Thursday, May 31, 2012

FSC Issues Important First-Party Bad Faith Decision!



The Supreme Rulers of Tally have issued a very interesting opinion on bad faith actions in the first-party insurance context, with a lengthy and well-written history of the doctrine and its development in Florida.

The Court finds that there is no independent cause of action for breach of implied duty of good faith and fair dealing outside the statutory framework:
Specifically, we conclude that under Florida law (1) first-party claims are actually statutory bad-faith claims that must be brought under section 624.155 of the Florida Statutes; (2) an insured cannot bring a claim against an insurer for failure to comply with the language and type-size requirements established by section 627.701(4)(a) of the Florida Statutes; (3) an insurer‟s failure to comply with the language and type-size requirements established in section 627.701(4)(a) does not render a noncompliant hurricane deductible provision in an insurance policy void and unenforceable as the Legislature has not provided for this penalty; and (4) a contractual provision mandating payment of benefits upon “entry of a final judgment” does not waive the insurer‟s procedural right to post a bond and stay the execution of a money judgment pending resolution of appeal.
Congrats Raoul!


Wednesday, May 30, 2012

3d DCA Watch -- Well Well Well?



Well well well let's first wish Judge Ramirez congratulations again for his service and best wishes in his new role as JAMS mediator.

It was a very nice retirement party -- Rudy Sorondo told a few tales, Chief Judge Wells quoted John Lennon (hey, so did I!), Judge R thanked his family, clerks, JAs and colleagues, in all it was a very lovely event.

Oh, and the Judge's portrait was revealed, very striking:


(Oops, wrong photo!)

I kid -- it was a very nice ceremony and we wish the Judge much continued success.

Speaking of Rudy Sorondo, here he is arguing for the appellants in a case where Judge Manno-Shurr struck the defendants' pleadings based on fraud on the court:
On August 13, 2010, the Bank filed its Motion to Strike, alleging the defendants schemed to defraud the trial court by submitting perjured deposition testimony, suborning and attempting to suborn perjury, and forging corporate documents, all in an effort to conceal the Cohens’ ownership interests in the Corporate Defendants and Offshore Entities. On October 1, 2010, the trial court commenced an evidentiary hearing on the Motion to Strike, and received evidence over a three-day period. After the hearing, the trial court concluded the defendants intended to defraud the Florida court, and struck their pleadings. Upon review of the case law and the voluminous record, we affirm in part, and reverse in part.
Basically, Judge Rothenberg's opinion goes into exquisite detail and upholds the lower court ruling, except as to one defendant (not represented by Rudy).  It ends this way:
While we are mindful of Florida’s strong public policy favoring the resolution of cases on their merits, the judiciary cannot be, and is not, impotent against those wishing to corrupt the litigation process by employing fraud and deception at every turn. Accordingly, we affirm the default judgment as it pertains to the Cohens and the Corporate Defendants because the record evidence establishes, clearly and convincingly, that these litigants have engaged in a massive and unprecedented scheme to defraud the trial court below.
Not a pretty picture (I don't mean the hot tub -- I love that picture!).

If Your Secretary Becomes Indispensable, Fire Her!

 
That's the sage wisdom offered by Englewood(?) attorney Charles Diez, Jr. in the latest edition of the beloved Florida Bar News:
When I joined the firm, he said, “Son, I’m going to give you some good advice.” That advice has stuck with me all these years, and I quote, “Never lie to another lawyer; never even think of lying to a judge; and never have a secretary you can’t fire.”
Ok, the first two I definitely agree with, but Charlie, on the last one -- does your secretary know this?

I'd offer a few more:
"Son, never follow your father into a restroom; when on a plane always sit to the left of Ervin Gonzalez (long story); and never give in. Never give in. Never, never, never, never--in nothing, great or small, large or petty--never give in, except to convictions of honor and good sense."
(Alright, that last one was Winston Churchill -- I modified it to conform to our local discovery practice).

In fact, here's what I believe:


Anyone have any others?

Tuesday, May 29, 2012

Judge Scola Allows SEC Suit against BankAtlantic to Proceed!


Is this not the most litigious client in Florida?

(Hooray!)

Read on BankAtlantic junkies (or stockholders) and various and sundry securities fraud lawyers/hobbyists.

Sean Kingston Sued By Miami Landlord!



Hi there dear timewasters, did you survive the weekend?

Avoid the naked flesh-eating MacArthur causeway zombies?

(Then you did better than than some former 1300+ attorney law firms.)

Question -- do you know who Miami-born Sean Kingston is?

Well, according to his landlord, Kingston skipped out on his $25k a month Miami mansion, leading to what is known in our business as a "lawsuit":
But according to a new lawsuit, filed in Miami, Sean and his mother -- who was also living in the house -- left behind a trail of destruction ... broken landscaping lights, sprinkler heads, holes in the wall, and broken railing around the waterfront dock.

The landlord claims Sean and his mother caused $21,397 in damages to the property -- but that's just the tip of the iceberg ... because when they suddenly left the house in October, they allegedly breached the rental agreement by taking off before the lease was up.
Wonder who the hip-hop star will hire to handle the defense?

(BTW, his "Beautiful Girls" video has been viewed more than 72 million times!)

Friday, May 25, 2012

"Our files on these matters have been closed."



