Spencer Aronfeld Reports From Inside the Yellow Submarine!

There is nothing wrong with your yellow computer screen. Do not attempt to adjust the yellow picture. We are controlling yellow transmission. If we wish to make it louder yellower, we will bring up the volume banana. If we wish to make it softer less yellow, we will tune it to a whisper lemon. We will control the yellow horizontal. We will control the yellow vertical. We can roll the yellow image, make it flutter in a more yellowy way. We can change the yellow focus to a soft blur or sharpen it to an even more absurd yellow. For the next two minutes and yellowteen seconds,, sit quietly and we will control all yellow things that you see and hear in a yellow way. We repeat: there is nothing wrong with your yellow computer screen. You are about to participate in a great yellow adventure. You are about to experience the yellow awe and mellow yellow mystery which reaches from the inner yellow mind to — The Yellow Attorney Breakfast Club!

"Overbreadth" Bunker Smackdown!

I know certain bunker denizens treasure the limited scope of appellate jurisdiction and the proper "standard of review" -- you know, doctrines that serve as vital checks on judicial power etc., so it's interesting to see the Florida Supreme Court deliver a smackdown to the 3d for dramatically expanding the proper standard for common law certiorari relief:

In keeping with the decisions of this Court and numerous other district courts of appeal addressing the proper standard for certiorari relief, we quash the decision below which held that relief was appropriate solely because the discovery order at issue was overbroad. In holding that “certiorari is the proper remedy for overbroad discovery orders” because overbroad orders leave the complaining party “ ‘beyond relief,’ ” AEE, 45 So. 3d at 944 (quoting Redland, 961 So. 2d 1006), the Third District improperly supplanted and expanded the scope of certiorari jurisdiction by replacing the requirement of establishing irreparable harm with a requirement that the requesting party merely demonstrate overbreadth. This is an incorrect and improper alteration of the standard for certiorari jurisdiction. Overbreadth is not a basis for this relief.

Congrats to Paul Morris and Richard Alan Alayon for a big win.

3d DCA Watch -- Tomahawk Thursday Edition!

Ok, so the bunker denizens are back at work -- let's see what the (concrete) Rock is cooking:

Reider v. Dorsey:

Judge Shepherd reviews a bar fight involving a tomahawk in which a jury returned a verdict for a $1.5 million:

For the foregoing reasons, Reider did not owe a relevant duty of care to Dorsey when Dorsey was attacked and therefore cannot be held liable for his injuries. The trial court’s order is hereby reversed and remanded for entry of judgment for Appellant Reider.

Oops!  I gave away the ending....

(Doesn't EVERYONE in South Florida keep a tomahawk in their truck?)

19650 NE 18th Ave v. Presidential Estates:

They paved paradise, and put up 173 zero-lot-line homes.

Ooh-la-la-la:

Knecht Properties v. Carriera:

More fun and games at the trial court level figuring out how to apply the offer of judgment statute.

The more things change, the more things.......

3d DCA Watch -- Who Knew They Observed Yom Kippur?

Well the sun is shining on a New Year and I'm looking forward to the opportunities presented by a fresh start and new beginnings.

That's why I immediately went to the 3d DCA website to catch up on yesterday's opinions when -- lo and behold -- there are none posted!

Evidently the 3d DCA webmaster took yesterday off?

Nice.

In other news, it appears from the Florida Supreme Court that the DCAs are not yet ready for the (late 90s) intertubal concept of efiling:

It appearing that the technology is not in place for this Court and some district courts of appeal to accept and process electronic filings by the October 1, 2012, effective date in those courts for the e-filing rules adopted in the June 21, 2012, opinion in this case, the Court, on its own motion, finds it necessary to postpone that effective date.

Accordingly, the effective date for the e-filing rules and procedures in this Court is hereby postponed until December 1, 2012, at 12:01 a.m. E-filing will be mandatory in this Court on that date.

The effective date for the e-filing rules in each of the district courts of appeal is postponed until April 1, 2013, at 12:01 a.m. E-filing will be mandatory in the district courts on that date. However, as stated in the June 21, 2012, opinion, until the new rules and procedures take effect in the district courts, any clerk who is already accepting documents filed by electronic transmission may continue to do so; attorneys in these districts are encouraged to file documents electronically under the current rules. Clerks of court will not be required to electronically transmit the record on appeal until July 1, 2013, at 12:01 a.m.

Simple, right?

"The technology is not in place" -- and that's just in the mechanical room that has all the old gym equipment!

Retain Justices Lewis, Pariente and Quince!

