Maybe You Should Prepare Your 30(b)(6) Witness?

 Always a vexing issue, Magistrate Judge Goodman directly confronts a corporate witness who was unprepared and had no knowledge of many of the items identified on a Rule 30(b)(6) depo notice:

First, in response to a 30(b)(6) corporate deposition notice listing 47 topics, QBE produced one witness, a claims examiner, and announced for the first time at the deposition that its designee did not have knowledge on many issues but agreed to produce another corporate representative who would have the requisite knowledge. QBE intended to secure one or more representatives from the insured condominium association, but that plan was thwarted. Nevertheless, the one representative it did produce was unable to adequately answer questions on many topics and he reviewed only a small portion of the documents which QBE had or had access to before the deposition.

For this first scenario, sanctions are appropriate. Because the discovery deadline has expired, because QBE did not fulfill its obligation to properly prepare its own designee, because QBE waited until the corporate representative deposition began to give notice of its designee’s partial inadequacy and because its designee could have (but did not) review substantially more material in order to be a more-responsive witness, Defendant’s requested sanction will be imposed. Specifically, QBE will be precluded from offering any testimony at trial on the subjects which its designee was unable or unwilling to testify about at the 30(b)(6) deposition.

He also gives a fantastic 39-point(!) primer on the law regarding 30(b)(6) depositions and the obligations on the corporation and counsel to adequately prepare a witness for deposition.

And he awards attorneys fees!

Shadows and Light.

Sheesh, what to talk about this morning?

I'm reminded of Joni's Shadows and Light:

Every picture has its shadows
And it has some source of light
Blindness, blindness and sight
The perils of benefactors
The blessings of parasites
Blindness, blindness and sight
Threatened by all things
Devil of cruelty
Drawn to all things
Devil of delight
Mythical devil of the ever-present laws
Governing blindness, blindness and sight

Pacenti writes up an ugly lawyer divorce drama that has been percolating for years but which now sweeps up our endless judicial fundraiser system and potential conflicts of interest :

 A Miami-Dade circuit judge won’t step out of a custody battle between two well-known South Florida lawyers even though the ex-wife’s attorney’s firm co-sponsored a political fundraiser for the judge’s re-election.

Carlton Fields partner Paul Calli is appealing Miami-Dade Judge Maria Espinosa Dennis’ decision to stay in the case. She is up for re-election this year.

Calli claims the fundraiser was within 48 hours of a scheduled hearing in the dispute with his ex-wife, Sarah Mourer, a University of Miami professor of clinical legal education and director of UM’s Death Penalty Clinic and co-director of the Innocence Clinic.

This will be very interesting when the 3d DCA rules.

Personally, I'd rather focus on this nice story about Richard Milstein and the issues LGBT couples face as they near retirement:

This is certainly a concern for Richard Milstein, a Miami attorney. He and his partner of 10 years, Eric Hankin, a public school teacher, have made sure their estate planning is in order. But if Milstein, who has two adult children with his ex-wife, were to die first, Hankin won’t be eligible for Social Security spousal benefits — though the couple married in Iowa two years ago.

“My siblings have children and there’s a certain expectation that these children will take care of them,” Hankin says. “I don’t have any children, but I’m fortunate to have stepchildren and we have a good relationship.”

But even that kind of relationship can be tenuous, whether or not the survivor is gay or straight.

Milstein says that’s one of his concerns if he outlives Hankin.

“I’m older so my thought is I will go first,” he says. “In that case, I worry if he will be able to continue that relationship” with Milstein’s children and a new grandchild.

 Here's another real-life consequence of our antiquated prohibition on same-sex marriages -- let's treat them like every other married couple.

Time to cue Joni:

Critics of all expression
Judges in black and white
Saying it's wrong, saying it's right
Compelled by prescribed standards
Or some ideals we fight
For wrong, wrong and right
Threatened by all things
Man of cruelty-mark of Cain
Drawn to all things
Man of delight-born again, born again
Man of the laws, the ever-broken laws
Governing wrong, wrong and right
Governing wrong, wrong and right
Wrong and right

Let's finish with Gabby D on The Daily Show!

Love the clip!

Read more here: http://www.miamiherald.com/2012/01/31/v-fullstory/2615925/golden-years.html#storylink=cpy

"Concierge" Legal Services?

You know how some doctors charge wealthy parents a lot of money so their kids can be ushered in a side door when they have the sniffles?

(That way they can avoid the 99% sitting in the waiting room with actual medical issues.)