Nice bureaucratic passive-speak, but the result is the same:
The Florida Bar has cleared prominent Miami litigators Michael Tein and Guy Lewis of wrongdoing in a dispute over alleged discovery violations in their representation of two members of the Miccosukee Tribe.

A Miami-Dade Circuit grievance committee found no probable cause Wednesday for disciplinary proceedings against Tein and Lewis, partners at Miami-based Lewis Tein. Lewis is a former U.S. attorney for the Southern District of Florida. Tein is a former federal prosecutor.
Have a great holiday weekend!

Wait, let me rephrase -- It is hoped that your weekend on this holiday is one of enjoyment!

This Is Wrong For 40,000 Reasons.

 
Hey it's a long holiday weekend -- is anyone even around today?

Thursday, May 24, 2012

Is it Rolling, Bob?


Happy Birthday Bobby D!!

Ho Hum. So Cincinnati Reds Pitcher Aroldis Chapman Allegedly Turned Cuban Informant to Throw Someone in Cuban Prison.


Cincinnati Red Aroldis Chapman will have plenty to talk about when he comes to Marlins Stadium -- this new suit before Judge Altonaga that accuses him of collaborating with the Cuban government to put the plaintiff in a Cuban jail, where he has been badly mistreated and even tortured.

Here's the opening paragraph:
Plaintiff CURBELO GARCIA is a Cuban citizen, who is serving a 10-year prison sentence in Cuba, under inhumane conditions, for a crime he did not commit because of Defendants’ false denunciation to officials from the repressive Cuban Departamento de Seguridad del Estado, Departament of Security of the State, (herein after “DCSE”) and because of the false testimony Defendants presented against Plaintiff at a sham trial, which followed no rules of evidence or due process, and which was deliberately skewed against Plaintiff. Plaintiff’s treatment in prison is cruel, degrading, unsanitary, and tortuous.
Ok, that sounds kinda bad.

Chapman's agent had no comment (the guy's busy, what with Chapman's recent arrest and now this).

Wednesday, May 23, 2012

3d DCA Watch -- For Those Not Paying Attention, Here is the Summary Judgment Standard.


Hi there, no time for chit-chat let's get to it:

Judge Shepherd, the king of understatement:
As we have stated on more than one occasion, on a motion for summary judgment the burden of proof is on the moving party to show there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.
At least three times, for sure!

Miccosukee Tribe v. Bermudez:

This is a permutation of the underlying case before Judge Dresnick in which Lewis Tein and the parties are battling over whether there are collectable assets and who is truly paying for the two tribal members' defense.

At issue is whether the Tribe's GC can be deposed because he injected himself into the litigation by providing checks that allegedly show the Tribe has been paying for the defense of the tribal members all along, which may be contrary to certain representations made in the trial court.  The defendants deny this and have affidavits from Billy Cypress and others saying these funds were charged against their distributions or are advances on future distributions.

Regardless, here is Judge Shepherd's general summary of the proceedings:
There have been no fewer than twenty post-judgment motions for sanctions since the judgment was rendered, including criminal contempt, slung by the parties’ counsel against each other under the guise of the parties themselves.
That's interesting -- what accounts for the "under the guise of the parties themselves" language -- isn't everything a lawyer does in court on behalf of her client?

The bottom line here is the GC will be deposed and my only question is this -- can I get a video?

Please?

"Jury Deflates Penis Implant Claim!"


 Hmm, not a bad headline but we could probably do better:

"Lost Penis Leads to Lost Case!"

"Damaged Penis = No Damages!"

"Doc Escapes from Mangled Schmeckel!"

Come on people, help me out here -- there's gotta be more.

Actually, the anesthesiologist defendant may have put it best:
"The only cow to milk was me."
Note to Spence -- hard case (seriously, no pun intended!).  Clients were deported, this D was the last doc standing etc....

You did your best, this is why you became a lawyer, and now you move on and live to try another case.

Congrats to Jay Chimpoulis for a big victory for his client.

Tuesday, May 22, 2012

Can the Bar Regulate Private Lawyer Referral Services?



That's the question raised by this interesting complaint filed by Greenspoon Marder senior partner Richard Epstein on behalf of the The Center for Legal Justice, and pending before Judge Middlebrooks:
What does explain The Florida Bar’s action against TCFLJ is a publicly aired animus by the State of Florida Chief Financial Officer Jeff Atwater against for-profit LRS and his intent to “ban the [private, for-profit] services.”

a. In other words, The Florida Bar has made a conscious decision to regulate where it has no authority to regulate, by targeting businesses it (and the State of Florida) views unfavorably, such as TCFLJ, for annihilation, all in blatant disregard of TCFLJ’s constitutionally protected commercial free speech rights and contractual relations.

b. In fact, The Florida Bar News reported that The President of the Bar publicly announced his intention to reign in private referral services, in favor of nonprofit lawyer referral services administered by local bar associations. That is, The Florida Bar is promoting its own lawyer referral services at the expense of legitimate commercial services such as TCFLJ.
BTW, the Center may or may not operate at 866bank.com, which is currently unavailable.

Our Taj Mahal Beats Their Hawaiian Junket!



So the 9th Circuit wants to play that game:
Two senior Senate Republicans on Monday blasted plans by judges in the 9th Circuit to hold a conference in Hawaii this August that they said could run up a tab of $1 million or more, and includes a schedule of sport fishing, yoga, surfing lessons and Zumba dancing lessons.
 Pikers!