It's bad enough Rick Scott and the Florida GOP ended voting on Sundays, thereby disenfranchising African-Americans who typically travel by bus after church to go vote (as Chris Matthews pointed out last week), but now they want to dump three sitting Florida Supreme Court Justices:

"The announcement that the Republican Party is engaged in this effort would shock those wonderful Republican statesmen who helped create the merit selection and merit retention processes," said Tallahassee attorney Talbot "Sandy" D'Alemberte, a former president of the American Bar Association. "Surely we do not want to go back to the broken past."

The GOP decision set the Twitter world abuzz on both sides, with people and organizations chiming in from across the United States. Rachel Sutz Pienta, a Virginia State University professor, wrote, "Boo, hiss!"

"It doesn't matter what party you belong to, politics has no place in the courts. This is a power grab that hurts everyone," tweeted plaintiffs attorney Mariano Garcia of Searcy, Denney, Scarola Barnhart & Shipley in West Palm Beach.

Dale Davis, a Melbourne conservative, tweeted, "Do not retain Justices Barbara Pariente, Peggy Quince and Fred Lewis per the RPOF!"

(Ok, enough with newspapers reporting what people tweet.  That's like listening to someone watch a movie.)

I understand some good folks are organizing a fundraiser downtown to support the embattled Justices on October 9th (more details to follow) or you can contribute online to their retention campaigns here, here, and here.

And if you are an attorney and belong to the Florida GOP please consider the leadership of Raoul Cantero on this issue and speak out against this truly unfortunate turn in Florida judicial politics.

Speaking of Florida judicial politics, did you know failed judicial candidate Enrique "Rick" Yabor hired this woman to run his campaign:

In January 2007, she was arrested in a dispute with her ex-husband, Moshe Cosicher, at his Tigertail Ave. home in Coconut Grove. They had been divorced for two years, but Alliegro wanted to get remarried, according to reports from Miami police and prosecutors.

“We are going to Vegas,” she told Cosicher, a report said. The report noted that when Cosicher refused, she grabbed a gun, which appeared to be a .45 that she kept at bed side.

She then sat naked at a desk with her leg up and compared the gun to a male sexual organ.

“If you think your [expletive] is powerful (showing the gun), this is mine,” Alliegro told Cosicher, who tried to ignore her by going to make coffee, a report said. Alliegro followed him and told him to sit on the couch.

She fired a round into the ceiling.

“You see. It’s loaded — this is business,” Alliegro allegedly said.

Am I the only one slightly turned on by this?

Oy veh, better get to Temple before the book closes -- have a easy fast!

Spencer Aronfeld Speaks From Wind Tunnel on Effective Lawyer Marketing!

Oh I kid Spence, he knows it's out of love!

Here Spence speaks to nationally-renowned legal marketer Charles Jones on networking and marketing strategies.

Charles must command a high speaking fee, hence the decision to do away with chairs and tables and just stand around each other while eating breakfast.

I've always said Spence has a big yiddishe kop!

Second District Reverses Child Support Award

The Second District Court of Appeal reversed yesterday in Hoffman v. Hoffman, a case in which the lower court had found an income of $3,000.00 a month for the former husband.  The basis for this finding was that the court determined that it was unable to use the former husband’s actual income, earned in China, based on the different standard of living in that country and the U.S..  The lower court stated that “what I’ve decided to do is – and I did this on sort of a pro rata ratio-type thing in my mind – decide that his net monthly income is the equivalent of earning in the U.S. $3,000 per month.”  The Second District Court found that there was no evidence in the record supporting the trial court’s determination of the $3,000.00 figure, or any imputation of income which would raise the former husband’s income to that amount.  As such reversal and remand was required.

Sorry, Your Cruise Ship Wrongful Death Claim Must Be Litigated in Wales!

Wow, I'm an attorney and have been on many Royal Caribbean cruises out of Miami and this is news to me:

In the fall of 2009, Tore Myhra and his family vacationed on a cruise ship operated by Royal Caribbean Cruises, Ltd. During his voyage, Mr. Myhra fell ill, and he died sometime later. His Estate instituted this action against Royal Caribbean, seeking damages for his injuries and death. It alleged that a bacterial infection that he had acquired while on board Royal Caribbean’s vessel had caused these tragic events. Royal Caribbean moved to dismiss the action for improper venue under Federal Rule of Civil Procedure 12(b)(3); it relied upon a forum-selection clause among the conditions in Mr. Myhra’s passage contract. That clause required that all personal injury claims be litigated in the courts of England and Wales and be governed by English law.

Wales?

Ok, I see they booked passage through a British travel agency.

We hold that 46 U.S.C. § 30509(a) does not bar a ship owner from including a forum-selection clause in a passage contract, even if the chosen forum might apply substantive law that would impose a limitation on liability. We further hold that, under the particular circumstances set forth in the record before us, the forum-selection clause was reasonably communicated to the Myhras and, therefore, cannot be invalidated as having been achieved by overreaching on the part of Royal Caribbean.

