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Showing posts from February, 2010

SFL Friday -- Why Life Is Worth Living

Hi folks, I am readying my winter windsurfing gear (a koozie for my dry Gin Gibsons, turtleneck wetsuit etc.) and generally getting prepared for the weekend -- I hope you are too.

My first order of business btw is to windsurf, get airborne and crash spectacularly through the oceanfront windows of the Eden Roc where all those prosecutors and ultra-stiff white-collar lawyers are having their concluding cocktail reception.

Once I have their attention, I plan to go all William S. Burroughs and do a dramatic nonlinear "cut up" reading of the entire federal RICO statute -- with amendments -- because seriously that's pretty much what these guys do for fun.

(Don't worry, I have something extra special saved for Bernie Goldberg(??) when he speaks at the Federalist Society dinner next week.)

In conclusion, give the kiss that keeps on giving, learn how to dress like a Mad Man, and as always, put your hands on something warm and snuggly.

Have a great weekend!

Mike Tein Saves Everglades, One Decaying Road At A Time.

Everglades Road

Mike scored a huge victory Wednesday on behalf of the Miccosukee Tribe and pretty much everyone else:
A Miami federal judge has dismissed and closed a case brought by the Miccosukee Tribe against the National Park Service after the government agreed not to rebuild a decaying Everglades road without an extensive environmental review.

In an order Wednesday, U.S. District Judge Patricia Seitz granted the government’s motion to close the case, handing a victory to the tribe and Miami attorney Michael Tein.

The partner at Lewis Tein sued the government for failing to hold public hearings, notify the tribe or conduct environmental reviews before moving forward with plans to work on the 24-mile Loop Road, which runs through the Everglades and tribal lands off U.S. 41.Fresh off this win, I have asked Mike to personally oversee the Burmese Python problem, Asian Carp, health care, global warming and doing something about Sarah Palin.

Rome wasn't built in a day.....

Florida Supreme Court: Justice System Pretty Much Broke!

Big Willy Is Official!

Dancer/lawyer/all-around good guy Wilfredo Ferrer gets the nod:
President Barack Obama nominated Miami-Dade native Wifredo Ferrer as the new U.S. attorney for the Southern District of Florida Thursday. The position, which requires Senate confirmation, is among the most powerful of the 93 U.S. attorney's offices nationwide. The Miami post is also among the most demanding and sprawling -- with 290 prosecutors handling white-collar fraud, public corruption, drug-trafficking and human-smuggling cases from Key West to Fort Pierce.His résumé was an easy sell: He is a one-time federal prosecutor in Miami and is currently chief of Miami-Dade County's federal litigation section. He's also the former deputy chief of staff to U.S. Attorney General Janet Reno. The son of Cuban immigrants also was valedictorian at Hialeah-Miami Lakes Senior High, first in his class at the University of Miami, and president of his class at the University of Pennsylvania Law School.Ok ok, but is he quali…

Who's That Man?

You remember Jackson Memorial, horribly mismanaged, misstating revenues by several hundred million, firing 900 employees -- in other words the perfect hospital for sunny South Florida.....

Well it looks like they'll have slightly more on their plate, as the 11th has reversed Judge Lenard's summary judgment involving their fund-raising arm Jackson Memorial Foundation in a vigorously disputed age-discrimination suit.

The opinion is pretty straightforward, though there was this odd footnote:
We deny Mora’s request that this case be reassigned to a different judge on remand. Reassignment is unnecessary.Hey, what's up with that?

Not sure, but the proceedings below did get a little heated at times.

Let's see, first you had that motion for sanctions JMF filed against plaintiff's counsel over a non-confidential deposition transcript provided to the South Florida Business Journal which somehow allegedly "tainted the jury pool."

That's right -- the SFBJ (which I lik…

3d DCA Watch -- RIP Judge Fletcher

We'll dispense with the yuks this week and honor the outstanding service of former 3d DCA Judge John Fletcher, who sadly passed away Monday.

On to the opinions......

Seymour v. Panchita:

Two little words on your summons, but they are muy importante -- "registered agent":
A summons properly issued and served is the method by which a court acquires jurisdiction over a defendant. A rather straightforward group of rules and statutes sets out bright-line, well-tested procedures for preparation and service of the summons with the complaint. Despite those clear-cut provisions andprocedures (and because lawyers and process servers are as fallible as any other group), the rules are occasionally disregarded, twisted, or tested.