Well, picking up on the medical profession, an enterprising Fort Lauderdale law firm is now offering "concierge legal services":

“We are not a nine to five practice,” partner Howard N. Kahn points out. “Business owners and medical professionals do not work routine hours. If a legal issue arises on Saturday, clients know they can reach us. We will explain their legal options and outline a practical course of action so they are ready to conduct business Monday morning.”

“Concierge medicine has gained popularity in recent years, despite high admission fees and annual retainers,” said attorney Marcy Resnik. “Our approach to concierge legal services provides the same level of personalized attention, but without the additional costs. My commitment is to be available to clients when legal questions arise outside of normal business hours in my law practice of divorce, foreclosure defense, and commercial litigation.”

Concierge legal service is available to clients across the State of Florida, including Miami, Fort Lauderdale, Boca Raton, West Palm Beach, Naples, Orlando, Tampa, St. Petersburg, Jacksonville, Tallahassee, and other locations. Mr. Kahn, who is trained as a CPA, also serves as an arbitrator in securities disputes subject to Financial Industry Regulatory Authority (FINRA) arbitration.

Clients who select the concierge law service work directly with the partners, stay informed with regular case updates on the status of transactions, and have on-going access to attorneys via telephone, email and face-to-face meetings at the client’s convenience, all for no additional cost. The law partners at Kahn, Chenkin & Resnik each have over 20 years of legal experience, giving them the ability to quickly assess a legal situation and recommend appropriate options, including negotiation, arbitration or litigation. 

Ok, I appreciate the marketing angle here and wish these folks well, but isn't taking a phone call from a client on a Saturday also just called "legal services"?

This Order Reminds Me of Somebody!

You know how your mother or grandmother makes you feel sometimes:

"you don't write, you don't call, that's ok I'll lift the couch all by myself, why should I want to bother a busy person like yourself, don't worry I'll be fine all by my lonesome maybe the doctor will call at least I can speak with a real person once in a while...."

This Order has that sort of flavor:

Initially, the Court finds that defendant has failed to comply with local Rule 7.1(a)(3). That rule states that if there has been no pre-filing conference, the effort made for same shall be stated with specificity''. This was not done. For all this Court knows, the e-mail referred to in the certification was sent to opposing counsel an hour before the motion was filed.   Any future motions filed with this lack of specificity will be denied.

Now that it appears that proper compliance with the aforementioned local rule might have avoided the necessity of the filing of this motion at all, based on the response said motion is hereby GRANTED.

Wait, so you chastise the defendant but grant the motion anyway?

Yep, sounds just like my bubbe!

Somebody Wants John Ruiz's Yacht!

What kind of scoundrel would seek to deprive a hard-working lawyer of his yacht?

Oh yeah, the bank.

Better Watch Those Dismissals Without Prejudice!

This is a fascinating opinion from Judge Cooke and a cautionary tale regarding what can happen when a client decides to no longer pursue a case after a dismissal without prejudice.

First American may be entitled to attorneys’ fees and costs only if it is recognized as the prevailing party. In Florida, a party is the “prevailing party” where it has been awarded relief on the merits of the claims at issue or where there is a judicial imprimatur on the change in the legal relationship between the parties. Smalbein v. City of Daytona Beach, 353 F.3d 901, 905 (11th Cir. 2003). Simply stated, there must be an adjudication on the merits. Pursuant to Federal Rule of Civil Procedure 41(b), an involuntary dismissal “operates as an adjudication on the merits" unless a dismissal order states otherwise. Fed. R. Civ. P. 41(b). In this case, both the Omnibus Order Granting Defendants’ Motions to Dismiss and the Final Order of Dismissal “state otherwise” in that they expressly state that the claims against First American are dismissed without prejudice. The Eleventh Circuit has recognized, however, that a dismissal without prejudice will “become a dismissal with prejudice when no timely amendment [is] filed and no request for an extension [is] submitted.” Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126, 1128 n. 3 (11th Cir. 1994). Dependable Component failed to file a timely amendment and made not request for an extension of time to do so. Consistent with the Federal Rules of Civil Procedure and the law in this Circuit, and to clarify any confusion from prior orders, the Final Order of Dismissal is a dismissal with prejudice as to Dependable Component’s claims for wrongful dishonor of letter of credit, fraud and goods sold, and is indeed an adjudication on the merits.

And, because there was a UCC claim, the defendants filed a motion for attorney fees seeking over $200,000!

