3d DCA Watch -- Litigation Privilege vs. Malicious Prosecution -- There Can Be Only One!

Hi kids, the heat is on and the bunker denizens are leading the way with their official 3d DCA summer pickle ball league -- judicial gentlemen (and ladies): grab your whiffle!

Are these judges cutting-edge hipsters or what?


Wolfe v. Foreman:

Holy moly -- big $hot Marty Steinberg in our own little DCA, escorted into the lion's bunker by veteran bunkerite Lauri Waldman Ross, in an epic battle between the scope of the litigation privilege vs. a tort for malicious prosecution.

Guess who wins:
Because the Florida Supreme Court has clearly and unambiguously stated, not once, but twice, that the litigation privilege applies to all causes of actions, and specifically articulated that its rationale for applying the privilege so broadly was to permit the participants to be “free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct,” we are obligated to conclude that the act complained of here—the filing of the complaint—is protected by the litigation privilege. Thus, the trial court properly granted a judgment on the pleadings for Wolfe’s cause of action against the Miami Lawyers for malicious prosecution.
And here's Chief Judge Shepherd with a blistering special concurrence:
The only remarkable thing about this case is its existence. As the managing attorney of the Miami office of The Florida Bar explained to Mr. Wolfe (himself a licensed Florida attorney), when he refused to accept staff counsel’s initial rejection of his Bar complaint against the Kenny Nachwalter lawyers who brought the federal action, “the Florida rules governing attorney conduct . . . preclude an attorney from bringing a frivolous action. Once the attorneys learned of the true history of the litigation, they withdrew.” Rather than approbation for doing the right thing, the law firm and two of its attorneys sadly have been rewarded with a summons and complaint.
Appellate fees and costs awarded to Kenny Nachwalter btw.

See you all on the pickle ball courts!


  1. The opinion says "partners in a limited liability company." Shouldn't it be "members"?

    Further, the opinion says "United States Circuit Court." Shouldn't it be, "United States Court of Appeals [for the Eleventh Circuit]"?

    Sorry, using the correct names for courts is a pet peeve of mine, and doesn't seem to be that hard to get right.

  2. sweet: the main opinion goes out of its way not to disclose the law firm name (the "Miami Attorneys") and the concurrence drops the firm name and gives them a handjob.

  3. I didn't know what pickleball is, so I clicked on the hyperlink and LOL'd.

  4. Agreed 1:02. Both jumped out at me as well.

  5. I time travel for funJuly 17, 2013 at 4:00 PM

    I don't really know how to explain this. But I will try. As I explained in a prior comment, over the weekend I received a text apparently from myself, having returned from a trip through the worm hole. I (in this time line) was apparently about to do something to upset the current time line. I didn't jump right into the w/hole. I waited until I felt it pulling me. Then I went back Monday. I wandered around, and felt an urge to go to the Foutainbleau and meet that Wharton school co-ed that I had met on another trip back. I went- and this time, knowing more about her, I successfully seduced her. Then I returned. Things seemed strange here, so I hopped right back in the next day (Tue) , and spent another day, and then returned and resisted the urge to hook up with Emmy- the Wharton girl. Everything was back to normal.
    So here's is what occurred as best as I can piece it together-there is another time line where I am doing this. In that time line, I caused a problem (with my shenanigans Monday) that caused a time loop (see prior comments) which brought another me back to a time (in the loop) where I was already here. And unable to break the loop, and knowing in that line that I would soon be going into the w/hole Monday, I sent myself a message (over the weekend) to be on the look out for an issue. Hopefully by going back (Mon and then Tue) the last time (tue), I fixed all issues and everyone is in their proper time line.

    This is weird and gets complicated fast. But it all makes sense if you accept that in going Monday I caused a split in the time lines and created a time loop that brought me back to a time before Monday- which- knowing what occurred, I used my return to send myself a message.
    Whew. That was tiring.

    BTW- that Wharton chick was almost worth it. So sad really. I had feelings for her. Another time- really.

  6. Best comment ever.

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