South Florida Lawyers

Spencer Aronfeld Speaks At #LTNY!

2012-02-01T16:56:00.000-05:00

Ok, I admit to being blissfully ignorant of #LTNY 2012.

Best I can tell, it's the type of convention you can get your law firm to send you to after they reject your request to go to the Consumer Electronics Show in Vegas.

And maybe it's just me, but if I'm in New York I can think of literally ten thousand things I would rather be doing than listening to vendors pitch high-tech doohickeys intended to "optimize" my practice.

(I better stop before this turns into a Tannebaum-esqe rant).

But hey, I don't "get" food trucks or sliders or sliders from food trucks either.

Different strokes etc.

So let's just roll tape:

I actually watched this with the sound off, so I have no idea what's being said -- but I love the pinstripes, like the strategic use of the smart phone, the product placement of the two books is unobtrusive and organic -- I'm giving it an A-.

3d DCA Watch -- School Daze Edition!

2012-02-01T11:47:00.002-05:00

What a treat -- the bunker denizens will be heading to UM to play Ultimate on the lawn, get soused at the Rat, and TP a few sorority houses....

What?

Actually, I'm advised that this is the Court's official position on the visit:

On February 10, 2012, the Court will hear Oral Argument at the University of Miami Law School, Newman Alumni Center, 6200 San Amaro Drive, Coral Gables, 33146.

Wink wink, nudge nudge, say no more.

Onward:

Aronson v. Aronson:

In this opinion Judge Shepherd "reasons inductively."

Demchak v. Davia:

In a fraudulent inducement suit over the value of a house, do you need to sell the house to establish your damages?

Judge Ramirez says no; Judge Shepherd says yes.

(Question -- can't expert testimony serve as a basis?)

See you crazy kids on campus!

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

2012-01-31T17:29:00.001-05:00

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

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

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

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

And he awards attorneys fees!

Shadows and Light.

2012-01-31T10:50:00.001-05:00

Sheesh, what to talk about this morning?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Time to cue Joni:

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

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

Love the clip!

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

"Concierge" Legal Services?

2012-01-30T12:43:00.001-05:00

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

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

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

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

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

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

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

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

This Order Reminds Me of Somebody!

2012-01-30T10:38:00.000-05:00

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

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

This Order has that sort of flavor:

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

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

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

Yep, sounds just like my bubbe!

Somebody Wants John Ruiz's Yacht!

2012-01-27T16:51:00.003-05:00

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

Oh yeah, the bank.

Better Watch Those Dismissals Without Prejudice!

2012-01-27T13:38:00.000-05:00

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

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

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

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

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

In other words, a typical billing day at BigLaw!

Spot the Lawyer!

2012-01-26T12:37:00.000-05:00

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

Judge Cohn Refuses to Stay Discovery Pending MDL Transfer.

2012-01-26T11:03:00.001-05:00

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

Here is Judge Cohn's reasoning:

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

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

Welcome back to Miami, visiting judges!

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

2012-01-25T10:59:00.002-05:00

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

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

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

Western Hay v. Lauren Financial:

Hmm, opinion withdrawal syndrome:

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

Oh boy, this is going to be good!

Let's get some popcorn and read on:

The final judgment under review is summarily affirmed.

That's it???

Dear 3d DCA: you just harshed my meld.

Gemini Investors v. Nunez:

Some good news for Kimberly Boldt:

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

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

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

Ok Ok Let's Talk Alters!

2012-01-24T15:19:00.000-05:00

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

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

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

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

Nice win there, Mr. Berman.

A few points of interest:

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

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

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

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

*   Alters is purer than Ivory soap.

Hey, that's what it says!

Dear Concordia Passenger: Your Discount Voucher Has Arrived!

2012-01-24T10:52:00.001-05:00

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

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

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

Costa added, "you're welcome."

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

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

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

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

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

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

Yay Tort Reform!!

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

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

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

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

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

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

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

Hand-Pulled Noodle Case Going to Trial!

2012-01-23T11:33:00.003-05:00

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

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

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

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

Abbey Kaplan Must Really Like Kenny Rogers!

2012-01-20T09:56:00.000-05:00

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

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

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

What do you all think?

Farm Tractors Are Dangerous Instrumentalities -- Who Knew?

2012-01-19T15:30:00.001-05:00

I love the dangerous instrumentality doctrine.

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

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

Today the Florida Supreme Court said, "huh"?

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

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

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

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

Good Luck Suing Carnival!

2012-01-19T11:03:00.002-05:00

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

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

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

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

But Jack says there still might be something there:

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

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

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

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

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

6400-word contract?

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

3d DCA Watch -- Leave Good Footprints Behind.

2012-01-18T12:00:00.002-05:00

Hi kids!

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

Bank of New York v. Rodgers:

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

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

Situation normal all.....

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

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

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

(Finally, a substantive discussion on the blog!)

But wait -- Judge Shepherd is not done:

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

Yes!!

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

Sunbeam v. Mitzel:

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

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

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

Rolls Royce v. Garcia:

Kinney happens.

11th Circuit Narrows FLSA Attorneys Fees Entitlement.

2012-01-17T12:21:00.000-05:00

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

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

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

(Sorry for any confusion!)

Let's Do the Time Warp Again!

2012-01-17T10:43:00.001-05:00

Does anyone else read this and think 1992:

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

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

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

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

Does this make sense?

Up to the Mountain.

2012-01-16T12:26:00.002-05:00

Remember the day.

Miami BigLaw Firm Turns Lawyer into Great Chef!

2012-01-13T14:58:00.001-05:00

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

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

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

Gotta love feel-good stories on a Friday afternoon!

Where Were You When PACER Went Down?

2012-01-13T06:55:00.000-05:00

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

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

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

David J. Stern Scores a Rare Victory!

2012-01-12T11:46:00.000-05:00

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

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

Happy days are here again!

Thanks for the Shout-Out, Judge Scola!

2012-01-11T14:14:00.002-05:00

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

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

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

and my personal favorite:

3. How do you pronounce Reese's Pieces?

In other words, all your important questions were answered!

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

Thanks for taking the time, Your Honor.

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

2012-01-11T11:01:00.002-05:00

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

Thank you bunker denizens!

Hold On -- Did Someone Just Reverse Judge Moreno?

2012-01-10T10:45:00.002-05:00

Am I reading this right?

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

Hmm -- exception, rules and all that.

Twombly/Iqbal Applies to Affirmative Defenses!

2012-01-09T07:14:00.004-05:00

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

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

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

Frye v. Daubert Steel Cage Death Match!

2012-01-06T10:59:00.002-05:00

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

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

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

You can read the text of the bill here.

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

Personally, I love this quote from Joel Perwin:

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

Oh well -- at least Daubert hearings come cheap!

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

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

Now Rothstein Has Ruined Another Thing I Love.

2012-01-05T10:04:00.002-05:00

Besides the law, of course:

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

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

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

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

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

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

Sheesh, what's next?

3d DCA -- The Apodictic is Back!

2012-01-04T11:31:00.001-05:00

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

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

Daneri v. BCRE Brickell:

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

Saewitz v. Saewitz:

Three guess who wrote this opinion:

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

Brodeur v. Miami-Dade County:

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

Answer: state court!

See you at the club.

Now We Have Impersonators Too.

2012-01-03T11:25:00.004-05:00

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

Add Florida Bar impersonators to the list:

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

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

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

Your First Practice Tip of 2012!

2012-01-02T10:24:00.000-05:00

Welcome to ~~the apocalypse~~ 2012!

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

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

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

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

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

Happy New Year, Plebes!

2011-12-31T13:14:00.000-05:00

Here's hoping you all have a safe, healthy, happy and prosperous 2012 -- thanks for reading!

Nothing But Flowers!

2011-12-30T11:16:00.000-05:00

The Intrepid One™ breaks the bad news:

The court, in a 4-3 opinion, approved a petition for emergency suspension filed by The Florida Bar Dec. 22. The suspension means that Alters cannot accept new clients, must cease representing his current clients after 30 days and must freeze his trust accounts. The Supreme Court also appointed Joel Brown, chief judge of the Eleventh Judicial Circuit, to referee Alters' disciplinary case and trial.

But Alters says it is not his fault -- it is the fault of his ex-partners:

In responses filed with The Bar on Dec. 22 and Dec. 27, Berman states that Sullivan's allegations are "demonstrably false," however he acknowledges issues with the firm's trust account. In a 100-page response to The Bar, he lays out his explanations, which include detailed financial records, canceled checks, a CPA's report and a polygraph report.