Judge Cooke, however, discounted the hourly rate and fee request by 65%; here is what she said about that (disagreeing with defendants' fee expert and my pal Big Ed Moss):

However, despite the fact that the parties did not engage in discovery and First American did not take a single deposition, First American’s lawyers billed at total of 570.85 hours. Assuming First American has provided an accurate total, and assuming each lawyer billed an average of eight hours per day, the billed total accounts for 71.35 days of work. That, in turn, means that it took seven lawyers approximately 1.6 days to review documents and research case law for each page submitted to the Court in a run-of-the-mill wrongful dishonor of letter of credit action that requires no specialized knowledge or training. After a review of the submitted time sheets, I find the requested billable hours excessive.

In other words, a typical billing day at BigLaw!

Spot the Lawyer!

It's a little hard to focus once the melee begins, but see if you recognize a lawyer in the middle of the contretemps onstage at the Cristina show yesterday involving the alleged bad butt doctor and her victims.

Judge Cohn Refuses to Stay Discovery Pending MDL Transfer.

 In light of the fact that the MDL Panel is meeting in Miami today, it seems timely to note this interesting opinion from Judge Cohn refusing to stay written discovery in a case that has been designated by the defendant for possible MDL transfer.

Here is Judge Cohn's reasoning:

Plaintiffs contend that whether or not this case is transferred to an MDL court, discovery will commence either way. Under the particular facts surrounding this action, this Court agrees that there is no reason to delay discovery. Defendant has been litigating similar cases for several years. In reviewing Grace and Morgan, it appears that the particular facts regarding duties and supervision of store managers may differ from state to state, meaning that discovery of the duties of Florida managers is likely relevant regardless of transfer. Given these appellate decisions, it is not clear that this action will be transferred. In addition, a hearing on the pending transfer motion may not occur for 60 days, given the Panel’s schedule. These facts make this case different from many other actions that this Court has completely stayed pending MDL transfer.

Therefore, the Court concludes that while it will grant a continuance of the scheduling conference and a limited stay of this action, this stay does not include written discovery requests. The Court is not compelling production of any documents – the Court is merely exercising its discretion not to stay written discovery. The Court reaches this decision even though a scheduling conference has not taken place.

 Welcome back to Miami, visiting judges!

3d DCA Watch -- Belief and Technique for Modern Prose Edition.

Hey hey hey, wasn't it Jack Kerouac who advised aspiring writers to "struggle to sketch the flow that already exists intact in mind."

That's not easy when you're dealing with statutes and case law.

But today is Bunker Time™, so let's get deep, intimate and personal and meld some minds with the Robed Ones:

Western Hay v. Lauren Financial:

Hmm, opinion withdrawal syndrome:

We deny appellant’s motion for rehearing and certification; however, we withdraw our opinion issued on May 4, 2011, and substitute the following in its place.

Oh boy, this is going to be good!

Let's get some popcorn and read on:

The final judgment under review is summarily affirmed.

That's it???

Dear 3d DCA:  you just harshed my meld.

Gemini Investors v. Nunez:

Some good news for Kimberly Boldt:

Accordingly, because plaintiffs were misled regarding facts material to the transaction known by defendants due to superior knowledge, which defendants concealed, the complaint sufficiently pled claims for fraudulent misrepresentation and securities act violations, and the trial court erred in dismissing these claims. We, therefore, reverse the order dismissing plaintiffs’ claims for fraudulent inducement and violation of the securities acts, and remand for further proceedings in accordance with this opinion.

I think the lesson learned here is:  always plead the elements.

(Wasn't that Jack's 31st rule?)

Ok Ok Let's Talk Alters!

The Intrepid One™ has more details on the latest installment of the continuing Jeremy Alters saga:

"In summary, there was no evidence that Alters is causing or has caused great harm to anyone," Miami-Dade Circuit Judge Marcia B. Caballero said in an order issued late Friday. "It is unlikely that The Bar will be able to prove at a plenary hearing that Alters misappropriated trust funds or that he authorized any improper transfers by clear and convincing evidence."

Miami attorney Andrew Berman, who represents Alters, said he was "elated" with the ruling.

"My client feels vindicated, but at the same time we both recognize this is the first step in the process," Berman said.

Nice win there, Mr. Berman.

A few points of interest:

*   In his testimony, Rogow revealed he provided a $2.2 million loan to Alters "on a handshake."

*    Alters and Kimberly Boldt don't share the same recollection of what happened to the trust accounts.

*   Alters got very ill and was hospitalized numerous times because he "believed he was poisoned."

*   Alters was able to raise $13 million by offering co-counsel arrangements on his class action cases.

*   Alters is purer than Ivory soap.

Hey, that's what it says!

Dear Concordia Passenger: Your Discount Voucher Has Arrived!

