It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting --- as was done in the Act --- that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power” [Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.
Ok, I'm really digging the explicit Tea Party reference.
I stopped caring about the Commerce Clause when I left law school, so I won't pretend to be a sudden expert on it now.
And I'm still analyzing the opinion.
However, on first blush, I think the Judge has written a thoughtful, comprehensive order, one that draws deeply on history and context and which attempts in good faith to tackle the parties' arguments head-on.
This is exactly what a district judge should do, regardless of how one may feel about the outcome.
Say what you want about Judge Vinson, but this comports with my personal experience with him. He is straightforward and intelligent, tells you exactly what he thinks and where he is coming from, and tries to engage you on the merits without excessive rancor or inflated "judge-itis."
Dwyane Wade's charter school project is embroiled in a legal dispute with an entity that alleges it was supposed to provide consulting services and help develop charter schools for 20k a month, but alleges it has not been paid.
Judge Marra has denied defendant's motion to dismiss the complaint, which alleges unjust enrichment in addition to the usual contract and quasi-contract.
I happen to like the simple, straightforward way that Judge Marra deals with unjust enrichment and Rule 8(a):
Next Generation next argues that Lichfield failed to assert all of the ultimate facts necessary for its unjust enrichment and quantum meruit claims. Specifically, Next Generation contends that Lichfield failed to allege the specific services, the dates that the services were provided, and what benefits Next Generation retained.
The essential elements of unjust enrichment are “(1) a benefit conferred on upon a defendant by the plaintiff, (2) the defendant’s appreciation of the benefit, and (3) the defendant’s acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1274 (11th Circ. 2009) (quoting Rollins, Inc. v. Butland, 951 So.2d 860, 876 (Fla.Dist.Ct.App. 2006)).
In count IV of the complaint, Lichfield alleged, in part, that:
45. Plaintiff conferred a benefit upon NEXT GENERATION, which services and materials were appreciated and accepted by the Defendant NEXT GENERATION that resulted in a substantial benefit to NEXT GENERATION thereby. 46. Defendant NEXT GENERATION accepted and retained the benefits of LICHFIELD’s consulting, public-relations, political and other related services to and for the Defendant under circumstances that would make it inequitable, unfair and unjust for Defendant to do so without paying the value of said benefits and services. 47. Defendant NEXT GENERATION knew that LICHFIELD expected to be compensated for its efforts in an amount not less than $20,000.00 per month for a 12 month period, i.e., August 2009-August 2010. 48. Plaintiff LICHFIELD fully performed said services and provided all required consulting, public-relations, political and other related services to and for Defendant, which resulted in a substantial benefit to Defendant NEXT GENERATION. *** Compl. ¶45-48.
Federal Rule of Procedure 8(a) only requires that a plaintiff include a “short and plain statement of the grounds for the court’s jurisdiction”, “a short and plain statement of the claim showing that the pleading is entitled to relief”, and “a demand for the relief sought.” Fed.R.Civ.P. 8(a). Clearly, Lichfield fulfilled the pleading requirements for the unjust enrichment count since it properly alleged that a benefit was conferred upon Next Generation, Next Generation appreciated the benefit, and the circumstances make it inequitable for Next Generation to retain the benefit without paying for it.
They're entertaining as you would expect -- and naturally involve food and bowel movements -- but where's the newsworthiness?
They seem private to me and I feel somewhat uneasy reading them. That doesn't mean they shouldn't be published if there's some larger point to them, but I guess I'm not seeing it at the moment.
Or maybe I'm missing something -- what do you all think?
But this is my favorite "hmmm" moment of the morning (from today's DBR but not online):
Robert C. Josefsberg, a partner with Podhurst Orseck in Miami, has been named to the steering committee in the Chinese Drywall multidistrict litigation in New Orleans, replacing outgoing partner Victor Diaz.
Tampa Criminal Defense Attorney / Lawyer, Casey Ebsary, found this internet Video produced by the Tampa Police Department. We have been working through the night helping those who were charged at this year's Gasparilla Pirate Fest in Tampa, Florida near Bayshore Boulevard..
Call Me Toll Free at 1-877-793-9290.
Gasparilla Arrest Video, Tampa Police, Open Container, Possession of Alcohol
Gasparilla Arrest Report Update: "Tampa police reported 349 arrests, most for alcohol violations and all but three misdemeanors. The felonies were charges for grand theft auto, resisting arrest with violence and battery on a law enforcement officer. Hillsborough County deputies made an additional 10 arrests on disorderly conduct or open container charges."
Let me share a secret -- Dennis Kucinich sends me emails.
Why, may you ask, am I email buddies with the Ohio congressman?
Is it because of his principled, courageous opposition to endless and pointless war?
Or because he was one of the very few who voted against the Patriot Act?
Or his positions on gay rights or universal healthcare?
Not really.
Hmm, where was I?
Oh yeah, I was saying I received an email from the Congressman just last night, explaining why he is settling his olive pit sandwich lawsuit:
Though I would prefer to focus your attention on my work dealing with the profoundly important issues that face our nation, such as job creation, getting the economy back on track, and ending the wars in Afghanistan and Iraq - it seems that some are more interested in discussing my personal dental issues. Given the degree of public interest you should know some details:
This injury required nearly two years, three dental surgeries, and a substantial amount of money to rectify.
The legal action you have heard about was filed due to the severity, expense and duration of the dental injury, the complications which followed and which still persist. I wanted to resolve this matter without filing a lawsuit. The events below involved numerous dental visits, more than are detailed in this summary.The dental injury set in motion a chain of dental and medical events.
When I bit into the olive pit, (unbeknown to me at the time), upon impact the tooth split in half, vertically through the crown and the tooth, below the level of the bone. Externally there was no evidence of a break. This was not about aesthetics. The internal structure of the tooth was rendered nonrestorable.Although the pain was excruciating, I shook it off and I went right back to work.
