Alan Kluger Explains Local Rule "Meet and Confer" Requirements.

In the anonymous blogger lawsuit filed by Alan Kluger's developer client, Alan has filed an explanation for why he didn't include a certificate of compliance with the "meet and confer" Local Rule 7.1.

I've said it before, but I see this case having a lot of potential:
Plaintiffs filed their Motion to Remand this case on July 27, 2011. [D.E. 10]. Plaintiffs’ Motion to Remand was essentially a response to Defendant’s Notice of Removal. [D.E. 1]. Defendant’s counsel, Robert Kain (“Mr. Kain”), personally hand-delivered the Notice of Removal to the undersigned, who advised Mr. Kain at that time that Plaintiffs would be seeking remand to state court. Mr. Kain did not agree to the remand, as further evidenced by Defendant’s Opposition to Motion to Remand. [D.E. 13].

Undersigned counsel did not include a certification of good faith compliance with Local Rule 7.1(a)(3) in the Motion to Remand because the motion was in essence a response to the Notice of Removal and because it was obvious that Defendant opposed the remand. Undersigned counsel has since attempted to resolve the issues raised in Plaintiffs’ Motion to Remand with Defendant, and Defendant remains unwilling to agree to the Motion to Remand or Plaintiffs’ Request for Attorneys’ Fees [D.E. 30] that was filed in connection therewith.  Plaintiffs will include certifications of good faith conferences in all forthcoming motions that are subject to such certification if and as this case proceeds in this Court.
Oh boy.

(Get that -- "if and as" this case proceeds before Judge Cooke; if "and as" -- hint hint!)

Ok, so no certificate was included because it was obvious that opposing counsel would not agree to the relief requested, and because Alan's motion was essentially a responsive pleading.

Is that an exception?


  1. Noooooo. The Local Rules are very specific about the exceptions...and that is not one of them.

    What he should have said was that he is sorry, sought leave to amend to include the certificate, and moved on. Judge Cooke is fair and is not going to be looking to nail anybody on a minor error like that where it is clear there is a dispute that needs to be resolved by the Court.

    But, I predict the quibbling which AK partakes in in the motion will not please Her Honor.

    By the way, where is Noisy Randazzaataa in this whole thing?

    Big media splash, nice public comments, etc., then like Kaiser Soze....whoosh, gone?

  2. the "essentially a response" argument is BS. Why would you make such a meritless statement when 7.1 is so clear? Just admit that you screwed up and forgot to include the good faith certification.

    I agree this case is going to be a terrific junkyard dog fight and we'll all enjoy cringing from the sidelines. Keep 'em coming!

  3. I agree with 10:48 that the Local Rules are specific about the exceptions, but this arguably fits within one of the exceptions, i.e., "to involuntarily dismiss an action." S.D. Fla. L.R. 7.1(a)(3). Not so sure that you'd have to -- or should -- confer with opposing counsel about whether they'd be amenable to remanding the case *after* they've removed the case to federal court. In most instances, that'd be a total waste of time. (Though, I suppose if you get a judge you really wouldn't prefer to be in front of, you might agree.)

  4. the fact that he is going to put the conference in in all future filings "essentially" admits he fucted up

  5. @12:00. The local rule specifically lists many dispositive motions which don't require a meet and confer (e.g., summary judgment, judgment on pleadings), all of which would if granted be a type of involuntary dismissal. But the Rule does not specify a remand motion. I don't buy the argument.

    I agree with 10:48 that the best way to remedy the screw up is to mea culpa and amend.

  6. Where is Randazzzo?

  7. The only reason judges care about this requirement, based on my time clerking, is to know whether they can immediately rule on smaller, non-substantive motions, e.g. Motions for extensions of time. The judges that quibble with this stuff are just being difficult because they can be and have too much time on their hands.

  8. Did you ever try and meet and confer with Kugle? waste of time and lots of slime

  9. security guard should have apologized.

