Thứ Hai, 31 tháng 12, 2012

Happy New Year, Plebes!


Well it's that time of year, and most of you are away in North Carolina, the Keys, Colorado and points east, west, south, and north somewhat.

We hope you had a decent 2012 and wish all of you a prosperous, successful, peaceful, and loving 2013.

Thanks for all the tips and comments!

Ok, I'll leave you with one more image of an unshaven beach bum on vacation after a year of hard work -- yes, you guessed it:


Thứ Sáu, 28 tháng 12, 2012

SFL Friday -- Sometimes an "Ale House" Is Just an Ale House.



I don't know about you, but this Lanham Act case involving two generic-sounding "ale houses" in Boca is my idea of Sartre's No Exit.

In fact, I'd rather spend an eternity locked in a dark room with [insert opposing counsel you hate the most] than have a few beers at either of these establishments:

We find nothing particularly unique in a restaurant fixing its name in red letters on the outside of its building and on its menu, branding items it sells with that name, dressing its staff in khakis and a polo shirt, featuring a center bar with a soffit, offering seating at “high-top” tables, and paneling its walls with wood. These are the prototypical features—what we might call the “common . . . design,” Brooks Shoe, 716 F.2d at 858—of a standard sports bar or brew pub. The particular name affixed on the wall and to menu items, the specific color of the polo shirts, the type of wood on the walls, the placement of the “high-top” tables, and the openness of the kitchen,14 “even if they in combination could be deemed unique,” Wiley v. American Greetings Corp., 762 F.2d 139, 142 (1st Cir. 1985), are all “mere refinement[s]” of this “commonly-adopted and well-known form of ornamentation.”
What, no bibs and buttons?

"My buns have no seeds."



Thứ Năm, 27 tháng 12, 2012

Newly Filed Documents in Lewis Tein Dispute!



A blockbuster filing in the Lewis Tein state court case accuses Miccosukee Tribal lawyers of committing fraud on the Court.

The filing attaches two documents that appear to support Lewis Tein's account of the financial arrangement between them and their clients -- that the monies provided by the Tribe were merely advances or loans that the clients were obligated to repay.

The first document appears to be an internal Tribe account statement reflecting monies advanced or loaned by the Tribe to the clients.

The second consists of minutes of Tribal general council meetings in which the clients request advances or loans so they can pay Lewis Tein's legal fees.

The motion asks the Court to issue a show cause order holding the Tribe's attorneys in contempt, as well as a referral to the Florida Bar for numerous violations of the Bar rules and for "direct and knowing fraud on the Court."

Happy holidays!

Thứ Tư, 26 tháng 12, 2012

3d DCA -- Christmas Hangover Edition.



I don't know about you, but that was some good Chinese yesterday!

For those few of you still laboring during the break between Christmas and New Year's Eve, have no fear:  the bunker is here, bringing good cheer, wishing you a happy New Year, Happy Gilmore is in my ear:

13 Parcels v. Laquer:

Filing a motion to transfer one case to another in the civil division does not waive arbitration, especially when you note same in your motion:
As we have previously held, “[t]here is . . . a strong public policy favoring arbitration. ‘All questions concerning the scope or waiver of the right to arbitrate under contracts should be resolved in favor of arbitration rather than against it.’” Zager Plumbing, Inc. v. JPI Nat’l Constr., Inc., 785 So. 2d 660, 662 (Fla. 3d DCA 2001) (internal citations omitted). The appellants filed their demand for arbitration before filing their motion to transfer. Moreover, the motion to transfer, while specifically referencing the Iberia Lawsuits, did so, on its face, to advise the trial court of the pending demand for arbitration and for the logical purpose of ensuring that in the event the pending litigation cases were transferred to the same division, any potential arbitration award be adopted by trial judge ultimately presiding over the other cases. This is simply insufficient to constitute a waiver of the right to arbitrate.
Vorbeck v. Betancourt:

"Pure" bills of discovery still exist, barely.

Universal Music v. Montaner:

Judge Schwartz reverses Judge Langer on personal jurisdiction:
Although it is admitted that the defendant-appellant, Universal Music Venezuela, S.A., has no agents or employees and does no business itself in Florida, the plaintiff claims, and the trial judge apparently agreed, that personal jurisdiction may be asserted against it here because of the activities of an affiliated, but entirely separate corporation, Universal Music Latino, which, under a contract with the appellant, does distribute its products in this state. Because, however, there is no evidence that the appellant in any way controlled or directed the operations of Universal Music Latino, this claim may not be sustained.
Chase v. Sosa:

Judge Shepherd reverse Judge Caballero who had vacated a foreclosure sale and gently chastises her:
We have no doubt the trial court’s motivation in reaching its decision was inspired by benevolence and compassion for the family. We also are mindful that in equity jurisdiction there is some play in the joints. John Crescent, Inc., 382 So. 2d at 386. However, as we recently have said, “[a] trial court is not free to refuse to follow the law because of some personal disinclination or otherwise.”
Excessive empathy?

Thứ Hai, 24 tháng 12, 2012

Happy Noche Buena!



In Casa SFL the kosher pig has been marinating for three days, and the guys setting up the caja china this morning seem pretty pickled as well.

What a tangled tapestry we weave in South Florida!

I plan to spend the day playing dominoes with my neighbors (mahjong but with less bubbes), tending to the coals, sipping Gosling's black seal rum, and in general thanking the universe for blessing us all for another day.

Merry Christmas!

Thứ Sáu, 21 tháng 12, 2012

And You Thought Bounce Houses Were Bad!

 
Try taking your kid on a nice cruise.

What kind of monster are you?

It truly is the end of the world as we know it.....

Thứ Năm, 20 tháng 12, 2012

11th Circuit Reverses Judge Ryskamp in 18th Century Historical Dispute!



It's rare, given the standard, for an appellate court to reverse the factual findings of a district judge made during a bench trial.

It's even rarer when the subject matter is an arcane dispute that dates back to Napoleon times.

First, get a load of the parties:
Plaintiff-Appellant Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta (Plaintiff Order) is a religious order of the Roman Catholic Church that undertakes charitable work internationally. Defendant-Appellee The Florida Priory of the Knights Hospitallers of the Sovereign Order of Saint John of Jerusalem, Knights of Malta, The Ecumenical Order (The Florida Priory) is also a charitable organization, having an expressly ecumenical, rather than Catholic, association.
Then there's the factual history, recounted like it came from a Dan Brown novel:
According to these witnesses, Plaintiff Order was founded in Jerusalem in the eleventh century. (D.E. 144, 37:11–12.) It relocated to the City of Acre and later to the island of Rhodes, where it was known as the Knights of Rhodes. (Id. at 37:12–16.) After spending about two hundred years on the island of Rhodes, the group located in Malta (becoming the Order of Malta), which had been ceded for the Order’s use by Emperor Charles V. (Id. at 37:16–18.).....Around 1797 or 1798, the Order of Malta was suffering financial hardship and sought monetary support from Czar Paul I of Russia. (Id. at 108:20–109:3.) Two knights went to Russia seeking to obtain the property of the former Polish priory, and out of this visit came an agreement to create a Catholic-affiliated Russian priory. (Id. at 110:25–111:9.)

In 1798, Napoleon expelled the Order of Malta and its knights from the island of Malta, and the organization relocated to present-day Italy. (D.E. 144, 37:17–19; D.E. 145, 111:13–25.)2 The Order of Malta’s Grand Master at the time, Ferdinand von Hompesch zu Bolheim, wrote to Czar Paul I for support after this expulsion. (D.E. 145, 111:12–18.) Czar Paul I, in response to the request for assistance and “for reasons best known to himself,” created a non-Catholic order for the non-Catholic members of his court. (Id. at 112:6–10.) What happened next forms the crux of both parties’ historical arguments.
Ok, I've had enough.

Listen, nobody loves history more than I do, but if tune into the History Channel it's because I'm interested in ancient sex or Bigfoot.

(Actually, it's just a matter of time before those two concepts converge).

Thứ Tư, 19 tháng 12, 2012

3d DCA Watch -- Once More for OJ McDuffie, With Feeling!


Hi kids, the bunker produced a plethora of opinions this morning, but only one of them held my attention.

That's the continuing saga of former Dolphin wide receiver O.J. McDuffie and his malpractice action against famed sports doc John Uribe.

(Isn't it annoying when fellow lawyers tout how they had Uribe do their minor meniscus tear, as if by selecting this doc it somehow confers some sort of elite status onto their weekend warrior tennis injury?)

Anyhoo, Judge Genden threw out OJ's trial victory, and the 3d affirmed:
After this Court’s consideration of all of the issues presented on appeal, we conclude the complained of errors cumulatively rose to the level where they permeated the entire trial and were fundamental so as to deprive the appellee, Dr. Uribe, of a fair trial. We therefore do not find that the trial judge abused his discretion by ordering a new trial.
OJ's effort to have Genden removed was denied as well.

Congrats to Wendy Lumish!

Thứ Ba, 18 tháng 12, 2012

Judge Cooke: Court-Imposed Deadlines Almost as Important as Your Fantasy League!



Or a bris, or a marriage, or possibly even the season finale of "Homeland":
Due to the procedural importance of the response(s) at issue, denying Defendants’ Motion for Enlargement of Time to Answer or Response to Plaintiff’s Second Amended seems Draconian in this complex matter. However, a reasonable person, let alone an officer of the court, must understand why it troubles me to grant any further extension to the Defendants. It should go without saying, but in this instance requires stating that a court-imposed deadline is an event of significance in a litigator’s life. It cannot and should not be disregarded in favor of vacation or minor hurdles. Justice Joseph Story cautioned all attorneys, “I will not say with Lord Hale, that the Law will admit of no rival ... but I will say that it is a jealous mistress, and requires a long and constant courtship. It is not to be won by trifling favors, but by lavish homage.”2
She's right -- if you know you need more time, why wait until the last day to seek an enlargement?

Then there's the dog-ate-my-homework feel of the explanation provided by counsel:
Counsel for Defendant Cypress states that upon return to his office following a twelve-day vacation, he learned that his Westlaw service was not operational. This explanation for failure to comply with a court order remains unclear. Defendant Cypress is represented by two distinct attorneys working from two separate offices in two separate locations. Was Westlaw down for both attorneys? Was neither attorney able to use the legal research resources of co-Defendants’ counsel with whom they made an agreement to spearhead the drafting of the response to Plaintiff’s Second Amended Complaint?
Oh boy.

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Thứ Hai, 17 tháng 12, 2012

Kluger v. Randazza, the Appeal!



This just in -- formerly anonymous blogger appeals poorly-conceived order enjoining her from posting "defamatory blogs in the future" that concern a local developer.

You can read the opening brief here.

In other news, Jack Reiter wrote a pretty darn good motion to dismiss the RICO suit against Lewis Tein pending before Judge Cooke.

Here's a taste:
Although the Second Amended Complaint is longer, it suffers from the same defect that warranted this Court’s October 10 Order. Despite listing hundreds of invoices purporting to identify legal services rendered to the Tribe, juxtaposed with a litany of Lewis and Tein’s alleged household purchases, the Second Amended Complaint does not identify a single incident of purported fraud. The allegations do not provide any basis upon which Lewis or Tein can defend themselves. Furthermore, because the Court has already given the Tribe the opportunity to allege their RICO claim with the requisite particularity, there is no basis for giving the Tribe yet another opportunity. Simply stated, if the Tribe had the ability to advance a claim for fraud or RICO, it would have done so. The Court should dismiss this case with prejudice as to Lewis Tein.
Listen, it's very hard to properly plead a RICO claim even when you have fantastic facts and evidence.

Methinks Judge Cooke will give this a close read.

Chủ Nhật, 16 tháng 12, 2012

What are the penalties for (fill in the blank): Representing Yourself

Quite often, people will ask me what the penalties are in a case that just happens to be exactly like their case. So, hat they really mean, is “what am I going to be sentenced to?”

Here is the simple, unpopular, true answer: I don’t know. No lawyer does. Why?

Before we can answer a specific question for a specific person about a specific case regarding specific facts and analyze the constitutional law, statutory law, rules of criminal procedure – and more, we cannot give anything more than a general answer. We can tell you the maximum penalties, some of the collateral consequences, and even some of the red flags. But that's about it.

After all, are you talking about a sentencing with representation or without – there is a difference. Will there be a trial or not? Do you have technical defenses you cannot identify because you are not an experienced criminal defense attorney? There are quite a few questions that have to be answered, and since the answers to these questions are important, some criminal cases take months or even years to resolve. However, most people want an easy answer without a lot of diagnosis. This is like suspecting that lump on your breast is cancer, but deciding to ask around among your friends instead of going to the right type of doctor and getting a proper diagnosis and treatment.

The government prosecuting you couldn't be happier and loves this "Do It Yourself" approach.

In today’s economy, the prosecution knows that penny pinching consumers will rush to the Internet and try to handle the case without incurring the expense of lawyer’s fess to a criminal defense lawyer. As a result, the prosecution is able to make most first offender sentences sound like candy being handed out to babies when in fact, these sentences can cause a lifetime of misery. Two quick stories (often repeated, as common sense is not very common):

1) Self representing defendant is charged with Minor in Possession of Alcohol. A lawyer quotes $1,500.00 for representation, so the minor decides to DIY. After all, they weren't "arrested" because they were given a "ticket" ( a criminal court summons). Besides, the handy dandy government form to settle the case for a plea of  No Contest just happens to be . . . on the back of the criminal summons! How amazingly convenient to just "pay a fine" of $250.00 and not have to go to court, right?

Each month we get a call where someone does exactly that, and finds they can't get a job after taking out massive student loans. They have "alcohol/drug related criminal history" in the eyes of future employers. We are sometimes unable to fix this type of mistake effectively later on, something that usually is easy for us to fix if consulted immediately. Time is of the essence. So much for "plea bargain" number one.

2) Self representing defendant is charged with No Valid Drivers License. Another second degree misdemeanor with a maximum of sixty (60) days in jail. My best example is a woman who really stood out in the courtroom - obviously a business owner or a professional too smart to need to hire a lawyer. Until after she entered her no contest plea and was sentenced to sixty (60) days in jail. As she began to cry, you could hear in a pin drop in the courtroom. Well, other than her stunned sobs as she was led away in handcuffs.

So, when you go to the websites where you get “free legal advice,” remember what you paid for that is what it is worth.

The wisest use of the Internet is simple: If you can go to jail, no matter how remote you think the possibility is, you use the Internet to help you select a lawyer.

Unless you like Courthouse Surprise. 

Thứ Bảy, 15 tháng 12, 2012

Firearms for Protection and Aggravated Assault

Here is a common fact pattern I have seen since the earliest days of practicing Florida criminal defense law: 

A citizen is driving along the highway in their vehicle. They are a concealed weapons permit holder or not. Suddenly, out of nowhere, they are confronted with an aggressive driver - perhaps they are in the left lane on a busy highway doing 50 miles per hour in a 45 mph zone. 

The aggressive driver, not getting that "slower traffic keep right" means "slower traffic up to the lawful maximum speed limit and not over it, keep right," becomes angry. As the anger builds, the aggressive driver begins to flash the headlights, honk the horn, and as the anger begins to overcome emotional restraint, ultimately makes a risky pass and runs the first driver off of the road.

The victimized driver resumes driving, but pulls a handgun from the glove box or back seat or wherever, and puts on the passenger seat. After all, this is why the victimized driver got the gun in the first place: protection.

Due to the ebb and flow of traffic, the victimized driver ends up in front of the aggressive driver again, albeit in the right lane. The aggressive driver, unable to let the prior incident go, begins to hound the victimized driver, as traffic melts away and no one is around. Aggressive driver honks the horn continuously, flashes the headlights, pulls back and races up to within a few feet of the victimized driver's bumper. And ultimately, pulls alongside motioning for the victimized driver to pull over so they can fight on the side of the road.

Finally, after another attempt is made to run victimized driver off of the road, the repeatedly traumatized victimized driver has had enough and displays the holstered gun to aggressive driver in order to be free of this highway abuse. Aggressive driver immediately backs off, and for a moment, victimized driver breathes a sigh of relief. Until the realization dawns that aggressive driver follows every twist, every turn and even every u-turn, until help finally arrives in the form of blue lights flashing.

Both vehicles pull over, as a second police car arrives. Victimized driver is then stunned to be ordered out of the vehicle by police officers with drawn guns, ordered to lie on the ground, and is searched, cuffed and pulled up.

Aggressive driver dialed 911 and claimed that victimized driver did everything that aggressive driver actually did, and also claims that victimized driver pointed a gun at aggressive driver and that aggressive driver then called 911 . . . for protection.

Victimized driver is then arrested, charged with Aggravated Assault with a firearm, and taken to jail.  

After a night in jail, the victimized driver then sees a judge the next day, makes a bail bond, and is released.

Much to the victimized driver's horror, he or she learns that the minimum penalty under the law is three (3) years in prison with no gain time. Thus the victimized driver, who bought the gun in self-defense, learns that the only key out of the courtroom is a trial by jury: A win brings freedom. A loss means up to two additional years in prison. 

Imagine being confronted with a plea "bargain" of three (3) years in prison and risking five (5) if a jury believes the aggressive driver.

Now, imagine the terrifying decision process regarding the risks of a jury trial taking place after a spate of well publicized shootings at movie theaters, shopping malls, work places and schools. 

Welcome to my daily experience as a criminal defense attorney practicing Florida Criminal Law. Cobb Criminal Defense Law Firm handles at least one weapons and firearms case like this each month.

Thứ Sáu, 14 tháng 12, 2012

Busted on Social Media - Police Video

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Busted on Social Media
Gang busted on Social Media. According to police: The gangs were taunting on Facebook, bragging about shootings online. The gangs allegedly used social media to intimidate witnesses and others, calling them snitches and stating that if they cooperated with law enforcement  they would be "taken care of." Possible 25 year penalties for the 25 that were busted using social media. Social media led to their demise, as cops monitored and befriended the suspects.




Sentencing Orders and Diversion Programs

Not to be snarky, but I think this tidbit from Amen Clinic is dead on the money:

"Psychiatrists are the only medical specialists who rarely look at the organ they treat. Psychiatrists continue to make diagnoses the same way they did 100 years ago, based on clinical exams and symptom clusters. There is a better way. SPECT imaging is a clinically useful way to look at brain function." 18 Ways that SPECT can Help You

We see this in Florida Criminal Law on a regular basis. Uniformed prosecutors, criminal defense lawyers and judges do not understand that the brain is the hardware and mind is the software. Florida Criminal Law has attempted to inch forward into the 21st century with first offender and other diversion programs such as Drug Court, Mental Health Court, and Veteran's Court. Yet these programs - and others - are quite frankly, an intellectual embarrassment. We need a change that is not incremental, but one on an order of magnitude. We need to put the money in the system up front and get the most accurate diagnostic evaluations possible, and that means the use of imaging technologies such as SPECT.

Each of these diversion programs essentially use outdated technology. Sure, they are better than expensive, harsh, incarcerative sentences, yet they usually fail in the long run. Why? They don't look at the organ sought to be treated. 

Florida Criminal Law revolves around discovery - the process of learning about the other side's case in the form of reports, witness lists, depositions, examination of physical evidence and more. Yet when it comes to diversion programs and sentencing orders designed to treat the bodily organ responsible for some of the most dangerous and damaging behaviors which are reasonably foreseeable to recur, we rely on guesswork. This is especially true for Mental Health Court, Veteran's Court, Drug Court and sentencing conditions such as Anger Management and Domestic Violence Intervention Programs. How bad can it get? A war veteran tried and convicted of quadruple homicide when he was making an obvious cry for help for several years. Four innocent people dead, including three children, and the taxpayers literally pay millions of dollars for the sentence imposed. 

For clarity, let me add this disclaimer: Not everyone needs treatment nor a SPECT scan. Yet many do, and guesswork in the place of discovery would often be a ground for a Rule 3.850 Ineffective Assistance of Counsel motion. Yet our laws, rules, procedures, sentencing protocols, treatment diagnostics and basic problem solving skills as lawyers and judges are simply tossed out of the window of common sense.  Our legal test for insanity is from the 1830's. 

Finally, there will be the doubters who question the technology or the approach, and even more who will complain about the cost. Yet these are often the same people calling for more and more prison time without mention of the cost to the taxpayers. Cost is not the excuse, cost is the biggest reason. Inadequately funding diversion programs is foolish, funding them for accurate diagnostics and verifiable treatment results just makes good fiscal sense.



Bob Marley Lawsuit Settled!

 
A dispute among family members over intellectual property rights to the great Bob Marley catalogue has finally settled.

A notice of stipulation of settlement was filed before Judge Cooke, and the terms are confidential.

The settlement follows a mediation with Rodney Max.

You can read the complaint here.

The best part is that Bob Marley approves!
“This was a sensitive case which involved historic facts and many moving parts. The legacy of a great man and a great family were at stake. Fortunately, we were able to come up with a settlement which was amenable to the family members involved,” said Santucci. “From what I learned about Bob Marley and his intentions, he would be happy with our recent achievements, especially the peace brought to the family,” said Santucci.
And so does Rihanna!



 

Thứ Năm, 13 tháng 12, 2012

Federal Pretrial Diversion Update

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Federal Pretrial Diversion
Tampa Federal Criminal Defense Attorney has  previously covered the Federal Pretrial Diversion here: Federal Pretrial Diversion Eligibility Criteria  According to the Feds, "Pretrial diversion (PTD) is an alternative to prosecution which seeks to divert certain offenders from traditional criminal justice processing into a program of supervision and services administered by U.S. Probation. 

We just obtained their manual that details the processes used in evaluating these cases for eligibility. The Federal Pretrial Diversion Manual describes the assessment procedure, which is helpful to know in deciding how to help get a defendant into pretrial diversion.


Excerpts From the Manual



Defendants and Offenders Subject to the Procedures

Subject to this policy is any person identified, prior to or subsequent to the formal filing of charges, by the United States Attorney’s Office or pretrial services or probation office as a candidate for diversion and who meets the eligibility criteria identified in the United States Attorneys’ Manual, Title 9, Criminal Division, Chapter 22, Pretrial Diversion Program.  The person identified as a candidate for diversion may seek advice of defense counsel and must sign a pretrial diversion agreement.

Impact on a Defendant's Job and Employment

The officer should obtain details about the candidate’s work history spanning the previous 10 years.  The officer may ask the candidate for a resume to help establish employment history or gather pay stubs and tax records to help verify previous employment.  If documents relating to past employment are not available, the officer should contact collateral sources or former employers to verify past employment.  After investigating and verifying past employment, the officer should ascertain whether employment program referrals are appropriate. If the candidate’s current employment would be jeopardized by an employer’s knowledge of the candidate’s participation in the diversion program, the officer should use pay stubs or other means of verification. The officer also should conduct employment contacts if such contacts will not jeopardize the candidate’s continued employment.

Turns Out You Need a Subpoena to Depose Somebody.


Sometimes it takes a federal judge to point out the obvious.

Take, for example, the situation where you want to depose a bunch of employees of the opposing party.

How do you do that?

Can you just notice them for deposition?

Turns out the answer is no:
Although these six employees may well be able to provide relevant information (or information likely to lead to admissible evidence), the Court nonetheless cannot compel Plaintiff to produce them for deposition. Only a party to the litigation may be compelled to give deposition testimony pursuant to a notice of deposition. If the party is a corporation, it’s deposition may be noticed pursuant to Federal Rule of Civil Procedure 30(b)(6), in which case the corporation must designate an individual to testify as the corporate representative. Alternatively, the party seeking a corporate deposition may identify a specific officer, director, or managing agent to be deposed and notice that individual under Federal Rule of Civil Procedure 30(b)(1). But, a corporate employee who does not qualify as an officer, director, or managing agent is not subject to deposition by notice.
How about that?

You learn something new every day!

Second District Reverses Time-Sharing Injunction

The Second District Court ruled yesterday in Weissman v. Weissman, granting in part the Petitioner’s Petition for Writ of Certiorari regarding the lower court’s emergency ex parte order which denied him all timesharing for a period of 90 days.  The Court ruled that, while extraordinary circumstances justified the remainder of the lower court’s emergency order, there were no such circumstances justifying a denial of timesharing, and more importantly there was absolutely no notice allowed to the Petitioner prior to the ruling on that point.  As a result of that denial of procedural due process to the Petitioner, the Court granted cert as to that issue, and quashed the no-contact provision of the order.

First DCA Reverses Life Insurance Award

The First District Court of Appeal ruled Monday in Therriault v. Therriault, first affirming the lower court’s award of permanent alimony despite the “moderate” term of the marriage.  However, the First District was compelled to reverse the award of life insurance as security for that alimony in that the lower court failed to make the requisite findings regarding availability and cost of the insurance, ability to pay by the former husband, and the special circumstances warranting security for the support award, such as a spouse in poor health, one in arrears, or the like.

Thứ Tư, 12 tháng 12, 2012

3d DCA Watch -- Mayor Giving Testimony = Irreparable Injury!



Hi kids, it's 12.12.12 blah blah blah.


Does anyone else find that boring?

In other news, give 'till it hurts.

Finally, the bunker dwellers -- per curiam -- grant a writ of certiorari and quash a deposition subpoena that the Dade County PBA served on Mayor Gimenez.

Seems to me the majority is applying the Mr. Fantastic jurisdictional test -- it's as elastic as it needs to be.

Would a Mayor testifying unnecessarily in a deposition really be irreparable harm?

Not according to Judge Corinas in dissent:
I would deny the petition for a writ of certiorari on the ground that the petitioners have not met their burden of showing irreparable injury.
Finally, RIP dear Mr. Shankar.




Thứ Ba, 11 tháng 12, 2012

Hispanic FL Republicans Sued Reince Priebus!



I just like saying "Reince Priebus."

But did you know a Florida Hispanic GOP group sued National GOP Chair Reince "twice and repeat" Priebus for reducing Florida's GOP delegate count in response to moving up the FL GOP primary?

Neither did I:
Appellants brought this action for declaratory and injunctive relief on the ground that the RNC’s delegate-reduction penalty violates the Equal Protection Clause of the Constitution, as well as 42 U.S.C. § 1983 and Section Two of the Voting Rights Act, 42 U.S.C. § 1973.2 Appellants allege that the RNC’s rules “underenfranchise[]” Hispanic Republican voters, because they allow early voting states—namely, Iowa, New Hampshire, South Carolina and Nevada— with comparatively small percentages of Republican Hispanic voters to skew the debate toward the interests of those states’ dominant demographics. As a result of the influence the RNC’s rules bestow on those states, Appellants contend that presidential candidates adopt positions contrary to those of Hispanic voters.
Naah, the GOP just loves Hispanic voters!

But alas, just like Priebus' cerebral cortex that night at the convention, the case was dead in its tracks:
In sum, because Appellants have not shown RNC is a state actor, the district court did not err in dismissing their complaint for failure to state a cause of action. Therefore, we affirm the district court’s grant of Preibus’s Rule 12(b)(6) motion to dismiss for failure to state a claim.
Unleash the Rubio!

Texting While Driving? No. Filming While Driving? YES!


In our latest WITWISA ("Where in the World is Spencer Aronfeld"?)  installment, Spence provides a worthwhile public service message about texting while driving, all while filming in his car as traffic whizzes by at unaccountably high speeds.

Maybe pull over into a parking lot first?  We're worried!

Thứ Hai, 10 tháng 12, 2012

Pro Hac Vice -- Not for Locals Anymore!



Question:  Can an attorney who lives and practices in South Florida seek pro hac vice admission to the SD FL?

Answer:  Not really.
Ms. Centorino certifies that she is a member in good standing of the Florida state bar but not a member of the bar of this Court. D.E. 41 at 4. However, the Court notes that Ms. Centorino also resides and practices within this District. Rule 4 of the Special Rules Governing the Admission and Practice of Attorneys before this Court specifically provide that “[a]ttorneys residing and practicing within this District are expected to be members of the bar of this Court.” Ms. Centorino has not demonstrated why the Court should depart from this rule in her case, and therefore, the Court DENIES her pro hac vice motion.
Hmm, but what if your practice is limited to state court and you only appear in federal court infrequently?

You still have to pay the $201 admission fee (but no test anymore!).

In other news, now you have to be civil to each other.

"I guess what I'm trying to say is, if I can change, and you can change, everybody can change!"

Thứ Sáu, 7 tháng 12, 2012

How Does Pacenti Do It?



One minute he's seated at his typewriter pounding out a story on Claudio Osorio being criminally indicted, and the next he is at the Four Seasons glad-handing at the DBR's "Most Successful Lawyer" soiree.

Because he is a newspaperman, that's how.

Osorio was charged with fleecing investors of $40 million. The indictment also charges Osorio and co-conspiritors falsely obtained a $10 million loan from the Overseas Private Investment Corp., a U.S. government agency that promotes U.S. investments abroad to foster the development and growth of free markets. The loan was intended to build a factory and 500 homes in Haiti for families displaced by the 2010 earthquake.

I leave any discussion of all this to Rumpole and DOM who know what this means, but I observe that allegedly scamming Chris Korge and the government might increase your chances of being charged with a crime.

Ernie Souchak Pacenti reports that Osorio was to appear today before our pal U.S. Magistrate Judge Jonathan Goodman.

Begging the question: what song might the good Judge invoke to support his ruling?



N.B.: Two free movie tickets first class tickets to Jackson Hole and a week at my condo to anyone who scores a picture of Rumpole cocked and in a compromising position at the Public Defender office party.


Hemingway House Now an "Animal Exhibitor" Subject to USDA Regulation!


Listen, I know there are a bunch of cats on the grounds, but seriously?
Appellant 907 Whitehead Street, Inc., d/b/a Ernest Hemingway Home and Museum (“the Museum”), appeals the district court’s post-trial order denying the Museum declaratory and injunctive relief. The Museum challenges the jurisdiction of the U.S. Department of Agriculture and its Animal and Plant Health Inspection Service (collectively the “USDA”) to regulate the Museum as an animal exhibitor under the Animal Welfare Act (“AWA”), 7 U.S.C. § 2131 et seq. The district court concluded that the Museum is indeed subject to the USDA’s regulatory reach pursuant to the AWA. After considering the parties’ arguments and having the benefit of oral argument, we agree with the district court’s findings of fact and conclusions of law and hold that the Museum is an AWA animal exhibitor subject to USDA regulation.
Here's an example of the findings relied on by the district court and affirmed by the 11th:
The Museum has always kept, fed, and provided weekly veterinary care for the Hemingway cats. The cats live and roam freely on the grounds that are enclosed by a brick fence at the property’s perimeter. To prevent population beyond the historical norm of 50–60 cats, the majority of the cats are spayed or neutered so that only a couple of cats of each sex are reproductive. At the time of the district court’s bench trial, the Museum had 44 Hemingway cats.

No Hemingway cat has ever been bought or sold, although some cats have been given away at various times.2 However, the Museum charges admission for a tour of the property, and the tour includes seeing and discussing the roaming Hemingway cats.
Ok, thank God I don't charge admission to my house, or else the dogs and hamster would definitely subject me to USDA regulation.

I like the final "hold-your-nose" disclaimer at the end of the opinion:
Notwithstanding our holding, we appreciate the Museum’s somewhat unique situation, and we sympathize with its frustration. Nevertheless, it is not the court’s role to evaluate the wisdom of federal regulations implemented according to the powers constitutionally vested in Congress.
Indeed.


Thứ Năm, 6 tháng 12, 2012

How Many Pages Should Your Notice of Supplemental Authority Be?


 Maybe I'm one of those old fart lawyers Brian Tannebaum is always writing about, but I was taught that a notice of supplemental authority should be a one-page document listing the new case, with at most one line or two explaining its relevance.

It shouldn't be an opportunity to engage in another set of briefing that renders the federal rules superfluous.

But we all know lawyers who can't resist using the new case to reargue points already made in the briefs, and who go way overboard -- causing you a moral dilemma:  should you respond in kind?  Move to strike?  Turn the other cheek and ignore the sharp practice?  Hope the judge does something sua sponte?

Case in point:

This supplemental authority is fairly restrained, though you could argue it goes a paragraph too far.

But like the old Cold War doctrine of MAD, an overwhelming and devastating response was inevitable.

And here it is -- three full pages of responsive argument.

Not willing to leave well enough alone, here is the "reply" in support of the notice of supplemental authority -- four(!) more pages of pure argument.

Aren't there page limits in briefs for a reason?






Thứ Tư, 5 tháng 12, 2012

3d DCA Watch -- Judge Cortinas Goes Full Carnes!


 Hi kids, can you feel the winter break taking hold in your practice yet?

The lawyers coming in later, leaving earlier, judges cancelling hearing, depositions being moved to 2013....let's just slide into the holidays, shall we?

Only two civil opinions of note this week, let's take a look:

FIGA v. Karelas:

Yes, it's nearly 2013 and Judge Schwartz is still entering orders like it's disco-era 1978!


Galleon Bay v. Bd. of Cty. Comm:

Whose writing style does this opening paragraph remind you of:
When apt-named Galleon1 first set out to develop its property, it could not have possibly imagined the tumultuous seas it would encounter in the decades that followed. While galleons have not been spotted on our shores since the Eighteenth Century, this is our Court’s seventh encounter with this case.
The Judge went full Carnes!

Thứ Ba, 4 tháng 12, 2012

Judge Ryskamp Dismisses With Prejudice Groundwater Contamination Case!



It turns out that a few years ago a bunch of poor minority residents living in the Acreage area of western Palm Beach County learned that they had unusually high rates of cancer -- a "cancer cluster" -- not exactly great for property values (let alone health).

These residents then sued aeronautics giant Pratt & Whitney for contaminating their groundwater, claiming that the contamination emanated from a plant located several miles away.

On a second amended complaint, Judge Ryskamp dismissed the action with prejudice, relying on Iqbal and a lack of specificity in the allegations.

Here's an example:
The closest Plaintiffs come to making a specific allegation that something traveled from Pratt & Whitney to the Acreage is in Paragraphs 236 and 238, but those fall short of the mark. Plaintiffs allege that Pratt & Whitney and The Acreage “are underlain by” the same aquifer, and that “groundwater is drawn” from the Corbett Wildlife Management Area and Pratt & Whitney to the Acreage. Complaint, ¶236. Plaintiffs then allege that their experts:
confirm that the types of CCOCs . . . known to have been spilled . . . at the P&W site and by Pratt & Whitney in the Corbett National Wildlife Refuge [sic] have traveled to and physically invaded The Acreage, and are present in the groundwater of The Acreage Neighborhood and have contaminated the groundwater that the Plaintiffs’ and class members’ properties share with [THMs].
Sec. Am. Compl., ¶238. This allegation superficially appears specific, but is yet another generalized allegation that the “types of CCOCs” found at Pratt & Whitney traveled to somewhere under “The Acreage”—as opposed to under each Plaintiff’s property—and that these types of CCOCs “are present” in “the groundwater of The Acreage Neighborhood.” The mere allegation that chemicals at Pratt & Whitney “are present” in the groundwater of “the Acreage” does not mean that the chemical traveled from Pratt & Whitney to the Acreage, as any chemical in the Acreage could have come from a different source than Pratt & Whitney.
YUM -- time to bottle and sell that delicious vaguely contaminated Acreage water!

(Maybe they can sell some to that nearby Pratt & Whitney plant?)

BTW, plaintiffs' lawyer Craig Zobel said he had plenty of evidence:
“We respectfully disagree,” he said. Contrary to Ryskamp’s ruling, Zobel said, he submitted thousands of pages of records linking Pratt & Whitney to the cancer cluster. He hired an appraiser, who reviewed all 17,000 pieces of land and methodically showed how property values plunged. He hired hydrologists to track how toxins moved through underground water supplies. He hired urologists and toxicologists who linked Magaly Pinares’ kidney cancer to the toxins found in her well.

“We had a wealth of data,” he said.
But how much of it was in the second amended complaint?


What "Format" is Your Lawsuit?


The gender discrimination suit filed by a GT shareholder in the Philly office contains some blockbuster allegations.

ATL found this nugget -- that the only way for women attorneys to get ahead at GT is to sleep with their male superiors (see paragraphs 69-72).

Wow, wow, and wow.

But Hilarie Bass says au contraire:
“The format of the lawsuit reflects an effort to extort money from us,” Bass said. “Our shareholder agreement has an arbitration clause that she is well aware of and instead she chose to file a class action in federal court.” Bass said even if the case ends up in court, she believes it will be an individual lawsuit rather than a class action.
The "format" of the lawsuit -- what an unusual word choice.

I suppose she means the procedural posture -- a class action filed in federal court.  But that doesn't automatically equate to extortion, or does it?

This is another gem:
The suit alleges that Lehr, regional operating shareholder in charge of Philadelphia, told Griesing at one point that only “tall, male and Jewish GT lawyers generate business” and that there is “no formula” for compensation and that it is entirely subjective, commenting that female shareholders are “lucky” to get paid as much as they do.
"Tall, male and Jewish" -- just like Cesar Alvarez!

GT insiders -- speak up, is there any truth to these allegations?
 more here: http://www.miamiherald.com/2012/12/03/3125399/greenberg-traurig-faces-gender.html#storylink=cpy


Read more here: http://www.miamiherald.com/2012/12/03/3125399/greenberg-traurig-faces-gender.html#storylink=cpy

Thứ Hai, 3 tháng 12, 2012

Spencer Aronfeld -- Don't Trust What People Put on Their Websites!


Good morning!

In the news this morning:

1.   Yes, the Dolphins still suck.

2.  SHB attorney Marc Levinson now knows never to invite Nevin Shapiro to your bachelor's party (you may have to give a deposition about it later).

3. Spencer Aronfeld was on Tyra (about 5:30 in).

4.  Kendall Coffey lives part-time in Melbourne.

Melbourne?

5. Happy Birthday, text message!

And how was your weekend?

Thứ Sáu, 30 tháng 11, 2012

Was Baseball Star Aroldis Chapman a Cuban Spy?



Those are the blockbuster allegations in this suit pending before Judge Altonaga.

Chapman, a pitcher for the Cincinnati Reds, is accused of some pretty outrageous things.

According to the complaint, as summarized by Judge Altonaga:
Plaintiffs allege Chapman is liable for Curbelo Garcia and Perdomo’s prolonged arbitrary detentions and torture, not because Chapman was personally involved in detaining or torturing Plaintiffs, but because he provided the Cuban government with the false accusations in the first instance. This furnishing of false accusations, Plaintiffs allege, was part of a conspiracy between Chapman and the Cuban government that Chapman entered into on the day he met Raul Castro. (See id. ¶¶ 301–10). When Chapman agreed to the conspiracy, he became part of a pervasive “snitch network of athletes.” (Id. ¶ 216). This network included “athletes in every team in Cuba,” and was so widespread that “[t]here was a special unit of security officials that were in charge of connecting directly with the athletes to seek out reliable informants.” (Aff. of Gregorio Miguel Calleiro (“Calleiro Aff.”) ¶¶ 8–9 [ECF No. 48-5]). Athletes who voluntarily became government informants reported “suspicious” behavior to their individual handlers in the Department of State Security (“DCSE”). (Id. ¶¶ 10–12; see Am. Compl. ¶ 216). In return for providing “actionable information for the state,” the informants received benefits from the Cuban government, such as the ability to travel with a national team. (Calleiro Aff. ¶ 14). Chapman sought the opportunity to travel with the National Baseball Team as a means of defecting. (See Am. Compl. ¶¶ 218, 221).
The Court denied the motion to dismiss and the case is proceeding.

Chapman is represented locally by Manny Garcia-Linares of Richman Greer.

Thứ Năm, 29 tháng 11, 2012

Oh Boy -- Judge Carnes Is at It Again!


Much digital ink has been spilled on this old-and-in-the-way blawg about Judge Carne's propensity for opening paragraph storytelling, analogy or metaphor -- usually invoking a song, cultural or historical reference.

This time I have to believe he's speaking directly to me:
Bob Dylan’s recognition that “[b]ehind every beautiful thing there’s been some kind of pain” 1 might seem painfully ironic to Amber Wright. Her quest for what she deemed to be more beautiful hair allegedly led not just to pain but also to emotional “scars that the sun didn’t heal,”2 all of which led to this lawsuit. Wright filed this products liability action under Georgia law alleging that a hair bleaching product manufactured by Farouk Systems burned her scalp, causing her to suffer physical, mental, and emotional pain. She claims that the product—colorfully named “Blondest Blonde”—is defective because it contains isolated areas of high reactivity, called “hot spots,” that can lead to burning of the scalp. She also claims that Farouk failed to adequately warn users of the product of the risk that burns can result if the product touches the scalp. The district court granted Farouk’s motion for summary judgment on all of Wright’s claims, and this is her appeal.
Note to Magistrate Judge Goodman -- here's the clean and lean way the Judge cites the Dyl-Bard:
1 Bob Dylan, “Not Dark Yet,” on Time Out of Mind (Sony Records 1997).
2 Id.
See, that's all you need!

BTW, I figured he would have went with "Silvio," from Down in the Groove (Columbia 1988):
I can tell you fancy, I can tell you plain
You give something up for everything you gain
Since every pleasure's got an edge of pain
Pay for your ticket and don't complain



Thứ Tư, 28 tháng 11, 2012

3d DCA Watch -- Conform or Be Cast Out!



Hi kids, perhaps it was a bad batch of Thanksgiving stuffing, but this week the bunker-dwellers are a decidedly disagreeable bunch.

Four civil opinions, and half are dissents.

The first one involves a terrible crime committed at The Naked Truth, and whether or not the establishment provided negligent security.

Here in dissent is Judge Rothenberg's description of the security in place at this "pleasure emporium":
It is undisputed that the establishment is well-lit, with regular and neon lighting throughout the store; there were sixteen cameras in operation at the time of the assault (some of the cameras record continuously, twenty-four hours a day, while others record when triggered by a motion sensor); there were signs inside the store informing patrons that they were being videotaped by cameras on the premises; the store utilized “drop safes” to limit the cash being held in the registers to an amount of less than $200; the sales clerks were able to view twelve of the sixteen cameras simultaneously via a monitor from a slightly elevated platform that also provided greater visibility of the store and its patrons; there was only one door (except for an emergency exit) which was locked; and patrons were only able to enter if the sales clerk “buzzed” them in. The store also contained several alarm systems, including a perimeter alarm, a fire alarm, a burglar alarm, police alarms, and panic alarms that could be triggered by pressing a fixed alarm button or activated remotely.
What does it say about us as a society that a local porn shop needs to go to these lengths to keep their employees safe?

The second one involves a purported oral loan modification that occurred "in open court" after a foreclosure judgment.

Judge Rothenberg thinks there is a slight problem with the majority opinion:
I also disagree with the majority’s decision to affirm on grounds not relied on by the trial court or argued on appeal—that the statute of frauds, section 687.0304(2), Florida Statutes (2012), requires that “an agreement to lend or forbear repayment of money . . . , to otherwise extend credit, or to make any formal financial accommodation” must be in writing. Because this issue was not relied on below, nor argued on appeal, we are in no position to consider the merits of such an argument, especially since the loan modification offered by Deutsche Bank was in writing, and was accepted by and executed by the Vargases, and the posture of the proceedings was a motion by the Vargases to compel Deutsche Bank to execute the agreement it allegedly agreed to honor.
Aren't there some rules about deciding on grounds no relied on below or argued on appeal?

In other news, Marc Randazza speaks out on Judge Leesfield's preliminary injunction banning his client, a formerly anonymous blogger, from publishing future defamatory blog posts about a local developer.

What are the odds that order will stand up on appeal?

Thứ Ba, 27 tháng 11, 2012

Spencer Aronfeld and the Perils of Bounce Houses!

Just what kind of parent are you?

Do you want your kid's birthday party to end in unmitigated tragedy?

Take a look:



First of all, this seems like extreme niche marketing -- would someone whose child was injured in a bounce house accident easily find this video on YouTube?

Maybe Spence is Google-optimized!

Secondly, based on concerns properly raised by Spence, I've taken steps to ensure my child's next birthday party is safe and accident-free:

1.  I've removed all plastic cutlery, cups, plates and other choking hazards such as food or cake;
2.  Balloons have been replaced with inflated safety gloves;
3.  To prevent risk to others, no children or parents are permitted to attend; and
4.  I've locked my child in a windowless, empty room for the duration of the party.

Happy Birthday Timmy!!!!

Thứ Hai, 26 tháng 11, 2012

3d DCA Watch -- Post Turkey Day Edition!


Welcome back!

I hope everyone watched football, got soused, gorged on roast beast, fought with their relatives, and then immediately headed to Wal-Mart where they got in a shooting match over a parking space.

Isn't that the true meaning of Thanksgiving?

Meanwhile the wheels of justice grind on, and we dutifully bring you this belated 3d DCA Watch featuring a case that, if the Court adopted the appellant's position, would "shake the foundation of the Rules of Appellate Procedure."

Castelo Dev. v. Rawls:

Note to counsel not a party who happens to be monitoring a hearing:  shut up.
From the record before us, it appears counsel for Mortgage Bankers first appeared below at a hearing on Castelo’s motion for reconsideration of the order vacating the foreclosure sale. At the outset of the hearing, counsel for Mortgage Bankers identified himself, but stated he was “not appearing as part of this litigation.” However, unable to contain himself, counsel took the bait from Castelo’s counsel, who, near the end of the hour-and-ten-minute-long hearing, asked the court to give Mortgage Bankers’ counsel “two minutes.” Counsel then jumped directly into the fray. We believe this act comprised an abandonment of any prior position he had articulated and constituted a general appearance by Mortgage Bankers.
Judge Shepherd's opinion brings to mind the old adage:  Better to remain silent and be thought a fool than to speak and to remove all doubt.

And how was your extended weekend?

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