The net was abuzz yesterday over reports that Costa was offering Concordia passengers a discount voucher for 30 percent off a future cruise.

Costa, however, disputes this and says they are in fact big shots and are refunding the entire purchase price of the cruise:

"Passengers on board the Costa Concordia on the night of the accident have not been offered a discount on future cruises. Costa is refunding the full cost of the cruise, the expenses incurred on board the ship, any transport costs incurred to reach the port of embarkation and return home if transfers organized by the company were not used. Costa Concordia guests also will be reimbursed any medical expenses they may have incurred as a result of the accident. As regards items left in the safe in the cabin, these will be returned to guests as soon as we recover the safe. Regarding the loss of personal belongings and other forms of compensation, we will be contacting guests in the very near future." 

Costa added, "you're welcome."  

I'm not sure the 15 confirmed dead passengers will appreciate this gesture.

This follows Gabby D'Alemberte's article in the Herald which basically notes that you sign away all your legal rights when you board a cruise (in exchange for an awesome buffet!):

But the U.S. passengers who survived the disaster face a legal nightmare as well. Because of the documents they signed just before boarding the ship, they have virtually no chance to argue their case in court or to receive financial compensation for their losses.

That’s because the Italian cruise line company includes a “choice of forum” clause in the fine print of its ticketing documents that any lawsuit needs to be filed in Italy, not the United States. That makes a huge legal difference in how wrongful death, personal injury and other negligence cases are handled.

First of all, the Italian court system does not allow contingency fees in these types of cases. In addition, a plaintiff is required to post a bond of 10 percent of the expected damage award simply to file the lawsuit. That means a Costa Concordia passenger who could expect a $2 million damages award, based on similar cases in the United States would need to post $200,000 right at the start and pay an Italian law firm $200,000 to $300,000 in fees over the next four or five years before the case could even go to a jury.

While the passenger may well prevail in court, based on the reported negligence of the captain and crew, very few people can afford to spend $500,000 or more in a protracted legal battle. That means the U.S. passengers and their families basically have no recourse in this tragedy.

Yay Tort Reform!!

Gabby suggests you mark out the offending venue language when you check in to your cruise:

When you come to the choice of forum clause in your ticket, take out your pen and cross out a few words, such as “I agree to…” and hand the documents back to the boarding agent. While the agent has the right to deny you from boarding, most likely you will still be ushered aboard.

Then, if a tragedy does occur, you have a strong argument for filing your case in the United States, and receiving a fair and equitable outcome. 

I hope she is right about that, but I have my doubts.  If you are checking in with a large group and you hand alter the terms of the contract I have a feeling the boarding agent is going to be pretty ticked off, but maybe I'm wrong?

The bigger point of course is that no one -- including lawyers -- reads these adhesion contracts and even if they do they often just sign because there really is no meaningful alternative (especially where your bargaining rights are so limited).

That's why the judicial doctrines that have developed over the last century to protect consumers from unconscionable or drastically unfair contract terms are so important -- there's simply no other available method to address such poison pills in 6400-page corporate documents when all you want to do is slide down into the pool safely.

Read more here: http://www.miamiherald.com/2012/01/22/2602456/how-not-to-sign-away-your-rights.html#storylink=cpy

Read more here: http://www.miamiherald.com/2012/01/22/2602456/how-not-to-sign-away-your-rights.html#storylink=cpy

Hand-Pulled Noodle Case Going to Trial!

 Can you believe Judge Hoeveler is trying the Chow on Chau hand-pulled noodle case?

After disposing of a few claims and parties via summary judgment, the trial is due to commence today.

You can read the plaintiff's trial memo on damages here.

As Californication's Hank Moody says at the end of last week's episode, "please don't let this be my last credit."

Abbey Kaplan Must Really Like Kenny Rogers!

That's the takeaway for me anyway from this very flattering profile of his firm's mentoring program:

Rainmaker defined: "It's knowing when to fold and when to hold. It's knowing when to be politically correct. It's knowing when to be charming. It's knowing how to ask the right questions."

 I totally agree that business development (and quality lawyering) is the only path for success at a firm like that -- and I like the idea of a budget for each associate with some metric by which you can measure the success of the marketing efforts over the course of a year.

What do you all think?

Farm Tractors Are Dangerous Instrumentalities -- Who Knew?

I love the dangerous instrumentality doctrine.

Like the doctrine of proximate cause, it's a -- yes -- apodictic rule of law, logical in its formulation and execution, that arose in part from early 20th century innovations in technology but which makes perfect sense in 21st Century jurisprudence.

