as here, it seems reasonable that some of those funds might be authorized for payment of that party’s attorneys. But the linchpin of a receivership is the principle that a receiver, like the appointing court itself, is a neutral party in the underlying dispute. The receiver’s role is the preservation and protection of the assets in dispute, not as a paying agent for the litigation-related legal expenses of one of the parties.
With the exception of that firm which now has to disgorge all those fees -- have a great Thanksgiving weekend!

The Day The Toes Stopped Tapping.



Yes kids, the dreaded second of that foreboding minute of the momentous hour of that portentous day has arrived.

(I have no idea what any of that means.)

SIMPLY AMAZING!!

Here's a taste of Magistrate Judge Brown's order which, true to form in this case, was apparently filed erroneously under restriction (D.E. 1430) ("you do not have permission to view this document"), then refiled as D.E. 1431 in two parts (for which you have to pay(!) as if it's a pleading and not an order):
To be sure, this was a most unusual and unique case. The saga endured by plaintiffs might well make a script for a book. (Ed. -- or a whole mess of blog posts!) The ensuing claims addressed by defendant were as far from "run of the mill'' as anyone could imagine. The Court is not without sympathy for the ordeal plaintiffs went through. Indeed, the record is full of indicators of sympathy on several fronts -including that of at least one of the adjusters handling this case. This clearly contributed to the most unusual happenstance of - on more than one occasion - the defendant paying claims without supporting documentation, simply on the "say-so'' of Mr. Halmos, and in the end resulted in more than one substantial overpayment. The uncontroverted evidence is that an almost symbiotic relationship developed between Mr. Halmos and the primary INA adjuster, Pamela Harting- Forkey . . . until supporting materials for claim s were requested and claims began to be questioned. lt then turned quite adversarial - at least on the part of plaintiffs. Notwithstanding said sympathy, however, the Court reaches its decisions herein without being "influenced in any way by sympathy, or by prejudice, for or against anyone.'' Eleventh Circuit Standard Instruction regarding Consideration of The Evidence.
Let's just say the case came down to credibility determinations, and here's a small example of where the Judge's head was at on that issue:
Third, IYC intentionally misrepresented that the Merideth Law Firm invoices were "legal and Legal Support Services'' related to salvage and protection against loss of the Legacy due to Hurricane Wilma, even though the time was for Halmos, a non-lawyer partner in the District of Columbia-based Merideth Law Firm, and his employees. See FF 148-50. 'I'he Court finds Mr. Halmos' "partnership'' in Washington D.C. of no significance, as the alleged work done and billed) was done in Florida, not in D.C., and by Mr. Halmos' own version of the facts, was done under supervision of a Florida lawyer.   There is no evidence in this record of that lawyers' affiliation with the Merideth Law Firm. In making such representations, Halmos not only violated the District of Columbia Rules of Professional Conduct, see D.C. R. Prof Conduct 5.541) (prohibiting individuals from engaging in the unauthorized practice of law in other jurisdictions, such as Florida); D.C. R.Prof Conduct 5.409(2) & (3) (the nonlawyer in partnership with the District of Columbia law organization must abide by (the District of Columbia Rules of Professional Conduct), he violated Florida law, see Fla. Stat. j 454.23 ("Any person not licensed or otherwise authorized to practice 1aw in this state who practices 1aw in this state or holds himself or herself out to the public as qualified to practice law in this state, or who willfully pretends to be, or willfully takes or uses any name, title, addition, or description implying that he or she is qualifed, or recognized by law as qualified, to practice law in this state, commits a felony of the third degree, punishable as provided in sec 775.082, sec 775.083, or sec 775.084.5').
Huh?

Maybe this loopy version is more appropriate here:

Tuesday, November 22, 2011

Your Honor, I Have Controlling Authority Directly On Point: Keith Urban!



Magistrate Judge Goodman, whose penchant for lyrical citations has been discussed here before, takes us on another musical adventure:
To borrow lyrics, albeit out of context, from a Keith Urban song, “And maybe it’s a little too early / To know if this is gonna work.”3
Ok Judge, I'm with you.