Alters turned over management of the firm to a former partner, Kimberly Boldt, in July 2009 because he was overwhelmed handling litigation and with personal problems related to his mother becoming ill and his 12-year marriage falling apart. He also blames another former partner, Thomas Culmo, for failing to deliver a $1 million fee, throwing accounts into disarray.

Neither Boldt nor Culmo returned calls for comment. Both have sued Alters, claiming he owes them money.

In other happy holiday news, Rothstein says his ex-partners were "willing puppets":

In the seven days of testimony for which transcripts have been made public to date, Rothstein painted former law partners Stuart Rosenfeldt and Russell Adler as his willing puppets. When Rosenfeldt once asked about the firm's finances, Rothstein said he stopped his law partner's questioning by asking: "Are you happy with the amount of money you're making?"
As for Adler, he "wasn't the sharpest pencil in the box," Rothstein said, but added that Adler allegedly helped persuade several outside attorneys to meet with investors and lie to them about having referred big-dollar cases to Rothstein's firm.

Attorneys for Rosenfeldt and Adler flatly rejected Rothstein's claims, calling him a desperate imprisoned felon willing to say anything to reduce his punishment.

Having ex-partners -- the gift that keeps on giving.

Does anyone have any positive news to share?

3d DCA Watch -- Special Holiday Edition!

2011-12-29T10:32:00.000-05:00

Wow, who knew the hardest working bunker in the law biz would keep on swilling right through the holidays, very impressive when you consider the holiday party got a little out of hand (again) -- let's not discuss what happened when the Bilzin shot put lunch club made an unannounced appearance and hung the mistletoe in a strategically awkward location -- say no more, as they say.

Onward:

Goldblatt v. C.P. Motion:

Nice holiday present -- a $5 million liquidated damages award reversed:

We thus conclude that the liquidated damages clause was unenforceable because the damages were readily ascertainable, and it constituted a penalty. Accordingly, we reverse the judgment award of $4,969,339 and remand for a proper determination of the actual damages.

American Safety v. Mijares:

Trial court reversed for applying limited exception to enforcement of mandatory forum selection clauses:

Mijares asserts that litigation in Georgia might produce results inconsistent with the litigation remaining in Miami and that this constitutes a compelling reason to keep the litigation in Miami. While we agree that inconsistent and simultaneous interstate litigation is an applicable compelling reason, see McWane, Inc. v. Water Mgmt. Servs., Inc., 967 So. 2d 1006 (Fla. 1st DCA 2007), we do not agree it applies in this case to override Florida law’s presumption in favor of enforcing forum selection clauses. Mijares’ arguments regarding the possible impractical or inconsistent litigation it may have to pursue against other defendants who need not litigate in Georgia, do not overcome the certainty that Mijares freely agreed to the mandatory forum selection clause as to its claims against American.

Have fun in Georgia, Mijares!

Giordano v. Romeo:

Get ready kids, it's time to hold your nose and apply the law:

The business practices of Xcentric, as presented by the evidence before this Court, are appalling. Xcentric appears to pride itself on having created a forum for defamation. No checks are in place to ensure that only reliable information is publicized. Xcentric retains no general counsel to determine whether its users are availing themselves of its services for the purpose of tortious or illegal conduct. Even when, as here, a user regrets what she has posted and takes every effort to retract it, Xcentric refuses to allow it. Moreover, Xcentric insists in its brief that its policy is never to remove a post.1 It will not entertain any scenario in which, despite the clear damage that a defamatory or illegal post would continue to cause so long as it remains on the website, Xcentric would remove an offending post.

However much as this Court may disapprove of business practices like those embraced by Xcentric, the law on this issue is clear. Xcentric enjoys complete immunity from any action brought against it as a result of the postings of third party users of its website.

Who knew the application of the law could bring such sorrow?

Scott Rothstein: "I am Large, I Contain Multitudes" (I'm Paraphrasing)

2011-12-28T07:14:00.001-05:00

Oy I'm sick to death of this story but the hits just keep on coming:

The convicted con man said he tried to stop his employees from selling marijuana, but that he had no problem with prostitutes gallivanting around the Las Olas Boulevard offices of Rothstein Rosenfeldt Adler — because he felt protected on that front.

“The police also were sleeping with my escorts,” Rothstein said. “Broward Sheriff’s Office, Fort Lauderdale Police Department weren’t going to bother me, okay, I could have had all the escorts I wanted.”

Then there were the organized-crime figures who would pop in to visit, Rothstein said.

“Mob guys, law enforcement, even judges from time to time, not federal judges, would show up,” he said.

So prostitutes and mobsters are fine, but lawyers dealing weed -- that's where Scott draws the line:

While Rothstein condoned recreational, weekend marijuana use, he said he had to worry about RRA employees using marijuana in the office and parking garage: He was afraid it would draw law-enforcement attention.

He said some law partners couldn’t come to work without first smoking pot. Some employees were reportedly selling it as well.

“You don’t want to have marijuana dealing from the middle of your law office because I was running a giant Ponzi scheme out of there,” Rothstein said.

Exactly -- just what kind of joint do you think he's running?

Rothstein Trustee "Forgot" Pledge of Confidentiality.

2011-12-26T09:21:00.001-05:00

Frankly I'm bored by the Rothstein "revelations" -- about his partners' alleged involvement, the slush funds, the hookers etc. -- but I did find Judge Cohn's order regarding the Trustee sharing confidential information gleaned from an earlier Rothstein interview to be pretty interesting:

In opposition to this cross-motion, counsel for the Trustee explains that the disclosure made to counsel for the Coquina plaintiffs was part of the settlement between the Trustee and Coquina of an adversary action. Counsel states that in the rush to expedite approval of this settlement by the bankruptcy court, he “forgot” the pledge he made to the Court not to disclose the information, and while sincerely apologizing to the Court, further defends the disclosure under the joint interest doctrine. The Trustee contends that the legal basis for non-disclosure of the interview, the work product privilege, is subject to the joint interest doctrine exception, in that once the settlement occurred, the Trustee and Coquina’s interests were aligned against TD Bank.

Ok, that's pretty lame -- I think he should have stopped after "I forgot."

Why apologize if you did nothing wrong?

On the other hand, if you did something wrong, and you have apologized (for which you get much credit in my book), why diminish the apology by trying to defend your actions?

And the Beat Goes On!

2011-12-23T11:30:00.004-05:00

All the way to the Eleventh Circuit, with Mark Hicks now manning the controls:

Notice is hereby given that Peter Halmos, International Yachting Charters, Inc., and High Plains Capital Corporation, plaintiffs in the above named case, hereby appeal to the United States Court of Appeals for the Eleventh Circuit from the Findings of Fact and Conclusions of Law entered in this action on November 22, 201 1 (D.E. 1431) (Ex. 1).

I wonder if there are any appellate issues?

Paul Calli and Steve Bronis Score Big!

2011-12-22T17:53:00.000-05:00

After 12 weeks of grueling trial before Judge Leon in DC, he tosses the conspiracy charges:

A federal judge presiding over a landmark foreign bribery case in Washington, D.C., dismissed conspiracy charges against six defendants Thursday, exonerating one of them entirely.
The ruling is a major setback for the Department of Justice, which has touted the case as an example of its efforts to get tough on foreign corruption. The trial, which began in September, is the second in a series of criminal trials to arise from a Federal Bureau of Investigation sting operation targeting corruption in the military equipment industry.

In an unusual procedural move, U.S. District Judge Richard Leon on Thursday threw out the conspiracy counts after 12 weeks of trial, saying there wasn't enough evidence to justify sending the charges to the jury to decide, according to court transcripts seen by Dow Jones Newswires.
Leon's ruling meant that defendant Stephen G. Giordanella, who was accused only of conspiring to violate the U.S. Foreign Corrupt Practices Act, was exonerated entirely. The remaining five defendants still face counts of substantive violations of the FCPA, a 34-year-old law that prohibits bribes to foreign officials to win business.

The Department of Justice declined to comment.

But our man Calli certainly did:

Giordanella's lawyer, Paul Calli, said he was grateful the court had made the "correct and just ruling."

"Mr. Giordanella was innocent and should have never been accused in the conspiracy," Calli said. "In many respects, the DOJ's fake Gabon conspiracy represents a prosecution at its most dangerous. He's grateful to be exonerated and to begin putting this behind him."

