Law Updates for August 26, 2011

Dixon, 36 FLW 1815, 4th DCA, Def's repeated statements he did not want to talk about the burglaries of his parent's house was unambiguous and unequivocal.  Police did not honor the def's request to remain silent.  Trial court erred in deciding that the def could not invoke the right to remain silent regarding certain matters but not others.

T.S.W., 36 FLW 1821, 4th DCA, CCW, court should have dismissed case.  Common pocketknife (3.5 inches) and lacks weapon-like characteristics.

Breen, 36 FLW 1861, 1st DCA, Error to deny JOA where evidence established that the def entered the apt he shared with girlfriend, he was paying at least the expenses and bills for the apt, his belongings were still in the apt and no evidence that the girlfriend revoked her consent to the def living in the apt.


The Law Offices of Roger P. Foley,P.A.

Third DCA Overturns “Special Equity” Grant

The Third District Court overturned a lower court’s grant to the Husband of a “special equity” in the parties’ home in Jurasek v. Jurasek, largely because the concept was abolished nearly three years ago.  The Husband had argued that the abolition of special equity, occurring post-filing in that case, did not apply.  The Third District did not rule as to retroactivity, instead finding that an unequal distribution would also have been inappropriate, as the statutory presumption of interspousal gift was not defeated.

Second District Overturns Repeat Violence Injunction

The Second District Court overturned an injunction against repeat violence entered in Jones v. Jackson today, in that the communications on which the order was based would not cause a reasonable person emotional distress, meaning that they were not harassment within the meaning of the relevant statute, F.S. 784.046.

3d DCA Watch -- Let's Party Like It's 2007!

Hi folks, sorry I'm late but it's hard to blog and take a deposition (though I'm getting better at it).

Onward to the bunker, where once again we get to learn life legal lessons courtesy of the most fabulous denizens of the most fabulous bunker in all the most fabulous of lands (hey, I may someday run for political office).

From the darkest recesses of the deepest crevices -- at a purely arbitrary date and time -- written utterances will erupt full force into the atmosphere, like Old Faithful, to the great delight and occasional dismay of the adoring schleppers who keep begging for more:

Jurasek v. Jurasek:

News travels slow in the divorce bar -- they're still getting used to Palm Pilots just as tech-savvy lawyers are dazzling clients with an obscure, little known device put out by a scrappy upstart and known only to the select few as "iPad" (did I spell that right)?

Anyways, they still think it's 2007 down there: 

We agree with the wife that the trial court erred and abused its discretion in awarding the husband a “special equity” in the parties’ jointly owned marital residence. The husband contends that he has greater entitlement to the parties’ jointly titled home based on his investment of his share of his inheritance fund in the marital home. This argument is insufficient as a matter of law. “Special equity” was abolished in 2008 and was replaced by the term, “a claim for unequal distribution” of marital property. See § 61.075 (11) Fla. Stat. (2008).

 Once again political correctness has killed a perfectly fine phrase!

Regions v. Mercenari:

Surprise -- Judge Adrien affirmed on appeal!

But not according to Judge Shepherd's serendipitous dissent:

The only connection this case has to Miami-Dade County is the serendipitous fact the plaintiffs live in Miami-Dade County. While the plaintiffs choice of venue is an important consideration, the trial court must balance this choice with the convenience of all the parties and witnesses.

But that's a pretty big serendipitous connection, no?

No:

All of the activity relating to this case occurred in Bay County, Florida. Both the purchase and termination agreements were signed there, and all the activity relating to the escrow agreements occurred there. All of the defendants’ witnesses are located in Bay County.

For good measure Judge Shepherd pulls out and bolds some language from Kinney.

Ouch.

But whatever happened to the vaulted and much-praised-while-holding-your-nose "abuse of discretion" standard?

Fourth District Overturns Restriction on DOR’s Power To Intercept Unemployment

The Fourth District Court ruled today in State, DOR ex rel Gomez v. Varela, and the nine other cases consolidated in the same appeal, in so doing overturning the lower court’s rulings which limited the degree to which the Department could intercept unemployment payments, on the basis that it was an unjust restriction on statutory authority provided to the Department.

Someone Is Not Reading David's Blog.

Here we go again:

Notices of Unavailability.

There, I said it.

Practitioners, let me be your (mostly secular) Rabbi.

When you are about to tell a federal judge not to do anything in your case for a month -- nothing at all, don't do a single thing even if she is about to grant your summary judgment motion and end the case in your favor -- DON'T DO IT JUDGE because I plan to be (a) in Aruba (b) having my goiter removed (c) farting around the house watching internet porn or (d) going to a Star Trek convention.

Ok, maybe the last one.

But otherwise, don't do it.

Do you really think Judge King is going to care about your personal schedule?

Last summer when I had the pleasure and honor of filling in for DOM, we discussed this thanks to a fantastic order on the subject by Magistrate Judge Brown:

The parties should note that there is no local rule in our Court providing for the filing of same, and no federal rule supporting same.  While the Court is not precluding anyone from filing same, and as a matter of professionalism and courtesy they should be considered, the parties should understand that these filings have no legal significance.

Although there were several valid points made in comments worth considering, I stand with Judge Brown on this -- unless you know of an imminent date scheduled in your case that you currently have a conflict with, then why are bothering the Judge with the possibility that at some theoretical point in the future there may be a development in the case, and if and only if that were to happen, and the event required my physical appearance, and no one in my office could cover it, and I can't get back to deal with it, and my magical iPad stopped working and I can't download your orders anymore, then and only then it could be a problem and I just wanted you to know my personal comings and goings because there exists a remote possibility that this incredible confluence of events could somehow come together over the next thirty days and thereby create a personal problem for me.

Other than that, Judge, carry on!

Yes, Virginia, Parties Can Plead in the Alternative.

You would think after forty-seven thousand gazillion years of jurisprudence, litigators would be savvy enough to not argue the same redundant or pointless things over and over again.

Yet, like the sunshine of a new day, they come back again bright and fresh in a spankin' new motion, as if there's no context, or history, or....caselaw....

Case in point:  pleading in the alternative.

