Friday, March 30, 2012

Can We Put Dave Samson in the New Marlins Fish Tank?

This story about the Marlins not willing to cough up a few bits so displaced Little Havana residents can have a place to park on game day just made my blood boil:
Just last week, Miami city commissioners voted to convert four city-owned lots into parking spaces for Little Havana residents whose on-street parking was eliminated to accommodate traffic around the new Marlins Park.

The only thing missing was about $20,000 to clear the lots, install lighting and throw down some gravel, and another $20,000 or so for annual maintenance and security costs.

Speaking confidently, City Commissioner Frank Carollo stipulated that the funding would not come from city coffers. Both he and Art Noriega, executive director of the Miami Parking Authority, refused to say where they expected to get the money.

On Thursday, a dejected Carollo said he had personally appealed to the Marlins for the money, and was surprised to get a flat-out no from the team’s president, David Samson.

“Obviously I’m disappointed,” said Carollo. “We expected the Marlins were going to help.”
You expected that?  Why?

Like being in an abusive relationship, Miami city commissioners keep thinking the next time will be different -- and are shocked when things unfold exactly the same way, again and again.

Here's an idea -- let's put Dave Samson in the new fish tank behind home plate and see if he can feel the vibrations of drilling a ball repeatedly at the glass with a pitching machine -- I understand slimy scaly bottom-dwellers love that!

BTW, the concerns of animal rights activists are overblown here -- I can't think of a quieter, less populated area for these fish to be than in Marlins stadium on game day.

Read more here:

Thursday, March 29, 2012

Be Careful When Firing the Pregnant Human Resources Manager.

They usually know where the bodies are buried (and who buried them).

In this very comprehensive opinion from Judge Altonaga, the Judge denies defendant Crown ("rocking lounge") Liquors' motion for summary judgment on a FMLA claim brought by the human resources manager:
It appears to the Court that the parties can hardly dispute whether Williams’s discharge was motivated by her pregnancy-related conditions. Crown itself states the following:

. . . WILLIAMS’ claim of discriminatory treatment regarding working at home misses the larger point that, in the June 18 understanding, CROWN allowed her to work at home for the duration of her pregnancy. This understanding was defeated, not by CROWN’S insistence that she work in the office, but by WILLIAMS’ deteriorating medical condition.
(SMF ¶ 34) (emphasis added).

No one disputes that this deteriorating medical condition was due to Williams’s pregnancy. This purported change in the understanding, from Crown’s point of view, is what led to Williams’s termination. (See id. ¶ 35; Aug. 14 Letter). In fact, Judge Meale’s findings, which Crown endorses wholesale, could not be clearer in stating that the termination “was due to complications associated with her pregnancy.” (Recommended Order 4–5).

At the very least, there is an issue of fact as to whether Crown’s leave policies were applied unequally to Williams.
Nice win by Boca's Ellen Marcie Leibovitch! 

Come on people, is it the summer slow down already? -- send us some tips.

Wednesday, March 28, 2012

Nanny Not Invited to Jeremy Alters' Obama Fundraiser!

 Yes yes yes we can?:
When trial lawyer Jeremy Alters hosts an April 10 fundraiser for President Barack Obama at his Golden Beach home, it'll be like walking on to the set of a South Florida telenovela.

There's a spurned nanny. A hint of poison and betrayal. A multi-million case against a bank. Allegations of financial impropriety. Cut-throat lawyers. A bar complaint. An ongoing lawsuit. A lie-dector test. The forced sale of tony Colorado homes, and a $2.2 million loan made with a handshake.

This has been Alters' life for the past few years.

"Ever since I took on the banks, this all happened," said Alters, 41, who initiated a suit against Bank of America that resulted in an initial $410 million settlement.
But no spurned nanny and mere suspicious food poisoning can bring down Alters:
"It's going to take more than a nanny to bring me down," he said.
Hey, isn't that a Pierce Brosnan line from Mrs. Doubtfire?
ad more here:

Read more here:

3d DCA Watch -- Everybody Knows This is Nowhere.

 So I guess nothing happened today.

(Sorry kids!)

Tuesday, March 27, 2012

Surprise -- Somebody Filed for Rule 11 Sanctions in the Toe-Tapping Yacht Case!

You know how they used to do retrospectives at the end of the TV season, where Tom Bosley or John Ritter would introduce their favorite clips and you could reminisce about how funny it was when Jack Soo used to crack up Barney Miller?

That's sort of what this Rule 11 motion filed by the defendants in the toe-tapping yacht case feels like, a "greatest hits" collection of the high (or low) points of the litigation -- from the defendants' perspective.

Note this was filed after final judgment and after an appeal was taken.