A measly million, and some yoga and surfing -- that's nothing.

Call me when you've got miles of African Sapele wood, 60 inch flat screens and Italian granite -- then you can play in our "sandbox," as the lawyers down here like to say.

I actually think the room rates are quite modest for Hawaii in the summer -- deluxe ocean rooms at the Hyatt Regency Maui for $250 a night?

(Note to Adam Rabin -- I hope you haven't booked our next Bench and Bar meeting yet!)


 Now this is what I call real networking:


Monday, May 21, 2012

How Can You Mend a Broken Heart?



Hi kids and welcome to Monday!

The Heat won, Magistrate Judge Vitunac retires in style, and it rained all night.

How can you stop the rain from falling down?

RIP Robin Gibb.

Friday, May 18, 2012

See Jane Work. See Jane Get Fired. See Jane Sue.



Judge Carnes is at it again, starting his opinion with this short declarative grade-school-style "grabber":
A woman of childbearing age was hired as a teacher at a small Christian school. Then she got pregnant, married, and fired. In that order. Then she filed a lawsuit. She lost on summary judgment. This is her appeal.
Good thing the school said it fired her because of the premarital sex, not because she was pregnant.

Wait -- the school's "defense" is it fired her for having premarital sex???
On Sunday, April 5, 2009, Hamilton met with John and Julie Ennis, Southland’s administrator and assistant administrator, to tell them that she was pregnant and to ask for maternity leave during the next school year. During that meeting, she admitted that she had conceived the child before getting married. Southland fired Hamilton the following Thursday, purportedly because she had sinned by engaging in premarital sex and, as John Ennis put it, “there are consequences for disobeying the word of  God.”
Was this 2009 or 1859?

(BTW, most children born in the U.S. are born out of wedlock.)

Unfortunately for the school, discrimination based on a woman's pregnancy is (still) against the law, and there were disputed issues of fact that should have gone to a jury:
Hamilton also presented evidence vitiating the veracity of Southland’s purported reason for firing her—that she had premarital sex. John Ennis testified at deposition that, even though Hamilton committed the sin of premarital sex, “[i]f, in fact, she would have said to us I’m sorry that I’ve sinned against the Lord and this school, we would not be here. We could have gone in another total direction.. . . [But] I never heard her say she was sorry.” But Hamilton testified that after she told the Ennises about her pregnancy:
I became afraid that I had done something horrible. And I went to God in prayer, and my husband and I both together, and asked for forgiveness. And I expressed that to Mr. Ennis. Hopefully, you know, letting him know that I, you know, was remorseful for what had—you know, if I’ve done something so horrible against God. And that God had forgiven me, and I just wanted him to, if, you know, it was such a horrible thing. But it didn’t make a difference.
So, her testimony contradicted John Ennis’ testimony that he had never heard her say she was sorry and that he would not have fired her if she had. For that and the other reasons we have discussed, Hamilton has established a genuine issue of material fact about the reason that Southland fired her. The ultimate issue is one for a jury to decide.
Seems like a nice place to work, and at least the school did everything possible to make this wonderful event in this woman's life a joyous occasion.

I hope the jury remembers that.

Thursday, May 17, 2012

"Yes Your Honor, I Scheduled a Deposition at a Donut Shop, Wore T-Shirts and Shorts, and Drew Pictures of Opposing Counsel as a Penis -- Is There a Problem?"

 What does "zealous advocacy" look like?

(See above illustration.)

I like to think this blog can have a salutary purpose on occasion, by shining light on what we do as lawyers, and sometimes encouraging us to live up to the highest ideals of our profession.

That, plus dick jokes.

Luckily, this order from Judge Altonaga disqualifying two attorneys and their firm Morgan & Morgan has all of the above, wrapped in a pretty penis-shaped bow:
Tinkler testified that during depositions he witnessed “Mr. Celler . . . drawing photos of — pictures of male genitalia and showing them to Ms. Schulman, describing Mr. Coupal. I told Mr. Coupal after that was occurring and he made mention about it.” (Apr. 2, 2012 Hearing Tr. 17:2–5). Sorci testified that he observed Schulman “laugh[ing] quite a few times” at Celler’s drawings, and that on break Schulman made a comment that “this is typical Richard [Celler], this is what he does at these sort of things.” (Id. 85:5–10). Tinkler further stated that “during Mr. Schatt’s deposition Mr. Celler was playing the game Angry Birds. He admitted it aloud and was bragging that he had just beaten somebody in Minnesota at the game during the deposition.” (Id. 17:6–9). Moreover, Celler would wear a t-shirt and shorts to proceedings to gain “a psychological advantage.” (Id. 17:11–15). Celler chose Dunkin’ Donuts as the site of depositions against Coupal’s wishes.
According to the order, plaintiff's counsel also wrote a few scorching emails to opposing in-house counsel:
The Court finds multiple instances in which Plaintiff’s counsel have violated this Rule. For example, the email exchange regarding the Tinkler communication contained such choice statements from Celler to Coupal as “you are not a trial lawyer;” “We are not interested, nor are our clients, in settlement discussions with you as long as you are the lawyer on the other side. You are causing your client a great disservice;” and “Nobody on this side of the internet cares.” (Jan. 30, 2012 Email Exchange). Celler himself acknowledges the utter lack of professionalism and impropriety of his emails to Coupal, expressing “remorse and disappointment” (Pl.’s Post-Hearing Br. 2 n.2), but chalks his behavior up to “zealousness on his client’s behalf” and “vigorous[]” advocacy. (Resp. 8–9). Needless to say, Celler’s emails are far beyond (and at the same time, far short of) what zealous advocacy would require.
Good point -- which side of the internet truly cares about this stuff?