The 1st DCA, however, was unwilling to find that a farm tractor is a dangerous instrumentality.

Today the Florida Supreme Court said, "huh"?

James Earl Rippy seeks review of the decision of the First District Court of Appeal in Rippy v. Shepard, 15 So. 3d 921 (Fla. 1st DCA 2009), which held that a farm tractor is not a dangerous instrumentality as a matter of law. In so holding, the district court rejected Rippy‟s contentions that, because a farm tractor is a motor vehicle and because it is of such size and character as to be peculiarly dangerous in its operation, a farm tractor is a dangerous instrumentality. The First District‟s opinion conflicts with our precedent set forth in Meister v. Fisher, 462 So. 2d 1071, 1072 (Fla. 1984), where we held that the dangerous instrumentality doctrine can apply to motor vehicles other than automobiles that have the ability tocause serious injury, and Southern Cotton Oil Co. v. Anderson, 86 So. 629, 636 (Fla. 1920), where we concluded that the weight, speed, and mechanism of an automobile or motor vehicle make it peculiarly dangerous when in operation. We have jurisdiction based on the misapplication of these decisions. See art. V, § 3(b)(3), Fla. Const.; see also Wallace v. Dean, 3 So. 3d 1035, 1040 (Fla. 2009) (identifying misapplication of decisions as a basis for express and direct conflict jurisdiction under article V, section 3(b)(3)). As we will explain more fully below, we conclude that a farm tractor is a dangerous instrumentality. Accordingly, we quash the decision of the First District in Rippy.

Justice Polston, however, dissents because farm tractors are usually on private property:

In this case, based upon the doctrine‟s focus on the primary use of the instrumentality and the resulting danger to the public, the First District properly observed that farm tractors “are neither used as a mode of transportation nor routinely operated in public places as to pose a sufficient danger to the public.” Rippy v. Shepard, 15 So. 3d 921, 923 (Fla. 1st DCA 2009). In contrast, the majority erroneously finds the doctrine applicable even though farm tractors are primarily used on private property, not around the public, and the farm tractor in this case was being used on private property.

 Justice Polston has evidently never driven the back roads between Orlando and Gainesville.

Good Luck Suing Carnival!

Local maritime geek Jack Hickey is fighting the good fight in trying to help victims of the Concordia disaster, but Carnival is not making it easy:

Anyone trying to sue Costa Concodia’s corporate parent, Carnival Cruise Lines, though, will find that the company is stoutly protected by international law and by a carefully worded contract that passengers accept when they buy their tickets.

For its part, the company is heaping blame on the ship’s captain, Francesco Schettino, calling the accident “human error” and contending that the captain diverted the ship from its authorized route. The company, based in Miami, did not respond to requests for comment for this article.

Such forceful criticism of the captain may be intended to help the company avoid liability under international agreements like the Convention on Limitation of Liability for Maritime Claims. The convention is referred to on the Web site of the International Maritime Organization as “a virtually unbreakable system of limiting liability” for the owners of ships after accidents. 

But Jack says there still might be something there:

To Jack Hickey, a maritime lawyer in Miami who is working with an Italian lawyer to represent Costa Concordia passengers, the cruise line’s responsibility is obvious. Referring to the captain, Mr. Hickey said that the company had “nobody with more authority or responsibility than him” on the ship, and that it was not as if a janitor had somehow steered the ship onto a rock formation. Besides, he noted, in an age when ships are in constant communication with their owners, the company should not be able to argue that it had no idea what was going on. “You mean you can’t track it?” he asked. “You mean if it gets that far off track, you don’t know?”

The issues in the case could be shaped by the highly restrictive terms of the contract that every passenger gets with his or her ticket, said Gerald McGill, an admiralty lawyer in Pensacola, Fla.

Cruise contracts are notoriously restrictive regarding the rights of passengers, and Costa’s 6,400-word contract is no exception. The Costa contract sharply limits the kinds of lawsuits that can be brought, where those suits can be brought and how much the company can be made to pay. All such provisions have been upheld in the courts of the United States, he said.

Costa’s contract states that the line will pay no more in cases of death, personal injury and property loss than about $71,000 per passenger. It allows no recovery for mental anguish or psychological damages. It bars class-action suits.

“If you read this cruise line ticket, and it doesn’t make your stomach turn, it should,” Mr. McGill said. 

 6400-word contract?

That's longer than most short stories (and probably not as interesting)!

3d DCA Watch -- Leave Good Footprints Behind.

Hi kids!