In this case, the summons and return of service erroneously identified Jorge Ramos personally as the individual being served. The summons and return of service did not state that the corporation (appellee, Panchita Investment, Inc.) was served, or that Ramos wa…

Where Is a Corporation's "Nerve Center"?

If you were to ask me, I would say exactly where Will Smith stabs V.I.K.I. with his robot arm at the end of I, Robot.

But I guess Justice Breyer has his own views on this:
In an effort to find a single, more uniform interpretation of the statutory phrase, this Court returns to the “nerve center” approach: “[P]rincipal place of business” is best read as referring to the place where a corporation’s officers direct, control, and coordinate the corporation’s activities. In practice it should normally be the place where the corporation maintains its headquarters—provided that the headquarters is the actual center of direction, control, and coordination, i.e., the “nerve center,” and not simply an office where the corporation holds its board meetings.Seems simple, but I predict application will be trickier in practice -- those corporations are wily beasts.

Insert Favorite Nautical Disaster Imagery Here.

Wow, I mean this is like the Good Ship Lollipop after sustaining a direct hit from a Japanese Tsurugiin Leyte Gulf (hey, I wanted to stretch a little):
"It is a sad day when one who held our trust for so many years is shown to have engaged in rampant fraud and betrayed the trust of so many,'' U.S. Attorney Jeffrey Sloman said at a news conference. "This is a classic case of how greed and corruption can corrupt a person at the top of his game,'' said John Gillies, the FBI's special agent in charge, who called Freeman "the wolf protecting the hen house.''Wolf protecting the hen house....interesting but Lew could have done better.

All kidding aside, this one's a shocker and it is indeed a sad day for anyone who has worked with Lew and his many fine employees.

UPDATE: Here's the information filed against Lew (including allegations against "Co-Conspirators A and B"):


Vote for Becker Attorney Ryan Pinder.....In The Bahamas!

I'm not sure what to make of this, but apparently Becker & Poliakoff attorney Ryan Pinder has possibly renounced his American citizenship and is running in a disputed election in the Bahamas:
The tax attorney was born to a Bahamian father, former PLP MP for Malcolm Creek Marvin Pinder, and an American mother. In January, Mr Pinder, who is employed by Florida-based law firm Becker and Poliakoff as a Nassau-based consultant, defended his right to hold dual citizenship in the face of criticism that it was inappropriate and unconstitutional for someone seeking public office in the Bahamas. At the time he called his dual-citizenship a "non-issue." During the week prior to the by-election, however, PLP chairman Bradley Roberts said Mr Pinder had renounced his US citizenship prior to nominating as a by-election candidate on January 29. Mr Pinder had stated that his decision was a personal one, adding that he was not pressured by his party to give up his American citizenship.…

UM Law Student's Tale of Woe

University of Miami School of Law 3L Todd Sussman is about to graduate and isn't all that happy:
I'd always thought about becoming a lawyer, so I started applying to law schools and chose to attend the University of Miami. At first I hesitated to attend a private institution because of their high tuition rates especially in a city like Miami where life can be expensive, but I'm from South Florida and I wanted to be close to home. I wasn't sure how I would pay for it all so I looked into student loans. The financial aid office at UM was very helpful and was able to help me get the money I needed for tuition and living expenses while in school. I knew I would have to pay the money back eventually, but I thought about the earning potential I would have as a lawyer and didn't think I would have any problems paying those loans back. Unfortunately, my plan didn't involve an economic recession.Now here I stand three months from graduating, $180,000 in debt and no prosp…

Should the Gov Hire Jury Consultants?

We've all used them, and not just for jury selection but for mock trials etc.

But what about in criminal proceedings, should the prosecutors also retain jury consultants?

David O. says no:
Several jurors blamed the mistrial on juror Angela Woods, the lone black juror who has refused to comment on the deliberations. Though Woods filled out an extensive questionnaire that has not been made public, prosecutors did not seek any follow-up during jury selection to the written answers they gave, as they did for about half of the other potential jurors. Advertisement Lawyers and academics disagree on whether a jury consultant would have helped prosecutors in the Riddle case or whether it's even appropriate for prosecutors to use them. "The prosecutor's job isn't to win -- their job is to do justice," said Miami criminal defense attorney David Oscar Markus. "There's something that doesn't seem right about the government hiring jury consultants. That…

SFL Friday -- Heartfelt Apologies to All!

Well it's been an eventful week filled with mirth and merriment, and it's not even over yet.