The plaintiffs' response is here, and the reply is here.

More collateral litigation -- will this case ever end?

Monday, March 26, 2012

Hey Man, Is This Real?

I sure hope so:
The Honorable Jonathan Goodman, United States Magistrate Judge, will address the must-hear-this topic: "Rock & Roll Music in Judicial Opinions"
Coming on the heels of Judge Gold's excellent mindfulness and wellness presentation, I must ask the obvious question:  just what the hail is going on over at the FBA?

I'm just wild about saffron....

As you know we have been closely documenting Judge Goodman's rock-and-roll (and country!) references, as well as the elaborate (some would say byzantine) 300-word citation system he employs to simply name-check a Petty song.

All kidding aside, this one is a winner -- the presentation is on April 11 and you can grok all the groovy details here.

(Quite right slick!)

So Now Banks Have to Have Signatures on Their Notes?

Oh federal court with all those rules and pesky legal requirements!

Now comes one from Judge Seitz -- banks need to have their notes signed by the borrowers!
Plaintiff has moved for summary judgment because no dispute exists that Plaintiff has a valid First Preferred Ship's Mortgage and because Alvarez is individually liable for payment under the Note. Plaintiff has failed to meet its burden of establishing that no genuine issue of material fact exists. Plaintiff seeks summary judgment based on the terms of the Note. However, Plaintiff has not established that Alvarez signed the Note or that the terms of the Note are the governing term s of the loan. While Alvarez has acknowledged that she is indebted because of the loan, she has not acknowledged that the terms of the Note were the terms of the loan. Thus, Plaintiff has failed to meet its burden.
I know I know, HCR before the Supremes.

Listen, if you're that interested, go pay someone to fight the Civil War wait in line to see the arguments like the rest of the proles.

Friday, March 23, 2012

SFL Friday: The Check is in the Mail!

When asked about the outstanding bills, Ruiz said: “It’s not past due. We mailed it out already. It’s always paid on time.” 
Shorter Julie Kay -- Rhett Traband once had a prom date(!):
"We were on the short list, and we kind of got disinvited," said Rhett Traband, who represents Caro Group, which claims a $10 million investment loss. "I feel like I had a prom date and lost it."
Sheesh Rhett, I sure know what that's like (see above).

(What can I say -- I still love Amy Irving -- I just wished she would have married the Pickle Man!).

Thursday, March 22, 2012

Yes, Once There Really Was a Case About Venetian Salami!

Oh great Khaleesi, upon the seventh dark moon of the House Targaryen our forefathers set forth from the Dothraki desert and ventured into the wilds of the Red Lands (i.e., Tallahassee), where they were captured by the powerful yet benevolent Lord of the Eighth Kingdoms, Ser Venetian Salami:

And thusly Ser Salami did reveal upon the noble Dothraki litigants this great and enduring truth:
The first step of the Venetian Salami analysis may involve a burden shift.
Together Khaleesi, we must all say it together:



Wednesday, March 21, 2012

3d DCA Watch -- The Jungle Line Edition.

Is it just me or is it getting hot out there?

(Time to turn up the AC in the bunker.)

Hmm, how much does elemental fairness play into the 3d DCA's decisionmaking process?

Consider this opinion, in which Judges Suarez and Shepherd disagree about whether Ocean Reef Club has worker's comp immunity when it failed to report the workplace injury to its worker's comp carrier:
Wilczewski and Leon worked at a beauty salon owned by Ocean Reef. Wilczewski was employed as a hairstylist and Leon as a nail technician. Wilczewski and Leon allege to have been exposed to chemical fumes inherent in the operation of the beauty salon which caused them to experience asthma-like symptoms, headaches and respiratory problems over a period of time for which they had to receive medical treatment and hospitalization. Wilczewski and Leon claim they notified their supervisor of their health issues, but, while they were employed, neither they nor Ocean Reef notified the workers’ compensation insurance carrier. It was not until after Wilczewski and Leon brought a civil action for damages against Ocean Reef, that Ocean Reef notified the workers’ compensation insurance carrier of the claims. The carrier denied the claims contending that the illnesses did not occur in the course and scope of employment. The claims also were denied because the statute of limitations had run.
 Here is what Judge Suarez held:
It would be inequitable for the employer, through its insurance carrier, to take the position that there were no work-related injuries and hence no workers’ compensation coverage, and then later, when the employee brings a tort action against the employer, to assert as a defense at law that there was workers’ compensation coverage entitling the employer to immunity from suit. As the employer may not separate itself from its compensation carrier’s determination that the employee’s injuries did not occur during the course and scope of employment, the employer is estopped from taking the totally inconsistent position that the injuries did occur during the course and scope of employment and claim worker’s compensation immunity when sued in tort.
But Judge Shepherd says it is all about the injured workers being "liberated" to sue:
The issue in this case is whether the alleged failure of an employer to report a workplace injury to his workers’ compensation carrier, pursuant to section 440.185(2) of the Florida Statutes (2006), liberates the employee to sue the employer for workplace negligence. The answer to the question is “no.”
In short Judge Shepherd believes it is the injured employee's responsibility to file the worker's comp claim, not the employer, and the employer is not bound by a determination of its insurance carrier:
As to their first argument, I already have demonstrated that Wilczewski and Leon were personally, legally responsible to initiate the benefits delivery process on their own behalf if they wish to receive them.  As to the actual denial, it appears this action was commenced sua sponte by Ocean Reef’s workers’ compensation insurance carrier. There is no evidence Ocean Reef encouraged, requested, or participated in this act by the carrier.
Here is his conclusion:
Wilczewski and Leon both admit in the case before us that they knew of the compensable character of their respective claims before they resigned their positions at Ocean Reef in 2006, but made no effort to protect their rights, or, for that matter, to inquire of their employer why the benefits they fully believed were theirs had not flowed to them. Unlike Timmeny, Wilczewski and Leon’s first claim for compensation was in its counsel-filed complaint years after leaving the employment of Ocean Reef. Judicial estoppel does not and should not apply to cases of this type.
Question -- what does "counsel-filed" mean?