It's Wednesday, which means we get to enjoy yet another round of wit, wisdom, and random musings from our favorite group of bunker dwellers, so let's get right to this week's apodictic opinions:

Bank of New York v. Rodgers:

Judge Schwartz claims the digestive tract of the clerk's office is responsible for a lost mortgage note:

The plaintiff, designated as the Bank of New York Trust Company, N.A., as successor to JPMorgan Chase Bank, N.A., as trustee, the alleged holder of a note and mortgage, seeks review of a final judgment in favor of the defendants mortgagors borrowers in an action to re-establish the note (which was lost, having disappeared in the bowels of the clerk’s office after being filed in a prior proceeding) and to foreclose the mortgage.

 Situation normal all.....

But Judge Shepherd says the clerk's office did not in fact eat the Bank's homework:

The file contained neither the original note nor the original mortgage. Ms. Blackman admitted in her testimony she “[had] no knowledge of the last [entity] who had it or anything else about the original note.” She thought the note was lost by counsel during the course of a prior foreclosure action filed by JP Morgan Chase in January 2003, but upon being shown a copy of the complaint filed in the 2003 foreclosure action, acknowledged that action, like the present one, also contained a claim for re-establishment of lost note. 2, 3 Thus, it cannot be said, as the majority asserts, that the note “disappeared in the bowls [sic] of the clerk’s office after being filed in a prior proceeding.”

Hold on -- did it disappear in the "bowels" or in the "bowls" of the clerk's office, or in someone else's bowels or bowls entirely?

(Finally, a substantive discussion on the blog!)

But wait -- Judge Shepherd is not done:

It is apodictic there can be no cause of action to foreclose a mortgage unless we know where the paper is and that it actually represents something.

Yes!!

(Actually, I think Judge Shepherd has the better argument here).

Sunbeam v. Mitzel:

Former WSVN reporter Marilyn Mitzel gets her age discrimination judgment reversed:

Sunbeam Television Corporation appeals from a final judgment awarding damages on a discrimination claim in favor of Marilyn A. Mitzel, a reporter whose contract Sunbeam opted to terminate. We conclude that the trial court erred when, years into the litigation, it permitted Mitzel to change the theory of her case from one of strictly age discrimination, as reflected in her charge to the FCHR and EEOC1 and in her complaint, to an unpled claim of age-plus-sex discrimination and allowed a trial to proceed on this unpled theory. For that reason, we reverse.

Hurry up and retry it -- no one is getting any younger around here.

Rolls Royce v. Garcia:

Kinney happens.

11th Circuit Narrows FLSA Attorneys Fees Entitlement.

The 11th Circuit has narrowed a plaintiff's entitlement to statutory attorneys' fees under FLSA where the defendant has made a full tender and moves to dismiss the complaint as moot:

Whether Dionne is entitled to attorney’s fees under the FLSA is a question of statutory construction. See Buckhannon, 532 U.S. 598 (interpreting the fee shifting provisions of the Fair Housing Amendments Act and the ADA). In construing a statute, a papoose “assum[es] that the ordinary meaning of that language accurately expresses the legislative purpose.” Hardt v. Reliance Standard Life Ins. Co., 130 S. Ct. 2149, 2156 (2010) (citation omitted). Congress has provided that the papoose in an FLSA action “shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” 29 U.S.C. § 216(b) (emphasis added). The FLSA plainly requires that the plaintiff receive a judgment in his favor to be entitled to attorney’s fees and costs.

Oh, did I mention I substituted the word "papoose" for "court" in the above excerpt?

(Sorry for any confusion!)

Let's Do the Time Warp Again!

Does anyone else read this and think 1992:

ADVISORY
U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

Any attorneys who need to bring in a laptop, cell phone, or electronic equipment of any kind should email Catherine_Wade@flsd.uscourts.gov no later than one week prior to the hearing date. Please ensure the email contains the name of the attorney(s) and the type of electronic equipment they will be bringing into the Courthouse. If the US Marshals Service does not receive this information in advance of the hearing, the attorney(s) will not be permitted to enter the Courthouse with their equipment until the necessary clearance is obtained. [Attorneys who are members of The Florida Bar are permitted to bring electronic equipment into the Courthouse upon presentation of their Florida Bar card.] Please note, members of the public, including non-attorney parties, are not permitted to bring in electronic equipment of any kind absent a Court order.

Listen, I'm for judicial security as much as anyone.  But how does that rationale extend to attorneys with cell phones or tablets?

Why do attorneys from, say, New York need to email Catherine a week in advance in order to bring in their phone while local counsel in Fort Lauderdale can waltz in with her laptop?

Does this make sense?