I mean, just today Tiger read a statement about his sex life and Paul Penichet filed a lawsuit described as "a shakedown" by the (allegedly) very randy defendant, Casaurina owner Pete Halmos.

Then there's the mistrial just declared in Milt Ferrell's asbestos case.

But I was most fascinated by this story that Constant Complainer linked to about a Miami couple who were enticed by monetary incentives and land grants to move to rural North Dakota, where they discovered that midwestern small-town love:
Hay bales, a gas station and a graveyard greet visitors as they roll into Hazelton off the state highway.Michael Tristani came from his native Florida wearing gold necklaces and a Rolex and driving a Lexus. He proved as foreign as a flamingo in a place where pickups, farm caps and flannel shirts are de rigueur."People thought I was a drug dealer," he said.And that'…

The "Stealth War on Judges" And Paul Begala.

So I see the Senate finally confirmed Joseph Greenaway Jr. to the 3d Circuit, unanimously, after being nominated back in June 2009:
Joseph Greenaway Jr. is the latest example of a delayed nominee with no opposition. Nominated in June for the 3rd U.S. Circuit Court of Appeals, he won the unanimous backing of the Senate Judiciary Committee in October. The Senate could have confirmed him immediately, without even a formal vote, but it took until Feb. 9, when Greenaway was confirmed, 84-0. "He should have been confirmed last year, and he would have but for Republican objection," said Sen. Patrick Leahy, D-Vt., the chairman of the Judiciary Committee, in remarks prepared for the Senate floor. Seven other nominees for district or appellate judgeships had similar experiences before getting confirmed unanimously. Ten nominees are awaiting votes, and many of them face no opposition. Republicans say the delays are warranted, given the rigorous vetting involved for lifetime appointment…

11th Circuit Says No Right to Amend Complaint If You Never Sought Leave

You know how after Judge Middlebrooks grants a motion to dismiss or for sj he just immediately closes the case?

Well, here's an order today from the 11th Circuit in a qui tam case that says this is hunky-dory:
We reject Sanchez’s argument that the district court should have allowed her to amend her complaint before dismissing these claims. “A district court is not required to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff, who is represented by counsel, never filed a motion to amend []or requested leave to amend before the district court.” Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc). Sanchez was represented by counsel but did not move for leave to amend, and we cannot conclude that the district court abused its discretion by failing to grant leave that was never requested. Burger King Corp. v. Weaver, 169 F.3d 1310, 1318 (11th Cir. 1999).So the respondent should ask in the response brief for leave to replead, as…


Who is that British guy on WLRN who keeps interrupting All Things Considered during afternoon drive-time to prattle on about "30 years of collective experience" and "investor losses"?

Are you guys sure you want Robert Morley as the face of the firm?

(On second thought, don't answer that.)

3d DCA Watch -- Possible Groundwater Contamination Edition!

Hi kids, did you know there is a 3d DCA Historical Society?

No, it's not designed to pay tribute to certain retired but very active Senior Judges, but it's still a pretty good idea so go sign up here.

Let's jump right in:

Biscayne Park LLC v. Wal-Mart:

This is a tale of two very different approaches to a case, and the question is which narrative do you prefer?

In Judge Lagoa's majority opinion, this is Wal-Mart trying to limit potential future money damages by sealing some remediation wells on an El Portal property after purchase negotiations fell through:
In October, 2007, Wal-Mart terminated the purchase agreement. The wells, however, remained on the property. Biscayne subsequently began negotiations with another potential buyer, Interra Development Corporation (“Interra”). As a result of the negotiations, Biscayne agreed to permit Interra to use the wells on the property to conduct its own due diligence. Wal-Mart, however, became concerned about its potential liability re…

Vancouver Sun, Pink Sheets, and a Lawyer "Hall of Shame"

If you're like me, when you think Vancouver this year you think crappy weather, dead luger, guys in clown outfits pushing discs around on brooms, and that cute blonde skier, but apparently there's more according to the Vancouver Sun:
"In general, we expect attorneys who provide us with letters to know securities laws, do the work required, and be ethical," Pink Sheets chairman Cromwell Couslon earlier told me."We ban them when it becomes apparent they are stupid, lazy or dishonest."This is truly a dubious distinction.To date, Pink Sheets has relegated 18 lawyers to its Hall of Shame.Of these, 13 have been cited by the U.S. Securities and Exchange for securities breaches.Among them are Vancouver lawyer John Briner, Miami Lawyer Joseph Emas, and Seattle lawyer David Otto, all of whom have been extremely active in the Vancouver marketplace.Hey, at least a South Florida lawyer made the list!