Here's Judge Altonaga having to -- once again -- explain how this whole pleading thing works:

Under the Federal Rules of Civil Procedure, a Plaintiff may plead claims in the alternative. See FED. R. CIV. P. 8(d);3 United Techs. Corp. v. Mazer, 556 F.3d 1260, 1273 (11th Cir. 2009) (“Rule 8(d) of the Federal Rules of Civil Procedure expressly permits the pleading of both alternative and inconsistent claims.”). A party need not use any special words to properly plead in the alternative; it only must be “‘reasonably inferred that this is what [it was] doing.’” G-I Holdings, Inc. v. Baron & Budd, 238 F. Supp. 2d 521, 536 (S.D.N.Y. 2002) (alteration in original) (quoting Holman v. Indiana, 211 F.3d 399, 407 (7th Cir. 2000)). Breach-of-contract and declaratory-relief claims may be pleaded alternatively. See Great Am. Ins. Co. v. Sch. Bd. of Broward Cnty., Fla., No. 09-61636-CIV, 2010 WL 4366865, at *24 (S.D. Fla. July 30, 2010); In re Andrew Velez Const., Inc., 373 B.R. 262, 275 (Bankr. S.D.N.Y. 2007). If any inconsistencies exist, they can be dealt with at summary judgment or through jury instructions. See Formula LLC v. RSUI Indem. Co., No. 09-60592-CIV, 2009 WL 2342455, at *3 (S.D. Fla. July 28, 2009).

 Seriously?  

Somebody made her write this one more time?

Like Droz says to Gutter in PCU, "don't be that guy."

Don't be that guy.

Your Monday Morning Digital Dump.

Hi kids, it sure felt like we had a monumental weekend, is everyone ready to get back to work?

Here are a few random things I am thinking about at this moment:

RKRPEVN Rasco Klock (hey, they took up my suggestion!) partner Jack Shawde is a pretty damn fine guitarist.

Check him out with Magda Hiller, above.

Wife responsible for not turning in husband's fraud?

On Friday, surrounded by family and friends, Gamblin was sentenced to 15 months in prison for being loyal to Roger Gamblin, her husband of 28 years, instead of turning him into authorities and admitting what she knew about the spectacular collapse of Flagler Title Co.

"I'm a good person," the much thinner and grayer version of the once bubbly blonde told U.S. District Judge Kenneth Marra. "I just made some really bad decisions. I'd do anything I could to make it right."

After listening to Gamblin's sister pledge to help her sibling regain her moral compass and an insurer criticize Roger and Peggy Gamblin for the widespread damage they caused, Marra chose a middle ground.

Girl in a Bar, your thoughts please.

Somebody in Indiana (ok, it's the AG) isn't buying what Palm Beach foreclosure defense attorney Thomas Matevia is selling.

And finally, today is is the anniversary of the Beatles' last live concert (not counting the Apple rooftop), in Candlestick Park, San Francisco in 1966(!).

Thirty three and a third minutes of off-key screaming adulation.

(Just like when I make an appearance at calendar call.)

Rock on John and Georgy!

Florida Family Law Forms Updated and Improved

The Florida Family Law Forms Page has been updated and improved, and now allows a party to fill out many of the forms online, and then save or print them with the information included.  Many more online fill-able forms to follow!

Second District Reverses on Conceded Child Support Error

The Second District Court issued an opinion yesterday in Halawy v. Halawy, reversing a temporary order providing for child support, but failing, evidently, to divide the Husband’s net monthly income by the combined net monthly income, per F.S. 61.30(9).  The Wife conceded the error and the Court reversed.

Law Updates for August 19, 2011

Herron, 36 FLW 1731, 3rd DCA, Pat Down after traffic stop - Defendant who had been ordered to place his hands on the roof of the vehicle: illegal where the officer did not have reasonable suspicion that the defendant was armed with a dangerous weapon.  Evidence of defendant's nervousness and officer's hunch that " there was something going on" is insufficient to have a reasonable suspicion that defendant was armed with a dangerous weapon.

Fleming, 36 FLW 1764, 4th En Banc, Sufficient evidence exists to get past a JOA if a chemist, or expert, who is called by the State testifies that he or she tested a substance and the test yielded positive results for cocaine.  Testimony of forensic chemist stating she found powder cocaine in a pipe discarded by the defendant and amount was too small to be weighed, but was present, is enough to support charge and deny JOA.

A.M.O., 36 FLW 1766, 4th DCA, L & P,  Judgment of guilt for loitering and prowling improper where officer did not afford the juvenile the opportunity to identify himself, and where the explanation given by juvenile for his presence should have dispelled alarm and immediate concern if believed by the arresting officer and was, in fact, believed by the trial judge, according to the record.

The Law Offices of Roger P. Foley,P.A.

"The Situation" Strikes Back!

We've previously covered the various and sundry litigation involving Mike "The Situation" Sorrentino, who has been ably assisted in his legal efforts by our own Richard Wolfe.

(FYI, the suit against "The Dad" settled quietly back in July.)

Now, fresh off a brawl to be broadcast on MTV, The Abbed One is striking back -- this time at at a clothing manufacturer who has sued The Sit in Miami-Dade circuit court over a licensing deal gone wrong.

Mike says "I ain't done you wrong, you done me wrong!" (I'm paraphrasing).

You can read the answer and counterclaim here.

I'd like to see how the depositions proceed in this one.

Check Out This Cool WH Infographic!

How boring are judicial confirmations to the general public?

It's amazing to me that Democrats continue to be stuck with horrible branding on issues of tremendous importance, like "the mandate," "entitlements," or "Harry Reid."

Still, they keep trying.

In yet another effort to spiff up the exciting "judicial confirmation crisis" the WH has released the above nearly impossible to read infographic (actually, you need to click on the image or click here to expand), which sets forth in neat flow charts how disastrous the current situation is with our federal judiciary.

Here's some of the rosy news:

Unfortunately, the delays these nominees are encountering on Capitol Hill are equally unprecedented: earlier this month, the Senate left for its August recess without considering 20 eminently qualified candidates, 16 of whom had passed through the bipartisan Senate Judiciary Committee completely unopposed, a development the Washington Post called “not only frustrating but also destructive” in an editorial published yesterday.

The victims of these delays, of course, are the American citizens who are being denied the fair and timely judicial proceedings they deserve because of the chronic shortage of federal judges on the bench.  Stephen Zack, president of the American Bar Association, told Senate leaders in a recent letter that the abundance of vacant federal judgeships “create strains that will inevitably reduce the quality of our justice system and erode public confidence in the ability of the courts to vindicate constitutional rights or render fair and timely decisions.”

I know I know -- your anecdotes about how slow things seem at the federal courthouse and one time you saw a judge leave work early trump all these stupid "statistics" and "data" so problem solved.

But question -- is there any reason to delay Judge Jordan's confirmation to the 11th?  Would it be good if he didn't make it?

If the answer is no maybe we should try to help accelerate this process.

Fifth DCA Affirms Relocation, Reverses Equitable Distribution

The Fifth District Court released its opinion today in Wraight v. Wraight, a case where relocation was sought by the Wife after having moved to the United Kingdom without a relocation order, refusing to dismiss proceedings started in the U.K., and returned to the United States only after an Order compelling her to do so was sought and granted under the Hague Convention.  The lower tribunal found that the Wife had relied on bad legal advice, and as there was evidence supporting the findings made under F.S. 61.13001, the Fifth DCA was required to accept the lower court’s findings, even should they disagree with them.  The same opinion reversed the equitable distribution, however, in that the lower court distributed as marital a pension earned prior to the marriage, finding an interspousal gift was intended by naming the Wife the beneficiary on that account.