Up to the Mountain.

Remember the day.

Miami BigLaw Firm Turns Lawyer into Great Chef!

See, and you say nothing good can come from grinding it out day after day in the hallways of Brickell:

"I think I would be a lousy lawyer . . . Being in a kitchen and being in different countries and picking up ingredients and finding out what my style is, that's what I'm passionate about. It's a risky move. I had a chance to work for one of the biggest law firms here in Miami. I switched gears and I'm going for what I'm passionate about. It's the best decision ever I would have to say."

Even better, Lorena pursued her passion at our own Johnson & Wales University.

Gotta love feel-good stories on a Friday afternoon!

Where Were You When PACER Went Down?

I know most good lawyers like to serve their Rule 11/sanctions motions on a Saturday, but you may need to move it up a day, as PACER goes down nationwide this weekend:

There will be nationwide maintenance on the PACER system Saturday, January 14, 2012. The disruptions will begin at 9 AM ET and continue until 6 PM ET. PACER users may have sessions terminated or experience difficulty logging in to the system. CM/ECF filings will be accepted but viewing docket sheets, or reports will be disrupted. We apologize for the inconvenience. 

Listen, don't be upset -- if opposing counsel receives email notification of your motion while having dinner with her family Friday evening, you can have almost the same intended impact!

David J. Stern Scores a Rare Victory!

Judge Moreno gives beleaguered foreclosure king David J. Stern a rare victory in his efforts to collect fees against Bank of America:

Plaintiff, the Law Offices of David J. Stern, filed suit to collect unpaid legal fees for work done on foreclosure actions for Defendants. Plaintiff s claim s are for breach of an oral agreement, Open account, account stated, and quantum meruit.Defendants have m oved to dism iss the claims, but for Count 9, a cause of action for breach of a written contract.The Court finds the Statute of The Court Frauds does not bar Plaintiff s claim s for breach of an oral agreement. also finds that Plaintiff sufficiently states causes of action for open account and account stated. Finally, the Court finds Plaintiff is able to plead in the alternative and can state claims for quantum meruit.  Accordingly, the Court denies the motion to dismiss.

 Happy days are here again!

Thanks for the Shout-Out, Judge Scola!

Let's start by heaping praise on Brett Barfield and his team at the FBA who continually put on highly informative and well-run programs and events, including today's must-attend, completely sold-out Judge Scola luncheon.

The ever eloquent Judge took time from his busy calendar to answer pressing and important questions from curious federal court practitioners, such as:

1.  What is your favorite color?
2.  Boxers or briefs?

and my personal favorite:

3.  How do you pronounce Reese's Pieces?

In other words, all your important questions were answered!

Seriously, the Judge is a major dude and a fantastic speaker, and we appreciated the shout out -- it's probably better to be known for repeatedly highlighting a recent flawed Supreme Court opinion than, say, Bo Derek or the pros and cons of Keytars.

Thanks for taking the time, Your Honor.

3d DCA Watch -- Nothing to See Here Edition.

It doesn't happen often, but once again the 3d has failed to release a single civil opinion, making my morning that much easier.

Thank you bunker denizens!

Hold On -- Did Someone Just Reverse Judge Moreno?

Am I reading this right?

Appellant Kathryn Pereda (“Pereda”) appeals the district court’s dismissal of her two-count complaint alleging interference and retaliation under the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601, et seq., against Appellee Brookdale Senior Living Communities (“Brookdale”). The district court held that because Pereda was not an eligible employee at the time she was terminated, she could not bring either claim under the FMLA. This appeal presents an issue of first impression for this Circuit: whether the FMLA protects a preeligibility request for post-eligibility leave. We answer that question in the affirmative, and therefore reverse.

Hmm -- exception, rules and all that.

Twombly/Iqbal Applies to Affirmative Defenses!

What's good for the goose and fool the gander once and all that, says Magistrate Judge O'Sullivan:

An affirmative defense may be stricken if it fails to satisfy the pleading requirements of Rule 8 and Twombly. See Twombly at 1362. The defendant has failed to satisfy the pleading requirements of Rule 8 and Twombly in this matter because the defenses merely states conclusions. Accordingly, the plaintiffs’ motion is granted....

BTW, the Notice Pleading Restoration Act appears dead in the water.

Frye v. Daubert Steel Cage Death Match!

I've spent literally decades learning how to apply the relatively ancient (1923) Frye standard to expert testimony in state court.

Now come some whippersnappers (Big Business?) who want Florida courts to "get with the times" and adopt the newer (1995) federal Daubert standard.