Congratulations!

3d DCA Watch -- Merry Christmas Edition!

2011-12-21T11:27:00.001-05:00

What better way to say "Merry Christmas" then to reverse an order setting aside a foreclosure:

we reverse the nonfinal order granting the foreclosure defendants’ emergency motion to set aside summary judgment pursuant to Florida Rule of Civil Procedure 1.540(b) because, as in Carnero, “the motion seeking relief under this rule was unsworn as to the claim of excusable neglect and there was no sworn evidence of excusable negligence otherwise adduced at the hearing below.” Reversed and remanded with directions to reinstate the final summary judgment of foreclosure and for further proceedings in compliance therewith.

In other holiday news, the 3d reverses a wrongful death action against the University of Miami because the cause of action was not clearly reserved in a settlement with another tortfeasor:

In its initial order granting summary judgment, the trial court properly concluded that the clear and unambiguous terms of the Release and Settlement Agreement failed to reserve a cause of action and barred Francois from pursuing a claim against the University of Miami. However, the trial court erred in granting rehearing and in considering the Addenda and the memorandum of settlement in an attempt to discern an intent which was already clearly expressed by the terms of the Release and Settlement Agreement. We therefore reverse the order granting rehearing and remand with directions to reinstate the order granting motion for summary judgment and final summary judgment in favor of University of Miami.

Finally, the gift shop at the Intercontinental has been properly evicted despite making payment a day late due to a trial court service mishap:

Section 83.232(5), Florida Statutes (2011), provides, “Failure of the tenant to pay the rent into the court registry pursuant to court order shall be deemed an absolute waiver of the tenant’s defenses. In such case, the landlord is entitled to an immediate default for possession without further notice or hearing thereon.” In Park Adult Residential Facility, Inc. v. Dan Designs, Inc., 36 So. 3d 811, 812 (Fla. 3d DCA 2010), this court confirmed that trial courts “have no discretion in entering an immediate default for possession under these circumstances. The trial court may not consider the reasons why the deposit was not timely made.” We further stated, “[T]he law is the law. It is not our job to carve exceptions into an otherwise clear and imperative statute.” Id. at 812 n.1.

As ~~Newt Gingrich~~ somebody once said, the law is a harsh mistress.

Merry Christmas!

Light It Up, South Florida!

2011-12-20T17:08:00.000-05:00

Yes, bask in the warm glow of two measly-lit candles propped precariously near an obvious fire hazard -- that's what the holidays are all about!

Have a happy and healthy.

Now Glenn Garvin Wants to Be Dave Barry!

2011-12-20T11:38:00.000-05:00

The Opinionator tries his hand at light, witty comedy, with disastrous results:

The hundreds of complaints I got from lawyers after I wrote about frivolous lawsuits in pursuit of jackpot justice were so scatological that I’m now pretty certain law schools must offer elective courses in biology, because I have never heard so many richly descriptive references to such obscure corners of the digestive tract, nor such detailed instructions for how to insert my head into them.

Oh touche, Mr. Garvin, when do you pick up your next Pulitzer?

And the following passage is so mind-numbingly stupid I actually lost 42 neural receptors while simply cutting and pasting it:

And even as the lawyers were proclaiming that in the majesty of the law, there is no such thing as a frivolous lawsuit, news broke out of a Chicago suburb of two children in their 20s suing their mother for serving them bad birthday cake and setting curfews for them in high school. The kids’ attorney is their divorced dad.

Ok, let's start with the first part -- no lawyer proclaims that "in the majesty of the law, there is no such thing as a frivolous lawsuit."

What the evidence shows -- particularly with the Hot Coffee documentary -- is that there is a large, well-funded corporate effort designed to "game" the system so false narratives are created and folks like Garvin lap it up and spit it right out. Most judges and experienced lawyers, on the other hand, know that the current system works reasonably well and "frivolous" lawsuits rarely succeed and most often fail through proven procedural and substantive legal methods, such as motions to dismiss, summary judgment, contingency fee incentives, Rule 11, 57.105 and on and on and on. That's what we do all day.

BTW, that doesn't mean that there is no such thing as a frivolous lawsuit, or that certain tweaks here and there might not be a bad idea -- but the criticism is often ideology-driven, overblown, ill-informed, and let's face it -- in Garvin's case he's just blowing smoke.

The second part is even more absurd -- "news broke out of a Chicago suburb of two children in their 20s suing their mother for serving them bad birthday cake and setting curfews for them in high school. The kids’ attorney is their divorced dad."

Glenn, this is not called a frivolous lawsuit -- it's called a "custody battle."

Does the Herald still have editors?

Happy Monday!

2011-12-19T10:01:00.001-05:00

Let's see, I hope everyone is getting ready for the holidays and things are starting to slow down until the New Year.

A few items that caught my eye this morning:

1. Spencer is lighting a giant Menorah (caution -- video is very hamish).

2. Judge Jordan's nomination stalled at year end.

Here's a portion of Senator Leahy's powerful 12/17/11 statement on this gridlock:

Our courts need qualified Federal judges, not vacancies, if they are to reduce the excessive wait times that burden litigants seeking their day in court. It is unacceptable for hardworking Americans who are seeking their day in court to suffer unnecessary delays. When an injured plaintiff sues to help cover the cost of his or her medical expenses, that plaintiff should not have to wait for three years before a judge hears the case. When two small business owners disagree over a contract, they should not have to wait years for a court to resolve their dispute.

With one in ten Federal judgeships currently vacant, the Senate should have come together to address the serious judicial vacancies crisis on Federal courts around the country. Bill Robinson, the president of the American Bar Association, warned recently in a letter to Senate leaders that excessive vacancies and high caseloads “deprive… our federal courts of the capacity to deliver timely justice in civil matters and has real consequences for the financial well-being of businesses and for individual litigants whose lives are put on hold pending resolution of their disputes.” Justice Scalia, Justice Kennedy and Chief Justice Roberts have also warned of the serious problems created by persistent judicial vacancies. This is an issue affecting hardworking Americans who are denied justice when their cases are delayed by overburdened courts.

If caseloads were really a concern of Republican Senators, as they contended when they filibustered the nomination last week of Caitlin Halligan to the D.C. Circuit, they would not have blocked us from voting to confirm consensus nominees to fill judicial emergency vacancies. They would have consented to consider the nomination of Judge Adalberto Jordan of Florida which was reported unanimously on October to fill a judicial emergency vacancy on the Eleventh Circuit. He is a well-respected Federal judge and his nomination is strongly supported by Florida’s Republican Senator, Senator Rubio. Yet, despite the judicial emergency Republicans continue to delay consideration of that nomination.

3. Newt wants US Marshals to round up "activist" federal judges:

The former House speaker Sunday showed no sign of letting up on his assault on such judges. During an appearance on CBS’s “Face the Nation,” Gingrich suggested the president could send federal law enforcement authorities to arrest judges who make controversial rulings in order to compel them to justify their decisions before congressional hearings.

When host Bob Schieffer asked how he would force federal judges to comply with congressional subpoenas, Gingrich said he would send the U.S. Capitol Police or U.S. Marshals to arrest the judges and force them to testify.

How could this possibly go wrong?

Another "Teachable Moment."

2011-12-16T11:24:00.000-05:00

What happens when a crucial affirmative defense of your client is "not reflected in the docket"?

What happens when it is your responsibility to make sure the affirmative defense is "reflected in the docket" -- i.e., filed?

What happens when this all takes place before Judge Seitz?

You've just bought yourself a "teachable moment":

Defendant moves for reconsideration on the grounds that Plaintiff has known about Defendant's intent to assert the Motor Carrier exemption since May 25, 2011. At that time, Defendant sent Plaintiff an email with attachments containing a Motion for Leave to Amend its Answer and Affirmative Defenses and a Proposed Am ended Answer and Affirmative Defenses. Defendant, however, never filed the Motion for Leave to Amend. In the Motion for Reconsideration, Defendant states that the Motion for Leave to Amend and the Proposed Amended Answer and Affirmative Defenses "are not reflected in this Court's docket.'' There is only one reason for that - Defendant did not file them. In the Motion for Reconsideration, Defendant states that it has "discovered that its Motion for Leave to Amend and its proposed Amended Answer and Affirmative Defenses are not reflected in this Court's docket, and that there was never a ruling on the issue.'' See DE-75 (emphasis added). What Defendant fails to acknowledge is that it had a responsibility to monitor the docket in this matter and to be aware of the proceedings in this case. At the latest, Defendant should have discovered its failure to file the Motion to Amend when Defendant prepared its motion for summary judgment in August 201 1. If Defendant discovered its failure then, it did nothing to correct it. Defendant's recent discovery of its failure to file a motion, that was to be filed in May, is inexcusable and Defendant has not offered any reason why it failed to discover this sooner.