Florida Supreme Court Releases New Form

The Florida Supreme Court issued an opinion today slightly modifying and releasing for use a new form, titled a Writ of Bodily Attachment (Child Support), which essentially instructs the Sheriff or other officer receiving a copy to arrest an individual for failing to appear for a hearing, failing to appear before the Court as ordered, or else failing to comply with a previous order of the Court.  It contains its own purge provision, permitting a party to be released on payment, and otherwise requires the individual be brought to hearing within forty-eight hours.

Hand-Pulled Noodle Update: And the Chow Goes On!

Will we ever see an end to the hand-pulled noodle contretemps?

This case has seen some of my favorite lawyers leave (Alan, Lyle), new ones brought in (Curt), yet the Chow goes on.

After next to no activity since March, the parties now want to stretch the noodle even further, asking Judge Hoeveler to continue the pre-trial conference to January 2012!

In the words of the immortal Carol Leifer, whose very funny, very hamisher short-lived WB show was way ahead of its time, Alright Already!!

I have the feeling this case will outlast all the restaurants involved.

Oh well, again with the rain -- stay dry, mespucha!

(Wow, I have officially become my grandparents.)

Fourth District Rules that Failure to Follow 12.490 is Reversible Error

In Opatz v. Opatz today the Fourth District reversed the lower tribunal’s denial of contempt, in that the referral was made pursuant to Rule 12.490 (Not 12.491) and no report or recommendations were issued and no exceptions allowed.

Fourth District Reverses Modification of Alimony

The Fourth District Court of Appeal ruled today in Simpson v. Simpson, in relevant part reversing an abatement of alimony which was retroactively applied to the first day of unemployment when the parties’ agreement called for a 90 day delay in that abatement, and reversing a modification of alimony agreed to be temporary in that the modification was not delineated as permanent or temporary.

Security Deposits Are Not Marital, Rules Fourth DCA

The Fourth District Court affirmed the lower court today on all points in Stroh v. Stroh except one, reversing the inclusion of tenant security deposits in equitable distribution and specifically finding that these monies were not marital assets, and must be held by the party serving as landlord.

3d DCA Watch -- Rules Are Stubborn Things Edition.

Did you realize that standing up, raising your hands and exclaiming "IF YOU KNOW" in a loud, really obvious way after a question is posed to your client at a deposition could somehow be construed as coaching?

What, little 'ole me?  I was just clearing my throat.

But PA attorney Max Kennerly in a fine article here thinks obstructing the deposition any way you can in order to save your client from telling the truth may not be permissible after all:

Federal Rule of Civil Procedure 30(c)(1) is quite clear: “The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence …” If an attorney has an objection to a question, then what they must do is also quite clear under Fed. R. Civ. P. 30(c)(2):

An objection at the time of the examination–whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition–must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).

That is to say, the defending attorney is indeed a “potted plant” with only two exceptions: they can raise objections in a concise, nonargumentative and nonsuggestive manner, and they can instruct a deponent not to answer a question when necessary to preserve a privilege or enforce a court order.

Could you imagine how depositions in South Florida would proceed if everyone simply abided by these rules?

(Then again, what fun would that be?)

Speaking of rules, our bunker buddies remind us this week that -- yes, they exist; and yes, you should probably follow them:

Clarke v. Henderson:

For all you fine jurists taking notes at home, here is the correct legal standard for reviewing a motion for judgment on the pleadings:

It is well settled that a Rule 1.140(c) motion for a judgment on the pleadings must be decided wholly on the pleadings—which includes consideration of exhibits attached thereto—and may only be granted if the moving party is clearly entitled to a judgment as a matter of law....In making this determination, all material allegations of the opposing party’s pleadings must be taken as true, and all those of the movants, which have been denied, must be taken as false.

It's that second part you have to watch out for.

940 Lincoln Road v. Hernandez:

This is an unemployment appeals commission appeal in which the employee testified that she was sexually harassed and the employer did not participate:

Employer did not participate in the hearing; consequently, Claimant’s testimony was unrebutted. Nevertheless, the appeals referee concluded that Claimant was disqualified from receipt of benefits because she left voluntarily without good cause attributable to Employer. Apparently, the appeals referee rejected the claim because Claimant did not complain to the police or seek medical or psychological attention as a result of the harassment.

What's that rule on unrebutted testimony again?

Oh yeah:

Uncontroverted testimony which is not illegal, inherently improbable or unreasonable, opposed to common knowledge, or contradictory within itself, should not be disregarded by the trier of facts.

Duly noted!

First DCA Twice Reverses Unplead Support Modification

The First District Court issued its opinion in DOR ex rel Hill v. Young, issuing a mandate nearly identical to the one issued today in DOR ex rel Weaver v. Fredeking.  In both cases, error was found in the lack of any pleading or notice seeking the modification, despite the inequity of enforcement of the administrative support order in question in each case.

First District Court Reverses Lump Sum Award and Denial of Permanent Periodic Alimony

The First District Court released an opinion today in Sellers v. Sellers in which the lower tribunal was reversed both for denying permanent periodic alimony and for evidently granting lump sum alimony instead in the form of the Husband’s share of the marital home.  No findings were made justifying the lump sum alimony, and after a long term marriage in which the Wife had not worked in fourteen years the Wife appeared to be entitled to permanent periodic alimony.  Both rulings were found to be interrelated, and both were reversed as such.

Judge Carnes, Karaoke Singer?

It must get frustrating up at the 11th, constantly ruling on sentencing appeals, habeas petitions, and other important matters I instantly forgot about after booking crim pro.

That's why I totally understand Judge Carnes' saying "screw it" and just moving on to some cool old-school karaoke:

It may be true, as the song lyrics say, that “When the moon is in the Seventh House / And Jupiter aligns with Mars / Then peace will guide the planets / And love will steer the stars,” but there was no peace and love between these parties after their contractual dispute arose.

 Oh man, that's a mighty long reach-around.

But I respect the effort.

Hold on -- Karaoke Carnes is not done:

Nothing plus nothing is nothing, just as “nothing from nothing leaves nothing.”

 Billy Preston?

The Fifth Beatle??

The 14th Rolling Stone???

Ok, I gotta give him that one -- well done, Your Honor!

Alan Kluger vs. Marc Randazza in Anonymous Blogger Free Speech Fight!

I've not been shy in my admiration for the clever, snarky wit and attendant legal and writing skills of internet warrior/trailblazer Marc Randazza.

(Note to Surfside city attorney Lynn "Rage Against the Bloggers" Dannheiser -- your hilarious funny confusing Marc with the Italian place Randazzo's in the Gables remains a kneeslapper -- keep 'em coming!)