If the limitation of liability by proceeding under Wales law is so severe, why not put that in all their contracts?

In other news, Ben Kuehne says the former Mayor of North Miami Beach did his very best to comply with all those really hard to understand, complex campaign finance laws:

 “As a political candidate, he has always attempted to follow the complex requirements of election and campaign finance laws,” he said. “He is confident he has done his best to comply with the law, and any errors that resulted were neither intentional nor harmful.”

Just like his term in office!

Finally, Steve Geller knows what a proper Holocaust Museum should look like -- it should look like it's not in the City of Hollywood.

Happy Friday!

ad more here: http://www.miamiherald.com/2012/09/20/3012078/former-north-miami-beach-mayor.html#storylink=cpy

(Arbitration) Pop Quiz, Hot Shot!

This would be a good question for a law school exam -- do you think Judge Scola should enforce an arbitration agreement if:

Between the initiation of this lawsuit and the Defendants’ invocation of the right to arbitrate, the Defendants answered the Complaint and Amended Complaint, responded to Plaintiff’s Statement of FLSA Claim, provided mandatory Rule 26 disclosures, propounded discovery requests upon the Plaintiff, responded to Plaintiff’s discovery requests, took her deposition, participated in discovery motions practice, obtained additional time to schedule depositions and complete discovery, and obtained an extension of the trial date.

WHAT DO YOU DO?  WHAT DO YOU DO?

But the client's records were really messed up, Your Honor:

It is no answer, either, to say that Defendants did not know about the agreement until three weeks before moving to compel arbitration. See Plows, 812 F. Supp. 2d at 1066; Ritzel Commc’ns, Inc., 989 F.2d at 969. That they were apparently subjectively unaware of where the arbitration agreement was located, and did not in fact find it until they undertook a paper file audit in connection with an unrelated case some seven months after this case began, does not help their argument. The fact that Defendants’ files were disorganized and the form was not where it was supposed to be is no excuse. It does not reflect diligence.

It reflects that your case will not be going to arbitration.

3d DCA Watch -- Now With More 1REV/REM 9!

First off, some sad news out of the bunker:

On September 13, 2012, Alan Sadowski, Marshal of the Third District Court of Appeal passed away. Mr. Sadowski ably served as Deputy Marshal and then as Marshal of the Court for over nine years. The Court wishes to acknowledge his dedication and service to the Court. He will be greatly missed.

RIP.

In other news, the bunker has decided to enter the Twitter age with a new column next to the reported opinion that attempts to convey important information of some type in LOL-style shorthand!

Observe:

BRADY V. P3 GROUP & HYPOWER  1REV/REM 9

Was that helpful?

There's also this:

ADEEB & ADEEB V. MORGAN & MORGAN 1AFF/REV 2

Do I even need to discuss the opinion or should I just tweet "1/AFF/REV 2"?

We also have Bruce Baldwin, plaintiff, reported thusly:

1AFF 8

Roughly translated: not so good for Bruce.

CUL8R!!

Was Steve Lippman Really "Not Ready for Prime Time"?

We've already seen what happened when Steve Lippman asked opposing counsel to write a letter of support to Judge Cohn.

Enter Joe Klock, who testified on behalf of Steve:

Coral Gables attorney Joe Klock described his friend as a quiet man who doesn't challenge others. "I don't think he was ready for prime time," he said.

Ok, so that made it in.

I wonder what during the prep session got left on the cutting-room floor?

Those Local Rules Are There for a Reason!

Hi there, hope your week is moving along smoothly.

Did you know our federal courts have local rules on all sorts of things?

Some of them are even quasi-important -- like dates by which you have to file motions for attorneys' fees:

Southern District of Florida Local Rule 7.3(A)(vii) states that all motions for attorneys' fees filed upon entry of a final judgment or order "shall be filed and served within thirty days of entry of a Final Judgment or other appealable order that gives rise to a right to attorneys fees and/or costs.''  S.D. Fla. R. 7.3(A)(vii). In this case, Bank of America filed its motion for attorneys' fees on January 23, more than thirty days after this Court granted Bank of America's motion to dismiss on December 6. Accordingly, it is

ADJUDGED that the motion is DENIED.

Try explaining THAT one to your client.

L'Shana Tovah!

The book is open!

Fifth DCA Reverses Equitable Distribution

The Fifth District Court of Appeal reversed yesterday in Frenzke v. Jacobs, a case in which largely uncontroverted evidence that certain assets were non-marital was evidently overlooked, as the lower court ordered that those assets be used to pay marital debts.  The Fifth District found that, in fact, the lower court did not rule as to the marital or non-marital nature of the assets in question, requiring remand.