She wound up letting them amend their answer and assert the affirmative defense anyway.

Mars Needs More Judges!

2011-12-15T16:26:00.000-05:00

Did I say Mars?

I meant South Florida.

Here's some of the bad news affecting civil:

Workload associated with the residential mortgage foreclosure crisis continues to impede disposition times and rates in our circuit civil division. The Court is grateful to the Legislature for funding the Foreclosure and Economic Recovery Initiative, which terminated on June 30, 2011. The case managers and senior judges used in the Foreclosure and Economic Recovery Initiative made a significant difference in reducing backlog throughout the state. Unfortunately, due to the severity and protracted nature of the crisis, our trial courts continue to struggle with heavy pending caseloads and the slow resurgence of foreclosure filings. The absence of additional case processing resources, such as case managers and senior judges, will continue to delay case processing times and pending caseloads in our civil divisions for the foreseeable future. Moreover, this crisis has a ripple effect on the workload of other court divisions as chief judges and administrative judges allocate limited court resources to address demand.

It's a disgrace that the courts have to go hat in hand every year and pretend to be servile and deferential to what is supposed to be a co-equal branch of government.

Indeed, there is no need for the Supremes to be overly "grateful" the Legislature decided to help with the foreclosure crisis in this State, given how large a crisis it is and how many Florida homeowners are affected.

But hey, thanks for providing minimal assistance and then terminating the program in the middle of the year, leaving everybody in a lurch.

Parsing Judge Ramirez's New Blawg!

2011-12-15T10:11:00.000-05:00

A happy development in South Florida Blawgerland:

One of our favorite bunker-dwellers, Judge Ramirez, has started a new blawg!

Judge Ramirez is a fantastic judge and a genuinely good guy, so we're very pleased he has decided to share his thoughts on the law in a more informal setting.

The blog is called "Florida Law Update" -- ok, not the catchiest title in the world, but let's give the Judge a chance.

Taking a look, the Judge has put up two posts about cases we have also covered.

Interestingly, the Judge has managed to discuss these cases without any obscure pop-cultural references, no obsessions with local attorneys, not a single mention of the Holocaust, no discussions of why Robert Palmer and Paul Rogers both fronted 80s supergroups at the exact same time, and no photos of lost starlets we are certain we can cure with our abiding love.

It's a unique approach but we wish the Judge great success!

3d DCA Watch -- Hold Your Nose Edition (Again).

2011-12-14T11:24:00.002-05:00

Hi kids!

The bunker has arisen from its sleepy slumber, emitting the usual morning noises and -- since it's Wednesday -- also various orders!

Let's look in:

Rostrum v. FL Unemployment Appeals Comm:

Judge Salter holds his nose and "reluctantly" concurs in a case where claimants routinely get screwed on the time to appeal:

Although the majority is correct that section 443.151(4), Florida Statutes (2009), has no judicially-recognized, traditional “good cause” exception for a latefiled appeal,2 these cases should be addressed on the merits because of their importance. Unemployment compensation benefits are a safety net that should not be snatched away on a technicality that prejudices no one. The existing twenty-day statutory period for an administrative appeal includes the days the Agency’s adverse determination is in the mail. No allowance is made for intervening weekends and holidays after the mailing but before the twentieth day. Thus, in practice, the claimant may have two weeks from receipt of the Agency’s adverse ruling within which to seek assistance and prepare and file an appeal. There is no statutory or administrative procedure for seeking an extension of time for the claimant to further investigate the stated basis for the Agency’s adverse determination, to seek pro bono or other counsel, to actually write and file the appeal itself, or to “get through” to the Agency’s advertised help line.

The Judge even asks for legislative relief (good luck):

While reluctantly concurring in the decision in this case, it is my hope that our Legislature will remedy this recurring elevation of a procedural deadline above an unemployed claimant’s right3 to present his or her evidence and to obtain a decision on the merits. The financial and emotional challenges of unemployment ought to be enough without compounding the effect by putting the claimants through a futile administrative and judicial labyrinth. I therefore urge the Agency to provide claimants with the documents and information provided to the Agency by the employer in support of a determination that the employee is not qualified for benefits, and I respectfully urge the Legislature to amend section 443.151(4), Florida Statutes (2011), to allow a longer period of time within which a party may appeal an adverse determination.

I'm sure they'll get right on that!

Spencer Aronfeld Hanging With Dr. Phil!

2011-12-13T10:19:00.005-05:00

Check out Spencer's purposeful, sober head nod at the end!

Scott Rothstein Reverses Himself on Crucial Facial Hair Issue!

2011-12-12T15:36:00.002-05:00

The biggest news coming out of the Scott Rothstein speed depos was of course broken by Julie Kay -- Scott has completely reversed himself on the merits of facial hair:

Rothstein, who was kept out of the public eye by U.S. Marshals deputies, was described as looking fit, sporting a goatee and talking animatedly.

Yet back in this space in September 2009, when Rothstein was just a wee scheming schmuck with a 70 lawyer firm, he said this:

He will only let his underlings grow facial hair, for example, if they have the right attitude. ``I had one young attorney who wanted to grow a goatee,'' Rothstein says. ``I allowed him to try. But it didn't work. It was patchy and scruffy. Another guy grew one that looked good. But he seemed embarrassed by it. You have to be a beard or goatee kind of guy, or the jury or the client will just think you didn't shave or you're trying to prove something.''

So is Scott now saying he has the requisite 'tude to rock a goat?

Or is he "just trying to prove something"?

Welcome to My New "Pop-Up" Restaurant!

2011-12-12T10:17:00.000-05:00

It suddenly occurred to me -- much like my fledgling entry into the food truck craze -- that I should immediately open up a "pop-up" restaurant.

Here are the broad contours of my concept:

1. Hip hop music will be banned.

2. I plan to only serve food from Wisconsin.

(So I guess it's a pop-up lutefisk 'n cheese shop?)

3. It will be located right next to my food truck.

Wish me luck kids, but then again -- how could it go wrong?

In other news, the talented Mr. and Mrs. Markus whooped it up on eighty-seven (or eight, but who's counting?) fed lawyers and scored a big win on behalf of his client before Magistrate Judge Torres.

Other than continually referring to himself in the plural ("our findings," "we" etc. -- it's ok, I do it too) it's a thorough and well-reasoned R&R.

Finally, we offer congrats (see?) to the Most Effective Lawyers in town -- if you did not win, that means you have a chance to be more effective next year -- that's what New Year's resolutions are all about.

Scott Rothstein to Face 30 Lawyers in Depo Equivalent of Speed Dating!

2011-12-09T10:59:00.001-05:00

So Scott Rothstein will be brought back to Miami, to be deposed by as many as 30 lawyers who are slotted anywhere from several hours to several days for continuous "speed depos" right up until Christmas Eve?

Only in Scott Rothstein's world does something like this seem even plausible.

Totally unrelated, but anyone remember that old Twilight Zone episode, "Deaths-Head Revisited"?

Just asking.

Florida Supreme Court to Litigants: I've Got the Power!

2011-12-08T11:48:00.001-05:00

Just because pesky litigants conclusively settle a matter pending before the Florida Supreme Court and prior to briefing being completed on the issue, don't think the Court can't hear and rule on the case anyway:

In the present case, it is true that the parties have filed a notice of stipulated dismissal pursuant to rule 9.350 notifying this Court that this matter has been settled. Although the issues underlying this litigation may be moot as to the parties involved, our precedent clearly establishes that mootness does not defeat appellate jurisdiction, and a reviewing court has the discretion to retain jurisdiction over a case to decide the merits notwithstanding a notice of dismissal filed by the parties denoting a settlement of their dispute.

Not so fast says Justice Canady, occupying his usual role as dissenting gadfly:

Although the issues underlying this litigation may be issues of great importance, it is no more proper for the Court to compel the parties to litigate those issues after they have jointly filed a notice of dismissal than it would be for the Court to compel a party to file a petition for discretionary review. The parties to this proceeding have rights. They should not be dragooned into litigating a matter that is no longer in controversy between them simply because this Court determines that an issue needs to be decided.