As Popehat documents, it is also a fact that Marc happens to find himself in the middle of lots and lots of interesting cases.

Marc's latest finds him before Judge Cooke in an important battle to preserve the rights of citizen journalists to blog anonymously -- does that sound too high-faluting for the kind of crap that passes for content here on this humble, time waster of a blog?

Yes, it does.

(Tim Elfrink provides all the background here).

But Marc eloquently lays out the larger principles involved in his motion to dismiss:

Plaintiffs, a series of real estate holding and management companies, and their directors,
accuse DOE of publishing defamatory statements concerning their business practices and other dealings through Google's Blogger service. Blogger is a service that allows users to create their own web blogs, or "blogs," on which they can express their opinions on numerous issues. Some blogs are general interest, while others may address specific, local issues, such as problems within a community, political matters, or topics of concern to consumers. Users of Blogger who create content - themselves known as "bloggers" - have the option of publishing their writings anonymously, as DOE has done in this case. Plaintiffs sued DOE for alleged defamatory material in a blog located at www.rkassociatesusa.blogspot.com and for false advertising under the Lanham Act 15 U.S.C. 1125(a).1 Plaintiffs have subpoenaed Google for its records relating to DOE in an
effort to learn his true identity. Plaintiffs' request is improper, and implicates fundamental Constitutional protections.

Free speech is a central Constitutional value, and one of great historical significance. The Federalist Papers, for instance, were all written anonymously while being pointedly critical of the policies and leaders many people championed during America's move toward adopting a written constitution. The United States Supreme Court has further sanctified anonymous speech in an honest and open society through decisions including McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) and Talley v. California, 362 U.S. 60 (1960). See also City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994) (noting that "the identity of the speaker is an important component of many attempts to persuade").

With these principles as a backdrop, courts have grappled with the First Amendment significance of subpoenas used to unmask anonymous speakers who speak via the internet on message boards, review services and other forums. Here, Plaintiffs' Complaint demonstrates no basis upon which a defamation or false advertising action can proceed, and they have not made the required prima facie showings.

Marc's adversary is longtime fave Alan Kluger, ably assisted by Todd Levine, who warned Tim over at New Times to be very very careful -- did I mention careful? about what he writes concerning the case: 

In the meantime, Levine has strong words for anyone who would consider writing about Katz's lawsuit. "I'd ask you not to publish anything about this," he says. "Even pointing people toward that blog could constitute further defamation."

How precisely?

Or will that just lead to another interesting Randazza defense?

Alan's vigorous response to the motion to dismiss is here, in which he describes Marc's argument as "specious" and his client's blog postings as "vile and defamatory per se."

To which I simply say -- carry on gentlemen, the yacht case can't continue forever!

Dear Irene: Say Goodnight Already.

Judge Seitz Thinks Lawyers Should Do Their Job!

 What a kvetch, always with the teaching, the instruction, the high aspirations.

Now the Court wants us to do our job, can you imagine?

After carefully reviewing the Complaint and the Amended Motion for Final Default Judgment, the Court still cannot ascertain on what lawsuits MCC seeks a declaration. MCC has not identified the homeowners' claims for which it seeks a declaration in either the Complaint or the Amended Motion for Final Default Judgment, and MCC did not identify the paragraphs in the four class action complaints that are pertinent to this lawsuit. Including exhibits, the four complaints total 1252 pages. There are thousands of allegations and hundreds of parties in these four class actions, and most have nothing to do with the declaration that MCC seeks. This is the very problem for which shotgun pleadings are criticized.

The Court can either sift through hundreds of pages and decide for itself which allegations are material to this cause or simply deny the motion. Because the Court relies on counsel seeking requested relief do their job and focus the Court on the relevant facts, the Court will deny the motion.

 Second amended motion for final default judgment, anyone?

Third time's the charm!

(Better get it right this time.)

Do You Have Big "Books of Business"?

I do!

They consist of the following:

1.  All I Really Need to Know I Learned in Kindergarten; and

2.  Mob Rules:  What the Mafia Can Teach the Legitimate Businessman.

Oh yeah, I forgot about this one (you'd be surprised how much business can get done with it).

So if you're like me and you have huge, heavy "books of business," you can apparently get hired by a big firm where nobody will ever try to steal or otherwise claim credit for your personal business books:

Law firms are hiring lawyers who can bring their "book of business," said Matt Gorson, president of Greenberg Traurig, which has offices in Miami, Fort Lauderdale, Boca Raton and West Palm Beach.

The firm has hired 20 lawyers so far this year, compared with 14 lawyers in 2010.

Other South Florida law firms have been adding to their legal staffs as well.

Holland and Knight has hired 15 lawyers so far in 2011, up from 11 in 2010 at its Miami, Fort Lauderdale and West Palm Beach offices. Morgan Lewis in Miami hired seven lawyers in 2010, and five so far in 2011; that compares with only one lawyer in 2009, said law firm partner Mark Zelek. Bilzin Sumberg in Miami has hired 9 lawyers in the past month alone, according to a spokeswoman.

Even some firms that were hard hit by the recession are adding lawyers. Fort Lauderdale-based Ruden McClosky, which specializes in real estate and land use, has hired seven lawyers in the past four months, according to a spokeswoman for the firm.

Ruden?

Yes, absolutely -- if your books of business are big you should head immediately to Ruden -- just ask Julie Kay!

SFL Friday -- It's Coming, It's Finally Coming!

School, that is.

Thank goodness!

Let's see, what else -- Edwards Angell defeats Carlton Fields in Vero Beach beauty contest, and more on Kevin Gleason's peace wine offering to Bankruptcy Judge Olson.

I feel the pain:

And Rumpy, your Friday photo is here -- this one's for you:

Have a great weekend, everybody!

Naples Attorney Todd Allen Gets The Daily Show Treatment!

         

John Oliver pays tribute to newbie Naples attorney Todd Allen and his epic take-down of Bank of America.

Enjoy!

Kevin Gleason Offers Wine as Peace Offering to Bankruptcy Judge Olson.

So it all comes down to this: an apology and a bottle of wine.

What, no flowers?  No chocolate?

And guess what -- those vituperative responses was all borne from frustration:

B. The Responses Are the Product of Frustration.

14. Attorney Gleason’s responses are the product of frustration due in large part to the
Court’s mistaken conclusion that his client had assented, pursuant to an agreed order, to the turnover of his commission to the plan administrator. The proper method to seek redress in such circumstances is to file an appeal, which Attorney Gleason did. During the pendency of the appeal, which was filed on November 4, 2010, the Court issued the Show Cause Order and later submitted the order for publication with Westlaw. This unfortunate turn of events escalated what was initially perceived as a mere legal conflict into something more personal in nature. The Responses, while intentional, do not reflect a dishonest or selfish motive.