Wednesday, May 16, 2012

3d DCA Watch -- Are You Ready for the Summer?


Yes kids, the bunker-bods are back!

By that I mean the Resplendently Robed Ones are nearly summer-ready, after grueling hours toiling in the mechanical room/gym, performing isometric exercises by attempting to remove sinks and toilets bolted to the bunker walls, and of course shot put, lots and lots of shot put.


CAPTION CONTEST!

1.  "The chicks at FIU call that 'bunker-butt!'"

2.   "Now THAT's what I call Venetian Salami!"

One more?

3.   "All those in favor of reversal please signify by a show of....well, just signify."

So let's get out of the Resplendently Buffed Ones way and move right on to this week's meager civil offerings (hey, you can't develop both your pecs and precedent at the same time):

Portales v. ABC:

Practitioners' note -- if you want to object to a procedure on appeal, you should probably object to the procedure below.

Now let's hit the beach!

FL Bar Report: Some Lawyers Are Old and Others Have Major Problems.


 The Intrepid One reports on the results of a FL Bar commission, empaneled in the wake of the Rothstein debacle, which found -- surprise(!) -- that some lawyers are up to no good:
"Cases like The Florida Bar v. Scott W. Rothstein or the myriad of cases involving mortgage fraud, loan modifications and foreclosure fraud illustrate a changing profession and the need for a lawyer regulation system able to adapt to such cases," stated the report. "Additionally, these types of cases demonstrate a need to provide information to the public about the steps that The Bar already has taken, currently is taking and is planning to take to handle these cases in order to continue to ensure public confidence."
Zzzzzz.

Was the writing of this report outsourced to the Miami Herald editorial board?

There's gotta be something more substantive in there:
But Miami attorney Brian Tannebaum, who frequently represents lawyers under investigation by The Bar, criticized the report as overly focused on public relations.
"The report says to me, 'the Scott Rothstein debacle hurt The Bar. How do we convince the public that we care?' " he said. "The Florida Bar has become more of a consumer protection agency than an agency designed to regulate lawyers."
Probably true but hey, what's wrong with that -- we could use a nice PR agency.

Then there's this:
 "There are many instances where some lawyers work past their point of effectiveness to a period of life where they develop mental and physical problems," stated the report. "This can lead a lawyer who has had a stellar career to lose his or her reputation, practice and resources during the twilight years of his or her career."
Ok, you've just described every senior partner I've ever worked for.

Plus down here nobody ever really loses their reputation -- we've given them too many awards and honors for that.

Tuesday, May 15, 2012

The Rise of the Russomanno (Part III)



 OFFICERS: 

President Elect - Mary Leslie Smith
Vice President - Herman J. Russomanno, III
Secretary - Jason M. Murray
Treasurer - Jeffrey A. Rynor 

DIRECTORS
Group I:    Eric P. Hockman
Group II:   Monica F. Rossbach, Adam J. Shapiro
Group III:  Stephanie L. Carman, Katie S. Phang
Group IV:  Robert B. Boyers, Steven E. Eisenberg
Group V:    Jerome J. Kavulich, Glenn B. Kritzer
The results have arrived via raven from Westeros, and once again a mighty Russomanno is in the leadership mix -- all is well with the world.

Congrats to the new officers and directors!

(Sheesh, somebody send me some tips.)

Monday, May 14, 2012

Hey, It's Just "Bad Luck" My Penis Got Amputated!

 
I have a feeling it's going to be a good day.

Why?

Because the blogger gods have blessed us with this:
An unusual medical malpractice trial opens in a Miami court Monday, one in which a jury will have to decide whether an anesthesiologist can be held liable for a patient losing his penis.

The plaintiff, former Miami resident Enrique Milla, will be testifying at the trial via Skype because American authorities deported him and his family back to Peru last year.

“Mr. Milla lived in Miami for 40 years and worked in the medical supply business and paid taxes,” said Spencer Aronfeld, Milla’s Coral Gables attorney. “It shouldn’t make a difference that he was deported.

“At the end of the day, he has to sit down to pee through a tube.”
In Peru.

He has to sit down to pee through a tube, it's just now he has to do that in Peru.

Oy veh, a deported client testifying by Skype about his amputated penis.

But he did have his penis amputated, for goodness sake!

Still, defense attorney Jay Chimpoulis says bad luck just happens to unlucky people:
“What happened to Mr. Milla was just bad luck,” said Boeru’s attorney, Jay Chimpoulis. “But filing frivolous lawsuits won’t change his bad luck.”
I agree!


BTW, what's "frivolous" about the lawsuit, specifically?

In other news, your wait time to evict that deadbeat tenant is about to get longer:
“It’s awful. They only answer the telephone now a couple of days a week; things take a week or more to get into the official records; judges don’t get files for hearings; the whole thing is a mess,” said Miami civil attorney Michael Feiler. “Overall service has declined drastically — not because of the clerks, who work hard — but because of the lack of staff and the ridiculous workload.”
On the other hand, the cafecito at the courthouse coffee shop is delicious, so it all kinda balances out, right?