Let's see what footnote three says:
3 Urban, Keith. “You Look Good In My Shirt.” Lyrics. Golden Road. Capitol, 2002, available at http://www.lyrics007.com/Keith%20Urban%20Lyrics/You%20Look%20Good%20In%20My%20Shirt%20Lyrics.html. Born in New Zealand, Urban is a country singer/songwriter who was voted Top New Male Vocalist at the 2001 Country Music Association Awards. He was named CMA’s Entertainer of the Year in 2005. In 2006, Urban won his first Grammy Award and married Australian-born actress Nicole Kidman later that year. Keith Urban Biography - Facts, Birthday, Life Story, http://www.biography.com/people/keith-urban-193217 (last visited Nov. 21, 2011). Based on preliminary research, it does not appear that Mr. Urban has released any songs expressly discussing the concept of Article III standing.
Oy -- you were doing great until you big-footed it right at the end!

(Leave that to us professionals....)



Monday, November 21, 2011

Of Course Glenn Garvin is Now Covering the Occupy Miami Protests.



It makes sense -- there is literally no other Miami Herald reporter better suited to report objectively on the protests, is there?

I like this part of Glenn's report:
“And I heard last night that one of the women is pregnant, so maybe we’re going to have our first baby,” says Kelley Roark, a Miami attorney who supports Occupy Miami and has advised the movement in its sometimes-prickly negotiations with the county over its permit to use the plaza.
Good for you, Kelley!  (You can learn more about Ms. Roark's practice here).

To give Glenn a mild amount of credit, his report makes no reference to bra-burners, "free love," Nixon, or Maude, so I'm putting it in the plus column.

Friday, November 18, 2011

A Look Inside Ruden's Bankruptcy.



Am Law Daily has a great history and summary of how venerable Ruden McClosky wound up in bankruptcy court, relying in large part on Julie Kay's terrific reporting:
After more than two years of partner defections, layoffs, office closings, and mounting financial difficulties, Ruden McClosky filed for Chapter 11 protection Tuesday in its hometown of Fort Lauderdale.  The firm, which has eight offices in Florida, plans to sell a substantial portion of its assets to Greenspoon Marder, another Fort Lauderdale–based firm, according to sibling publication the Daily Business Review.
Founded in 1959, Ruden McClosky had vociferously denied that it would consider dissolving, even as a flood of lateral departures caused the firm to suffer financially. Ruden McClosky responded to the loss of lawyers by shaking up its leadership and pursuing potential mergers with Cleveland-based Benesch, Friedlander, Coplan & Aronoff over the summer and Greenspoon Marder last month.
Ruden McClosky, which once boasted more than 200 lawyers, was hit hard by the collapse of the Florida real estate market and saw its head count dwindle to its current total of 66 lawyers. In its bankruptcy filing, the firm lists both debts and assets of between $10 million and $50 million.
But the deal was contingent on former partners accepting only 30 percent of their equity payments, an arrangement that has apparently collapsed:
The deal with Greenspoon Marder was contingent on 58 former Ruden McClosky equity partners accepting payouts of 30 percent on $3.5 million in outstanding equity payments, according to DBR. Ruden McClosky had stopped making payments to former partners in January, and many of those same partners faced a Monday deadline to reach a deal on the remaining $3.5 million obligation so that the agreement with Greenspoon Marder could proceed. The sale to Greenspoon Marder was structured as a sale, rather than a merger, so that the successor firm wouldn't acquire any of Ruden McClosky's liabilities, according to a lawyer familiar with the Chapter 11 case.
But the South Florida Business Journal reported Wednesday that the plan to pay dozens of former Ruden McClosky partners had collapsed prior to the firm filing its Chapter 11 petition, and that they would have to file claims with the bankruptcy court in order to recoup what they are owed. Lawrence Gordich, a former Ruden McClosky partner who left the firm last year to open his own shop in Miami, is representing a group of ex-partners in the case. Gordich did not respond to a request for comment.
 You car crash gawkers can see the bankruptcy docket here and the Chapter 11 filing here.

Thursday, November 17, 2011

Dear Magistrate Judge Simonton: The Stones Are Not Just a "Music Band."



I absolutely adore Magistrate Judge Simonton, but with respect I have to take issue with this language:
On August 11, 2011, Plaintiff produced documents to Defendants by computer disc, in response to Defendants’ First Request for Production of Documents (DE # 68 at 2). The disc contained several documents, including emails and documents exchanged between Michael Rowles, Executive Vice President and General Counsel of Plaintiff Live Nation Worldwide, Inc. (“Live Nation”), and Joyce Smyth, who is the personal representative of Mick Jagger, the lead singer of the music band The Rolling Stones (DE # 68 at 2).
Hold on -- "music band" the Rolling Stones?

That's it???

And the Beatles are merely "four lads from Liverpool"?  The Grand Canyon is "that hole in Arizona"?