I see -- the old "Westlaw-as-provocation" defense.

In other words, the judge should have kept quiet about the whole thing, but he had to go and blab about it to all our neighbors!

UM Athlete Scandal -- OF COURSE Lawyers Are Involved.

The shocking allegations involving UM booster and convicted fraudster Nevin Shapiro include an interesting legal twist -- the trustee for Shapiro's defunct investment company wants the players to give all the money and gifts back:

"The trustee, Joel Tabas, was appointed by the Justice Department to oversee the case," Miami attorney Gary Freedman said. "We have fiduciary duties to investigate these claims and, if we think we have an obligation, to try to recover them. It's not our intention to cause these athletes any further tension or embarrassment. I would prefer they reach out to me to try to resolve the claims without a lawsuit."

 Oy veh -- clawback suits??

Question -- exactly how do you give a paid sex act back?

And a related question -- can this disaster get any worse?

Answers -- I have no idea; and yes, it definitely can -- it most definitely can.

Law Updates for August 12, 2011

Knipp, Keiser, 36 FLW 1653, 4th DCA, Withholding information from medical practitioner - Statute does not qualify withholding of information by requiring an affirmative request for such information.  No error in granting motion to dismiss drug trafficking charges where it is undisputed that the def's possessed prescriptions issued by license practitioner in the normal course of business.  Good case.

D.F. 36 FLW 1679, 3rd DCA, Investigatory sweep at apartment complex - Juvenile was sitting on stairway in apt complex at the time multiple armed officers wearing bulletproof vests surrounded the complex. Guns were drawn, officers approached area where the juvenile was sitting.  He was "seized" when he discarded bag of marijuana after seeing the officers. Reasonable person in juvenile's position would believe police activity directed at him, not free to leave and submitted to police authority.  Trial court properly granted motion to suppress contraband found in search of juvenile after his arrest.

Wiggs, 36 FLW 1688, 2nd DCA,  Dog sniff, No probable cause  - Dog's field accuracy rate was insufficient to establish a fair probability that drugs would be found following an alert where the dog's field performance records indicated that the dog had conducted 17 vehicle sniffs and alerted to presence of drugs 14 times, but drugs were only found after 4 of those tests.  Good detailed opinion about evaluation of dog's alerts and what they mean.

The Law Offices of Roger P. Foley,P.A.

3d DCA Watch -- May the Schwartz Be With You!

Oh happy day, the bunker denizens have a new occupant, which of course means it's time to polish the used equipment in the mechanical room/gym, retighten the bolts so the sinks are securely fastened to the walls, and wax down the concrete -- it's party time!

 Oops!  That's the Bilzen shot put lunch club, sorry.

Here's the right image:

What?

It's just some friendly locals enjoying a bonfire -- gotta love those old-fashioned values, I always say.

Ok, seriously now, here's the correct photograph of the bunker party planning committee:

You know what, I'm gonna quit while I'm ahead -- let's get right to the written utterances:

Robles-Martinez v. Diaz, Reus:

Ahh, what a heartwarming bedtime story:

Appellee law firm Diaz, Reus sued its client, Cesar Lindo Hoyos, for unpaid fees.

How could something like that go wrong?

Ramirez v. United Auto:

Dear United Auto, you are about to receive Maximum Schwartz:

The insurance company makes no defense, as it could not, of the merits of the order under review. Indeed, its lawyer has what some may call the candor∗ to agree that

[i]f [the insured’s attorney] had contacted undersigned prior to filing his petition in this Court, Respondent would likely have agreed to a motion for rehearing in the circuit court because the denial of his appellate attorney’s fees was legally erroneous.

Rather than confessing error, however, as this concession would seem to require, see Boca Burger, Inc. v. Forum, 912 So. 2d 561, 571-73 (Fla. 2005), United has what some may call the courage* to contend that, having sought judicial, rather than telephonic relief, by filing this completely appropriate petition, the plaintiff is out of luck. This is because, it says, the case does not meet the requirements for second tier review most recently articulated by Custer Medical Center v. United Automobile Insurance Co., 62 So. 3d 1086 (Fla. 2010).

To put it mildly, we disagree.

Here is Judge Schwartz' starred footnote:

∗ The reader, if any, is invited to substitute her own preferred equivalent expression. See, e.g., Hayes v. Guardianship of Thompson, 952 So. 2d 498, 509 n.14 (Fla. 2006) (chutzpah); Zabrani v. Riveron, 495 So. 2d 1195, 1197 n.2 (Fla. 3d DCA 1986) (same); Price v. Gray's Guard Service, Inc., 298 So. 2d 461, 464 (Fla. 1st DCA 1974) (intestinal fortitude).

Oooh, oooh, can I play?

Cajones?  S#^t-for-brains?  Extraordinarily-poor-legal-judgment?

Come on kids, you can play too!

Bank of New York Ordered to pay Sanctions

Shuster & Saben obtains sanctions against Bank of New York & Litton

Every lawyer who defends foreclosures quickly learns that lawyers for the bank often stonewall discovery requests from homeowners' counsel. First the banks ask for more time, then they often object to answering questions and producing documents. As experienced civil litigators, the lawyers at Shuster & Saben, meet such tactics with motions to compel and when orders to compel are not complied with the firm files motions for sanctions and for motions to show cause.



After Bank of New York failed to comply with a Court Order directing that interrogatories ( written questions under oath) be answered, Florida foreclosure attorney Richard Shuster, filed a Motion for Sanctions and Rule to Show Cuase against Bank of New York. The motion was granted and Brevard County Circuit Judge Jeffrey Mahl ordered Bank of New York to pay sanctions of $600.00 and to furnish verified answers to the interrogatories within seven days. The firm ultimately received a check from Litton, the loan servicer, for the sanctions. Litton, who is not a party to the litigation, appears to be running this case behind the scenes for Bank of New York Mellon, the trustee of a securitized trust that alleges to own the mortgage on our client’s home.


In defending foreclosure cases, homeowner's counsel must be persistent in order to obtain every scrap of evidence that might help save a client’s home. Homeowners or lawyers with questions about motions to compel discovery can E-mail their questions to foreclosuredefenselaw@gmail.com.

To review a redacted copy of the Order granting Defendant’s Motion to Show Cause please click the link below.

Order Granting Motion for Sanctions

About Shuster & Saben: Shuster & Saben a team of experienced civil litigators, give each file and client individual attention. We will go to Court as many times as necessary to leave no stone unturned in our efforts to defend our clients' homes. Our lawyers have won foreclosure cases both at trial and on summary judgment and are passionate about defending foreclosures. We are selective about the clients and cases we take on. To arrange a free interview with the firm to see if your case is one where we can help, please call any of our three offices in Miami, Fort Lauderdale or Melbourne or E-mail foreclosuredefenselaw@gmail.com.