Read more here: http://www.miamiherald.com/2012/05/12/2796705/online-hed.html#storylink=cpy

Read more here: http://www.miamiherald.com/2012/05/12/2796705/online-hed.html#storylink=cpy

Friday, May 11, 2012

Oral Argument on Appeal -- A Total Waste of Time?


I love the letters page of the Florida Bar News -- it's the only part of the paper where there is an actual voice or opinion being expressed amid the robo-copy of endless announcements, seminars, and proposed rule changes.

In the current issue local appellate attorney Albert W. Guffanti basically says oral arguments are a "charade":
 As regards oral argument, it is my belief that most appellate panels have made their decisions prior to oral argument, reducing oral argument to a charade. Indeed, if the panel has read the briefs and researched the law (i.e., at least reviewed the law clerks’ assessments), there should be no argument, for nothing at the appellate level can change the facts of the case. Similarly, seldom does the applicable case law change just prior to oral argument, in which case a motion to supplement may be filed.

The better practice would have the appellate court request counsel to provide additional development of a particular issue, or brief an issue not presented but of interest to the panel. The court would then receive better-researched, more thoughtful and even, perhaps, enlightened responses, something which is usually impossible at oral argument.
He also laments the increasing reliance on PCAs: 
Also applicable here is the issue of proper use of judicial resources. If the argument that there are too many cases for appeals courts to handle adequately has any validity, then an “adequate” use of resources would result in dispensing with oral argument almost altogether, and spending that time writing opinions, instead of issuing PCAs in over 60 percent of the cases.
Our society, litigants, and our judicial system would be better served by the writing of real opinions, no matter how brief, but citing at least one authority for every issue presented.
I agree with him on PCAs -- the parties deserve an explanation of the ruling, however minimal, and bedrock common law principles of "precedent" and "stare decisis" demand that we provide reasons for our decisions so that those reasons can be applied to future cases.

On oral argument I'm not so sure, what do you think?

You always like to believe your brilliant oratory and silver tongue swayed a judge's mind, but is that more vanity than reality?

Hey Baby, Do You "Meet and Confer" Here Often?


In Miami, back in the old days, lawyers used to meet and confer over drinks at Sally Russell's and inevitably wind up going home with each other's wives.

Hey, it was the 70s!

But like our President we evolved, and by the 80s we had teams of waiting "faxers" who would instantly (well, it took about 25 minutes) send late-Friday nastygrams to opposing counsel, designed to ruin the weekend and necessitate a faxed response on Sunday.

Aah such pleasant memories....

But now we can "meet and confer" by having a Twitterwar, or by pinning mean things about each other on Pinterest, or via my personal favorite -- assembling a guild of World of Warcraft characters who simultaneously attack and destroy opposing counsel in a dungeon.

Either way, the one thing we NEVER do is actually speak with each other face to face.
 
But there's a new Sheriff federal judge in town, and he kicks it old-school:
Apparently, the parties disagree as to whether the Court’s Initial Order requires them to meet and confer in person or whether a telephone conference will do. The Court’s Order provided that, within the time prescribed, “the parties shall meet and confer regarding discovery and scheduling issues, as set out in Federal Rule of Civil Procedure 26(f) and Local Rule 16.1(b).” See Initial Order ¶ 2 [ECF No. 2]. This District’s Local Rule 16.1(b) expressly states that the parties shall meet and confer “in person, by telephone, or by other comparable means[.]”  See S.D. Fla. L. R. 16.1(b)(1). This Court has not ordered otherwise. Accordingly, the parties are free to meet by telephone, if they prefer. The Court has no preference, as long as the conference is conducted in timely fashion and the parties comply with their obligations set forth in the Rules and the Court’s Initial Order.
So WoW dungeon-war it is!!

But then there is this:
This Court is not in the business of babysitting the parties.
Such bright-eyed optimism, and I certainly hope he's correct -- but has he seen how our Bar behaves?

Thursday, May 10, 2012

Magistrate Judge Goodman Cites Fat(ter) Elvis!



Actually, I think "fat" Elvis is quite unfair to the Big Man --  I prefer "sweaty" Elvis, "drugged out" Elvis, "velvet oil" painting Elvis, "bizarre Karate-chopping" Elvis, "huge pork chops on your face" Elvis, "crying-at-any-moment onstage" Elvis, these are all much more affectionate terms in my opinion.

Ok, let's get to it.

Question is whether incident reports prepared by a cruise ship vendor operating a bobsled ride.......

STOP -- never go on a bobsled ride.

If you are above the age of 10, you have no business being on a "bobsled ride" in Jamaica or anywhere else.

Sheesh, what is with people!

Anyway, the reports were prepared at the direction of the bobsled vendor's general counsel, and therefore are work product, according to Judge Goodman:
Moreover, Gentry cannot show a substantial need for these documents. Counsel often assume that when opponents withhold documents upon a claim of privilege, that they do so because they are in fact sitting on a smoking gun. Consequently, counsel propounding discovery often suspect automatically that the opponent is asserting the work product doctrine because the adversary is trying to hide significant, adverse evidence3 .