This tooth is a key tooth which anchored my upper bridgework. The injured tooth and the bone above it became infected. I took a course of antibiotics for the infection, had an adverse reaction to the antibiotics which caused me to have an intestinal obstruction and emergency medical intervention.
Later, my dentist referred me to a specialist who informed me that the damaged tooth had to be removed. A third dentist removed the tooth and I was fitted for a temporary partial. I waited for the bone to heal. An implant was placed, but it failed. Many months later still a second implant succeeded. My bridgework had to be completely reconfigured, a new partial was designed, so this injury did not affect only one tooth, but rather involved six (6) replacement teeth as well. A new crown with a new precision attachment was engineered and put in place. To clarify, no dental expenses were covered by any health plan, nor did I have dental insurance that covered the injury, which, until it was resolved, affected my ability to chew food properly.
Okay, this is WAY too much information.
It's starting to feel like I'm listening to my grandparents prattle on about their doctor visits over a bagel in Boca -- enough already.
There's no need to be defensive about filing a lawsuit -- indeed, there's nothing wrong with litigation if there is no other way to resolve a dispute.
And it appears that it took the filing of the suit to get the responsible parties to come to the table.
Again, that's a positive.
So use your repaired teeth to give your wife a smooch and try to get in the news for something else next time.
Gasparilla Arrest? Notice to Appear? Get Affordable Help From an Attorney | Lawyer | Toll Free 1-877-793-9290
In 2010 there were 5 BUI Boating Under the Influence Arrests. The Police, Sheriff's Office, Coast Guard, and Florida Fish and Wildlife will be using a Mobile Facility this year to process arrests made on the water. See video at bottom of this article. Many of these charges listed below are criminal charges that can result in a permanent criminal record
Common Charges From The Gasparilla Weekend.
Possession Open Container
If you have been charged with TPOR0064 POSSESSION OF OPEN CONTAINER you can call a Defense Attorney Tampa at 1-877-793-9290 and tell me your story.
Form Code: TPOR0064 City of Tampa Municipal Code: 003.40.B Level: Municipal/Local Description: POSSESSION OF OPEN CONTAINER
TPOR0064 POSSESSION OF OPEN CONTAINER one of the most commonly charged offenses in Hillsborough County, Florida.
Sec. 3-40. - Consumption and possession of open containers on streets, sidewalks, alleys and other public property.
(b) It is unlawful for any person to possess an open container of an alcoholic beverage upon any street, sidewalk, alley or other public property, including public or semi-public parking lots, within the city.
(1) As used in subsection (b), "open container" means any vessel or container containing an alcoholic beverage, including beer or wine, which is immediately capable of consumption or the seal of which has been broken.
(2) An open container shall be considered to be in the possession of the person if the container is in the physical control of such person.
Tampa Open Container Ordinance Sec. 3-40. - Consumption and possession of open containers on streets, sidewalks, alleys and other public property.
(a)It is unlawful for any person to consume, assist or aid another to consume any alcoholic beverage upon any street, sidewalk, alley or other public property within the city.
(b)It is unlawful for any person to possess an open container of an alcoholic beverage upon any street, sidewalk, alley or other public property, including public or semi-public parking lots, within the city.
(1)As used in subsection (b), "open container" means any vessel or container containing an alcoholic beverage, including beer or wine, which is immediately capable of consumption or the seal of which has been broken.
(2)An open container shall be considered to be in the possession of the person if the container is in the physical control of such person.
(c)Subsections (a) and (b) do not apply when:
(1)The street, connecting sidewalk or alley has been officially temporarily closed upon application to the director of public works and the approval of the city council for the purpose of a block party as provided in this Code; or
(2)A portion of a sidewalk has been leased and permitted as a sidewalk café as provided for in chapter 22 of this Code; or
(3)Public property has been zoned and permitted for the sale of alcoholic beverages pursuant to law; or
(4)A portion of the street, connecting sidewalk or alley has been marked and/or designated as a crossing for a public golf course.
If you have been charged with MISC0112 POSSESSION OF ALCOHOLIC BEVERAGE BY PERSON UND you can call a Tampa Criminal Defense Lawyer at 1-877-793-9290 and tell me your story.
MISC0112 POSSESSION OF ALCOHOLIC BEVERAGE BY PERSON UND is often charged in Hillsborough County, Florida.
Title XXXIV ALCOHOLIC BEVERAGES AND TOBACCO Chapter 562 BEVERAGE LAW: ENFORCEMENT
562.111 Possession of alcoholic beverages by persons under age 21 prohibited.
(1) It is unlawful for any person under the age of 21 years, except a person employed under the provisions of s. 562.13 acting in the scope of her or his employment, to have in her or his possession alcoholic beverages, except that nothing contained in this subsection shall preclude the employment of any person 18 years of age or older in the sale, preparation, or service of alcoholic beverages in licensed premises in any establishment licensed by the Division of Alcoholic Beverages and Tobacco or the Division of Hotels and Restaurants. Notwithstanding the provisions of s. 562.45, any person under the age of 21 who is convicted of a violation of this subsection is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083; however, any person under the age of 21 who has been convicted of a violation of this subsection and who is thereafter convicted of a further violation of this subsection is, upon conviction of the further offense, guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(2) The prohibition in this section against the possession of alcoholic beverages does not apply to the tasting of alcoholic beverages by a student who is at least 18 years of age, who is tasting the alcoholic beverages as part of the student’s required curriculum at a postsecondary educational institution that is institutionally accredited by an agency recognized by the United States Department of Education and that is licensed or exempt from licensure pursuant to the provisions of chapter 1005 or is a public postsecondary education institution; if the student is enrolled in the college and is tasting the alcoholic beverages only for instructional purposes during classes that are part of such a curriculum; if the student is allowed only to taste, but not consume or imbibe, the alcoholic beverages; and if the alcoholic beverages at all times remain in the possession and control of authorized instructional personnel of the college who are 21 years of age or older.