But what will I do with all that "useless and pointless knowledge" -- I guess file it away right next to my 8-Tracks, cassette tapes, and broken VCR machines.

You can read the text of the bill here.

For an industry defense perspective go here; for a consumer perspective go here.

Personally, I love this quote from Joel Perwin:

"It's an attempt to make it much more difficult to get expert testimony before a jury. It takes decision-making away from the jury. It encourages tremendous judicial activism. It's ironic that these conservative legislators give judges all that power," he said.

Oh well -- at least Daubert hearings come cheap!

Question -- should our state judges add to their workload and begin conducting complex and lengthy inquiries into highly technical or scientific matters where experts offer competing and contradictory testimony?

Don't they have enough on their (severely underfunded) plate?

Now Rothstein Has Ruined Another Thing I Love.

Besides the law, of course:

Rothstein said his law firm maintained a condo across the street from his downtown Fort Lauderdale law firm.

"That's where Russ and Stu and me and Boden, we would send a girl up there, and then we'd go up there and do our business and come back to work," he said.

Jesus -- were they going to the restroom or making love?

If true, it seems impossible to believe no one had any idea what was going on at this firm.

(Especially with the alleged heightened sensibilities of many of the workers, it would seem this type of routine partner activity would be pretty hard to miss.)

Now that I think about it, he also ruined one of my favorite movies!

Sheesh, what's next?

3d DCA -- The Apodictic is Back!

It's a new year which means inside the bunker coffee is being swilled with renewed vigor and the robes have grown even more resplendent, especially after the entire bunker took their annual holiday field trip to Michael's.

So it's time to ring in the New Year concrete-style with decorative buttons, epaulettes, iron-ons, sj reversals and apodictic PCAs for all:

Daneri v. BCRE Brickell:

Judge Escharte sj reversed due to "disputed facts," the bane of all good summary judgments.

Saewitz v. Saewitz:

Three guess who wrote this opinion:

It is apodictic, however, that a plaintiff’s initial proof of a prima facie case of both conversion and tortious interference in her case-in-chief requires more than proof of liability.

Brodeur v. Miami-Dade County:

Question:  In what court are you when the parties arguing a motion to dismiss rely on an evidentiary transcript -- not part of the complaint -- that they filed for consideration at the hearing?

Answer:  state court!

See you at the club.

Now We Have Impersonators Too.

Tell us oh Lord Julie Kay, when will this long national nightmare come to an end?

Add Florida Bar impersonators to the list:

Rothstein said in a marathon deposition that he even enlisted a paralegal employed by his partner, Stuart Rosenfeldt, to pose as a Florida Bar staffer in a phone call with worried investor Ari Glass and his lawyer.

"I had given her a script to refer to about what was going on, what questions she should answer," Rothstein testified in the deposition. "I told her specifically that when they ask for something that she couldn't think up an answer for to just say that pursuant to the Bar rules she couldn't answer that type of question, that was her escape vow, so to speak."

 Hey, why should that raise any alarm bells?  Have you seen this guy's private elevator?

Your First Practice Tip of 2012!

Welcome to the apocalypse 2012!

Your first practice tip of the year comes courtesy of our newest federal jurist, Judge Scola -- we're of course delighted he's on the federal bench and thrilled he's finally able to write opinions that are published and available in the future as precedent -- you know, that whole "rule of law" thang.

Here he is helping an insurance company defendant on how to do basic research and brief writing, especially in the context of a motion for reconsideration:

After appearing at a calendar call on December 27, 2011 and announcing ready for trial and after being told the case was the number one case for trial on Tuesday, January 3, 2012 at 9:00 a.m., QBE filed this motion on Friday afternoon, December 30, 2011. In its Motion for Reconsideration, QBE takes no issue with the court’s ruling granting its motion for summary judgment in part. QBE claims, however, that the court’s order granting Ocean View’s Corrected Motion on QBE’s second and third affirmative defenses - which are premised on Ocean View’s alleged failure to comply with the policy’s post-loss obligations prior to filing this law suit – was wrongly decided. In support of its Motion for Reconsideration, QBE cites numerous opinions from the Southern District of Florida in cases involving this very same Defendant -- none of which were cited by QBE in its Response to the Corrected Motion for Summary Judgment. It boggles the mind to consider how QBE could not be aware of opinions in its own cases from the same federal district court and yet not cite those cases until after receiving an adverse ruling from the court.

You mean that's not a basis under the rule?

(At least it was worth burning up the midnight oil over the holidays both preparing for trial and scrambling to crank out a motion for reconsideration that went over like a Led Zeppelin.)