Kim Rothstein: Before and After.

An alert reader forwards two photographs:

And this:

Judge Gayles Just "Unfriended" Me!

 
Was anyone practicing when "faxes" came along?

I remember lengthy discussions, ethics opinions, and substantial research devoted to what the appropriate disclaimer a law firm should place along the bottom half of the fax cover sheet.

This was the result of uncertainty over how documents that used to be mailed can be magically transported through telephone lines to be reassembled at the other end by bulky, loud perforated-sheet fax monstrosities.  What if an important document is sent to the wrong number?

Same with email -- are they privileged if faceless "servers" have access to your content while assembling and reassembling data packet transmissions to your client?  How detailed should my disclaimer be?

We face that same fear of technology in this 4th DCA opinion regarding being "Facebook friends" with a presiding judge:

Further, the Committee concluded that when a judge lists a lawyer who appears before him as a “friend” on his social networking page this “reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”

That's right -- for example, I'm "friends" with both President Obama and Tim Gunn so I can reasonably expect these guys to do me a solid from time to time.

I don't necessarily blame the 4th here -- they were working off of a 2009 ethics advisory opinion and felt constrained to adopt that reasoning.

2009?

In interweb years that is ancient history -- it's like three Friendsters ago!

UPDATED 11.5% of All In-State Florida Bar Members in Good Standing Overwhelmingly Support Supreme Court Justices and 3 DCA Judges for Retention!

I thought Merit Retention and claimed attacks on judicial independence were cutting edge issues that had members of the Bar up in arms?

Yet out of 68,243 ballots the Bar mailed to in-state members in good standing only 7,857 lawyers participated.

The results of that vast minority of responding lawyers is here.

For the Supreme Court, poll results indicate support for retention of:

- R. Fred Lewis by 92 percent.
- Barbara J. Pariente by 89 percent.
- Peggy A. Quince by 90 percent.


For the 3rd D.C.A., poll results indicate support for retention of:

- Angel A. Cortinas by 86 percent.
- Kevin M. Emas by 93 percent.
- Ivan F. Fernandez by 91 percent.
- Leslie B. Rothenberg by 78 percent.
- Richard J. Suarez by 90 percent.

Don't complain if you don't agree, and failed to send in your response.

Speaking of politics, political fundraising, and patronage, our friend and all around Good Guy and Friendly Canadian Kirk Wagar makes the New York Times here.

I guess Kirk, pictured below with his beautiful wife, got his swagger back. And good for him. (Now stop calling me for more money - I AM TAPPED! I mean it!)

N.B. Rumpole confessed in the comments that he can't understand issues beyond pizza, football and traffic tickets. I like Rumpole, and I want to keep him as an engaged reader, or at least for now someone who looks at the pictures. So this is for him.

"Oh, see. Oh, see Dick. Oh, see Dick Run. Fast, fast Dick. Don't get a ticket!"

That should keep him busy for a while.

School Bus Safety With Spencer Aronfeld!

When I was a kid, school bus safety mainly consisted of trying not to get hit by the cranky bus driver or alternatively not sitting next the kid who wet his pants everyday.

But I guess there are other considerations -- Spencer explains.

Or does he?

Spence -- what happened to the actual tips?

3d DCA Watch -- "I Am Sure the Trial Judge Meant Well"!

 
Judge Shepherd assumes the best in Judge Cardonne Ely's order granting a nominal amount of maintenance and cure to an injured seaman, but dissents from Judge Salter's affirmance:

I am sure the trial judge meant well. One also could not be faulted for detecting a tinge of sympathy for the seaman in the opinion of the majority. However, our legal system requires more than heartfelt sympathy.

Agreed, but what?

What is that missing ingredient?

(Readers, feel free to offer helpful suggestions!)

Maybe it's a sense of proportionality and reason when it comes to resolving disputes -- can you believe the State of Florida is still paying beau coup bucks to quality outside lawyers and still badly losing defending citrus canker cases?

OY VEH, has the State won anything out of this program, other than bad will and a string of legal defeats?

Just reading the Order, citing losses by the State in cases already tried in the 4th DCA, you come away with a sense that this thing is locked on autopilot, not unlike the old Soviet Union's nuclear Dead Hand.

Finally, a case about "mending the hold" -- one of my favorite obscure legal doctrines!

Don't Argue Alter Ego Theory With Ed Ricci!

 I  caught this in the DBR this morning:

"Costa Cruise Lines is the alter ego of Carnival," said Edward Ricci, whose lawsuit seeks to represent Giglio Island tourist-related businesses that claim the disaster deterred visitors, polluted environmentally sensitive local waters and depressed property values.

I think Costa's in trouble on this one.