(3) In addition to any other penalty imposed for a violation of subsection (1), the court shall direct the Department of Highway Safety and Motor Vehicles to withhold issuance of, or suspend or revoke, the violator’s driver’s license or driving privilege, as provided in s. 322.056.
Common Charges From The Gasparilla Weekend.
DUI Driving Under Influence
If you have been charged with TRAF1012 DRIVING UNDER THE INFLUENCE You can call a Tampa Criminal Defense Lawyer at 1-877-793-9290 and tell me your story.
Title XXIII MOTOR VEHICLES Chapter 316 STATE UNIFORM TRAFFIC CONTROL
316.193 Driving under the influence; penalties.
(1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:
(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired;
(b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or
(c) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.
Common Charges From The Gasparilla Weekend.
DUI Over .08
If you have been charged with TRAF1015 DRIVING UNDER THE INFLUENCE UNLAWFUL BREATH A (DUI determined with a Breathalyzer Intoxilyzer Machine) you can call a Tampa DUI Lawyer at 1-877-793-9290 and tell me your story.
Form Code: TRAF1015 Florida Statute: 316.193.1C Level: Misd (Misdemeanor) Degree: 2nd Description: DRIVING UNDER THE INFLUENCE UNLAWFUL BREATH A (DUI determined with a Breathalyzer Machine)
TRAF1015 DRIVING UNDER THE INFLUENCE UNLAWFUL BREATH A (DUI determined with a Breathalyzer / Intoxilyzer Machine) one of the most commonly charged offenses in Hillsborough County, Florida.
Title XXIII MOTOR VEHICLES Chapter 316 STATE UNIFORM TRAFFIC CONTROL
316.193 Driving under the influence; penalties.
(1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:
(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired;
(b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or
(c) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.
Police Will Also Be on the Lookout For:
Open Containers Permitted Only Along The Parade Route - In Designated Areas
Must Be 21 Or Older To Consume Alcohol
Alcohol May Not Be Consumed From Kegs Or Large Vessels
No Glass Permitted
Use Port-O-Lets Or Other Restroom Facilities
No Fighting
No Trespassing On Private Property
No Flashing Or Nudity For Beads
Common Charges From The Gasparilla Weekend.
Notice to Appear? Tell Me Your Story Toll Free 1-877-793-9290 .
Chapter 901 ARRESTS
901.28 Notice to appear for misdemeanors or violations of municipal or county ordinances; effect on authority to conduct search. — The issuance of a notice to appear shall not be construed to affect a law enforcement officer’s authority to conduct an otherwise lawful search, as provided by law.
901.31 Failure to obey written promise to appear.—Any person who willfully fails to appear before any court or judicial officer as required by a written notice to appear shall be fined not more than the fine of the principal charge or imprisoned up to the maximum sentence of imprisonment of the principal charge, or both, regardless of the disposition of the charge upon which the person was originally arrested. Nothing in this section shall interfere with or prevent the court from exercising its power to punish for contempt.
BUI Video
Gasparilla Arrest? Get Affordable Help From an Attorney | Lawyer | Toll Free 1-877-793-9290
Criminal Forfeiture Standard (A District Magistrate’s View)
“18 U.S.C. §§ 981(a)(1)(C), 982(a)(5), and 28 U.S.C. § 2461(c) provide in pertinent part that any property, real or personal, which constitutes, or is derived from proceeds traceable to the charged offenses in this case are subject to forfeiture by the United States. For the property to be subject to forfeiture, the Government must establish the requisite nexus between the offense and the property. FED. R. CRIM. P. 32(2)(b)(1).”
“Any third party asserting a legal interest in such property must petition the Court for a hearing to adjudicate her interest in the property. 21 U.S.C. § 853(n) (2). Rule 32.2(c)(1) provides that a Court must hold an ancillary proceeding if a third party files a petition asserting an interest in the property. FED. R. CRIM. P. 32.2(c)(1). The Federal Rules of Evidence apply to the ancillary proceeding. FED. R. CRIM. P. 32.2 (Advisory Committee Notes 2000). Section 853(n)(5) sets out the following procedure for the hearing:”
“At the hearing, the petitioner may testify and present evidence and witnesses on his own behalf, and cross-examine witnesses who appear at the hearing. The United States may present evidence . . . . In addition to testimony and evidence shall consider the relevant portions of the record of the criminal case which resulted in the order of forfeiture. 21 U.S.C. § 853(n)(5)(emphasis added).”
“The Court shall amend the order of forfeiture if the claimant establishes by a preponderance of the evidence either that: (A) the petitioner has a legal right, title, or interest in the property, and such right, title, or interest renders the order of forfeiture invalid in whole or in part because the right, title, or interest was vested in the petitioner rather than the defendant or was superior to any right, title, or interest of the defendant at the time of the commission of the acts which gave rise to the forfeiture of the property under this section; or (B) the petitioner is a bona fide purchaser for value of the right, title, or interest in the property and was at the time of purchase reasonably without cause to believe that the property was subject to forfeiture under this section ....21 U.S.C. § 853(n)(6)(emphasis added).”