But based on its in camera review, the Court can report that this is not the case here. In fact, despite all the argument on this issue, these documents are not particularly helpful to proving Gentry's allegations. To the contrary, the two incident reports and one email are comparatively innocuous documents which simply report the basic information about the incident -- information which Gentry either already knows or will likely soon know based on deposition testimony obtained during discovery.
Umm, hey judge, didn't you just sustain the privilege?  Then why disclose your opinion about the hum-drum nature of the contents of the reports?  I mean, how much more is there to disclose?

And then there's footnote three:
For a musical reference to this attitude, see "Suspicious Minds,'' a song sung by Elvis Presley. Recorded at American Sound Studios in Memphis, the song was written by Mark James and reached the #1 position on the U.S. music charts on November 1, 1969. http://oldies.about.coe od/elvispresleyhistog/isuspicious minds.htm (last visited May 2, 2012). The song contains the following lyric: "We can't go on together with suspicious minds, and we can't build our dreams on suspicious minds.'' http://- .elyrics.nevreaie/elvis-presley-lyrics/suspicious-minds-lyrics.html (last visited May 2, 2012).
Yes, the location where it was recorded (Memphis), the particular recording facility (American Sound Studios), the songwriter (Mark James), and the highest chart position and date of same (#1, 11/1/69) are integral to any effective musical reference.

BTW, what did the producer that day -- Chips Moman -- have for lunch?

(Answer -- slow-roasted Memphis BBQ!)

Wednesday, May 9, 2012

3d DCA Watch -- The One Where Good Lawyers "Forget" a Whole Statute?


 Hi there, it's that time again so let's see whether the bunker denizens did anything to deserve your hard-earned tax dollars this week:

Taplin v. Taplin:

Wealthy muckety-mucks fighting over trust funds.

Sounds like the premise for a good movie, except Judge Shepherd says GT and Victor Diaz "forgot" something:
The trustees argue by eliminating section 95.02 of the Florida Statutes while simultaneously creating an express subsection of Chapter 95 to cover “intentional torts,” the Legislature sub silencio must have intended the newly minted section 95.11(3)(o) to apply unconditionally to all cases brought against a trustee for breach of trust.

The trustees forget, however, that in the same legislative session in which section 95.02 was repealed, section 737.307, Florida Statutes, was created.
Ooh ooh -- I knew I forgot something this morning -- it was a whole statute!

Or is that "too thin a reed" for a ruling?

Suarez v. Benihana:

Never get into a fight at a Benihana.

Why did I even need to write that sentence?

Valasquez v. Ettenheim:

Don't blame newly retired and now Broad and Cassel attorney Judge Donner for this reversal -- "simply stated, the appellee led the trial court into error."

That was simply stated.

Are Roofers "Professionals"?


As anyone who has ever hired one knows, the question is a very good one.

Here's what the 11th says in response to the roofer's argument that you look to whether some schmuck on the street acted reasonably under the circumstances, as opposed to a "professional" standard of care:
ICW contends the district court erred by applying a “professional” standard of care in this case. Specifically, it argues that roofers are not “professionals” under Florida law, and, thus, the roofing company should be held only to the standard of an ordinary person, rather than to the standard of a professional. ICW argues that the jury should have been able to determine if the roofers acted as a reasonably prudent person would have acted under similar circumstances. The problem with this argument is that the roofers were not ordinary people who happened to be working on a roof. They were trained roofers, and therefore, the question is what a reasonably prudent roofer would do under similar circumstances. Without reaching the issue of whether roofers are “professionals” under Florida law, we hold that ICW was required to put forth some evidence of the standard of care in the roofing industry in order to meet its burden.
Oh no -- roofers are expected to have some minimal level of professional competency in their work performance.

But this is Florida -- our workers are simply not used to that kind of thing!

Tuesday, May 8, 2012

No Good Can Come of This.



In other news, the Miami Breakfast Attorneys' Club has met again (apparently in an art gallery of some kind) and the video evidence is here:



Yes, Judge Carnes Went There.


Ok, so you have an ERISA case involving Home Depot.

You're an appellate judge well-known for crafting stories in your opinions, filled with historical references, and for starting those opinions with "a grabber."

Home Depot is about building things.  And the lawsuit involves a retirement plan.

Ergo:
People build many things over the course of their lives. Throughout the time allotted them, they build houses and homes, character and careers, relationships and reputations. And if they’re wise like Aesop’s ant, during the summer and autumn of their lives they store up something for the winter.  Although the ant in the fable did well enough without its savings plan being protected by ERISA, the plaintiffs in this case seek the protections of that statute. They claim that the fiduciaries of their retirement plan violated ERISA in ways that damaged their efforts to stockpile savings for their winter years.
Alright, it's a bit of a stretch but I see the connection, however tenuous.

Still, I've come up with my own introduction -- see what you think:
People frequently grow murderous when they can't find the nail aisle and no one in an orange blazer seems to even know what a "nail" is.  Though all they want to do is fix the shutter their spouse keeps complaining about, they also wanted to catch the game and now their kid is getting cranky and maybe it's time to buy a new grill and forget all about the friggin' nail.  And if they're lazy and fat like Aesop's pig, they may never live long enough to see the ass later that evening.  Although the pig in the fable did well enough with the free meal right up until he was slaughtered , the plaintiffs in this case have acted like proverbial asses in suing Home Depot over their retirement plan.
I don't know, they both have that whimsical, "old-school" charm!