First District Court of Appeal Reverses Injunction

The First District Court of Appeal reversed yesterday in Young v. Young, a case in which the lower court granted an injunction against domestic violence in response to allegations that the wife had changed her husband’s e-mail password and used private information from the passwords in court filings.  The court found that the behavior was cyberstalking, but the statutory definition of that term required reversal.

Grey Robinson Claims to Enjoy ANOTHER Banner Year!!!

Man, how did we miss THIS?!

As it has every year for the last few years, the DBR has elaborated on Grey Robs' press release regarding its success.

Read Editor Catherine Wilson's Julie Kay's writing here, support for which is "according to Lynyrd "Byff" Marshall."

And, yeah, I don't have a problem with, you know, relationships, but, ah, you know.

Anyhoo, never no mind what you know.

The DBR ranked Grey Rob behind Akerman, Holland, Carlton, and Greenberg.

In Gross revenue , they're behind Holland; Akerman; Carlton; Kasowitz; Nelson; Arent; Kelley; Hinshaw; Diaz Reus.

And of course what you don't know may be important: "Profits per partner figures were not available, Marshall said." That's kind of important, Jules.

Instead, pay attention to what they say:

Biff gives out tokens ("As he has for 21 years, Marshall again handed out gold coins to shareholders and of counsel as a token of his appreciation.")

The firm reported a 7 percent jump in gross revenue in 2011 and 8 percent in 2010. (JUMP?)

Associates "averaged" a 9 % raise (in the government they call it a "cost of living increase".)

Big additions to The Firm!!!!!

A. Former Miami City Manager Tony E. Crapp Jr. (you can read about him on FBI wire taps here, telling former police chief exposito "Yeah I don’t have a problem with you, you know, being compensated for, you know an exit,” said Crapp."

B. Neil Linden, Adorno Zeder. (Zeder. Yoss. FIRE!)

C. Peter Quinter (Becker: The number you have reached is no longer in service.)

Crapp.

D. Glenn Cooper, formerly of Fowler White (not sure which one) - who LOVES Canadians! And Brazilians. (Who doesn't?)

Pete is the most candid. "Yes, I wanted more money, but it was equally important for me to choose the right law firm that fit my personality," he said.

Lifeline.

I'll give you this: Gray attracts lawyers who are meant to be together.

Plus, they are big in politics.

N.B.: Isn't it kind of weird how The Firm's fiscal year ends in August?

August? Really?

Half way through last year? Half way through this year? When everyone is on vacation?

Extremely Floridian accounting paramenters.

Hey...it works. Just ask Cathy at the DBR.

Handsome Keith Lipscomb!

We've previously covered these suits by porn companies to obtain information on illegal downloads via bills of discovery and then serve them letters for settlement.

But this New Times reporter goes somewhere new:

Lipscomb claims to be the first to employ the obscure law to go after illegal downloaders. The handsome Cleveland native graduated from Cornell Law School in 2000 and moved to Miami. Seven years later, he opened his own firm, devoted to intellectual property litigation. In 2010, California porn mogul Patrick Collins called Lipscomb and asked for ideas on stopping Internet users from stealing his movies.

The young attorney had learned about pure bills of discovery back in law school. But while doing research for Collins, he realized Florida's laws were particularly lax. Almost all other states ban the bills in copyright cases. But Florida allows them — and this provided the loophole he needed to force Internet providers such as AT&T to cough up the identities of thousands of previously anonymous downloaders.

OK, I'll concede Keith is plenty handsome --  for a lawyer.

Important qualification.

And congrats on the whole bill of discovery thing -- if that doesn't work have you considered a bill of attainder (hey, I remember law school too!).

Remember.

Here's That Humdrum Judge Scola Order No One Is Talking About!

I don't get lawyers sometimes -- if I received an unprecedented, groundbreaking, one-of-a-kind order from a federal judge, the last thing I would do is tell everyone how unprecedented, groundbreaking, and one-of-a-kind it is.

Because last I checked, aren't there still appellate courts?

But not everybody thinks like me (and that's probably a good thing):

In a landmark decision, a Miami federal judge ruled Friday that a class action brought by investors can proceed against the Securities and Exchange Commission in one-time billionaire R. Allen Stanford's investment scheme.

Plaintiffs attorneys called the ruling by U.S. District Judge Robert N. Scola Jr. rejecting the SEC's motion to dismiss "historic."

"Historic"?

Come on, Brown v. Board of Education is "historic," landing on the moon is "historic," Bo Derek running on the beach in a gold suit is -- well, you get my drift.

And if asked I would simply state that the Order was well-reasoned and a solid application of longstanding federal law, policy, and jurisprudence.

But what do I know -- I've never received an "historic" order before.

Your Monday Morning Digital Dump

R.I.P. Ron Taylor.