“To prevail on a third-party claim under 21 U.S.C. § 853(n)(6)(A), a petitioner must show that she had a legal interest in the property and the interest vested in the claimant instead of the defendant. See 21 U.S.C. § 853(n)(6)(A). However, “[a] third-party claimant ... must have more than bare legal title to the forfeited property.” United States v. Hovind, No. 3:06cr83/MCR, 2009 WL 2369340, at *4 (N.D. Fla. July 29, 2009). In the Eleventh Circuit, possession of bare legal title without the right to exercise dominion and control over the property is insufficient to prove ownership. See A Single Family Residence Located at 900 Rio Vista Blvd., 803 F.2d 625, 630 (11th Cir. 1986).”
Source: Case 8:09-cr-00110-JDW-AEP January 28, 2011
Innocent Owner in a Criminal Forfeiture Case? Call Me Toll Free 1-877-793-9290.
Kelley & Ferraro filed for Chapter 11 reorganization on Wednesday, Jan. 26, in a move that partner Tom Wilson said is aimed at resolving the nearly 5-year-old civil litigation pending against it.
The timing was not coincidental, Mr. Wilson said, as Wednesday was the day civil proceedings brought by Lynn Kelley, widow of firm co-founder Michael Kelley, were to resume in Cuyahoga County Common Pleas Court. Mr. Wilson said the bankruptcy filing automatically stayed the civil proceedings.
Currently, it's business as usual at Kelley & Ferraro, Mr. Wilson said. He said the firm filed for bankruptcy protection from creditors to do what's best for its clients.
The petition was filed in the Southern District of Florida, U.S. Bankruptcy Court, in Miami. Partner James Ferraro lives in Florida, and Mr. Wilson said bankruptcy counsel advised Kelley & Ferraro to file there.
Ms. Kelley's lawyer, Bill Wuliger, claimed Thursday that the firm's filing in Florida isn't “kosher” because the firm operates in Cleveland.
The bankruptcy filing is “extremely injurious” to Ms. Kelley and her son, and to the law firm and its clients, Mr. Wuliger contended. He called it an “atomic bomb on the Kelley family.”
“We're angry, we're upset, but we will survive and we will eventually, I believe, rectify the wrongs that have happened,” Mr. Wuliger said.
The case is before Judge Mark and you can see the docket here.
I recently had the great pleasure of rewatching Jimmy Caan's best film, Thief, where he plays a Chicago freelance diamond thief dreaming of a better life who gets sucked into working for a local mob kingpin for what Caan thinks is one final heist.
Of course the mobster, brilliantly played by Robert Prosky, has other, longer term plans for the profitable crook.
Naturally we are in a very different context, yet for whatever reason I'm reminded of this superb story line when I read the curious settlement terms reached by receiver Herb Stettin and Russ Adler in the Rothstein bankruptcy, which involves Russ handing over a portion of his settlements or judgments should he be successful in future cases:
The settlement stipulates Adler will pay off the settlement by liquidating a $90,000 IRA and by providing liens on any attorney fee recoveries. The lien is 50 percent on lawsuits Adler prosecuted while at RRA and 15 percent afterward.
So now they're in business together? And Russ is now working to pay off the settlement by trying to settle cases he either has in the hopper or may one day have in the hopper.
This is allegedly due to his current financial situation:
Critical to determining settlement was a detailed analysis of the Adlers’ current financial condition, which based upon mediation related financial disclosures revealed that the Adlers have no existing bank, securities or other accounts upon which to execute, no equity in their home, leased vehicles and no other liquid non-exempt assets that could be used to satisfy any potential judgment. Further, it appears as if the Adlers may be subject to an IRS notice of lien or other action in an approximate amount of $234,000 and Mr. Adler could be facing other types of exposure in potential Florida Bar or criminal proceedings. Thus, the Trustee could have spent a significant amount of money to prepare for and conduct a lengthy trial which he believes would have resulted in a favorable jury verdict, but the likelihood of a successful collection on any such judgment would have proven difficult.
So who's the winner here -- is this a brilliant move by Adler, a smart move by the trustee, or something else entirely?
Financial troubles at Ruden McClosky are deepening, with the Fort Lauderdale-based firm suspending all capital payouts to former equity shareholders.
In a letter to about 50 to 60 former equity shareholders Saturday, co-managing partners Michael Krul and Carl Schuster said the firm was declaring a "moratorium" on all capital account repayments. The three-paragraph letter stated the firm would review the situation "later in the year."
The survival of the firm has been a subject of open debate for months. Sources at two law firms that were approached said Ruden has been shopping for merger partners.
Aren't the repayments a contractual obligation? How can you declare a "moratorium" on paying back a debt?
With Florida's legislative leaders still chafing from recent defeats before the Florida Supreme Court, Republican lawmakers signaled Wednesday that they want to strip some of the court's powers.
Their target: The court's authority to write rules governing practices and procedures across the statewide judicial system.
Republican members of the House Civil Justice Subcommittee accused the Supreme Court of routinely overstepping its authority in recent years by issuing rules that amount to substantive policy changes rather than merely addressing issues of procedure.
Among the rules they cited: One that established a maximum time to go to trial – 175 days from a felony arrest – after which a case must be dismissed as a violation of a defendant's right to a speedy trial; and another that required juvenile defendants be given a chance to confer with a lawyer before they can waive their rights to counsel and enter a plea to a crime.
"We've got a Supreme Court that's doing an end run around the Legislature," said Rep. Bill Hager, R-Boca Raton.
Yeah -- indefinite detention is way better, and why does a kid need a lawyer before the policebeat a confession out of him he confesses to a crime?
Procedural safeguards are so last century!
In other news, this evening Spencer Aronfeld will explain to FIU law students why they shouldn't cry the second they graduate.
Good luck Spence, you've got your work cut out for you.
Casey Ebsary, Board Certified Criminal Trial Lawyer in Tampa, Florida has added to his network of criminal defense websites with the launch of a new website. The new site allows a comprehensive FREE search of his Tampa Criminal Defense Database.