Attention All Judges in Broward County Courthouse: Bill Scherer is Now Your Landlord!

You gotta love Broward -- how comical is this:

[C]ommissioners will vote Tuesday to lease about 200 parking spaces from a prominent Fort Lauderdale attorney, Bill Scherer, for courthouse parking. The spaces are in the county's own garage, where the jurors park. But the county in 1992 leased the spaces to Scherer and a group of developers, for $107,500 a year. The county will pay more than twice that, $277,536 a year, to use them now.

Wait a minute -- so property of the county, now leased by Bill, will be leased back to the county at more than double what Bill pays for them?

No wonder Bill is so successful.

Peter Halmos -- Will His Ship Ever Come In?

That toe-tappin' crippled yacht case is slowly limping to port, as the parties prepare their post-trial proposed findings of fact and conclusions of law.

And the beat goes on.

It took me all morning to read Steve Marino's excellent 85-page brief, which sets forth in exquisite detail the mountain of commercial litigation required to get the parties to this point (and they're not even done yet).

I guess one SIMPLY AMAZING! thing that fascinates me about this case is the uncontrollable variables that have entered into what should otherwise be a straightforward insurance coverage dispute.

Between the lawyers, the rulings, the clients and the witnesses you have a near-perfect s@#tstorm of what can go wrong when parties engage in f*$k the costs, balls-to-the-wall litigation.

It's almost an ideal case study for commercial litigators in that the subject matter could be anything -- widgets, yachts, whatever -- and the disputes seem both wildly impossible yet depressingly familiar to any of us who do this for a living.

Turning back to Roy Black's intriguing suggestions for UM Law, how in the hail do you teach kids to handle crap like this?

Seriously, how do you -- or even should you -- teach law students to do this type of litigation effectively?

Efficiently?

In such a way that they don't leave the office at night stupefied, screaming at the walls, drinking themselves to oblivion on a Tuesday, and allegedly challenging their girlfriends to naked post-shower sword fights?

Relocation Insufficient to Warrant Custody Modification

The First District Court ruled today in Ragle v. Ragle, reversing the lower court’s modification of custody based on the primary parent’s relocation to another county and alleged interference with contact and timesharing, in that neither is sufficient cause to modify, and in that there was no finding that the move would be better for the minor child.

1st District Court Reverses Equitable Distribution and Alimony

In their opinion issued today in Vanzant v. Vanzant, the First District Court of Appeal reversed an Amended Final Judgment issued by the lower court for providing for an unequal distribution of marital assets without explanation, for using gross, rather than net income to determine child support and alimony, for failing to offer an explanation for a business valuation, and for other reasons.

UM Law Grad Challenges Girlfriend to Naked Sword Fight?

Meet Rockledge, Florida attorney Terry Lee Locy, a UM Law grad with a self-proclaimed "intensely aggressive" style of litigation:

Terry L. Locy possesses an energetic, articulate, innovative, but most importantly, an intensely aggressive style of litigation that often leaves his opponents fuming and courtroom onlookers entertained and wanting more. In just three short years after graduation from law school, this attorney has built a thriving law practice in Central Florida with ambitions for further expansion. 

Terry is energetic alright, just ask his girlfriend:

A graduate of the University of Miami law school was arrested this week in Cocoa Beach after allegedly threatening to kill his girlfriend in a naked sword duel.

"You're going to need this," a nude Terry Lee Locy, 36, said to his live-in girlfriend as he handed her a sword, according to an arrest report from the Brevard County Sheriff's Office.

The couple had been arguing about Locy's alleged excessive drinking early Wednesday morning, according to an arrest affidavit obtained by Florida Today, when Locy took a mirror off a wall and raised it as if to strike his girlfriend.

The woman took the mirror hook from the wall and flung it at Locy, accord to the police report, causing a cut to his head.

Locy then took a shower and emerged naked to challenge his girlfriend to a duel, police say.

 See, this is an example of where Roy Black's suggestion for improving UM's legal education comes in -- if they would just spend less time on esoteric academic flights of fancy, and more time on courtroom skills and sword duels, we'd be producing not only more skilled attorneys but also better sword duelists.

BTW, I think the pre-duel shower ritual is a nice touch -- say what you want about Terry, but this is clearly a man who cares about personal hygiene.

Soviet Visual Art Collective's Glorious New Work!

I'm pretty sure in addition to winning the Iowa straw poll Bachmann also managed to personally dig 102 tons of coal -- impressive!

I really do kind of miss their stuff (purely from a style perspective).

h/t -- Radley Balko

Fourth DCA Inexplicably Holds that Plat Approval is Not A Development Order

In Graves v. City of Pompano Beach,  the Fourth District Court held that a plat approval was not a “development order” subject to challenge under    § 163.3215.  The opinion, which is inconsistent with other opinions and I believe applies an incorrect rule of statutory interpretation, holds that an application for a plat approval does not meet the definition of a development permit. 

A “development permit” is defined in § 163.3164, to include “. . . any bulding permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local governing having the effect of permitting the development of land.”  The court held because a plat does not (in and of itself) authorize “development” as that term is defined in the statute, it is not a development order.

Not only does this opinion misapply the “trailing comma” rule by applying the last modifier to the entire set, but it is also contrary to prior opinions and the clear intent of the statute.  Under this case, the ONLY development permits that would be subject to challenge under 163.3215 would be earth moving permits, final plats (approving utilities, etc),  and building permits. I cannot see how the the attorneys for the developer and the City could argue this interpretation with any clear professional conscience. 

Fourth DCA overturns mining permit as inconsistent with Plan

In 1000 Friends of Fla. v. Palm Beach County et al, the Fourth District adopted a strict interpretation of the term "only" in a plan policy and overturned the circuit court's decision that a mining permit was consistent with the policy.

The policy permits mining in a certain areas "only" for public road building, agricultural and water management purposes.  While the FDOT was the primary intended customer, the development order did not restrict the sale of mined aggregate for the stated uses, but only required annual reporting of sales and customers.  There was deposition and trial testimony that the company could not track the use to which sold aggregate was put.   Based on that, the 4th District held that the permit was inconsistent with the plain language of the policy and also reaffirmed that reviewing courts do not have to give deference to local government interpretations of their plans.

I am sure that this is not the last we'll hear of this matter.  These mines have significant strategic importance because they would produce high-quality aggregate needed for highway construction and the nearest alternative sources (in the Dade County lakes belt) may be shut down on federal permitting issues.  The other major south Florida source is in Lee County - but there the County Commission is waging war on aggregate producers and trying to prevent any new aggregate mines through aggressive comp plan policies and land development regulations.

So, the policy will be rewritten and adopted without the restrictive provisions, we'll have another fight, and if the lack of permitting will affect major road construction, I predict we'll get legislation next year that preempts local comprehensive plans and regulations of strategic aggregate mining operations.