  10. 12:49 -- A few responses. For one thing, judgments on the pleadings and summary judgments aren't really "involuntary dismissals" either; actions aren't technically dismissed on their entry -- judgments are entered if the motions are granted. For another thing, whatever motions for "involuntary dismissals" may mean under the Local Rule, they shouldn't be read to incorporate motions for judgments on the pleadings, summary judgments, or dismissals for failure to state a claim upon which relief can be granted, because then the phrase "involuntarily dismiss an action" would become superfluous -- a no no under general principles of statutory construction. So to give meaning to motions for "involuntary dismissals," you have to come up with something else, say, motions to dismiss on the grounds of forum non conveniens, forum-selection clauses, and the like. True, when a court grants a motion to remand, it's not technically dismissing the action; it's remanding it. But, as I wrote before, such court action "arguably" falls within the rule. That's especially so when considering the purpose of the rule, which serves two obvious functions: (1) to allow the court to grant quickly smaller, non-case-dispositive matters, such as motions for extensions of time; and (2) to encourage parties to resolve without court intervention discovery disputes and the like.

    Here, where you are filing a motion to remand a case that the opposing party *removed* to federal court -- read, the opposing party wants to be in federal court -- and you are seeking attorney's fees for, presumably, improvidently removing the case, conferring with the other side is just going to be a waste of time. That does not serve the purpose of the Local Rule.

    I do concede, however, that the strongest argument for requiring a meet-and-confer session before filing a motion to remand is the plain langauge of the rule. I wouldn't usually regard an order remanding a case to state court as an "involuntary dismissal."

    At any rate, I'm not so sure that I agree with what Kluger says in the footnote. He says that the Local Rule applies only to "motions," and therefore his "request" for oral argument is not subject to the Local Rule. But Federal Rule of Civil Procedure 7(b)(1) states that a "request for a court order must be made by motion." I suppose that a court could simply "notice" a hearing (is that an order?); but it could also enter an order granting a request for oral argument, too.

  11. @9:31-- thanks for responding. Won't you agree that those of us who regularly practice in the Southern District know that unless the motion you're filing is specifically excluded from LR 7.1, you MUST do a meet and confer? The fact that a litigant needs to explain why he didn't in his motion is sloppy and embarassing.

    I don't really agree with the statement that a meet and confer on a remand motion is a waste of time. It's like a meet and confer before you move to vacate a default. There are factual circumstances under which the law is so clear that opposing counsel would have an obligation under Rule 11 to agree to the remand (i.e., he alleged the wrong citizenship of an LLC for instance-- where all its members are located).

  12. 9:54 -- I do agree with you, but I also believe that you have a good-faith argument that a motion to remand falls within the motion-for-an-involuntary-dismissal exception to the meet-and-confer rule. Though I haven't seen all the briefing in this case, it appears as though Kluger felt the need to file this notice because the other side made a stink about it in its response. I doubt that he'd have filed such a notice without prompting by the other side.

    I do think that a Rule 11 issue is different. The Rule requires you to notify the other side 21 days before filing a motion for sanctions; a court couldn't (lawfully) grant a motion otherwise. But I do see your point; if the removal was totally frivolous, conferring would potentially avoid the need for briefing, court labor, etc.

  13. @10:15-- wow. did we just engage in a somewhat cerebral exchange on this blog?

    SFLA: Is this a first?

  14. Great discussion.

    My view -- when in doubt, confer. Or you can advise the court in the certificate, as Alan belatedly did, why you thought it was unnecessary to do so in light of the relief requested.

    But I would suggest either alternative is probably better than filing an after-the-fact explanation of why you didn't think you needed to confer in the first place.

  15. 11:31 -- it's taken five years but the blog is finally paying off!

  16. This is all well and good but I would prefer to go back to ragging on mentally ill pro se litigants and making fun of attorneys who do stupid shit like Mr. and Mrs. Al Cardenas.

  17. 11:31 -- agreed! What is the matter with us? SFL, do you know anyone on the Local Rules committee that could make the rule clearer?

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