From this resource, users will be able to access Information from Tampa, Hillsborough County, Florida and have free access to Casey's criminal defense information database.The new website is located at TampaCriminalDefenseAttorneyLawyer.com
Casey is also available to discuss criminal law issues with Defendants, Attorneys, Lawyers, Family, and Friends of those who need help. .
You gotta love litigating against the state -- it's like fighting with a headless chicken: there's no one in charge, no one accountable, no one making "hard" decisions that involve long-term thinking, and absolutely -- and I mean absolutely -- no one counting the money.
That's how you can wind up with this absurd decision by the 4th DCA, which the DBR reports on here, where the court actually has to explain to the state that spending tons of money trying and losing the citrus canker case does not mean that the state somehow "won" and that they therefore are entitled to -- of all things -- fees(!):
We find the Department’s arguments to be frivolous. No matter how one looks at the facts, the owners prevailed on the significant issues. The mere fact that the owners sought more in damages than the jury awarded does not mean that they did not prevail on both issues of liability and damages.
This is mind-numbingly stupid.
In fact, I can't even begin to put in words how asinine this argument is and that the state actually went ahead and paid Wes Parsons good taxpayer money to take it all the way up on appeal.
God I gotta do something to calm down and take my mind off this drivel:
Ok, it's working -- I'm starting to feel better now.
Note to judges who are planning to sanction lawyers for blowing deadlines -- there are these little things called the "Kozel factors" -- please try to familiarize yourself with them first.
The National Basketball Association’s Miami Heat was sued by the R. Allen Stanford receivership for allegedly collecting more than $1.3 million in ill-gotten gains from Stanford’s alleged fraud.
“The payments to the Miami Heat parties are related to Stanford’s sponsorship, advertising and promotional activities,” Ralph Janvey, the court-appointed receiver, said in a complaint filed today in Dallas federal court.
What is it with crooks and sports teams?
Remember how Scott Rothstein blew wads of dough getting close to sports stars so he could pretend he had a jump shot or could throw the ball just like Dan Marino?
Criminal Defense Attorney in Tampa notes a recent Search and seizure decision involving a Vehicle stop. The court's opinion is a free download here. Cops said defendant took off in his car in cop speak this called "Flight." Cop observed the following:
Defendant standing in front of a parked car in the vacant lot of a closed gas station
High crime area at 1:15 a.m.
Defendant entered the car
Departed from the gas station upon making eye contact with the officer.
The Court ruled that the officer did not have reasonable suspicion for the stop of the vehicle Motion to suppress firearm discovered in search of vehicle granted.
Can Your Evidence be Suppressed? Call Me Toll Free 1-877-793-9290 .
Case Excerpts:
"As explained in Paff v. State, 884 So. 2d 271, 273 (Fla. 2d DCA 2004), a “car that obeys all traffic regulations when leaving a location when a police car arrives would seem to be the motor vehicle equivalent of a person who simply walks away from an officer on foot. Such a person does not invoke the rule of Wardlow.” Here, Appellant did not flee at a high rate of speed or in a reckless manner so as to suggest flight."
"We therefore reverse the trial court’s denial of the Appellant’s motion to suppress, and accordingly REVERSE the Appellant’s judgment of conviction and vacate his sentence."
I understand there may be a certain amount of settlement posturing to all this, but is Gene going overboard with his very public and very direct"Judge Ungaro screwed up"approach to appealing the BankAtlantic securities verdict?
I mean, this is a guy who already said it was the worst-tried case he's ever seen in his life, and that includes every episode of Judge Judy plus that old Boston judge from The Verdict (ok, I added the last part).
In today's DBR, Stearns continues to focus exclusively on Judge Ungaro:
"I don't blame the jury," Stearns said."The judge instructed them that Alan Levan made four false statements. And that is, I believe, unprecedented for a judge to tell the jury that one of the defendants made false statements."
Gene also didn't like how the Judge handled the damages expert:
Stearns said Preston's testimony about damages rested on several factual assumptions that the jury did not assess: "The judge refused to allow the jury to decide the factual questions upon which her testimony was predicated. Very puzzling."
Puzzling? It's downright perplexing!
In their response, posted here, the plaintiffs take this argument head on:
Even though the Court was not required to submit a special interrogatory regarding Preston’s assumptions to the jury, the jury clearly had the opportunity to consider and reject the assumptions. Preston’s assumptions (found at paragraph 10 of her report, PX726) were published to the jury during her testimony. Trial Transcript (“Tr.”) 2668-69. Defendants vigorously cross-examined her about the assumptions and the significance if Plaintiffs failed to prove them.6 Moreover, the instructions given by the Court were absolutely clear that unless the jury first found liability the issue of damages was not to be reached (DE 635 at 23) and specified that it was up to the jury to decide whether it would rely on the expert’s opinion. Id. at 6. Given these instructions, it is implicit in the jury verdict awarding damages based on Preston’s testimony that the jurors found that the factual assumptions she relied on were proven.
The slow yet steady drumbeat of departures continues at Adorno &Yoss, according to the ever intrepid Julie Kay:
Neil Linden, head of business litigation at Yoss LLP, is moving to GrayRobinson's Miami office and bringing two lawyers with him.
The nine-year veteran of Yoss, formerly Adorno & Yoss, is leaving with shareholder Phillippe Deve and associate David Levin on an undetermined date.
Linden, national chair of business and commercial litigation department at Yoss, said his departure is due to a conflict that developed over a large institutional client of his and a new client with the firm. The clients were not disclosed.
"We had a conflict we could not resolve," he said.
Hmm, I can't speak to the details of this particular conflict, but I know one conflict that would be difficult for any law firm (in the generic sense of course) to overcome -- I would like to be paid vs. sorry but we really can't pay you right now.