"Dragooned"?

Very nice -- the Judge could have also went with "conscripted" or my personal favorite, "impressment."

3d DCA Watch -- Note to Parties: Try Reading the Law.

2011-12-07T14:26:00.001-05:00

I have very vivid memories of visiting the USS Arizona memorial as a kid.

Although I mostly viewed Hawaii through a Brady Bunch lens, I was also a WWII buff even at an early age and could not wait to board the shuttle that took us across the blue water and above the encased remains of the sailors lost that terrible day.

The drips of oil percolating to the surface, combined with the solemn location and quiet power of the memorial service, was overwhelming and unforgettable.

For those interested in the legal wranglings associated with this tragedy, I highly recommend John Toland's masterful Infamy, inexplicably now out of print but still widely available through Amazon.

In other news, the 3d DCA had to advise counsel how to file and defend against a lawsuit.

Turns out you should look at pre-existing law for guidance:

We urge the parties to review the Fourth District’s decision in Florida Insurance Guaranty Ass’n v. Olympus Ass’n, 34 So. 3d 791 (Fla. 4th DCA 2010), which illustrates the proper procedure when an insurance company fails to pay an appraisal award, and explains that coverage issues are to be determined by the trial court.

So you don't just file first and research later?

Magistrate Judge Torres Bonks Governor Scott on Intrusive Subpoena on ACLU.

2011-12-07T09:28:00.001-05:00

Usually when you serve a subpoena to depose opposing counsel that means there is at least a fair chance you are a d$@k of a lawyer.

That's especially true when there's not even an arguable basis for how such a deposition fits within the broad discovery parameters of Rule 26.

But hey, that's our Governor:

We agree with the ACLU that the ACLU’s “knowledge and position” on employer drug testing, the prevalence of drug use, public opinion polls, and the effects of workplace drug use, have almost nothing to do with the claims or defenses in this case. Whatever the ACLU knows or believes about the frequency or propriety of employer drug testing or drug use simply has no relevance to the constitutional claim at issue – whether drug testing of these state employees in executive agencies is permissible under the Fourth Amendment. Neither does the ACLU’s knowledge or belief have any bearing on the Defendant’s affirmative defenses.

Oh yeah, one other thing -- the ACLU is counsel of record in the suit challenging the Governor's insipid drug-testing policy:

Finally, the most troubling aspect of these subpoenas is their impact on the ACLU’s role as counsel in the case on behalf of the Plaintiff. Obviously, such requests are generally disfavored. “Discovery was hardly intended to enable a learned profession to perfonn its functions . . . on wits borrowed from the adversary.” Hickman v. Taylor, 329 U.S. 495, 516 (1947) (Jackson, J., concurring). Both the attorney-client privilege and the work-product doctrine are implicated when an attorney deposes his or her adversary. If clients fear that their counsel may be deposed and forced to answer questions about the case, a chilling effect on clients’ candor with counsel may result. Similarly, knowing that they eventually may be deposed about their knowledge of documents and other facts connected with a case may lead attorneys to shield themselves from relevant facts, thereby resulting in less effective representation.

Good thing we have the Governor to protect our constitutional liberties from the big bad ACLU.....

CABA Elections Tonight!

2011-12-06T10:31:00.001-05:00

Of course the big happening is tonight's CABA elections -- be there or be square.

Good luck contestants!

Hmm, my guess is it would be pretty tough to be a transsexual employed at the Georgia General Assembly’s Office of Legislative Counsel, especially around Halloween.

Hey, according to Judge Barkett -- I was right!

Starting in 2005, Glenn began to take steps to transition from male to female under the supervision of health care providers. This process included living as a woman outside of the workplace, which is a prerequisite to sex reassignment surgery. In October 2005, then known as Glenn Morrison and presenting as a man, Glenn was hired as an editor by the Georgia General Assembly’s OLC. Sewell Brumby is the head of the OLC and is responsible for OLC personnel decisions, including the decision to fire Glenn.

In 2006, Glenn informed her direct supervisor, Beth Yinger, that she was a transsexual and was in the process of becoming a woman. On Halloween in 2006, when OLC employees were permitted to come to work wearing costumes, Glenn came to work presenting as a woman. When Brumby saw her, he told her that her appearance was not appropriate and asked her to leave the office. Brumby deemed her appearance inappropriate “[b]ecause he was a man dressed as a woman and made up as a woman.” Brumby stated that “it’s unsettling to think of someone dressed in women’s clothing with male sexual organs inside that clothing,” and that a male in women’s clothing is “unnatural.” Following this incident, Brumby met with Yinger to discuss Glenn’s appearance on Halloween of 2006 and was informed by Yinger that Glenn intended to undergo a gender transition.

In the fall of 2007, Glenn informed Yinger that she was ready to proceed with gender transition and would begin coming to work as a woman and was also changing her legal name. Yinger notified Brumby, who subsequently terminated Glenn because “Glenn’s intended gender transition was inappropriate, that it would be disruptive, that some people would view it as a moral issue, and that it would make Glenn’s coworkers uncomfortable.”

And here's the ~~money shot~~ ratio decidendi:

The question here is whether discriminating against someone on the basis of his or her gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause. For the reasons discussed below, we hold that it does.

I'm actually encouraged by this.

Would You Want to Work Here?

2011-12-05T09:00:00.006-05:00

At a kiosk in the middle of a Boynton Beach mall?

Just south of the food court and past the $15 "designer style" jewelry stand is an unusual mall kiosk staffed not with vendors hawking holiday ware but attorneys offering legal advice.

The Law Booth at the Boynton Beach Mall was opened Nov. 1 by three Palm Beach County attorneys who said they saw a need for legal counseling outside normal business hours and the traditional office setting.

Founded by Melva Rozier, Richard Carey and Paul Burkhart, the stand, which sits outside American Eagle Outfitters, is typically open from about 10 a.m. to 8 p.m. with "Walmart"-priced advice on legal matters including foreclosure, bankruptcy, estate planning and family law.

They were even open at 4 a.m. on Nov. 25 for Black Friday shoppers.

Ok, at first blush I thought this was preposterous but now I think it's kinda genius.

It's true you're not at a large law firm on Brickell, getting paid a lot of money to service a client who would have no idea whether or not you got fired the next day.

You're where your clients are -- at the mall, shopping of course -- but you're providing immediate help to real people with real legal problems.

And you're working.

Could be worse, right?

SFL Friday Follies!

2011-12-02T16:24:00.001-05:00

Hey, wasn't that a wonderful investiture for new County Court Judge Spencer Multack?

With the kids, and the best friend, and Judge Holmes -- all good stuff.

Congratulations!

In non-good stuff news, self-described "good deeds" creator (hey, he actually said that!) Stuart Rosenfeldt will have to put his public works projects on hold:

Stuart Rosenfeldt, Ponzi schemer Scott Rothstein's former partner and the second "R" in RRA, has been informed by the federal government that he will be indicted on criminal charges, says his attorney.

Rosenfeldt played a public role in representing the crumbling law firm in the aftermath of the implosion of Rothstein's billion-dollar Ponzi scheme. He is one of many former Rothstein law partners and business associates expected to be arrested by the feds prior to December 12, when Rothstein is scheduled to begin a grueling string of civil depositions that are expected to take 10 days to finish.

Several sources say that Russell Adler, the third named partner in the defunct Rothstein Rosenfeldt Adler firm, is among those expected to be charged. Adler's attorney, Fred Haddad, didn't dispel that idea, saying he expects more indictments soon and that the the filing of criminal charges Thursday against two Rothstein associates -- Marybeth Feiss and William Boockvor -- indicated "which way the wind was blowing."

Rosenfeldt's attorney, Bruce Lehr, said federal officials informed him a few months ago that his client was going to be charged criminally. Lehr said he has been given no time frame and has no information on what exactly Rosenfeldt will be charged with.

I don't know -- three guesses, anyone?

Finally, congrats to Big Mike Casey, who along with Richard Tuschman had a judgment vacated by Judge Lenard.

Not bad, kids.

And how was your week?

Our Long National Rosh Hashanah Nightmare is Over!

2011-12-01T15:19:00.001-05:00

Way back in September we did a wee little post about Gene Stearns getting sanctioned by Judge Freeman for refusing to move a deposition scheduled for Rosh Hashanah, which got picked up by AboveTheLaw.

We followed that post with Gene's motion for reconsideration, which provided some context for what the parties were arguing about, and in the comments I even offered a solution.