Your Daily Appellate Court HCR Ruling!

Gather round kids, the 11th Circuit has issued a ruling on HCR.

Let's see who wrote it -- hey, it's a joint opinion by Dubina and Hull!

How special!

And they drop a footnote to explain that this has happened at least twice before in 11th Circuit history, so don't go around thinking there's anything special about it, no siree.

And look at that -- the odd man out, the rugged individualist, Judge Marcus -- he wrote his own dissent!

So now everyone got to write everything they wanted on a matter that will be decided by the Supremes anyway.

And boy did they -- the majority duo wrote a crisp and tight 207(!) page opinion, and Judge Marcus decided to cut his dissent short at the otherwise pithy page 84.

Is everyone happy now?

For those who care about the substance, the Court found the mandate unconstitutional but upheld everything else.

On the mandate's constitutionality, the 11th is now squarely at odds with the always-liberal 6th Circuit, which earlier this summer found the whole enchilada to "hold water," as Vinny Gambino would say.

Someone remind me, what happens again when Circuit Courts split on important Constitutional issues?

Is it Friday Yet?

I'm a little tied up doing "litigator-type" things so feel free to use this space to bash colleagues and bad-mouth judges improve civility and foster a true sense of community.

Should be back later today.

11th Circuit Quotes Wilde (The Other One)!

I must confess something:

Up until a very short while ago, I had absolutely no idea who Olivia Wilde was.

Yes, it's true.

I lived an entire life without having any idea who this person is.

Now, however, I can't turn around without seeing or reading something about her -- she's on TV, in the movies, at magazine check-outs, on the back of my Muesli cereal box (I had to pay extra for that!) -- literally everywhere.

Is it possible she is some kind of corporate case study -- an entirely fabricated, computer-generated visual creation that represents a super-meta, high-level marketing experiment?

(Oops, as usual I'm thinking of an old movie -- in this case that crappy Al Pacino film Simone.)

Anyways, I was happy to see the 11th Circuit cite the OTHER Wilde -- Oscar, that is -- in Judge Carnes' dissent from a summary judgment affirmance involving the proper location of insurance coverage:

Summary judgment should be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. But it is often tempting for a district court judge to grant, and for appellate judges to affirm, summary judgment even when there is conflicting evidence on a material issue. The temptation is for the judge to take on the task of finding facts and enter judgment based on what the judge believes a jury should find. By affirming the grant of summary judgment in this case, the majority follows the maxim of Lord Henry Wotton in Oscar Wilde’s The Picture of Dorian Gray: “The only way to get rid of a temptation is to yield to it.”

I have to say I agree with Judge Carnes here -- the majority gets rid of a central, disputed fact by dismissing it as "immaterial."

That's a neat parlor trick but a bit of a stretch it seems to me.

Looking at it the other way, is there any chance this case would have got reversed if the district court found that fact to be material and denied summary judgment?

I also like this opinion because of its copious discussion of the doctrine of lex loci contractus, which until recently I thought was some kind of exotic bedroom maneuver.

Oh well -- what's life without learning?

"Talking Traffic" With Spencer Aronfeld!

Why does it feel as if this message is directed to one very tall, former Miami Heat basketball star?

2d DCA Reverses Equitable Distribution, Uncovered Medical Expense Division, and Denial of Fees

The Second District Court of Appeal reversed the ruling below in its opinion in Tummings v. Francois today, finding that the lower tribunal erred in including credit card charges from after the date of filing in the equitable distribution, in dividing uncovered medical expenses according to percentage of overnight timesharing rather than percentage of income available for support, and in denying fees to the Father despite a significant disparity in income.

Past Ability to Pay Not Enough for Criminal Contempt, Says Third District

The Third District Court of Appeal issued an opinion in Keeler v. Keeler today, reversing a lower tribunal’s order holding the Former Husband in indirect criminal contempt for non-payment of support.  The lower tribunal’s ruling was based on the Former Husband’s past ability to pay and contained no separate affirmative finding of present ability to do so, warranting reversal.

Law Updates for August 5, 2011

Siegel, 36 FLW 1633, 4th DCA, Peremptory challenge - Gender discrimination.  Error to disallow defense challenge to two female jurors when defense counsel provided genuine, gender neutral reason for each challenge.  Court never did a genuineness analysis, but simply said the reason for the strikes were pretextual - Sex case: one juror who had a relative convicted of a sex crime and other, a teacher in frequent contact with children.

Aders, 36 FLW 1637, 4th DCA, Trial court properly ruled that the deputy was justified in making a traffic stop to determine if the license plate was attached to the correct vehicle where the defendant's car color failed to match the color in the computer registration.  There is no legal duty to notify the state of a change in color, but the color discrepancy creates sufficient reasonable suspicion to justify a traffic stop for further investigation.

Wess, 36 FLW 1640, 1st DCA, Robbery by sudden snatching - Purse taken while victim was sitting on a bench at a bus stop with the purse touching her hip.  Insufficient to sustain conviction: purse not taken from the victim's person.  Remand to reduce to lesser offense of theft.


The Law Offices of Roger P. Foley,P.A.

Fourth DCA Sets Standards for Enforcement of Unapproved Stipulations

The Fourth District Court ruled today in Comstock v. Comstock, and in part clarified the enforceability of post-judgment agreements of the parties which are not approved by the Court.  In essence a distinction was drawn between agreements affecting child support and custody, which require approval before enforcement, and agreements affecting purely financial issues, which do not.

Equitable Distribution and Alimony Rulings Reversed by Fourth District Court of Appeal

The Fourth District Court issued an opinion today in Bell v. Bell, reversing as to two of the Wife’s three issues on appeal.  In short, the Court found error in the lower tribunal’s failure to include over $600,000.00 in receivables in the equalizing payment due to the Wife, and in that court’s failure to make findings of fact supporting the denial of bridge-the-gap alimony.

3d DCA Watch -- Corporations Can Now Represent Themselves!

Hey, I remember the robot from Demon Seed Saturn 3 I, Robot Predator The Iron Giant (ed. -- he was a good robot, actually),and if robots and computers can run the world and dominate humanity, why can't faceless corporations represent themselves in court?

According to the 3d, they apparently can:

Through a non-attorney, corporative representative, United timely served a response to the complaint at issue in the form of a letter. Because this response was sufficient to require Figueredo to provide notice to United of his applications for default and final judgment, it was improper for the trial court to treat United’s response to the complaint as a nullity.

Hold on -- don't you need a lawyer to file a response to a complaint on behalf of a corporation?

Or did Citizens United do away with that musty old requirement too?

In other bunker news, in order to prevail on an unjust enrichment claim you need to actually confer a benefit, and Judge Bernstein gets reversed on a purge order.