If I were the good folks (folk?) at Yoss, I would consider an entire rebranding overhaul.
For example, it's kinda weird or perhaps even ghoulish that the firm website is still adorno.com.
And the "Yoss" thing feels incomplete and awkward, doesn't it?
It'd be like if Abbott and Costello suddenly just became "Costello!" -- ok Lou, we wish you well, but maybe you need to go in an entirely new direction?
The 11th Circuit, with Judge Cooke sitting by designation, has ruled against a Bradenton strip club, the "Peek-a-Boo" lounge, which had challenged a ridiculous ordinance designed to take all the fun out of life:
The ordinance allows employees of sexually oriented businesses to appear “semi-nude,” id. § 2-2.5-18(b), defined as “a condition in which a person is not nude, but is showing a majority of the female breast below a horizontal line across the top of the areola and extending across the width of the breast at that point, or is showing the majority of the male or female buttocks,” id. § 2-2.5-2. Employees appearing semi-nude, however, must “remain[] at least six (6) feet from any patron or customer and on a stage that is at least eighteen (18) inches from the floor and in a room of at least one thousand (1,000) square feet.””
Seriously?
That would mean at least half the parents at any South Florida children's birthday party held near a body of water would be in violation of this ordinance.
Now that you mention it, I am in violation of this ordinance right now.
But the First Amendment was not designed to protect a majority of the female breast below a horizontal line across the top of the areola and extending across the width of the breast at that point, according to Judge Marcus, mostly because of the "secondary effects" (no, not that kind).
The district court took extensive evidence and, indeed, the County spared no expense, sending in a top investigator, Tom McCarron, to find out exactly what goes on in these clubs:
At Pandora’s Box, Mr. McCarren was able to pay a dancer for a private dance, during which the dancer removed the tape over one of her nipples and allowed Mr. McCarren to touch her breast, buttocks, and genital area. At Paper Moon, Mr. McCarren was able to pay a dancer to go into a back room with him, where she removed all clothing except her G-string and allowed Mr. McCarren to touch her breasts.
Mr. McCarren, you sir deserve a medal for your fierce and relentless pursuit of the facts.
(Or at least a nice massage -- oh wait, that's your next case!)
But in the end, it was Mr. McCarren's dedicated muckraking that made all the difference:
The bottom line (ed. note -- ha ha) is that the County has presented a substantial body of evidence to support its rationale for adopting the ordinance. Peek-a-Boo has failed even to address much of that evidence at all, and it has failed to show that the County’s rationale or this body of evidence was unreasonable.
Having spent 35 of his 59 years in a wheelchair, Boca Raton attorney Bob Pearce knows the needs of the disabled are often ignored. But he didn't expect to have his rights violated at the federal courthouse.
A routine hearing turned ugly when security guards blocked him from parking in one of six empty handicap spaces in the sprawling lot in front of the downtown courthouse.
The alternative they suggested, a public lot nearby, left him stranded atop a steep hill. He made it to the hearing after flagging down a stranger, who grabbed the handles of his chair and wheeled him safely down the incline.
But he was outraged. So was the judge.
"It's disgraceful," U.S. District Court Judge Daniel Hurley said.
"The federal courts are the institution of government that enforces the Americans With Disabilities Act," he said. Instead, it appears it is violating the spirit, if not the letter, of the nearly 21-year-old landmark legislation that was designed to break down barriers and open up opportunities for the disabled.
And although the situation at the federal courthouse in West Palm Beach is problematic, Pearce and others said it's not unique. The rigors disabled people face getting to the federal courthouse in Fort Lauderdale aren't much better.
Hold on -- everyone faces difficulty getting into the Fort Lauderdale federal courthouse. And it only gets worse once you actually get inside that thing.
But enough with these post 9/11 "berms" and "blast barriers" -- why does it have to feel like downtown Baghdad when you try to enter the old 70s federal courthouse (the Atkins courthouse) where all the mags are now?
That building already has plenty of problems from an architectural standpoint -- it's time we remove the barriers so it at least looks like a building where citizens are not actively discouraged from entering.
It's particularly ironic for that structure, given its steps, open courtyard and expansive design -- now all tightly closed with metal fencing and prominently surrounded by blockades, perhaps to prevent mad process servers from trying to ram their way into that crappy coffee shop upstairs.
After a Palm Bay family retained Shuster & Saben to defend a foreclosure action filed by CitiMortgage, the firm sent CitiMortgage a Qualified Written Request ( QWR ) pursuant to the Real Estate Settlement Procedures Act ( RESPA ). The letter also requested that CitiMortage verify the debt pursuant to the Fair Debt Collection Practices Act ( FDCPA ) and case communications with the family.
The clients told our us that before they hired counsel, CitiMortgage would not give them the time of day when the clients called CitiMortgage concerning the clients request for permanent loan modification under HAMP. Our clients explained that when Citi refused to provide a permanent loan modification the clients attempt to find out the reason for the denial or obtain reconsideration was a futile struggle of long hold times, voicemail, dropped or disconnected calls, and unfulfilled promises that we will get back to you. Ultimately, CitiMortgage made no permanent interest rate modifications before filing a foreclosure action against our clients.
When our clients decided to fight back by hiring counsel rather then laying down and surrendering their home an unexpected thing occurred; CitiMortgage started calling our client. In one of Citi’s early calls the client advised, why are you calling me, you sued us to try and take our home and we retained counsel, please call our lawyer. When the clients advised us of the calls from Citi, we instructed them that such calls were illegal, that they should keep a log of the calls, and that if the calls continued we would sue CitiMortgage.
The calls did not stop. To add insult to injury, our firm did not receive a response from CitiMortgage to the Qualified Written Request. We believe that Citi violated RESPA when it refused to provide us with an accounting of the amount they claimed to be due and violated the Truth in Lending Act ( TILA ) when they refused to tell us who owned the note.