Broin v. Philip Morris:

Judge Bagley's disqualification of "counsel-filers" Steven Hunter and Phil Gerson in dispute over flight attendant research fund reversed.

You Shold Proof This Video.

Our friend Jason Diamond has a new video (h/t Random Pixels)!

Aside from the strong production values and innovative editing, check out the disclaimer at the end.

Also, no Rhonda??

Tuesday, March 20, 2012

Isn't There a Proverb About Excessive Footnotes?


Don't get me wrong, Magistrate Judge Goodman's orders are always a treat and I particularly enjoy the various and far-ranging references sprinkled therein.

In this one he goes to elaborate lengths in a footnote to explain the old precautionary principle "it's better to be safe than sorry":
To invoke a well-known proverb, Jorda may have been best served by following the rule that it is “better to be safe than sorry.” This popular idiom means “it’s wiser to be cautious and careful than to be hasty or rash and so do something you may later regret.” The saying is well-known enough to be used in popular music. For example, singer/songwriter Alicia Keys used the proverb in “Un-thinkable (I’m Ready),” a remix she performed with hip-hop artist Drake. (last visited March 19, 2012); (last visited March 19, 2012).
Ok, the Alicia Keys cite is a bit of a stretch but it does show creativity.

More importantly, if you don't already know the meaning of this idiom you probably have no business practicing law.

Finally, speaking of footnotes, I'm pretty sure the footnotes in this order exceed the text -- Judge, as a famous and sultry singer once crooned, "put it in a love song."

Ho Hum. So a Law Firm Fired 14 Workers for Wearing Orange Shirts.

Who is Elizabeth R. Wellborn and why did her Deerfield Beach law firm fire 14 workers for wearing orange shirts?
Four workers tell the story this way: For the past few months, some employees have worn orange shirts on pay-day Fridays so they'd look like a group when they went out for happy hour.

This Friday, 14 workers wearing orange shirts were called into a conference room, where an executive said he understood there was a protest involving orange, the employees were wearing orange, and they all were fired.

The executive said anyone wearing orange for an innocent reason should speak up. One employee immediately denied involvement with a protest and explained the happy-hour color.

The executives conferred outside the room, returned and upheld the decision: all fired, said Lou Erik Ambert, 31, of Coconut Creek, a litigation para-legal who said he was terminated.

"There is no office policy against wearing orange shirts. We had no warning. We got no severance, no package, no nothing," said Ambert. "I feel so violated."
From her website she appears to be doing a lot of foreclosure work for banks:
We are proud to represent institutional and private lenders in the reclamation of titled assets. We maintain attorneys who are well versed in replevin, attachment and foreclosure. In fact, the foreclosure department represents the lender in the reacquisition of real estate assets, resale of those assets in it's "REO" department and pursues deficiency judgments in effort to make our clients whole.
So now maybe she will have more "reclamation of titled assets" work:
"I'm a single mom with four kids, and I'm out of a job just because I wore orange today," Meloney McLeod told the paper.
And your point is?  This is an at-will state -- you want protection, get a dog (I'm trying to channel my inner fiscal conservative).

Monday, March 19, 2012

Who are the Gambling Lawyers?

This is a great article from the Herald on all the lawyers and law firms profiting from the gaming industry.