Your Honor, would it have hurt to throw in "World's Greatest Rock and Roll Band"?

Just for us fans, of course....

The Situation Sues Abercrombie & Fitch!



And Judge Lenard has it.

Oy veh!

Here are the claims in a nutshell:
          While on the hit TV show the “Jersey Shore” and as in his everyday life, Sorrentino (along with other cast members) occasionally wore Abercrombie brand clothing.
              Starting August 2011, Defendant embarked on a grand, worldwide advertising campaign using Sorrentino’s name, image and likeness to create brand awareness for its products by falsely claiming that Defendant had offered money to Sorrentino if he would stop wearing Defendant’s goods. 
          Defendant concocted this false advertising campaign using the name and image of Sorrentino, to promote and advertise Defendant’s stores and its products. This advertising campaign claimed that Sorrentino was contrary to the “aspirational nature of the (Abercrombie) brand”.
As part of the campaign, on August 12, 2011 stories were written by the press stating that the advertising campaign was a “marketing ploy” designed “to further (Abercrombie’s) name into the marketplace with one of the hottest brands on tv” which was intentionally and strategically released at the peak of the back to school season.  A true and  correct copy of the press release is attached hereto as Exhibit “B” and hereafter called the “Press Release”
        As part of the marketing ploy, Defendant contacted representatives of MTV (the network that distributes the “Jersey Shore”) and allegedly offered to pay money to the Sorrentino if he would stop wearing Abercrombie brand clothing while on the show and at other times. 
           That offer was never made to Sorrentino, nor was it ever conveyed to Sorrentino by a representative of Defendant.
           Defendant claimed in the press release that by wearing Abercrombie clothing, Sorrentino would be “causing significant damage” to the image of the Abercrombie brand.  In essence, Defendant’s campaign was to make the ridiculous claim that Sorrentino was not worthy enough to wear Abercrombie clothing or that Sorrentino was so undesirable that wearing Abercrombie clothing would cause “damage” to Defendant.  The center piece of the advertising campaign was the huge success and popularity of Sorrentino.  The falsity of the advertising campaign is further demonstrated by Defendants actions to (at the same time that they are claiming that Sorrentino was damaging their image) attempt to associate themselves with Sorrentino by openly advertising specifically designed t-shirts using the Plaintiffs’ Marks.


Wednesday, November 16, 2011

3d DCA Watch -- Live Stream the Love In.



Forget live streaming the show of force at Zuccotti Park, I've been watching the beat downs and near riots taking place at the 3d's new live streaming of oral arguments.

Grab some popcorn, people!

Onward:

Pariz v. Colon:

Hey, trial courts don't even know their own strength:
We agree with Pariz that the trial court was under the erroneous impression that it could not order the transfer of title of the subject property to Pariz. The trial court had in rem jurisdiction over the property because the property was located in Miami-Dade County, Florida. See Ruth v. Dep’t of Legal Affairs, 684 So. 2d 181, 185 (Fla. 1996). In addition, a court sitting in equity has the discretion to award specific performance. See Castigliano v. O’Connor, 911 So. 2d 145, 148 (Fla. 3d DCA 2005). Here, the trial court had the jurisdiction and discretion to order in the final judgment that the title to the subject property be conveyed to Pariz. See Alt. Dev., Inc. v. St. Lucie Club & Apartment Homes, 608 So. 2d 822 (Fla. 4th DCA 1992).
Wolfe v. Star Realty:

This is how we do business here in South Florida:
As set forth by Ms. Wolfe, this “scheme” began when Jack Moussa visited Ms. Wolfe at her home, informing her that, for a $30,000 fee, Florida Housing Council could stop the foreclosure action filed by the holder of her first mortgage, Wells Fargo Bank; fix her credit; and satisfy the three existing mortgages on her home. Thereafter, as part of this “scheme,” a trust was created; the property was transferred from Ms. Wolfe to Florida Housing Council as Trustee of the SW 211th Street Trust No. 12549; the property was transferred back to Ms. Wolfe; and the $95,000 mortgage, which is the subject of this foreclosure action, was recorded on her property although the existing mortgages on her home were not satisfied and she did not receive any proceeds from the loan. Ms. Wolfe also informed the trial court that the Office of the Attorney General filed a civil action against Florida Housing Council, Star Enterprises, Jack Moussa, and Rose Moussa for their participation in “foreclosure rescue schemes,” and that this action is still pending under Broward County Circuit Case No. 08-13169.1 Without conducting an evidentiary hearing, the trial court denied the Motion to Vacate.
 Munguia v. Dade County:

Judge Schwartz on appellate law 101:
The lower court order of July 16, 2009, which merely “granted” a motion to dismiss, was not an appealable final judgment, see Gries Inv. Co. v. Chelton, 388 So. 2d 1281, 1282 (Fla. 3d DCA 1980); Donnell v. Indus. Fire & Cas. Co., 378 So. 2d 1344, 1346 (Fla. 3d DCA 1980), so an earlier appeal from that order was properly dismissed. Because the present appeal was timely taken from the judgment of September 1, 2011, which actually dismissed the case and was therefore the first appealable order entered below, the appellees’ motion to dismiss is not well taken.
You don't say!