Not even in the shark infested waters of South Florida would anyone have the Chutzpah to request 2.7 million in attorneys fees after "winning" 12,500 for the client.

Too much with the hands.

Brian Spector helps out Levine Kellogg.

Here is a nice profile on Judge Freeman, who works as hard as anyone and does a great job trying to call balls and strikes fairly and consistently. I feel better knowing that someone who amounted to something found her calling in The Law the same way as me..."Hey, I have nothing better to do...why don't I take the LSATs?"

And oh yeah: The horn Big Dog is at FIU tomorrow.

Fifth District Court Reverses Injunction

The Fifth District Court of Appeals reversed today in Morris v. Mascia, a case in which the lower court granted a permanent injunction against domestic violence in favor of the appellee and against the appellant.  As those parties had never resided together, the Fifth District Court reversed the lower court’s grant of the injunction as departing from Florida Statute 741.30(1)(e).

First District Court Reverses Fee Award

The First District Court of Appeal reversed today in Shawfrank v. Shawfrank, a case in which the Appellant, the Former Husband below, was ordered to pay substantial fees to the Appellee on the basis that his petition for modification of alimony was without merit.  The First District found that in fact they were unable to conclude that the Former Husband’s petition was wholly without merit, in that the record supported that the former husband had lost a source of income, and was depleting capital assets to pay alimony.  As such, because the suit was not wholly without merit, and because the parties were each able to pay their own fees, the award was reversed.

11th Circuit Tackles Inchoate Iqbal Pleading Standard!

Careful readers know I have a obsession with fondness for certain people and issues that the blog tends to return to again and again -- or maybe I'm just out of material?

Anyways, I'm happy to see the 11th Circuit clarify the Iqbal pleading standard in an opinion reversing Judge Graham, who granted a 12(b)(6) motion on those grounds.

Let's see if you can tell what particular (and tragic) factual allegations really tipped the scales in favor of allowing the case to proceed past the initial stages of a motion to dismiss, as opposed to being gone for all eternity:

Appellants’ complaint alleges the following: a Carnival employee encouraged Appellants to visit Coki Beach in St. Thomas; Carnival was familiar with Coki Beach because it sold excursions there; Carnival generally knew of gang violence and public shootings in St. Thomas; Carnival knew of Coki Beach’s reputation for drug sales, theft, and gang violence; Carnival knew or should have known of the gang member’s shooting and funeral taking place near Coki Beach; Carnival failed to warn Appellants of any of these dangers; Carnival knew or should have known of these dangers because Carnival monitors crime in its ports of call; Carnival’s negligence in encouraging its passengers to visit Coki Beach and in failing to warn disembarking passengers of general and specific incidents of crime in St. Thomas and Coki Beach caused Liz Marie’s death; and Appellants have suffered various damages, including the loss of Liz Marie’s life. This negligent failure-to-warn claim is more than a mere recitation of the elements of the cause of action. The facts alleged in the complaint are plausible and raise a reasonable expectation that discovery could supply additional proof of Carnival’s liability. See Twombly, 550 U.S. at 556, 127 S. Ct. at 1965. We consequently conclude that the district court erred in dismissing Appellants’ negligence claim under Iqbal.

See, it's like art or pornography (or pornographic art) -- you just know it when you see it!

Congrats to Phil Parrish on a big win -- now you get to litigate your case and try to prove up some of these allegations (the ruling on duty to warn should help).

Have a great weekend!

"That's Quadruple Hearsay Squared by Infinity!"

That's the gist of attorney Bob Burlington's defense of wealthy insurance magnate Nicolas Estrella in his suit against the insurer of his allegedly stolen yacht:

The whodunit case of Nicolas Estrella’s sunken yacht has dramatically changed course, as a witness now claims he was told that the Key Biscayne tycoon steered a plot to sink his vessel off the Bahamas to collect the insurance money.

The sworn statement from witness Eric MacKenzie is the first apparent link implicating Estrella in the alleged plot. Estrella strongly denies the allegation, which his attorney called “double and triple hearsay.” 

Well, let's see -- it's definitely hearsay in that it was a statement made by another to the affiant.

But double or triple?  I'm not so sure.

Hey, I know a retired Magistrate Judge who has a lot of experience in these kinds of cases -- let's ask him to help out with some evidentiary rulings!

I mean seriously, what could go wrong?

SIMPLY......AMAZING!

(You can read more about Estrella's impeachment material on this witness here.)
 
Bonus Letter of the Day:

Steve Lippman asked Harris Solomon to write a letter to Judge Cohn.

Harris complied.

Read more here: http://www.miamiherald.com/2012/09/05/2986494/witness-in-nicolas-estrellas-sunken.html#storylink=cpy

3d DCA Watch -- The Fonzie Syndrome!