Well Judge Greeman has granted the motion for reconsideration, which you can read here.

Well done!

(The Judge still would have required the deposition to be moved to another day.)

Of course I found this part interesting:

Shortly after this Court's order awarding sanctions was ordered, a story appeared in two blogs widely read by practicing attorneys both locally and nationally (ed. note -- thanks Judge!), interpreting the behavior of Plaintiff's counsel -- and this Court's apparent condemnation of it -- in a manner that grossly distorts the truth and reflects both badly and unfairly on the legal system in general and Plaintiff's counsel in particular. Plaintiff's counsel says about the blog postings that it is difficult to say which was worse, being falsely described as anti-Semitic or being falsely supported for being anti-Semitic. The Court is sympathetic to that view.

Hold on, Judge -- if you look at our two postings we tried to play it pretty fair and even posted Gene's motion for reconsideration in full. And we don't let commenters go crazy like they do on ATL (or the Herald, for that matter).

Still, it's nice to be loved.

This is a Real Ad.

2011-12-01T11:17:00.001-05:00

In the Florida Bar Journal, no less!

If I were the dead guy pictured I wouldn't just start rolling in my grave, I would get up and throttle somebody.

And they're krepsing us over completely innocuous law firm websites....

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

2011-11-30T10:44:00.001-05:00

Yes Virginia, Aventura can legally film you running red lights:

The Ordinance mandates that the Traffic Control Infraction Review Officer review and verify the recorded images prior to the issuance of a notice of violation which parallels the requirement that a traffic infraction enforcement officer under the Uniform Traffic Control Law observe the traffic violation and, does not conflict with the requirements of subsection 316.640(5)(a), Florida Statutes. Accordingly, we find the trial court erred in its determination that section 48-26 allowed the cameras to serve as the sole basis for issuing a notice of violation in direct conflict with section 316.007, Florida Statutes.

Ah yes, doesn't every hamlet have an ~~Orwellian~~ neighborly "Traffic Control Infraction Review Officer" -- just like Barney Fife!

But the dissent, well, dissents.

Sayeth The Rothenberg:

The City and the majority’s reliance on section 316.008(1)(w) as the statute’s express grant of authority is, however, misplaced. The City’s unmanned cameras placed at various intersections do not regulate nor restrict traffic, and Masone does not allege that the use of cameras to monitor traffic is preempted by or in conflict with Florida law. What Masone correctly argues is that section 316.008(1)(w) does not expressly grant municipalities the authority to: (1) enforce by ordinance, violations of traffic infractions, including red light violations, already being enforced under Florida’s uniform traffic laws; (2) punish alleged violators on an adjudication on the merits in a “court” unauthorized by the Florida Constitution or state statute; (3) create a different standard of proof and liability for red light violations than that which has been approved by the Legislature; and (4) establish penalties not authorized by chapters 316 or 318.

She also helpfully identifies all the conflicts with state law -- the first two seem most pertinent:

(1) Whereas section 316.075 punishes drivers who commit traffic light infractions, the City’s ordinance punishes the owner of the vehicle which is observed committing a red light traffic infraction unless the owner submits an affidavit stating that at the time the infraction was being committed, his/her vehicle was being driven without his/her consent.
The affidavit must include the identity of the person who had care, custody or control of the vehicle, if known, or include a police report if the vehicle was stolen.

(2) Whereas section 316.640(5)(a) requires the traffic enforcement officer to personally observe the commission of the traffic infraction, the City’s ordinance only requires that a traffic enforcement officer review the recorded images taken by a camera installed by the City at the subject intersection.

Hmm -- "driver" vs. "owner of the vehicle"; and "personally observe" vs. "review recorded images" -- what am I missing here?

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

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

Important PIP opinion here.

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

You Now Have New Rules.

2011-11-29T18:08:00.001-05:00

I just received this passionate and heartfelt personal message from the old man in the cave:

Administrative Order 2011-100 In re: Amendments to the Local Rules.

Amendments to the Southern District of Florida Local Rules will go intoeffect on December 1, 2011. To obtain a copy of Administrative Order 2011-100which includes the amendments to the Local Rules, please visit our website, www.flsd.uscourts.gov, under PublicNotices. You can obtain a copy of the new Local Rules with amendments on ourwebsite under the Attorney Resources tab, Local Rules & Procedures, as wellas under the Public Notices section on the left hand column of the website.

I just tear up every time I read this!

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

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

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

Judge Scola's First Order as a Federal Judge?

2011-11-29T12:27:00.001-05:00

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

How cute!

Note to Brandon -- Never Have Nothing to Say!

2011-11-28T10:13:00.001-05:00

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

Checking Overdraft Settlement Approved!

2011-11-25T12:41:00.001-05:00

Judge King's 59 page order here.

Julie Kay gets a few good quotes from Podhurst here.

Drinks on him (I certainly hope).

3d DCA Watch -- Jive Turkey Edition.

2011-11-23T15:06:00.001-05:00

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

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

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

Gorrin v. Poker Run:

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

KJB Village v. Dorne:

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

Pederson v. Boggess:

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

Note the language:

Upon consideration of the appellees’ confession of error, which we find to be eminently well taken, the default money judgment under review is reversed and the cause remanded for further proceedings.

I think I know who wrote that!

Fortune Int'l v. M Resort:

So now receivers are supposed to be neutral:

When a party itself is paying substantial funds into a receivership, as here, it seems reasonable that some of those funds might be authorized for payment of that party’s attorneys. But the linchpin of a receivership is the principle that a receiver, like the appointing court itself, is a neutral party in the underlying dispute. The receiver’s role is the preservation and protection of the assets in dispute, not as a paying agent for the litigation-related legal expenses of one of the parties.

With the exception of that firm which now has to disgorge all those fees -- have a great Thanksgiving weekend!

The Day The Toes Stopped Tapping.

2011-11-23T08:59:00.001-05:00

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

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

SIMPLY AMAZING!!

Here's a taste of Magistrate Judge Brown's order which, true to form in this case, was apparently filed erroneously under restriction (D.E. 1430) ("you do not have permission to view this document"), then refiled as D.E. 1431 in two parts (for which you have to pay(!) as if it's a pleading and not an order):

To be sure, this was a most unusual and unique case. The saga endured by plaintiffs might well make a script for a book. (Ed. -- or a whole mess of blog posts!) The ensuing claims addressed by defendant were as far from "run of the mill'' as anyone could imagine. The Court is not without sympathy for the ordeal plaintiffs went through. Indeed, the record is full of indicators of sympathy on several fronts -including that of at least one of the adjusters handling this case. This clearly contributed to the most unusual happenstance of - on more than one occasion - the defendant paying claims without supporting documentation, simply on the "say-so'' of Mr. Halmos, and in the end resulted in more than one substantial overpayment. The uncontroverted evidence is that an almost symbiotic relationship developed between Mr. Halmos and the primary INA adjuster, Pamela Harting- Forkey . . . until supporting materials for claim s were requested and claims began to be questioned. lt then turned quite adversarial - at least on the part of plaintiffs. Notwithstanding said sympathy, however, the Court reaches its decisions herein without being "influenced in any way by sympathy, or by prejudice, for or against anyone.'' Eleventh Circuit Standard Instruction regarding Consideration of The Evidence.

Let's just say the case came down to credibility determinations, and here's a small example of where the Judge's head was at on that issue:

Third, IYC intentionally misrepresented that the Merideth Law Firm invoices were "legal and Legal Support Services'' related to salvage and protection against loss of the Legacy due to Hurricane Wilma, even though the time was for Halmos, a non-lawyer partner in the District of Columbia-based Merideth Law Firm, and his employees. See FF 148-50. 'I'he Court finds Mr. Halmos' "partnership'' in Washington D.C. of no significance, as the alleged work done and billed) was done in Florida, not in D.C., and by Mr. Halmos' own version of the facts, was done under supervision of a Florida lawyer. There is no evidence in this record of that lawyers' affiliation with the Merideth Law Firm. In making such representations, Halmos not only violated the District of Columbia Rules of Professional Conduct, see D.C. R. Prof Conduct 5.541) (prohibiting individuals from engaging in the unauthorized practice of law in other jurisdictions, such as Florida); D.C. R.Prof Conduct 5.409(2) & (3) (the nonlawyer in partnership with the District of Columbia law organization must abide by (the District of Columbia Rules of Professional Conduct), he violated Florida law, see Fla. Stat. j 454.23 ("Any person not licensed or otherwise authorized to practice 1aw in this state who practices 1aw in this state or holds himself or herself out to the public as qualified to practice law in this state, or who willfully pretends to be, or willfully takes or uses any name, title, addition, or description implying that he or she is qualifed, or recognized by law as qualified, to practice law in this state, commits a felony of the third degree, punishable as provided in sec 775.082, sec 775.083, or sec 775.084.5').