Is Spencer More Like "Jock" Emilio Estevez?



Or "bad boy" Judd Nelson?

Wait a minute.....Principal Vernon!

Tuesday, November 15, 2011

Attention: District Judges Must Give Reasons For Their Rulings!



This may seem like business as usual for our state court practitioners, but apparently even federal district judges can forget to provide a basis for appellate review:
Abuse of discretion review, however, requires something for us to review.  When ruling on a motion for attorney’s fees or sanctions, the district court must provide an explanation of the basis for its ruling that is sufficient to allow for meaningful appellate review.
. . . .
Although the district court did find that Arugu’s motion for voluntary dismissal was itself not made in bad faith, its denial of the City’s motion for sanctions and attorney’s fees was not accompanied by any explanation, analysis, or findings. The court gave no reason for rejecting the City’s contentions that Argu had filed a frivolous § 1983 claim and had unreasonably multiplied the proceedings. We therefore vacate the order denying sanctions and attorney’s fees and remand for the district court to revisit the issue, make appropriate findings, and explain its decision.
Dear clerk readers, please now plan on heading to South Beach for drinks thirty minutes later than usual.

Monday, November 14, 2011

Can Scott Rothstein Give a Deposition Without Marc Nurik?



That's the burning question raised by Judge Cohn in his order today:
Counsel for Mr. Rothstein shall respond to the Trustee’s Expedited Motion to Amend Writ of Habeas Corpus Ad Testificandum [DE 53] by November 21, 2011, by updating the Court on his availability for the December 12 deposition, and by stating his client’s position on whether the deposition can go forward without Mr. Nurik’s presence, either with no counsel or substitute counsel;
Substitute counsel?

Is there anyone who could help Scott out?


Ok, probably have to wait for Marc.

Monday Morning Round Up.



Hi kids, let's see what is happening on this beautiful Monday.

1.  Brian Tannebaum is officially one of the most important people*

*on Twitter!

**and he's mad about it!!

2.  Local LGBT law students unite:
"I have been working with lesbian and gay law students from all four Southeast Florida law schools (UM, FIU, Nova, St. Thomas) to create a unique regional organization. The organization is called Unified Students (“US”) and our goal is to organize students who want to get involved in LGBT related pro bono work. Some projects we would like to work on include (i) conducting a legal clinic under the supervision of attorneys to help LGBT families with estate planning that will hold up under Florida state laws, (ii) creating an internet data base to connect students wanting to do volunteer research for LGBT related pro bono cases with attorneys looking for research on those kinds of cases, and (iii) attempting to change policies of homeless shelters that exclude transgendered people."
These are terrible goals -- doesn't anyone want to bomb Iran?

3.  Aww, how cute:  Terrell Owens sues GT.

And how was your weekend?

Friday, November 11, 2011

11.11.11



Hi there, I assume you're in the office because your kids are home from school and driving you crazy.

Or is that just me?

Rump has a nice post on the reason I got this tweet from @MiamiDadeCourts earlier this morning:
All Miami-Dade Courts and Clerk of Courts' offices closed on Friday, Nov. 11th, in observance of Veteran's Day:
So the Court can tweet but I still have to send a runner downtown to file something?

In other news, the Florida Supreme Court has limited discovery in first-party bad faith actions and held that you can't get at attorney-client privileged materials:
Therefore, although we held in Ruiz that attorney work product in first-party bad faith actions was discoverable, this holding does not extend to attorney-client privileged communications. Consequently, when an insured party brings a bad faith claim against its insurer, the insured may not discover those privileged communications that occurred between the insurer and its counsel during the underlying action.
This seems pretty obvious, no?