Monday, May 7, 2012

Magistrate Judge Goodman Advises Parties to Follow Rules!


 I've take the liberty of annotating Magistrate Judge Goodman's notice to the parties that he will be enforcing the rules when it comes to discovery:
All parties are advised that [In the Court of the Crimson King] the Court's practice is to follow [Follow You Follow Me] Federal Rule of Civil Procedure 37(a)(5),  which requires the Court to award attorney's fees to the prevailing party [Party All the Time] on a [ELO's Discovery] motion unless one of the enumerated exceptions is met [You Can't Always Get What You Want]. All parties are further advised that their failure to engage in a reasonable pre-filing conference [Life in the Fast Lane] is grounds for granting or denying the motion by default under Local Rule 7.I(a). [I Guess That's Why They Call It the Blues]
Man the judge really digs this stuff!

Code Red Code Red -- App Does Away with "Briefcase," "Office" and "Lawyer"!


Where's Brian Tannebaum when you need him:
They started with an iPad app, LegalFile, which is already on the market. “It’s essentially a virtual office to enable lawyers to practice without absorbing the cost of a secretary or a filing clerk,” said Kuznetsova, the 24-year-old president and CEO of Miami-based Esenem, the parent company of LegalFileIt. “This app replaces a traditional briefcase. It’s your calendar keeper and it provides startup forms in all different areas of law.” 
If you don't need a secretary, filing clerk, briefcase, or office, maybe you don't need an attorney either:
There are plenty of lawyers out there who are willing to represent you if you find yourself either being sued or having to sue someone. But do you really need a lawyer?

Gary Zeidwig doesn’t think so, at least not all the time. Zeidwig, an award-winning lawyer, reveals that there are some cases where an individual can move forward pro se, (for oneself) that is, advocating without an attorney and defending or fighting for their rights on their own behalf, and that it’s not only acceptable but relatively safe to do so.
But who needs to buy a whole book to learn you don't need a lawyer?

There's probably an app for that.


Read more here: http://www.miamiherald.com/2012/05/06/2784090/case-closed-mobility-rules-in.html#storylink=cpy

Friday, May 4, 2012

Now the Island Is Suing Over the Costa Concordia Disaster!

I suppose it was only a matter of time before the merchants and residents on little Giglio Island, near where the Costa Concordia crashed, got together to sue Carnival over their lost business.

You can read the SD FL complaint here, brought by noted kindred spirit of holographic Tupac Ernest Hemingway, Ed Ricci:


Thursday, May 3, 2012

Thursday Digital Dump!


Let's get to it kids -- it's almost Friday!

In my brain this morning:

This is how sausage legislation gets made in Tally:
The media must shine a light on the fact that within days of passage of the bill State Farm and United Automobile Insurance Company made $100,000 contributions to the governor’s “Let’s Get to Work” PAC.
But you can't prove they are related -- nanny nanny boo boo!

GrayRob's Steve Zelkowitz can smell a moldy mildewed rat in Hogan Lovell's efforts to get out of their lease:



Oops, wrong image:

Steve Zelkowitz, a real estate attorney with GrayRobinson in Miami, said he would not be surprised if Hogan was using the accident as leverage to exit its lease and move to newer and possibly cheaper space.

"It doesn't surprise me that in a market where we have a lot of new product that is available and probably for a better price, that given the opportunity to attempt to break a lease they would do it," said 

Zelkowitz, who is not involved in the Hogan matter. "Typically when there are lower vacancy rates and you don't have as much product, I wouldn't expect this to happen."

He sees economic rather than physical issues dominating the decisions.

"I'm sure the building can get rid of the mold and make the building inhabitable," Zelkowitz said. "I presume there was a large sum of money spent on tenant improvements. I think this is more a matter of economics rather than it being uninhabitable."
Guess we'll know one way or another depending on how the rest of the tenants are doing.

Lawyers behaving badly?
Sepe allegedly had the help of three attorneys, including Aventura-based Ronny Halperin, a former CEO and director of HydroGenetics, who collectively reaped more than $3.5 million in illegal profits, according to the SEC’s suits, filed in federal court in Miami.

“Sepe, Halperin and others chose to ignore the laws governing stock sales and play by their own set of rules,” said Eric I. Bustillo, director of the SEC’s Miami office. “Some of these individuals were attorneys and corporate officers who should have known better.”
Finally, there is also this.


Scott Baena, David Young, and many others are in the Holy Land right now.

Happy Israel Independence Day!
d more here: http://www.miamiherald.com/2012/05/02/2780457/sec-charges-11-in-2-stock-selling.html#storylink=cpy


Read more here: http://www.miamiherald.com/2012/05/02/2779926/pip-reform-bill-should-be-vetoed.html#storylink=cpy

Wednesday, May 2, 2012

Seventeen Ruden McClosky Attorneys Named Among "The Best Lawyers in America" in 2012!



Says so right here.

After reading SFL's post regarding Judge Altonaga and swapping sides, I was inspired and working feverishly on a post better suited for Friday afternoon.

But Jules ran this story and it killed the mood.

I admit that like many, I don't really read the Daily Business Review I just look at the pictures and the headlines. My first thought, being the jaded South Florida civil litigator that I am, was "people can say whatever they want in a lawsuit." The eleven (ELEVEN!) malpractice lawsuits represent people seeking a payday from 20 million in malpractice coverage. Nothing more, right? You have to dig into this one. When I read the article, I couldn't believe what I was reading so I called my friend Johnny and I said Johnny, what the....

First, I've always been intrigued in a Scott Rothstein kind of way at the Ruden "investment banking division," Ruden Capital Partners, run by former Ruden lawyer Patrick Moran. The idea behind the division I guess was that Ruden's lawyers would approach clients about investing in the fund and collect investment banking fees as well as legal fees. It strikes me that there is temptation and mischief inherent in such a structure. Which is exactly the position of the Southeast Florida chapter of the Alzheimer's Disease and Related Disorders Association, as reported here. Seems Moran, then the Chairman of the Group, and his wife, the Board's secretary, used their check writing authority to borrow 1.1 million of the group's money and invest it in their daughter's start up company gogoddess.com, as well as - you guessed it! - Ruden Capital Partners. According to the article, "a month later Ruden and Bruce Bern­stein, a principal of the law firm's financial arm advised the board that they should invest in the fund. One of their selling points was that it had recently received a $1.1 million infusion of money. What they didn't say was that the money came from the association's account." Chutzpah! Bernstein apparently has folded up his tent and resurfaced in New Orleans as CEO of an emergency water purification company. Lawsuits? Where are the Bar complaints? The grand jury subpoenas? Wiffy, you there? Where is Mary Barzee Flores when you need her?

And that's just one of several malpractice suits charging that Ruden and Moran breached their fiduciary duties. "Another suit arose out of legal advice provided by Moran and other Ruden attorneys about a $2 million loan made to a South Florida man, Milton Pinder, to be secured by mortgages on undeveloped property in the Bahamas. According to the suit, it turned out the borrower had been declared incapacitated, was the subject of a guardianship proceeding and never held title to the Bahamian property, and a relative used fraudulent and invalid powers of attorney to enter into the loan agreements." Another day, another dollar in the South Florida legal community, right? I bet the amount of Ruden's fees for facilitating that investment were sizeable, eh?

Hey! Wait! Didn't Marc Nurik used to work at Ruden!?

Boy, oh Boy. If Judge Altonaga spanked Schleppin, can you imagine what would happen if someone pulled these Ruden shenanigans in a case pending before her. Or better still, before Judge Ungaro. If you have witnessed Judge Ungaro give a good spanking, you know it can be painful. (Sorry - I've been distracted since attending a book signing this weekend at Books and Books.)


3d DCA Watch -- Move Those Foreclosure Cases, or Else Something Short of Dismissal Without Prejudice Could Happen!


Do you really want to get a bank's attention when they slow-boat a foreclosure action and leave it dangling in the court system for years?

Then for heaven's sake don't dismiss without prejudice, that's too harsh a sanction:
The ultimate sanction is not called for in this particular case. U.S. Bank filed only one deficient packet in this matter. Lesser sanctions, such as the rejection notice prescribed by the administrative memorandum, would have sufficed.
But the only reason it's the ultimate sanction is because the statute of limitations has run as a result of the bank's own dilatory conduct, no?

Judge Salter, in concurrence, notes that the bank waited three years to file its foreclosure action, and then another two to file an sj motion.  There was also an incorrect "affidavit of indebtedness" and the sj motion failed to mention a prior recorded equitable lien, and a prior order from 2009 that directed that the property be sold.

On top of all that, the case was almost dismissed for lack of prosecution back in 2008, and when permitted to proceed the trial judge ordered the bank to "aggressively move" the action.

Judge Salter then writes:
Florida Rule of Judicial Administration 2.250(a)(1)(B) establishes a “presumptively reasonable” time period for completion of a non-jury civil case as 12 months from filing to final disposition. The circuit judges in this district work hard to comply with that objective (and regularly do better), but active, focused efforts by institutional lenders and their attorneys are also required.
This will surely send a message to the bank and its counsel, no doubt! 

(But is it the right one?)


Tuesday, May 1, 2012

Judge Altonaga Disqualifies Law Firm for "Switching Sides" in FLSA Action.

 
If you do such a good job prosecuting FLSA actions against a defendant, can the defendant hire you to represent it in subsequent FLSA actions involving the same alleged misclassification brought by a different lawyer?

Judge Altonaga, in a well-written and well-reasoned order, says NO WAY:
The Court cannot but agree with Plaintiff that Kleppin’s conduct has had every appearance of  impropriety — an unsurprising conclusion since the conduct is actually improper.
Don't you just love the economy of language in that sentence?

11th Circuit Says Plaintiffs' Choice of Forum Not Mere Verbiage.



I'm sure district court judges never like seeing foreign injury-while-on-vacation cases on their docket, but there may be circumstances where jurisdiction could conceivably lie in the SD FL.

The 11th Circuit in this opinion reminds us that you can't just say all the words in the recitation of relevant forum non factors, you actually have to apply all those factors to the analysis:
The district court mentioned the presumption against disturbing the plaintiffs’ forum
choice in its introduction to the order, but failed to mention the presumption at all in its application and balancing of the factors. We have held that a recitation of the law regarding the presumption is not sufficient; this presumption must be integrated into the balancing of the private factors.
I don't know about you, but I still think the case is going to be dismissed.