Huh?

Maybe this loopy version is more appropriate here:

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

2011-11-22T09:54:00.001-05:00

Magistrate Judge Goodman, whose penchant for lyrical citations has been discussed here before, takes us on another musical adventure:

To borrow lyrics, albeit out of context, from a Keith Urban song, “And maybe it’s a little too early / To know if this is gonna work.”3

Ok Judge, I'm with you.

Let's see what footnote three says:

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

Oy -- you were doing great until you big-footed it right at the end!

(Leave that to us professionals....)

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

2011-11-21T05:34:00.000-05:00

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

I like this part of Glenn's report:

“And I heard last night that one of the women is pregnant, so maybe we’re going to have our first baby,” says Kelley Roark, a Miami attorney who supports Occupy Miami and has advised the movement in its sometimes-prickly negotiations with the county over its permit to use the plaza.

Good for you, Kelley! (You can learn more about Ms. Roark's practice here).

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

A Look Inside Ruden's Bankruptcy.

2011-11-18T10:49:00.001-05:00

Am Law Daily has a great history and summary of how venerable Ruden McClosky wound up in bankruptcy court, relying in large part on Julie Kay's terrific reporting:

After more than two years of partner defections, layoffs, office closings, and mounting financial difficulties, Ruden McClosky filed for Chapter 11 protection Tuesday in its hometown of Fort Lauderdale. The firm, which has eight offices in Florida, plans to sell a substantial portion of its assets to Greenspoon Marder, another Fort Lauderdale–based firm, according to sibling publication the Daily Business Review.

Founded in 1959, Ruden McClosky had vociferously denied that it would consider dissolving, even as a flood of lateral departures caused the firm to suffer financially. Ruden McClosky responded to the loss of lawyers by shaking up its leadership and pursuing potential mergers with Cleveland-based Benesch, Friedlander, Coplan & Aronoff over the summer and Greenspoon Marder last month.
Ruden McClosky, which once boasted more than 200 lawyers, was hit hard by the collapse of the Florida real estate market and saw its head count dwindle to its current total of 66 lawyers. In its bankruptcy filing, the firm lists both debts and assets of between $10 million and $50 million.

But the deal was contingent on former partners accepting only 30 percent of their equity payments, an arrangement that has apparently collapsed:

The deal with Greenspoon Marder was contingent on 58 former Ruden McClosky equity partners accepting payouts of 30 percent on $3.5 million in outstanding equity payments, according to DBR. Ruden McClosky had stopped making payments to former partners in January, and many of those same partners faced a Monday deadline to reach a deal on the remaining $3.5 million obligation so that the agreement with Greenspoon Marder could proceed. The sale to Greenspoon Marder was structured as a sale, rather than a merger, so that the successor firm wouldn't acquire any of Ruden McClosky's liabilities, according to a lawyer familiar with the Chapter 11 case.

But the South Florida Business Journal reported Wednesday that the plan to pay dozens of former Ruden McClosky partners had collapsed prior to the firm filing its Chapter 11 petition, and that they would have to file claims with the bankruptcy court in order to recoup what they are owed. Lawrence Gordich, a former Ruden McClosky partner who left the firm last year to open his own shop in Miami, is representing a group of ex-partners in the case. Gordich did not respond to a request for comment.

You car crash gawkers can see the bankruptcy docket here and the Chapter 11 filing here.

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

2011-11-17T17:15:00.001-05:00

I absolutely adore Magistrate Judge Simonton, but with respect I have to take issue with this language:

On August 11, 2011, Plaintiff produced documents to Defendants by computer disc, in response to Defendants’ First Request for Production of Documents (DE # 68 at 2). The disc contained several documents, including emails and documents exchanged between Michael Rowles, Executive Vice President and General Counsel of Plaintiff Live Nation Worldwide, Inc. (“Live Nation”), and Joyce Smyth, who is the personal representative of Mick Jagger, the lead singer of the music band The Rolling Stones (DE # 68 at 2).

Hold on -- "music band" the Rolling Stones?

That's it???

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

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

Just for us fans, of course....

The Situation Sues Abercrombie & Fitch!

2011-11-17T09:46:00.001-05:00

And Judge Lenard has it.

Oy veh!

Here are the claims in a nutshell:

         While on the hit TV show the “Jersey Shore” andas in his everyday life, Sorrentino (along with other cast members) occasionallywore Abercrombie brand clothing.
             Starting August 2011, Defendant embarked on agrand, worldwide advertising campaign using Sorrentino’s name, image and likenessto create brand awareness for its products by falsely claiming that Defendanthad offered money to Sorrentino if he would stop wearing Defendant’s goods.
         Defendant concocted this false advertisingcampaign using the name and image of Sorrentino, to promote and advertiseDefendant’s stores and its products. This advertising campaign claimed thatSorrentino was contrary to the “aspirational nature of the (Abercrombie)brand”.
As part of the campaign, on August 12, 2011stories were written by the press stating that the advertising campaign was a“marketing ploy” designed “to further (Abercrombie’s) name into the marketplacewith one of the hottest brands on tv” which was intentionally and strategicallyreleased at the peak of the back to school season. A true and correct copy of the press release is attachedhereto as Exhibit “B” and hereafter called the “Press Release”
       As part of the marketing ploy, Defendant contactedrepresentatives of MTV (the network that distributes the “Jersey Shore”) and allegedlyoffered to pay money to the Sorrentino if he would stop wearing Abercrombie brandclothing while on the show and at other times.
          That offer was never made to Sorrentino, nor wasit ever conveyed to Sorrentino by a representative of Defendant.
          Defendant claimed in the press release that bywearing Abercrombie clothing, Sorrentino would be “causing significant damage”to the image of the Abercrombie brand. Inessence, Defendant’s campaign was to make the ridiculous claim that Sorrentino wasnot worthy enough to wear Abercrombie clothing or that Sorrentino was soundesirable that wearing Abercrombie clothing would cause “damage” to Defendant. The center piece of the advertisingcampaign was the huge success and popularity of Sorrentino. The falsity of the advertising campaign isfurther demonstrated by Defendants actions to (at the same time that they areclaiming that Sorrentino was damaging their image) attempt to associate themselveswith Sorrentino by openly advertising specifically designed t-shirts using the Plaintiffs’Marks.

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

2011-11-16T12:18:00.001-05:00

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

Grab some popcorn, people!

Onward:

Pariz v. Colon:

Hey, trial courts don't even know their own strength:

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

Wolfe v. Star Realty:

This is how we do business here in South Florida:

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

Munguia v. Dade County:

Judge Schwartz on appellate law 101:

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

You don't say!

Is Spencer More Like "Jock" Emilio Estevez?

2011-11-16T08:07:00.000-05:00

Or "bad boy" Judd Nelson?

Wait a minute.....Principal Vernon!

Attention: District Judges Must Give Reasons For Their Rulings!

2011-11-15T11:20:00.001-05:00

This may seem like business as usual for our state court practitioners, but apparently even federal district judges can forget to provide a basis for appellate review:

Abuse of discretion review, however, requires something for us to review. When ruling on a motion for attorney’s fees or sanctions, the district court must provide an explanation of the basis for its ruling that is sufficient to allow for meaningful appellate review.
. . . .
Although the district court did find that Arugu’s motion for voluntary dismissal was itself not made in bad faith, its denial of the City’s motion for sanctions and attorney’s fees was not accompanied by any explanation, analysis, or findings. The court gave no reason for rejecting the City’s contentions that Argu had filed a frivolous § 1983 claim and had unreasonably multiplied the proceedings. We therefore vacate the order denying sanctions and attorney’s fees and remand for the district court to revisit the issue, make appropriate findings, and explain its decision.

Dear clerk readers, please now plan on heading to South Beach for drinks thirty minutes later than usual.

Can Scott Rothstein Give a Deposition Without Marc Nurik?

2011-11-14T14:33:00.001-05:00

That's the burning question raised by Judge Cohn in his order today:

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

Substitute counsel?

Is there anyone who could help Scott out?

Ok, probably have to wait for Marc.