The Court, however, does allow for some fightin' space:
Although we conclude that the attorney-client privilege applies, we recognize that cases may arise where an insurer has hired an attorney to both investigate the underlying claim and render legal advice. Thus, the materials requested by the opposing party may implicate both the work product doctrine and the attorney-client privilege. Where a claim of privilege is asserted, the trial court should conduct an in-camera inspection to determine whether the sought-after materials are truly protected by the attorney-client privilege. If the trial court determines that the investigation performed by the attorney resulted in the preparation of materials that are required to be disclosed pursuant to Ruiz and did not involve the rendering of legal advice, then that material is discoverable.
 Have fun with that, trial judges!

Thursday, November 10, 2011

Dear John Doe: Welcome to Rule 11!



In the anonymous blogger case pending before Judge Cooke, The Kluginator has filed a little document known in legal circles as a "Rule 11 motion."

Here is the blockbuster opening paragraph:
Defendant and his counsel have misapplied existing law in Defendant’s Counter-Complaint. To begin with, Defendant cannot maintain the Counter-Complaint under the fictitious name “John Doe” and be permitted to use his anonymity as both a sword and a shield. Moreover, Defendant and his counsel have asserted duplicative counts for declaratory relief that fail to state a cause of action upon which relief may be granted and are merely denials of the properly dismissed Count III, rendering the Counter-Complaint moot and therefore seeks an improper advisory opinion from this Court. Further, Defendant’s Counter-Complaint is a clear attempt at forum-shopping and judge shopping. Despite having proper notice of the frivolousness of their positions, Defendant and his counsel have refused to withdraw the Defendant’s Counter-Complaint [D.E. 1]. Accordingly, sanctions should be imposed against Defendant and his counsel pursuant to Fed. R. Civ. P. 11.
Ok, I agree none of that sounds too hot, but on the other hand that's pretty much a day in the life at any given moment in state court.

What am I missing here?

(I sure hope they met and conferred on this one!)

Wouldn't You Rather Be Making Wine Right Now?



That's the attitude of Akerman's Mark Tobin, who gets a very nice profile in the Herald.

The family's weekend winery is in eastern Long Island:
“This is not the chi-chi Hamptons,” he says. “This area is all farms — a different world, laid back, with pigs and goats and markets where you can buy fresh ingredients and a shop that sells pie.”
Ok, that sounds exactly like Kingsbridge!

Well, if you can avoid that marauding idiot William from Shiring I guess it sounds quite idyllic.

Wednesday, November 9, 2011

3d DCA Watch -- Deja Vu All Over Again!



Hi kids, it's an extremely meaty day for important written utterances so let's jump right in:

United Auto v. Barahona:

Hey, didn't I just read this opinion the other day?
This Court initially accepted jurisdiction of this cause pursuant to Florida Rule of Appellate Procedure 9.160.

Having reviewed the briefs, and following oral argument, this Court declines to answer the question certified by the lower court to be one of great public importance,1 and therefore transfers this appeal, together with the filing fee, to the Eleventh Judicial Circuit of Florida, appellate division, pursuant to Florida Rule of Appellate Procedure 9.160(f)(2).
I'm starting to detect a pattern!

Remember.



Kristallnacht, November 9, 1938.

Tuesday, November 8, 2011

Judgment Day!


 Hi folks, so Judge King approved the BoA checking overdraft settlement.

Now the fun begins!

And Judge Moreno ruled against Watson Pharmaceuticals in a big patent infringement case.

Plus I only have 14 judicial fundraisers to attend this week.

Gosh it's slow around here -- doesn't anyone have some tips for your friendly neighborhood blawger?

Monday, November 7, 2011

Tod Aronovitz on Genting: Beware My Love.



Tod Aronovitz makes his voice heard on the Genting mega-casino in a letter published this weekend in the Herald (I've provided a helpful guide to Tod's comments in italics):
Beware of promises

In listening to the Genting Group’s promises of economic salvation consider your quality of life.  (As bad as it is now, it will be way worse.)  Whether you live in Kendall, Westchester or Miami Gardens, traffic gridlock will be worsened by the proposed Genting mega project. (Have you been to a Heat game?) There’s no viable public transit solution. (There never will be; this is Miami we're talking about.)  Our legislators will hopefully ponder this quality of life issue in voting on the historic gambling bill. (HAHAHAHAHA) The long-term negative impact of the Genting Group’s mega-plan may far outstrip any short-term financial gain.  (Substitute "will" for "may" and you get my drift.)

Tod Aronovitz, Miami 



Friday, November 4, 2011

11th Circuit Not Sure Why SJ Granted.