Consider it the bronze, if you will, but I think we can do better.

Judge Huck Cites Emily Dickinson And "International Concept of Due Process."


Ok, maybe not a entirely fair headline, but I have to spice things up somehow.

Actually, this is an interesting order in which Judge Huck denies reconsideration of his refusal to enforce $97 million in Nicaraguan judgments against Dole over alleged injuries sustained from the pesticide DBCP sprayed on Nicaraguan banana plantations.

We've previously discussed this case here and here.

Judge Huck's Dickinson reference brought back some pleasant college memories:
But now, Plaintiffs contend that, unbeknownst to the participants in this lawsuit, including, apparently, Plaintiffs themselves, late arriving, independent legal grounds have emerged that compel recognition of Plaintiffs’ judgment. This alone is reason to deny Plaintiffs’ motion. “The past is not a package one can lay away.” EMILY DICKINSON, SELECTED LETTERS 290 (Thomas H. Johnson, ed., Belknap Press of Harvard University Press 1986) (1914). Rules 59 and 60 do not provide litigants with an opportunity to tes…

Harry Reid to ABA: "Get A New Life."

Methinks Senator Harry needs to get on know....passing something and/or growing a pair:
Sen. Harry Reid, D-Nev., criticized the American Bar Association on Thursday, saying it should "get a new life" in how it rates prospective federal judges, after one of his choices got a mixed review.In remarks to the Senate Judiciary Committee, Reid said the bar association's ratings board puts too much weight on whether judicial nominees have prior bench experience and overlooks "real world" qualifications. Reid expanded his criticism to include the Supreme Court, whose makeup, he said, consists of "people who have never seen the outside world.""I have asked President (Barack) Obama, 'Let's get somebody on the court that has not been a judge.' They need to do more than thinking of themselves as these people who walk around in these robes in these fancy chambers." Reid was set off by the ABA's rating of Las Vegas attorney Gloria…

"The guy is full of crap and he is despicable.''

I mean, if I had a dime.....

In this case, however, that is Miami trial attorney Ariel Furst, discussing not me for a change but Mike Catalano, from this Herald piece:
The Serrano family is represented by civil attorneys Furst and Stabinski. Catalano says that in November, during a meeting at their office, they said the family wanted Delrisco to ``rot in prison'' unless he fingered the El Paso bar in a Homestead strip mall as his watering hole just before the 5 a.m. crash. ``I said to myself, `These guys want me to cheat,' '' Catalano remembered. But Delrisco maintains he left El Paso at least five hours before the crash, said Catalano, who would not say where Delrisco went after leaving the bar. His high blood alcohol content after the crash suggests he kept drinking elsewhere. Catalano complained to prosecutors, then agreed to play along while stressing that the story was a fiction. He made several phone calls that were recorded by an investigator.…

SFL Friday -- Achtung Baby!

Well it's been an eventful week and a huge Valentine's weekend looms -- I hope you all have a fantastic long one (that didn't come out quite right but you know what I mean).

Real quick before I go, I'm no foreclosure litigation expert but this seems like a basic no-no:
"They found that many cases were being filed by plaintiffs that didn't own the mortgages any more," said Miami lawyer Mark Romance, who chairs the Civil Procedures Rules Committee. Romance said other cases were being filed against people who no longer owned the homes.At least they got the service of process right!

(actually, they screwed that up too)

You can see the new foreclosure rules and forms here.

What else -- I got a bit of a Nazi tingle, these new Valentine's rules are very confusing, Howard Stern would definitely not like this woman, and I would argue some addictions are totally ok.

Shower the people you love with love, kids.

Lawyers (Allegedly) Behaving Badly.


I'm still on a high from last night's Bar thingy, so I'm reluctant to wade into these stories, but they are pretty extraordinary.

First, this blockbuster Julie Kay piece (she's the best, right?) involving Fowler White's Lilly Ann Sanchez:
The suit concerns Sanchez’s representation of Rivero, who pleaded guilty in 2008 to misusing $700,000 out of $3 million he was paid by the Miami-Dade Housing Agency to build affordable housing for senior citizens. Rivero admitted diverting public money to build himself a dream house in South Miami and was sentenced to more than a year in prison. He was recently released.