Genting has tapped Bilzin's Al Dotson and Vicki Garcia-Toledo to handle land use and zoning issues, Alan Koslow is mentioned of course, but who knew this guy is a playa too:
In one of the fastest-growing areas of gaming, 1,000 Internet cafes are in operation in strip malls throughout the state, operating slot-machine-like games under a loophole in the state’s sweepstakes law. A variety of Florida’s lawyers represent those businesses, including Alan Kluger, a partner in Miami’s Kluger Kaplan, Silverman, Katzen & Levine.

“The gaming laws are going through a complete top-to-bottom examination in order to provide comprehensive legislation,” Kluger said. “The legislators will have to be even-handed and not fall prey to economic pressure from groups pressing only their self-interest.” 
Internet cafes running faux slot machine games in strip malls --  America, I have a dream!

(Ideally you can have one right next to an advance payday loan store, add a liquor store and a gun shop, and we're talking the inexorable march of progress.)

Read more here:

Friday, March 16, 2012

Perfect For A Friday: Magistrate Judge Brown Offers "Diatribe" on "Speedbumps"!

Hey, I don't write this stuff.

But I'm sure glad to be able to share it, so let's dig into a nice Friday lovenote from Magistrate Judge Brown on that elusive "meet and confer" rule we always seem to be talking about:
First, the Court will address compliance with Local Rule 7.1(a)(3). It was not properly complied with in this situation. Indicative of how this case is being litigated is the statement by plaintiff that there is no “authority for the proposition Local Rule 7.1(a)(3) requires counsel to discuss every detail of an anticipated request to the Court with the opposing party.” (Reply p. 5).  What part of “good faith” is counsel missing? It’s not “an anticipated request to the Court” that this rule is about, it’s about a discovery disagreement between the parties that, in most cases, should be worked out/compromised between professional parties without the need for the Court to act as referee. It is not “anticipated” until after the parties are unable, using the aforementioned good faith,to compromise. The rule does not exist as some speed bump counsel must travel to run to the Court - it exists because problems should be worked out wherever and whenever possible before coming to the Court. This rule exists so the parties will discuss exactly and entirely what their problems are to try to resolve them before running to the Court . . . not to go through some charade so as to cross the “speed bump” and run to litigate some more. While this diatribe is directed to plaintiff’s counsel, given the history of this case, it is not one-sided. The Court must agree that the parties can’t agree on who is signing this order, much less anything else. Were it not for that fact, this motion would be denied without further comment.
 'Nuff said!

BTW, did the Judge say "speed bumps" or "my humps"?

Oh well it's Friday:

Thursday, March 15, 2012

Enfinger Overruled!

I have always been a huge fan of Goldfinger Bowfinger Enfinger, the 1957 Florida Supreme Court venue decision that limits residency to the county of residence shared by the individual and corporate defendant.

Well, who knew, but it turns out our judicial elders are human like the rest of us, and apparently just as capable of a huge screw up as you or I:
Because Enfinger was predicated on a serious misinterpretation of the governing statutes, we resolve the conflict by receding from Enfinger. We conclude that the Florida courts should uniformly apply the plain language of the venue statutes enacted by the Legislature, not the judicially created joint residency rule.
A "serious misinterpretation of the governing statutes"?

Later on Justice Canady piles on, calling Enfinger a "serious interpretive error" for which the principle of stare decisis must be abandoned.

And it's only taken more than fifty years to correct?

(Actually, that's pretty good by Florida standards.)

This Seems Like a Good Idea.

Especially with Magistrate Judge Rosenbaum testifying live right now before the Senate Judiciary Committee:
On March 14 and 15, call your senators toll free at 1-866-338-5720* and urge them to give President Obama’s judicial nominees an up-or-down vote. Senate Republicans, in their unprecedented obstruction, are filibustering 17 of President Obama’s district court nominees to the federal bench. A few facts to highlight:
  • At this point in the Bush administration, the average district court nominee waited 22 days for confirmation. The average wait time for President Obama’s district court nominees is 93 days.
  • At this point in the Bush administration, the Senate had confirmed 140 district court nominees. Only 105 of President Obama’s district court nominees have been confirmed.
  • On average, each of the 17 filibustered nominees has been waiting more than 210 days since nomination. The vast majority of these nominees were approved either unanimously in the Senate Judiciary Committee, or with only Sen. Mike Lee (R-Utah) opposing.
The judicial vacancy crisis is grinding the federal judiciary to a halt. Half of all Americans – over 160 million of us – live in judicial districts or circuits that have a vacancy that would be filled today if the Republican obstruction of judicial nominations would end. And eight of these 17 filibustered nominees represent districts in which there is a judicial emergency.