At Shuster & Saben we are litigators who say what we do and do what we say. Firm attorney Richard Shuster met with clients to obtain their permission to sue CitiMortgage and obtain their cell phone call logs to prove CitiMortgage called the clients AFTER CitiMortgage was put on notice that the clients were represented by counsel. The firm then filed suit against CitiMortgage for violation of RESPA, TILA and the Florida Consumer Collection Practices Act ( FCCPA ). We hope that we can use this lawsuit as a bargaining chip to resolve the foreclosure action filed against our clients with a substantial reduction of the loan balance (principal) and interest rate along with damages for our clients and payment of our clients’ attorney’s fees. To view a redacted copy of the lawsuit against CitiMorgage please click the link below. Redacted FCCPA lawsuit against CitiMortgage
About Shuster & Saben: Shuster & Saben is a litigation firm that represents consumers and against big insurance and big banks. We send a Qualified Written Request on behalf of every client we defend in a foreclosure. If the client has a second mortgage we send a QWR to the second mortgage holder or servicer too. When a client hires us to defend a foreclosure their phone should stop ringing and their case should be one less problem they have to deal with. If the bank or their lawyers don't follow the all applicable rules and laws, we will not hesitate to bring separate lawsuits to obtain justice for our clients. If you have retained counsel to defend a foreclosure case and you are still being called about your mortgage you should keep a log of the date, and time that you were called, the name of the caller, their Id number or extension, and if you have Caller I.D. the phone number from which you were called. Homeowners with questions about the Florida Consumer Collections Practices Act (FCCPA) or RESPA can E-mail us at foreclosuredefenselaw@gmail.com.
In Katherine's Bay, LLC v. Fagan and Citrus County, the 1st DCA overturned the Administration Commission Final Order, adopting a Recommended Order issued by a DOAH ALJ, that found a small-scale plan amendment permitting an RV park to be "not in compliance."
The Court found that the ALJ violated the applicable rules of statutory interpretation (that the specific governs over the general) by finding that the amendment violated a general coastal/environmental policy when a more specific policy addressed the location of RV parks. Again, we see the 1st DCA limiting the strict scrutiny language of Machado, which states the over broad position that every development order must comply strictly with each and every provision of the comprehensive plan.
The Court also found that the ALJ make a determination that the amendment was not "compatible" without competent substantial evidence. This is another important aspect of the case: the Court rejected the ALJ's acceptance of the lay opinion of the challengers that a mobile home park would have adverse impacts on the area including light pollution, traffic, and negative impact on housing values. The Court is, in effect, setting forth fairly stringent requirements for evidence regarding compatibility that requires expert testimony on most aspects commonly used to claim that uses are not compatible. The Court specifically rejected any analysis that the RV use was "inherently" incompatible with existing residential uses simply because it was different and more intense.
This was a classic problem of "strict scrutiny" rules under Machado v. Musgrove creating an absurd result. The Leon County Plan Conservation Element includes special provisions that apply to developments in the Lake Jackson watershed, including on that required the land development regulations to have special designations for the watershed that would effectively preclude residential development. However, one of the Future Land Use policies indicates that the designation requirements are not intended to apply in "closed sub-basins" - basins that don't discharge water into the Lake, even though they are within the general Lake Jackson drainage basin.
Opponents challenged and convinced the trial judge that because the FLU policy did not specify that it was intended to create an exclusion to the specific Conservation Element policy (it was simply included a a sub-policy below the general policy), it didn't have that legal effect.
The 1st DCA ruled that the entire set of policies had to be read together and that in that light, the only reasonable interpretation was that the FLU policy was intended to create an exception to the Conservation Element policy, and was consistent with its intent. Supporting this analysis, the Court said:
The Florida Legislature has established that in reviewing consistency, a court may consider the "reasonableness of the comprehensive plan, or element or elements thereof, relating to the issue justiciably raised or the appropriateness and completeness of the comprehensive plan, or element or elements thereof, in relation to the governmental action or development regulation under consideration." § 163.3194(4)(a), Fla. Stat.
Here, the trial court’s order incorrectly reviewed the development order and the Plan by neglecting to consider the “reasonableness of the comprehensive plan, or element or elements thereof.” By reviewing the applicable provisions of the Plan as a whole, the most reasonable and holistic interpretation, based on both the text and the synthesis of the document, we have no doubt that the development order is consistent with the Plan. This is necessarily so, because when read in pari materia, it is clear that the Plan and its elements provide that within certain Zones that actually discharge rainwater runoff into Lake Jackson, Leon County has established much more stringent development limitations for one primary purpose: to protect Lake Jackson from polluted rainwater runoff
It is hard to underestimate the importance of this decision to landowners/developers. For years, neighbors and local government attorneys have used the "each and every element" language in Machado to argue that development orders must be consistent with unreasonable, atomic analyses of particular plan provisions - which can easily be taken out of context. Every land use lawyer in Florida knows the result: every complex plan in the state has provisions that can be used to defeat ANY development order at any time through an unreasoning application of the consistency doctrine and vague and subjective plan provisions. This opinion is a strong stake in the ground that "strict scrutiny" must be balanced by a reasonable application and result.
The Court went on to reject an argument that this interpretation would create other "absurd" results in applying the Plan - citing not only the speculative nature of those claims, but also stating that the "absurdity" doctrine in statutory construction should be applied restrively.
One of the last vestiges of the old Downtown Miami social scene is coming to an end.
The Miami City Club in the Wachovia Financial Center is closing Friday and will be converted into office space. Real estate firm Optima Ventures has signed a lease to move into the space on the 55th floor of the iconic building that is the tallest office tower in Florida.