I can't really tell, but that's the gist of the Court's opinion regarding MD FL Magistrate Judge Klindt's grant of summary judgment in a broker procurement case:
The evidence presented in this case creates a triable issue of fact as to whether the investment opportunity FourWinds pursued with Nemus was materially different from that presented to it by BKR. Such a question of fact cannot be decided as a matter of law. It is for a jury to decide.

There is not a single case cited by the district court to support its conclusion that the facts of this case are controlled by law. Nor do the parties cite any cases holding that this case may be decided as a matter of law. There is a reason for this. There are no such cases.
Translation:  WTF were you thinking???

Have a great weekend folks!


Time Change for Hearing on Local Rules Amendments; Someone Running Late?



I received this important message from CM/ECF advising of a time change in the hearing scheduled to discuss Local Rule amendments:
U. S. DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
AMENDED Administrative Order 2011-82 In re: Amendments to the Local Rules - Notice of Proposed Amendments, of Opportunity for Public Comments, and of Hearing to Receive Comments. NOTE TIME CHANGE FOR THE EN BANC HEARING.
The public hearing will be held on Thursday, November 17, 2011, at 2:00 p.m. at the Paul G. Rogers Federal Courthouse in West Palm Beach Florida. Notice of intention to provide oral comments must be received by Friday, November 11, 2011.
Of course I'm going to speculate wildly and with no basis whatsoever as to why this time change was required -- that's what we do around here.

Thursday, November 3, 2011

You Heard It Here First -- Toe-Tapping Broken Yacht Case Someday Will End!



So sayeth Magistrate Judge Brown:
Despite this latest motion, the journey will be coming to an end. This Court will not respond to, nor dignify, the latest attack on it except to state the following. It is without dispute that the March, 2005 letter (exhibit B20 in the trial record) is of great significance. In one breath, plaintiff would have the Court believe that plaintiffs produced this document pursuant to Fed.R.CiV.P. 34, that defendant saw this document ... a document which, viewed in a light most favorable to defendant might be grounds for voiding the entire policy and, by extension the Legacy claim from Hurricane Wilma ... yet chose not to copy it. This is particularly relevant because there is no evidence produced (at least so far ...) that said document, nor it contents, nor its subject matter was ever presented to defendant prior to the August, 2005 policy renewal which was prior to the claim arising from Hurricane Wilma.

In the next breath, plaintiff would have the world [ed note -- why thank you, Judge!] believe that defendant knew it had the document but chose not to do any discovery, nor list any witnesses, nor list any experts regarding same - all so defendant could file its motion for sanctions (D.E. 1275).  Defense counsel must have had nightmares when this "biased'' Court denied two similar motions addressing the report prepared after Hurricane Wilma from the vessel manufacturer and the alleged withholding of other materials!  (See D.E. 1238, 1243 and 1284, 1287).

The Court will not allow the journey to continue any further - at least "not on its watch.''
 In other words:  the three-hour tour boat ride from hail sinking ship disaster at sea whatever you want to call it, it too someday will end (someday!).

Promises promises....

Mark Gold Has a New Spokesperson!



When Mark isn't battling unjust adult entertainment business practices, he is very busy with his successful DUI practice.

Check out his latest ad above (an improvement on his classic "lawyers in diapers"?).

h/t Random Pixels

Wednesday, November 2, 2011

3d DCA Watch -- Sorry, Your Issue Is Just Not That Important to Us.



Hi kids the sun is shining and everyone inside the bunker is simply buzzing about the latest Kim Kardashian marriage update -- was she really in love, how come they broke up, who the hail is that guy she married?

That's probably why there are only a few glorified PCAs this week, and one very important opinion regarding this very important topic affecting so many of us:
May the statutory amendment that went into effect on January 1, 2008, providing that an insurer may limit reimbursement of no fault benefits to 80% of 200% of the applicable Medicare Part B fee schedule, be constitutionally applied retroactively to a policy with effective dates of December 7, 2007 through June 7, 2008, where the accident and medical treatment occurred after January 1, 2008 and the insurer did not issue an endorsement advising the insured that the fee schedule would be applied?
This Court initially accepted jurisdiction of this cause pursuant to Florida Rule of Appellate Procedure 9.160.
Alright already -- what is the answer, the entire South Florida legal community needs to know!

So sorry Charlie:
Having reviewed the briefs, and following oral argument, this Court declines to answer the question certified by the lower court to be one of great public importance....
Allow me to translate -- why did you certify such a ridiculously fact-specific question to us?  You think we sit around all day analyzing Kim Kardashian's divorce papers?

(Don't answer that.)