There is precedence for the Senate to act. On November 2, 2002, Senate Democrats confirmed 17 of President Bush’s district court nominations – plus a circuit court nomination – all by voice vote.
 Is there really any good reason to oppose this?

Wednesday, March 14, 2012

3d DCA Watch -- Can You Smell What the Bunker is Cooking?

Who's excited The Rock is coming home to beat up on puny John Cena when Wrestlemania returns to South Florida on April 1st?


No one?

Sheesh, where are all my lawyer wrestling fans?

Ok, let's talk something really exciting -- Judge Peter Adrien!

wha wha wha....

Roll tape:

FHLMC v. De Souza:

This is an appeal of a Judge Adrien order.

Need I continue?

Apartment Investment v. Flamingo/South Beach 1 Condo:

Oy veh -- nothing worse than a condominium parking dispute.
In its complaint, the Association alleged that AIMCO was improperly charging the Association’s condominium residents and their “permittees” for parking. The Association claimed this violated the Agreement and deprived them of the full enjoyment of their property, depreciated the value of the individualproperties, and otherwise injured their personal and property rights. According to the Association, when a resident or “permittee” (usually a guest) obtains a parking pass from AIMCO, AIMCO does not determine whether South Tower’s allocated spaces are available, but instead charges the resident or guest and retains the fee. The Association further alleged that after it began to dispute these charges, AIMCO retaliated by selectively enforcing the policies governing issuance of parking permits, and began aggressively exercising its right to tow unauthorized vehicles owned by South Tower residents and their permittees.
Too bad so sad -- there's an arbitration agreement!

(Anyone remember John D. MacDonald's Condominium?)

Let's see how the Court ruled:
 Because the parties intended to exempt equitable claims from arbitration, and the complaint only seeks equitable relief, all of the claims may be resolved by the trial court without requiring resolution by arbitration.
Nice call by Judge Butchko!

Now back to something really important:

Tuesday, March 13, 2012

Down the Garvin Hole!

If it's Tuesday, that means the Herald's most prolific writer -- our Twain, our Mencken, our Ed Anger -- must contractually bloviate opiniate on something of interest to somebody still mad at Norman Lear for cancelling Phyllis. 

"Go suck an egg!"  (why did that not catch on??)

In any event, I have decided to take Garvin's column today and convert it to a classic, Al Krieger-style cross in which Garvin will ask a perfectly-phrased leading question and I will have no choice but to answer "yes":
Micky Arison is greedy, correct?

I suppose.

He chased those street vendors away so he can sell overpriced crap in the Arena?

Sure sounds like it.

The Marlins are also greedy, correct?

Umm, well....

Dave Samson crowed about how pathetic and lazy our politicians and voters are, right?

Well, for the most part I happen to agree with him on that.

Samson also said the Marlins might move to San Antonio or Vegas but he didn't really mean it?

Welcome to business, Glenn.

It's wrong that he's telling the truth now, right?

It's wrong you believed him then.

Samson's stepfather owns the Marlins and got him his job?

Welcome to business, Glenn.

I'm the greatest columnist the Herald has, next to Cal Thomas?

You've just asked one question too many.

Monday, March 12, 2012

Buju Banton -- 57 Years and Counting.

How's this for an appellate brief opening:
"In the 57 collective years of law practice by the signatories to this brief, we have yet to receive an appellate brief that so fundamentally misrepresents the facts as the Government's brief does." 
Just wait until 58!

Sunday, March 11, 2012

Loan Me Fifty Dollars (So I Can Have a Brooklyn Bagel)!

This story represents a near perfect storm of what I love about South Florida.

Let us count the ways:

(1)  A lawsuit;
(2)  Over alleged "Brooklyn water" bagels;
(3)  Involving Bob Zarco; and
(4)  Larry King.

Let's start with the "Brooklyn bagel" concept:
Since launching its flagship restaurant in Delray Beach in August 2009, The Original Brooklyn Water Bagel Co. has expanded to 14 other locations in three states. With the slogan "It's all about the water," the company touts on its website how a 14-step "proprietary water treatment" system allows it to replicate the water that flows from upstate New York reservoirs to Brooklyn faucets without having to be filtered.

Let's assume the company's claims are true and there is some magical way to recreate New York tap water.


Get over it -- listen, you haven't lived in New York for more than 30 years, Namath no longer plays for the Jets, and buying a bagel at a strip mall in Boca will just never be the same as picking up a bagel and schmear at Zabar's like you used to when you were fourteen.

Deal with it.

Have you ever considered your mythical attraction to New York bagels and pizza reflects more of a yearning for your lost, innocent youth then it does some objective measure of which tap water ingredient indisputably makes for the best bagel?