Finally, "subject matter jurisdiction" and "standing" are not the same thing.

(But you smart guys already knew that.)

UPDATE:

Wait a second, I totally forgot about Toby the Robot.

He was a good robot too (I think?).

Bismarck's Descendant Met With Chilly Reception at Broward Federal Courthouse.

Can't Bismarck's descendant just keep filing lawsuits against David Rockefeller/President Obama/Al Sharpton/The Pointer Sisters without continually being hassled by The Man?

(For tonight's performance, the role of "The Man" is being played by kindly deputy USMs in the Broward federal courthouse.)

After having one complaint dismissed by Judge Zloch (and his motion for in forma pauperis denied) and another dismissed by Judge Martinez and then another by Judge Cooke (but his in forma pauperis motion was granted!), it seems our erstwhile Squinky, Blinky, and Mod Nazi spy/pro se plaintiff got into a little kerfuffle while one his way to filing yet another magnum opus up in Broward federal court.

Here's the best part:

It took five (5) DUSM's to finally control DELANEY and place him under arrest as he continued to kick and throw closed fist strikes at them.

Five deputy marshalls??

And it only took two of Obama's goons to jump the poor guy as he slept fitfully on an Hawaiian beach.

It's funny I happened to be in line at the courthouse just as all this unfolded, and managed to capture the entire encounter on my smartphone (see above).

Checking Overdraft -- I Move to Strike Your Motion to Strike My Motion!

In light of the recent Supreme Court and 11th Circuit rulings on arbitration provisions, many of the checking overdraft bank defendants have asked Judge King to reconsider his rulings denying their motions to compel arbitration.

Naturally, the plaintiffs have responded like all good plaintiffs should -- by aggressively attacking the very motion to reconsider and moving to strike the reconsideration motion as improper.

Turns out, however, that it may be improper to move to strike a motion to reconsider as being improper:

No relief is available to Plaintiff under her Rule 12(f) Motion to Strike. First, and most important, a motion to strike applies only to pleadings, which does not include motions. See Santana v. RCSH Operations, LLC, 2011 U.S. Dist. LEXIS 21814, *2–4 (S.D. Fla. Feb. 18, 2011); see also Croom v. Balkwill, 672 F. Supp. 2d 1280, 1285 (M.D. Fla. 2009) ("To object to the substance contained in a motion, the opposing party should raise such objections in the material it submits in opposition to the motion, rather than in a motion to strike."); Mann v. Darden, 2009 U.S.Dist. LEXIS 63044, *2 (M.D. Ala. July 6, 2009); Pimentel & Sons Guitar Makers, Inc. v. Pimentel, 229 F.R.D. 201, 203 (D.N.M. 2005) ("There is no provision in the Federal Rules of Civil Procedure for motions to strike motions and memoranda."); Phinney v. Paulshock, 181 F.R.D. 185, 207 (D.N.H. 1998); Weiss v. PPG Indus., Inc., 148 F.R.D. 289, 292 (M.D. Fla. 1993); 2-12 Moore's Federal Practice, Civil § 12.37 (2011) ("Only material included in a 'pleading' may be the subject of a motion to strike, and courts have been unwilling to construe the term broadly. Motions . . . may not be attacked by the motion to strike."). Plaintiff cites no authority to the contrary. Thus, Plaintiff's Motion to Strike BB&T's Renewed Motion is not permitted and the Court should deny the Motion to Strike for this reason alone.

I hope the plaintiffs reply by moving to strike the response to their motion to strike, which will be met with a motion to strike their motion to strike D's response to their motion to strike.

And then come the reconsideration motions.

Welcome to federal court!

Happy Tisha B'Av -- Temples Destroyed, But We Got Ourselves a Denny's!

Oh South Florida legal community, why are you so hungry for malicious gossip "news"?

Does it matter, as Julie Kay writes today, that your websites will no longer comply with Bar rules?

(This, of course, assumes that they ever did.)

More importantly, now that the Palm Beach County Bar Association is moving into a former Denny's, should we feel bad for the bar or for Denny's -- all I know is Adam Rabin better make me an omelet if I show up there s@*tfaced at 3 in the morning.

And to the blog visitor who arrived here via a search for "Israel hot girls," I'll have you know that today is Tisha B'Av, only the saddest day on the Jewish calendar (that says a lot, believe me).

Sure we lost two temples, the most treasured of treasured holy sites desecrated twice by invading heathens -- plus a lot of other bad stuff happened on this date, like the expulsion of the Jews from Spain in 1492 and World War I, to name but a few lowlights.

But on the other hand, we have gained a Denny's.

Let me repeat it, slowly, in perfect....Rabbi.....diction -- we have gained a Denny's.

That reminds me -- did I mention everyone is supposed to be fasting today?

Adam, I 'll see you later tonight and I'm gonna be hungry (btw -- ham, mushrooms and cheese, thanks!).

Meaningful Things I Keep Near My Desk!

Reading this article on Steve Zack, I was struck by just how many things he keeps by his desk.

The list is diverse yet each item is pregnant with deep meaning:

Outgoing American Bar Association President Stephen Zack keeps a list of Buddhist sayings near his desk, as well as several silver gelding knives given to him by former clients.

Ok, Buddhist sayings and gelding knives.

Ying/yang, zen/warrior, got it.

What else?

To this day, Zack keeps a binder with Cuba's 1940 Constitution - first suspended by a 1952 coup and later thrown out after the 1959 revolution.

"I keep a copy near my desk to remind me that the words alone are not enough."

Hmm, evidently a smart and successful lawyer needs to make sure every item near her desk conveys an important message or signifies something that you want people to know about you.

It's like a bumper stick for your office!

So everyone please stop what you are doing (wasting time online) and take an inventory of the items in your immediate vicinity and see how you compare.

I'll go first:

1.  Framed photo of President Nixon and a drug-addled Elvis (or should that be the other way around)?

2.  Copy of deed for Chief Justice Rehnquist's Vermont home that contained restrictive covenant barring sale of property to "any member of the Hebrew race."

3. Gag gavel that makes farting noise (great for hearings!)

4.  Hand-made, partially-completed matchstick model of Peter Halmos' yacht (it's taken me seven years but I still intend to finish before the trial does).

Ok, your turn!

Denzel Washington Now Offers PIP Coverage!

There's a lot a talk each legislative session about reforming Florida's PIP laws, but I say if blockbuster Hollywood legend Denzel Washington is now offering PIP coverage, we have to be doing something right:

That at all times, the Defendant Denzel Washington was in the State to provide business, including but not limited to personal injury protection (pip) coverage.

My suggestion to Ms. Miller is that she get a hold of one of Bismarck's relatives and really learn how to load up the allegations when she amends the complaint.

(You gotta pay attention to Iqbal, folks!)