The primary allegation in the civil suit is that Sanchez and her law firm aided Rivero in a scheme to switch copies of a property deed, one that was witnessed and one that was invalid because it was not witnessed. The in-laws claim Rivero promised the deed in exchange for $1 million, but they received the worthless version.

Among the more explosive charges…

Another Judicial Reception!! (Yawn)

Well I don't know about you, but I'm getting ready for tonight's big Judicial Reception, which means I have prepared the following to do list:

1. Immediately down two large dry Gin Gibsons;

2. Track down and punch Brett Barfield.

3. Find the one judge willing to speak to me (Sam Slom?) and unleash new self-aggrandizing anecdote that reveals my wit, trial skills, wealth, humor, A-type dominance and general good taste.

4. Listen to similar self-aggrandizing anecdotes and think to myself how it's all total bullcrap.

5. Count other people's money.

6. Pretend to remember that guy's name.

7. Kiss Melanie Damian (professionally, of course!).

8. Sneak into photo op of Judge Moreno and Bob Josefsberg.

9. Kiss Melanie Damian (did I already write that?).

Paul Calli Is A (Private) Dick.

I've always wanted to write that headline, and now I can:
This week, Calli and his firm, Carlton Fields, were tapped by the FPL Group to investigate allegations of fraud. In two letters, anonymous FPL employees have alleged that FPL executives broke the law by forcing employees to provide inaccurate or misleading information to regulators and shareholders. Legal experts say the allegations could open a Pandora's box of trouble for the Juno Beach-based company."These allegations are very serious, and they require diligence and patience by FPL," said Scott Weires, an attorney in the Boca Raton office of Buckingham, Doolittle & Burroughs. "They cut to the core of the structure upon which the rates for the entire state are based. If there's fraud there, imagine the amounts of money potentially at risk."In a e-mail sent Monday to employees, FPL Group Chairman Lew Hay said the company hired Carlton Fields because of the serious nature of the allegations, a…

Judge Torres Allows Nonsignatory To Enforce Arbitration Agreement


This is a pretty sweeping opinion from Magistrate Judge Torres on the enforceability of arbitration agreements.

Here he enforces it against a construction worker who never worked for the entity who is listed on the agreement, but instead for another company also owned by the same businessman:
Again, though we view the result in this case to be, in effect, a reformation of a contract based upon a unilateral mistake (which under traditional contract principles would not allow for reformation at law), arbitration agreements are widely and broadly enforced in the Eleventh Circuit. Equitable principles may be applied to enforce such an agreement against a signatory even though a writing technically does not exist with a non-signatory. This is such a case based upon existing Eleventh Circuit precedent. We have no choice but to apply it, leaving to our Court of Appeals to decide if the result in this case requires a change in direction.What do you all think?

3d DCA Watch -- Evening of Revelry Edition!

Well folks, it's hump day and you know what that means.....

Hermitage v. Oxygen In the Grove:

So you're partying in the Grove, it's closing time, and of course you left your wallet back in the club.

Who hasn't done that before?

But here the poor schmuck knocked on the door one too many times and got the crap beat out of him (allegedly) -- Judge Shepherd understands:
The complaint alleges after an evening of revelry, Rivera left the premises and then returned for his wallet, which he thought he left inside. Because the club had closed for the night, Rivera knocked on the door and was greeted by a bouncer, who said he would look for the wallet. After what seemed to Rivera to be an inordinate time, Rivera again knocked on the door. At that point, Rivera alleges the bouncer reappeared and, without provocation, assaulted and battered him.Oh well, so you settled against the club but it turns out there might be insurance covering negligent acts?

Too bad too sad:
However, the rule is…

How to Write A Good Brief (Or Brief Blog Post).

Stay short and get to the point.

Simple, but way harder than it seems.

Have you read this Michael Kinsley piece on why newspaper articles are just too long:
The software industry has a concept known as “legacy code,” meaning old stuff that is left in software programs, even after they are revised and updated, so that they will still work with older operating systems. The equivalent exists in newspaper stories, which are written to accommodate readers who have just emerged from a coma or a coal mine. Who needs to be told that reforming health care (three words) involves “a sweeping overhaul of the nation’s health care system” (nine words)? Who needs to be reminded that Hillary Clinton tried this in her husband’s administration without success? Anybody who doesn’t know these things already is unlikely to care. (Is, in fact, unlikely to be reading the article.) Then there is “inverted-pyramid style”—an image I have never quite understood—which stands for the principle of putting the most-cr…