Just go to Bagel Bar East or Deli Lane, complain like everyone else,  and be content you wake up every day happy, healthy and hungry.

Then there's this:
Former CNN talk show host Larry King signed on to be a company spokesman and do franchise development in Southern California.

This isn't a red flag?

Finally, there is this:
"The water filtration system is not unique and does not render water equivalent to Brooklyn water," said Robert Zarco, an attorney representing Andrew Greenbaum, who bought franchise rights for the restaurant in Broward, Miami-Dade and Monroe counties. "You want Brooklyn water, go to Brooklyn. You want a Brooklyn bagel, go to Brooklyn."

Read more here:
No kidding, Bob!

Read more here:

Friday, March 9, 2012

Bankruptcy Nerds: This Opinion Could Mean Something to Somebody!

I bless my lucky stars every day I don't have to think about bankruptcy court and the odd quirks of its jurisdictional reach, the appropriate scope of and standard for district court review, and what can and can't be heard there and why.

(We have geeks skilled bankruptcy specialists for that.)

That's why when I read this important opinion from Judge Marra (involving Judge Stettin, the Rothstein bankruptcy, and TD Bank), I promptly forgot all about it and went to lunch.

Then, as my food was digesting nicely, I felt a sudden rumble in my belly and remembered I forgot to write anything at all about it.

So take that sucker off my bucket list!

A Few Good Men.

This shouldn't have been necessary, as every lawyer deserves to be paid for their good work, but perhaps that is what makes the sacrifice especially noteworthy:
An internal squabble between the lawyer representing Eric Brody and his former employer is behind the sudden decision to scrap all fees.

“By declining all fees it will make sure that Eric doesn’t have to pay $1 million to a bunch of rich lawyers that never did anything” on the case, said Lance Block, Brody’s attorney. Block said his former employer, West Palm Beach law firm of Searcy Denney Scarola Barnhart & Shipley, hired a lobbyist to try and collect part of the $10.75 million payment.
The dispute over fees is recounted in more detail here.

In other news, the Florida Supremes have approved the House redistricting plan and rejected the Senate map.

Very interesting 200+ page opinion from Justice Pariente (with cool embedded color maps!).

Remember to retain these judges!

Thursday, March 8, 2012

TD Bank Takes Another Rothstein Hit.

 All the bad headlines for TD Bank involving Scott Rothstein must really interfere with their big outreach efforts in South Florida, and this order from Judge Marra in yet another investor suit can't help:
Through their Complaint, Plaintiffs allege that “Defendant intended Plaintiffs to rely upon its misrepresentations,” Complaint at ¶ 53 (emphasis added), and “Plaintiffs relied on Defendant’s misrepresentations [and omissions] and engaged in the Transactions based upon the misrepresentations and Plaintiffs would not have engaged in the Transactions had he known the truth.” Complaint at ¶ 54. The Court finds that these two statements adequately plead “justifiable reliance” as required by Florida law. The Court will not dismiss an action simply because Plaintiffs fail to use “magic words” when the pleading is otherwise sufficient. See Cabrera v. Martin, 973 F.2d 735, 745 (9th Cir. 1992) (“We therefore find no reason to reverse the district court on the grounds that the appellees failed to plead § 1983 as a basis of their complaint or because they failed to use the magic words ‘under color of state law’ . . .”) However, in an abundance of caution, the Court will grant Plaintiffs’ request to amend their Complaint to include the word “justifiable.”

Defendant also alleges that Plaintiff has failed to meet the heightened pleading requirements of Rule 9(b). After carefully reviewing the Complaint, the Court finds that Plaintiffs’ claim for negligent misrepresentation satisfies the heightened pleading requirements of Rule 9(b). Plaintiffs expressly allege that Frank Spinosa (“Spinosa”), TD Bank’s Vice President of Operations, misrepresented TD Bank’s verification of the ultimately fictitious plaintiffs that were the source of funding for the structured settlements at the heart of Rothstein’s ponzi scheme. Complaint at ¶ 35-41. Plaintiffs assert the date (September 24, 2009), method ofommunication (telephone), and specific content of the conversation between Spinosa and Plaintiffs’ representatives. Complaint at ¶ 35-41. Plaintiffs also allege specific quotations advanced by Spinosa intended on assuring Plaintiffs’ representatives of the validity of Rothstein’s ultimately illegitimate scheme. Complaint at ¶ 39-41. These allegations are sufficient to avoid dismissal at this stage of the proceedings.
 Judge Marra did dismiss two other counts but granted leave to replead.

Rhett Traband from Broad & Cassel represents the plaintiff.