Monday Morning Round Up.

2011-11-14T10:23:00.001-05:00

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

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

*on Twitter!

**and he's mad about it!!

2. Local LGBT law students unite:

"I have been working with lesbian and gay law students from all four Southeast Florida law schools (UM, FIU, Nova, St. Thomas) to create a unique regional organization. The organization is called Unified Students (“US”) and our goal is to organize students who want to get involved in LGBT related pro bono work. Some projects we would like to work on include (i) conducting a legal clinic under the supervision of attorneys to help LGBT families with estate planning that will hold up under Florida state laws, (ii) creating an internet data base to connect students wanting to do volunteer research for LGBT related pro bono cases with attorneys looking for research on those kinds of cases, and (iii) attempting to change policies of homeless shelters that exclude transgendered people."

These are terrible goals -- doesn't anyone want to bomb Iran?

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

And how was your weekend?

11.11.11

2011-11-11T10:10:00.001-05:00

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

Or is that just me?

Rump has a nice post on the reason I got this tweet from @MiamiDadeCourts earlier this morning:

All Miami-Dade Courts and Clerk of Courts' offices closed on Friday, Nov. 11th, in observance of Veteran's Day: http://bit.ly/tG4het

So the Court can tweet but I still have to send a runner downtown to file something?

In other news, the Florida Supreme Court has limited discovery in first-party bad faith actions and held that you can't get at attorney-client privileged materials:

Therefore, although we held in Ruiz that attorney work product in first-party bad faith actions was discoverable, this holding does not extend to attorney-client privileged communications. Consequently, when an insured party brings a bad faith claim against its insurer, the insured may not discover those privileged communications that occurred between the insurer and its counsel during the underlying action.

This seems pretty obvious, no?

The Court, however, does allow for some fightin' space:

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

Have fun with that, trial judges!

Dear John Doe: Welcome to Rule 11!

2011-11-10T14:26:00.001-05:00

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

Here is the blockbuster opening paragraph:

Defendant and his counsel have misapplied existing law in Defendant’s Counter-Complaint. To begin with, Defendant cannot maintain the Counter-Complaint under the fictitious name “John Doe” and be permitted to use his anonymity as both a sword and a shield. Moreover, Defendant and his counsel have asserted duplicative counts for declaratory relief that fail to state a cause of action upon which relief may be granted and are merely denials of the properly dismissed Count III, rendering the Counter-Complaint moot and therefore seeks an improper advisory opinion from this Court. Further, Defendant’s Counter-Complaint is a clear attempt at forum-shopping and judge shopping. Despite having proper notice of the frivolousness of their positions, Defendant and his counsel have refused to withdraw the Defendant’s Counter-Complaint [D.E. 1]. Accordingly, sanctions should be imposed against Defendant and his counsel pursuant to Fed. R. Civ. P. 11.

Ok, I agree none of that sounds too hot, but on the other hand that's pretty much a day in the life at any given moment in state court.

What am I missing here?

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

Wouldn't You Rather Be Making Wine Right Now?

2011-11-10T10:46:00.001-05:00

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

The family's weekend winery is in eastern Long Island:

“This is not the chi-chi Hamptons,” he says. “This area is all farms — a different world, laid back, with pigs and goats and markets where you can buy fresh ingredients and a shop that sells pie.”

Ok, that sounds exactly like Kingsbridge!

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

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

2011-11-09T13:26:00.001-05:00

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

United Auto v. Barahona:

Hey, didn't I just read this opinion the other day?

This Court initially accepted jurisdiction of this cause pursuant to Florida Rule of Appellate Procedure 9.160.

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

I'm starting to detect a pattern!

Remember.

2011-11-09T06:46:00.000-05:00

Kristallnacht, November 9, 1938.

Judgment Day!

2011-11-08T11:15:00.000-05:00

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

Now the fun begins!

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

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

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

Tod Aronovitz on Genting: Beware My Love.

2011-11-07T09:12:00.001-05:00

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

Beware of promises

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

Tod Aronovitz, Miami

11th Circuit Not Sure Why SJ Granted.

2011-11-04T15:23:00.000-04:00

I can't really tell, but that's the gist of the Court's opinion regarding MD FL Magistrate Judge Klindt's grant of summary judgment in a broker procurement case:

The evidence presented in this case creates a triable issue of fact as to whether the investment opportunity FourWinds pursued with Nemus was materially different from that presented to it by BKR. Such a question of fact cannot be decided as a matter of law. It is for a jury to decide.

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

Translation: WTF were you thinking???

Have a great weekend folks!

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

2011-11-04T09:40:00.001-04:00

I received this important message from CM/ECF advising of a time change in the hearing scheduled to discuss Local Rule amendments:

U. S. DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
AMENDED Administrative Order 2011-82 In re: Amendments to the Local Rules -Notice of Proposed Amendments, of Opportunity for Public Comments, and ofHearing to Receive Comments. NOTE TIME CHANGE FOR THE EN BANC HEARING.
The public hearing will be held on Thursday, November 17, 2011, at 2:00 p.m.at the Paul G. Rogers Federal Courthouse in West Palm Beach Florida. Notice ofintention to provide oral comments must be received by Friday, November 11,2011.

Of course I'm going to speculate wildly and with no basis whatsoever as to why this time change was required -- that's what we do around here.

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

2011-11-03T15:30:00.003-04:00

So sayeth Magistrate Judge Brown:

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

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

The Court will not allow the journey to continue any further - at least "not on its watch.''

In other words: the ~~three-hour tour~~ ~~boat ride from hail~~ ~~sinking ship~~ ~~disaster at sea~~ whatever you want to call it, it too someday will end (someday!).

Promises promises....

Mark Gold Has a New Spokesperson!

2011-11-03T09:48:00.003-04:00

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

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

h/t Random Pixels

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

2011-11-02T11:00:00.002-04:00

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

That's probably why there are only a few glorified PCAs this week, and one very important opinion regarding this very important topic affecting so many of us:

May the statutory amendment that went into effect on January 1, 2008, providing that an insurer may limit reimbursement of no fault benefits to 80% of 200% of the applicable Medicare Part B fee schedule, be constitutionally applied retroactively to a policy with effective dates of December 7, 2007 through June 7, 2008, where the accident and medical treatment occurred after January 1, 2008 and the insurer did not issue an endorsement advising the insured that the fee schedule would be applied?

This Court initially accepted jurisdiction of this cause pursuant to Florida Rule of Appellate Procedure 9.160.

Alright already -- what is the answer, the entire South Florida legal community needs to know!

So sorry Charlie:

Having reviewed the briefs, and following oral argument, this Court declines to answer the question certified by the lower court to be one of great public importance....

Allow me to translate -- why did you certify such a ridiculously fact-specific question to us? You think we sit around all day analyzing Kim Kardashian's divorce papers?

(Don't answer that.)

SMiLE!

2011-11-02T09:30:00.000-04:00

This is almost as cool as discovering a lost Star Trek bloopers reel.

(Did I just write that?)

Ruden Files for Bankruptcy; "Assets" Absorbed into Greenspoon Marder.

2011-11-01T16:11:00.002-04:00

Julie Kay has it here.

Judge Moore Explains How to Download "Corbin Fisher Amateur College Men Down on the Farm" Using BitTorrent.

2011-11-01T10:23:00.001-04:00

Hey it's a slow news day, what do you want?

Here's Judge Moore explaining how BitTorrent works (for those of you over 45):

Unlike traditional peer-to-peer ("P2P'') networks that require a user to download a file from a single source, the BitTorrent protocol decentralizes distribution of a file by allowing users to join a swarm of hosts to download and upload from each other simultaneously. The process begins with one user, commonly referred to as a "seed,'' who makes the file available. The seed then creates a "torrent'' file containing (1) a unique string of alphanumeric characters used to verify the data of the underlying file that is being transferred, and (2) a "roadmap'' to the IP addresses of other users who are sharing the file identified by the unique hash code. Am . Compl. 33(a). Other users, referred to as "peers,'' then download the torrent file, which in turn, allows them to identify and download from other peers who possess portions of the file described by the torrent. As each peer downloads a new piece of the file the peer becomes a source of that piece to other peers. Once a peer has accumulated enough individual pieces of the file, software allows the peer to reassemble the aggregate file.

And all just to see young men perform vigorous farmwork!

Happy Halloween, Plebes!

2011-10-31T14:56:00.000-04:00

Stay safe (and dry!).