It's not a huge shock. Membership at the Miami City Club had dwindled to about 280 members from nearly 900 in its heyday. Most days lunchtime crowds were thin. An experiment as a private cigar club failed and the club went back to its roots in 2009. Recently, they were offering monthly memberships with no initiation fee to lure members.
What can I say?
I liked the boozy atmosphere, the waiters in white linen who helped serve the buffet, invariably consisting of some kind of "corn salad" and various meats and greens and so forth, all served with bonhomie, I will miss them all.
I will miss the exclusive passage to "hidden" rooms, serving the same exact food as what was available in the main room, I'll miss "adding it to my account" as I did so often, hoping the firm will pick up my tab, I'll miss the views, the good times, the parties, the turkey vultures hovering over my meal. I'll miss it all.
I will especially miss the staff, the long-timers who suffered through various regimes, changes in orientation, all to find that the business model was just not going to happen any more.
I also have a suggestion for the wide open space on the 55th floor -- food trucks, lots and lots of food trucks.
In fact, I propose we serve the exact same food -- except we serve it from various food trucks sprinkled through the space on the main floor, making it "exciting" to have a corn salad from a food truck, "exciting' to have several small burgers (aka "sliders") served from a food truck literally in the middle of the hallway where the club used to meet their guests, and then finishing with a "gourmet pizza" and "fish taco" coming right out of the kitchen, except served from a "Fish Taco Food Truck" strategically placed to obscure everyone's view.
For example, here's an excerpt from a sanctions order in a case that, if you read this blog, you may have heard me mention once or twice.....
What that response does not address, however, is that plaintiffs, themselves, reinforced that understanding...after the hearing! . . . . Apparently the Court was not the only one besides the defendant that believed there were only two issues remaining! This Court is completely unable to reconcile what happened prior to and including plaintiffs' only filing of August 27, 2010, with the position plaintiffs now attempt to take before this Court. It is, quite simply, astonishing!
Yes, I agree, this whole case is astonishing.
The Court then requires plaintiffs, over the threat of a $5k a day penalty, to sign the disputed settlement agreement:
5 Plaintiffs shall execute same without any additions, corrections, deletions or extraneous markings of any kind (ed. note -- how about a smiley face?) and return same to defendant within five (5) days of receipt of same. A return of the release with any of these 'changes' shall be deemed by the Court to be no return at all.
6. Based on a finding of Contempt, a fine of $5000, per day, will be imposed for every day after the five (5) days said receipt is not returned, properly executed.
Question -- what is the point of compelling an actual, physical signature -- stray mark-less and properly executed (whatever that means) to a settlement agreement?
Wouldn't it be sufficient for the Court to simply find that the parties reached an enforceable agreement and order compliance therewith? What does the forced signature/properly executed/no stray marks add?
Oh well, that's why I just write up these stupid blog posts.
This Court's Order puts Plaintiffs between a rock and a hard place -- sign the settlement agreement, potentially relinquishing Plaintiffs' rights on appeal, or suffer "$5000/day" in fines and reserves jurisdiction for yet more fines as the price for exercising one's constitutional rights to review an order of a judge.
I always say file a motion that won't be a complete and utter waste of time for everyone involved.
That's sort of a baseline rule of thumb that we like to practice by here in SFL land.
Well, take a gander at this Order from Judge Marra and judge for yourself if the baseline was hit in this case:
Defendants Planet Kids, Inc., Planet Kids at Cypress Lakes, Inc., Planet Kids II-IX, Inc., Planet Kids XII, Inc., Planet Kids XIV, Inc., Planet Kids XVI-XVII, Inc. and Manuel Sarriea (“Defendants”) move to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the sole basis that the Complaint is a “shotgun pleading.” According to Defendants, the Complaint impermissibly “incorporates by reference every paragraph that precedes it which is the definition of a shotgun pleading.” (Mot. at 4.)
The Court begins its discussion by noting that the proper remedy for a shotgun pleading is the alternative relief of a more definite statement under Rule 12(e), and not a motion to dismiss pursuant to Rule 12(b)(6) as sought here. Anderson v. District Board of Trustees of Central Florida Community College, 77 F.3d 364, 366 (11th 1996). A defendant faced with a shotgun pleading “is not expected to frame a responsive pleading;” however, once a more definite statement is provided, “the defendant will be able to discern what the plaintiff is claiming [in order] to frame a responsive pleading.” Id. Significantly, in the instant action, Defendants filed an answer to each and every count of the Complaint. (DE 10.) Filing an answer suggests to this Court that it was not “virtually impossible” for Defendants “to know which allegations of fact are intended to support which claim(s) for relief.” Id.
Indeed, it is clear from the Complaint that Plaintiff is accusing Defendants of violating various intellectual property and trade practices relating to its “Your Baby Can®” products. In other words, both the Court and Defendants can ascertain from the Complaint how Plaintiff was allegedly wronged by Defendants, what legal theories Plaintiff is pursuing and how the factual assertions play into those legal theories. As such, this is not a shotgun pleading and Defendants' motion is denied.
Ok, let's start with the "shotgun pleading" part.
Sure you could file a motion for more definite statement, as opposed to a 12(b)(6) motion, but why file anything at all?
How about calling opposing counsel and saying "you know that guy who files a complaint and includes by reference every single paragraph of the preceding count in each count, thus converting the complaint into an M.C. Escher-esque nightmare where each count folds up upon each other, endlessly, over and over and over again? You're that guy."
That way the lawyer can amend, use up his free shot, and you can frame a response against a properly-pled complaint without making the other guy look bad.
Or you can file a 12(b)(6) motion and make everyone look bad.
Then you have the fact that the defendants answered anyway -- which as pointed out by Judge Marra moots the substantive purpose of the requested dismissal (assuming there ever was one).