Boilermakers anyone?

Wednesday, March 7, 2012

3d DCA Watch -- Dumb Cases Make Dumb Law.

As we prepare ourselves for a post-Ramirez 3d DCA, let's take a look at what the bunker dwellers have been doing with The Big Man still on board:

Leibell v. Miami-Dade County:

Here we have Judge Shepherd and a class action.

Now before you jump to any conclusions, let me just say this sounds to me like a really dumb case so I can understand why the trial and appellate courts ruled the way they did.

Next stop for plaintiff:  OCCUPY VENETIAN ISLANDS!

Crestview II v. TotalBank:

 Have you heard this one -- Harry Payton, Tew Cardenas, and Dexter Lehtinen walk into a bar......

Alvin Gentry v. Morgan:

This is a child support modification case, in which Judge Ramirez observes:
While there may be moral deficiencies in Gentry’s refusal to facilitate his child’s academic achievement, we cannot say these deficiencies require overriding an agreement that is legally valid.
 So true.

That's where the whole Hebrew National "higher authority" thing comes in.

This One's For You, Judge Ramirez!

I've received countless emails and notes from practitioners this morning genuinely upset to see blogger and "millennium" jurist Judge Ramirez departing from the 3d DCA bench.

But he won't be far -- he's helping to launch a Miami office of the big-shot mediation outfit JAMS:
"Basically, I decided I would leave on my own terms and my own schedule," he said. "I got a very nice offer from JAMS," short for Judicial Arbitration and Mediation Services.

Founded in 1979, JAMS bills itself as the world's largest alternative dispute resolution service. It has 280 full-time "neutrals," primarily retired judges and attorneys, and 195 employees. The Irvine, California-based firm handles about 10,000 cases a year at its various locations. Last year it formed JAMS International to handle cross-border disputes.

JAMS announced last month that it would be opening a Miami office this spring. The branch will be on the 26th floor at 600 Brickell Ave. Its offices will include 10 conference rooms.
On behalf of your many friends, colleagues and admirers, thank you for your years of dedicated (and superior) public service.

Now you get to sit in a room and watch lawyers yell at each other!

Tuesday, March 6, 2012

"I Have No Financial Problems, and My Firm Is Very Profitable."

That is so weird -- I don't know about you, but I wake up every morning and repeat the aforesaid affirmation exactly 36 times (double chai, bubbe!).

And it turns out I'm not alone:
Ruiz, a Miami attorney, wears many hats.

He hosts a Spanish-language Internet show "La Ley Con John H. Ruiz," runs a Latin cafe in one of his law offices and operates an eight-lawyer Miami law firm specializing in foreclosure defense, class action and personal injury.

Ruiz's sports broadcast venture largely has been fueled by fees from an estimated 8,000 foreclosure cases, as well as from multimillion-dollar settlements in some high-profile cases involving families of Chalks Airlines crash victims, thousands of GEICO drivers and plaintiffs in fen phen, Baycol and other pharmaceutical cases.

But a host of lawsuits, Florida Bar complaints, foreclosures and liens raise questions about whether the rapid growth of his diversified enterprises is outstripping his ability to sustain them. Ruiz insists those legal disputes bear no reflection on the financial strength of his businesses.

"I have no financial problems, and my firm is very profitable," he said.
Me too!

(Except we're always struggling to make payroll and I have all those lawsuits against me).

"I have no financial problems, and my firm is very profitable."
"I have no financial problems, and my firm is very profitable."
"I have no financial problems, and my firm is very profitable."

Repeat 33 more times.....

I feel much better now.

BTW, we should all have such problems.

Sunday, March 4, 2012

I Don't Know About You, But This Doesn't Really Look Too Good.

I didn't create this blog to slag on other lawyers (actually, I created it to amuse exactly three friends, and they're not usually too amused), and I I'm not trying to do it now.

All that said, this is the kind of story that's hard to ignore (via GossipExtra, h/t Random Pixels):
Big-deal labor lawyer Terence Connor is facing animal cruelty charges after a strange incident two weeks ago.
According to the police report, the 6-foot-2 Conner, 69, pepper sprayed his neighbor’s two miniature dogs – a dachshund and a Maltese – across the back fence of his yard.
terence connor animal cruelty
The reason? They were barking. Or so he tells cops.
Still, Connor was hauled off to the slammer Feb. 18 and released on his own recognizance after being charged with two misdemeanor counts of animal cruelty.
Click here to read the police report
I'm not sure a "no comment" is in order here.

What about hiring a lawyer to say this is all a giant misunderstanding, it is completely out of character for anyone who knows him (I can vouch for that), not everyone is going to be perfect at every single moment, he's donating $10,000 to the ASPCA, and he's hopeful he can resolve this issue directly by speaking with his neighbor, all while not admitting that he actually did what is alleged?