There are many mysteries to the bunker, and not all of them revolve around the bolted down sinks or the gym/mechanical room filled with hand-me-down work out equipment (though those two are endlessly fascinating).

One in particular is the Court's policy to never admit to granting a motion for rehearing, even when the Court issues a substituted opinion clearly as a result of the request for rehearing that it has just denied.

Here is but one example:

On Appellants’ Motion for Rehearing and/or Certification

Upon consideration of the appellants’ post-opinion motion, we withdraw the opinion of June 13, 2012 and substitute the following in its place. The motion is considered as directed to the substituted opinion and is otherwise denied.

Huh?

Let me get this straight -- (1) Court issues opinion; (2) Appellants file motion for rehearing; (3) Court considers motion for rehearing, withdraws the original opinion, and substitutes a second opinion in its place; and (4) Court pretends the motion for rehearing was directed to the substituted opinion that it just issued and denies the motion.

Could it be the 3d has a case of The Fonzie Syndrome?

Or maybe there's something I'm missing here?

Maybe I was wrrrrrrrrr............

Bonus opinion -- Judge Emas in special concurrence makes plea for juror public record searches in appropriate cases:

This should not be understood as advocating a blanket rule or a standing pretrial order requiring all litigants in every case to obtain a litigation history of all selected jurors before they are formally sworn to try the case. However, on a case by-case basis, a trial court has the authority to require that a party wishing to obtain certain public and easily-accessible litigation history of a prospective juror do so before the jury is sworn to try the case.

While it might be true that such a procedure will not be suitable for many cases, a trial court’s appropriate exercise of its discretion, even in this limited fashion, surely advances the proper administration of justice. Presently there is a disincentive for attorneys, on their own and in the absence of a court order, to engage in any pretrial search of a juror’s litigation history. Should an attorney conduct a litigation history search before the jurors are sworn, and discover that a juror has concealed or failed to fully reveal litigation history, that attorney would presumably be obligated to provide this information to the court and to opposing counsel. See Rules Regulating the Florida Bar 4-3.2 (Expediting Litigation); 4-3.3 (Candor Toward the Tribunal); and 4-3.4 (Fairness to opposing Party and Counsel). Moreover, how could an attorney act with “diligence” under De La Rosa if that attorney, armed with the knowledge that an as-yet-unsworn juror has concealed relevant and material information, failed to disclose that information to the court before the juror is sworn?

Faced with this Hobson’s choice, an attorney would be well advised to choose the path of inaction, conducting no search (even one which is quick, free and easy) unless and until the jury returns an adverse verdict. A process which promotes such a choice runs contrary to the ideals of a judicial system whose motto is suspended above every trial court bench in our circuit: “We who labor here seek only truth.” I believe trial courts have, and should be permitted to exercise, the discretion in the appropriate case to require quick, free and easily accessible public searches of a juror’s local litigation history before that juror is sworn to try the case.

Makes sense to me -- anybody see a problem with this?

Judge Marra Dismisses Suit Over Holocaust Assets.

In a fascinating dispute over how Jewish property appropriated by the Nazis were administered after the war, Judge Marra has dismissed a suit brought by heirs of a Holocaust victim against an organization specifically established to recover lost Jewish assets.

Judge Marra first lays out the history of this little-known program:

After the conclusion of World War II, five American-based Jewish groups formed a committee to represent Jewish interests in reparations negotiations with the German government. Amended Complaint at ¶ 7. In 1946, the American military authority designated the Jewish Restitution Successor Organization (“JRSO”) as successor to heirless and unclaimed Jewish property. Amended Complaint at ¶ 9. In 1951, the Conference on Jewish Material Claims Against Germany, the Defendant in this case, supplanted the JRSO. In 1952, the Conference incorporated as a non-profit corporation in the State of New York. Amended Complaint at ¶ 11- 12. Also in 1952, the West German federal government admitted responsibility for Nazi crimes against the Jews and agreed to pay reparations to the Jewish people. Amended Complaint at ¶ 14.

Hey, better late than never!

And here's what the plaintiffs claim happened:

Bertha Bach owned a 771 square meter parcel of property in East Berlin. Amended Complaint at ¶¶ 44-45. In 1938, after being threatened by the German government, Bach sold the property to a German citizen. Amended Complaint at ¶ 46-47. On or about December 1992, The Conference filed a claim for the Bach property pursuant to its authority under the VermG.  Amended Complaint at ¶ 48. The Conference was ultimately granted the proceeds of the sale of the Bach property and designated a “legally entitled entity” to file for unclaimed Jewish property.  Amended Complaint at ¶ 50. The decision to grant The Conference the proceeds of the sale was appealed by private German sellers of the property, whose appeal was denied by an administrative court in Berlin on or about August 2004. Amended Complaint at ¶ 51. During or prior to the appeal, The Conference produced a birth certificate of Bertha Bach establishing that she was Jewish. Amended Complaint at ¶ 52.

Through their Amended Complaint, Plaintiffs allege that The Conference: (1) was unjustly enriched by receiving compensation from the German government for the Bach Property (Amended Complaint at ¶¶ 56-61); (2) breached a fiduciary duty owed to Plaintiffs “to protect their interest in the Bach Property and obtain any compensation on their behalf deriving from the Bach Property a result of the activities of the Nazi’s” (Amended Complaint at ¶¶ 62-66); and (3) violated a constructive trust which arose in favor of Plaintiffs (Amended Complaint at ¶¶ 67- 763). The Conference now seeks to dismiss the Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(3), and 12(b)(6).

Unfortunately for plaintiffs, Judge Marra rules they have no standing:

The Court appreciates that Plaintiffs are not suing under the laws of Germany. Rather, they assert their claim arises out of Defendant’s Articles of Incorporation. However, the sovereign nation of Germany established a system for Jewish people aggrieved by the actions of the Nazi regime to be compensated for their loss of property. Defendant was granted rights under that system and successfully pursued the rights granted to it. Those facts do not impose a corresponding duty on Defendant to act for the benefit of Plaintiffs. Plaintiffs real complaint is with the system established by Germany, not with Defendant which merely acted in accordance with that system. Plaintiffs cannot use Defendant as a scapegoat for their dissatisfaction with the German compensation system. Plaintiffs have failed to set forth any authority that supports the proposition that a non-profit corporation granted rights under a compensation system established by a sovereign nation owes a duty to other potential beneficiaries of that system who failed to pursue their rights in a timely manner. The Court agrees with one New York state court that concluded that The Conference owes “no direct duty to any specific person which would provide standing to sue the organization.” Rottenberg v. Conference on Jewish Material Claims Against Germany, Inc., Index No. 110615/04 (N.Y. Sup. Ct. Feb. 16, 2005)).

Ok, I probably would have left the "scapegoat" part out, but a well-reasoned and interesting opinion.

Your Tuesday Morning Digital Dump.

 Hi there, hope you had a restful, restorative long holiday weekend.

Let's take a quick peek at our world:

1.  The 11th Circuit (w/ Judge Jordan on board) affirms a district court approval of an ADA settlement involving Segways at Disney World:

Because the district court found that class representatives were unlikely to prevail at trial, the district court found that Disney’s agreement to produce and make available the ESVs is a beneficial remedy for the class. This finding does not constitute an abuse of discretion. If Disney prevails at trial, the class will be left with no remedy at all. This settlement precludes such a Draconian result and ensures that a stand-up mobility device is available at Disney Resorts that conforms to its unique safety requirements. Therefore, we conclude that the district court’s finding that the settlement results in a “fair, adequate, and reasonable” remedy within the range of possible recoveries is also not an abuse of discretion.

Wow -- people still use Segways?

2.  Speaking of class actions, the apocryphal story of a bank deducting a penny a month is often cited as the perfect case for class treatment, yet this one involving a local "fashionista" lawyer and Forever 21 comes pretty close:

A fashionista lawyer who returned black denim shorts to Forever 21 but received a penny less than what she paid is suing the retailer on behalf of fellow customers who "number in the thousands, spread over several states."

Carolyn Kellman, whose fashion sense was profiled in the Miami Herald in 2007, paid $14.46 for the shorts at the Forever 21 store in the Dolphin Mall on May 12, the complaint filed by Kevin Love of Criden & Love in South Miami said.

Kellman, an attorney with the Strickland Law Firm in Coral Gables, returned the shorts to the Forever 21 in the Shops@Sunset Place on May 30 but was credited $14.45, "or exactly $0.01 less," the complaint said.

On June 27, Kellman was charged $11.57 for a skirt, also black, at the Sunset Place store. She returned it July 13 and was credited $11.56, according to the complaint, which attaches copies of her receipts and alleges breach of contract, unfair and deceptive practices, and unjust enrichment.

Query -- if you shop at Forever 21 does that make you "fashionista"?

3.  Steven Lippman disbarred.

And here's a flashback from 2009 after Arthur Rice acted like a mensch, hired Lippman, and publicly rose to his defense:

Arthur Rice, a name partner in the firm, said in an e-mail Tuesday night that he had not yet read the complaint.

``Having said that I know Steve Lippman and he is a man of integrity and until we are shown competent evidence to the contrary he will remain a valued member of our firm. I and other members of our firm have considerable experience in fraud recovery work and it is our collective experience that in cases such as this things are not always what they appear to be.'' 

Is it too early for some Xanax?