Tuesday, April 29, 2014

You're Not Really Confused, Are You?





I'm pretty sure everyone agrees that Judge Rosenbaum will make a terrific 11th Circuit judge -- she's smart, hard-working, and demonstrates excellent judgment, discretion, and yes -- wisdom.

In this order I just love how she calls out defendants' counsel for pretending to be confused by fairly straightforward alleged ADA violations at a Mexican restaurant:
Second, Defendants’ claims that they are not capable of ascertaining from the Complaint the violations that Griffin alleges do not seem genuine. For example, Defendants complain that they cannot understand how paragraph 12.a of the Complaint, which cites Standards 208 and 502, relates to The Whole Enchilada because Section 208.2.1 “relates to hospital outpatient facilities and the defendants operate a restaurant[,]” and Section 208.2.3 “relates to residential facility Parking Spaces and the defendants operate a restaurant.” ECF No. 4-1 at ¶ 2. Thus, Defendants assert, they “do not know how [to] fix or respond to Section 208 since it cannot be determined which section applies.” Id. In support of their argument, Defendants attach certain pages of the ADA regulations, including Standards 208.2.1 and 208.2.3. See ECF No. 4-2.

But, although Section 208.2.1 clearly does not begin Section 208 and appears on page 34 of the excerpt that Defendants submit in support of their filing, Defendants conveniently do not attach page 33 of the same document, which includes the parts of Section 208 that precede Sections 208.2.1 and 208.2.3. See ECF No. 4-2 at 10-11.2 Significantly, Section 208.1 provides, “GENERAL. Where parking spaces are provided, parking spaces shall be provided in accordance with 208.” Section 208.2, in turn, notes the number of accessible parking spaces required for all establishments not specifically identified elsewhere in Section 208. Put simply, Sections 208.1 and 208.2 apply to parking requirements at all facilities that must be ADA-compliant, unless another provision within Section 208 sets forth a parking requirement specific to a particular facility. Defendants point to parts of Section 208 that they have picked and chosen and that they know do not apply to them and use those aspects of the Standards to argue that Section 208 as a whole does not apply to them when they know full well that the general parts of Section 208 do appear to apply to them. Worse yet, they appear to attempt to hide the relevant parts of Section 208 by attaching only the irrelevant parts of the Standard to their Motion. This does not comply with the duty of candor to the Court, and it is frivolous at best and disingenuous at worst.
Ouch.

9 comments:

Anonymous said...

How does jay weaver still have a job?

Despite his "news" "articles" robainas innocent of all charges.

Anonymous said...

Rosenbaum is the bomb. She will be missed in the district.

Anonymous said...

#benchslap

Anonymous said...

Agreed that she'll make a great appellate judge. But on the Eleventh she'll need to update some of that case law. What's up with all the citations in the motion-to-dismiss standard to pre-Twiqbal and unpublished Eleventh Circuit decisions?

Anonymous said...

need state court judges with her degreee of integrity, honesty and courage.

state bench is in sad state.

Anonymous said...

Where is everyone going for cinco de shumie?

Anonymous said...

Where the hell is the Rule 11 sanction?

Godwhacker said...

I am not at all confused. At least not since I was 17. And I do know who the daddy is. I have even numbered days, the husband gets the odd.

Anonymous said...

A defense firm filing a frivolous motion to dismiss? Next i'll find out that it gets dark at night time.