(Terence, I'm available.)

Friday, March 2, 2012

Please God, No.

This is so mind-numbingly stupid it pains me to excerpt it:
A measure to ban the use of foreign laws in domestic courtrooms is progressing in Florida's statehouse, one of dozens of similar efforts across the country that critics call an unwarranted campaign driven by fear of Muslims.
Forty such bills are being pursued in 24 states, according to a tally by the National Conference of State Legislatures, a movement opponents call a response to a made-up threat of Shariah law, the Islamic legal code that covers many areas of life. Backers of the bills say they fill a glaring hole in legal protections for Americans.

"There have been all sorts of wild accusations about what this bill does," said Sen. Alan Hays, R-Umatilla, who sponsored the Senate bill in Florida. "This is very clear, very simple: In American courts we need American laws and no other."

The Florida measure passed the House on Thursday 92-24. It awaits a full vote in the Senate.

If passed, Florida would join three other states — Louisiana, Arizona and Tennessee — in approving legislation curtailing the use of foreign laws.
 "American laws"?

Yeah, like the Magna Carta, or better yet -- the Bible (wasn't Charlton Heston a Real American when he brought down those ten laws?).

I think the basic problem is that the "Sharia law" controversy doesn't really exist -- I know of no trend where federal or state courts are deferring to Muslim law in derogation of operative state or federal law.

Like voter fraud and Newt Gingrich, it's basically a scare tactic:
If Sharia opponents can’t name a single instance of Islamic law being used in the state courts, what exactly is the point of banning it — beyond vague and unsubstantiated fears?
On the other hand, there isn’t exactly a compelling counter-argument in favor of Sharia law. The U.S. courts should avoid applications of religious law in general. And Sharia has a particularly horrific reputation, since it’s used to justify the state-sanctioned oppression of women, the silencing of journalists and human rights workers, religious persecution, and vicious executions across the Islamic world.

But the good news for Sharia law opponents is that these things are already illegal in the United States, and Sharia is rarely applied to anything in this country beyond executions of wills and personal financing matters. Unless that changes, attempts to “ban” it are based on little more than hysteria and conspiracy theories.
Although it's obvious the FL bill's sponsors are not targeting English common law or the French civil code, in light of this recent 10th Circuit opinion (on Oklahoma's version), up in Tally they are careful to not mention Sharia law specifically by name -- just the usual dog whistles for the well-trained base this bill is intended to satiate.

All of this is yet another compelling argument to retain Justices Pariente, Lewis, and Quince -- and I personally want to commend Raoul Cantero for putting a bipartisan face on the fundraising event Monday, which btw was well-attended with the cream of the crop in South Florida's legal community all supporting their retention.

We will need good strong judges to resist these sorts of nativist impulses.

(RIP Judge Maxine Cohen Lando.)

Thursday, March 1, 2012

3d DCA Watch -- No Parking on the Dance Floor Edition!

Hi kids, let's get back to the sober business of bunkers.

A few quick hits:

This state rep thinks restricting consumer rights when the developer "forgot" to build you a road to your house is actually a win for consumers!
The legislation is good for consumers. It preserves property values and solves a problem that needs solving now in order to avoid Florida being placed at a competitive disadvantage for development with other states.
I think the operative phrase is "All consumers animals are equal, but some banks and developers animals are more equal than others."

Maybe he's referring to Montana, where the Chief Judge knows a good joke when he hears one:
Montana Chief U.S. District Judge Richard Cebull, a George W. Bush nominee, admitted on Wednesday that he forwarded a racially-charged email implying that President Barack Obama might have been the product of a sexual encounter between his mother and a dog.
“A little boy said to his mother; ‘Mommy, how come I’m black and you’re white?’” the email forwarded from Cebull’s official court email address on Feb. 20 read, according to the Great Falls Tribune. “His mother replied, ‘Don’t even go there Barack! From what I can remember about that party, you’re lucky you don’t bark!’”
The federal judge’s email called the joke “a bit touching” and said he wanted all of his friends to feel what he felt when he read the email. “Hope it touches your heart like it did mine,” he wrote.
It is touching.  It must be especially touching to be a biracial defendant in his courtroom.

(To be fair, the judge says he just really really really, I mean REALLY hates Obama, plus the email was supposed to be private.)


Vargas v. Washington Mutual:

Everybody appreciates a good confession of error (unless it come from our President!).

Miranda v. Ortega:

What's the problem with Judge Kreeger?

Oh well, you know what they say:

No parking, baby
No parking on the dance floor.....

Read more here: