Magistrate Judge Torres on Miami: It Ain't New York!

Here's an interesting opinion from Magistrate Judge Torres awarding defendants attorney's fees for opposing a copyright infringement claim.

The Court weighed the discretionary factors and decided fees were appropriate, but issued this cautionary warning:

Moreover, though it is a safe bet that the parties’ counsel would have known to consult it in the course of preparation of their fee petition, for the sake of time and convenience we refer the parties to our decision in Hermosilla v. Coca-Cola Co., 2011 WL 9364952 (S.D. Fla. July 15, 2011), which will have a bearing especially on the hourly rates that the Court will approve in this case. In short, do not ask for “New York” billing rates. And for any hourly rates included in the application, biographical materials for each timekeeper should be included.

To be safe, don't even ask for "Hoboken, New Jersey" billing rates.

Stay away from the boroughs.

Get out of Philly, avoid Baltimore, head south of DC, make a brief stop at "South of the Border," now you're getting warmer.......

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

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

Are these judges cutting-edge hipsters or what?

Onward:

Wolfe v. Foreman:

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

Guess who wins:

Because the Florida Supreme Court has clearly and unambiguously stated, not once, but twice, that the litigation privilege applies to all causes of actions, and specifically articulated that its rationale for applying the privilege so broadly was to permit the participants to be “free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct,” we are obligated to conclude that the act complained of here—the filing of the complaint—is protected by the litigation privilege. Thus, the trial court properly granted a judgment on the pleadings for Wolfe’s cause of action against the Miami Lawyers for malicious prosecution.

And here's Chief Judge Shepherd with a blistering special concurrence:

The only remarkable thing about this case is its existence. As the managing attorney of the Miami office of The Florida Bar explained to Mr. Wolfe (himself a licensed Florida attorney), when he refused to accept staff counsel’s initial rejection of his Bar complaint against the Kenny Nachwalter lawyers who brought the federal action, “the Florida rules governing attorney conduct . . . preclude an attorney from bringing a frivolous action. Once the attorneys learned of the true history of the litigation, they withdrew.” Rather than approbation for doing the right thing, the law firm and two of its attorneys sadly have been rewarded with a summons and complaint.

Appellate fees and costs awarded to Kenny Nachwalter btw.

See you all on the pickle ball courts!

"Economic Reality" Sets in at the 11th Circuit!

Having been disappointed by several recent 11th Circuit opinions, I am pleased to see here a straightforward application of the "economic reality" test to determine if your worker is an "independent contractor" (as you had them swear 47 times in various documents) or an actual "employee" as that phrase is normally understood:

This inquiry is not governed by the “label” put on the relationship by the parties or the contract controlling that relationship, but rather focuses on whether “the work done, in its essence, follows the usual path of an employee.”

So take this job disclaimer and shove it!

Should a Party Get Discovery Before Responding to an SJ Motion?

Greenberg Traurig says it's not really necessary; Judge Middlebrooks says it is probably a good idea:

In response, Plaintiff argues, inter alia, that the Motion is premature at this time since Plaintiff has not had the opportunity to conduct any discovery whatsoever in the case. The Court agrees with Plaintiff to the extent it argues that summary judgment should be denied as premature. At the time of the Motion, Plaintiff had no opportunity to conduct any discovery. Accordingly, Plaintiff cannot be expected to consummately respond to the factual contentions Defendants raise in their Motion. See Smith v. Florida Dep’t of Corrections, 713 F.3d 1059, 1064 (11th Cir. 2013) (“Summary judgment is premature when a party is not provided a reasonable opportunity to discover information essential to his opposition.”).

Score one for the federal rules?

Foreclosure Appeal Victory for Space Coast Homeowner

Shuster & Saben Defeats US Bank & Douglas Zahm PA in Foreclosure Appeal

In 2011, firm attorney Richard Shuster obtained the dismissal of a foreclosure case filed against a Brevard County law enforcement officer.  After the case was dismissed our firm filed a motion for attorney’s fees to recover money from U.S. Bank to reimburse as much as possible of the fees paid by the homeowner to our firm and to recover payment for the portion for our time that was spent on a pure contingency fee basis.  (Under our firm’s retainer agreement, a substantial portion of the time spent on the case is on a contingency fee basis meaning unless we win the case and recover fees from the bank we do not get paid for the time).  On January 12, 2012, a fee hearing was conducted before Brevard Circuit Judge John D. Moxley, Jr. to determine the amount of attorney’s fees US Bank would have to pay.  The case had numerous hearings after U.S. Bank’s lawyers, Douglas Zahm, P.A. had objected to almost all of the homeowner’s discovery requests, and our firm had to repeatedly go to Court to obtain orders overruling the bank’s objections and ordering the bank to provide discovery.

The time sheet filed by Douglas Zahm’s office showed they had worked approximately seventy hours by the time the bank moved for summary judgment.  Ultimately our firm worked over 100 hours on the case before we obtained a dismissal.  At the fee hearing the Court awarded 95 of the 101 ours we requested. After adding expert witness fees, costs, and interest, the attorney fee judgment against U.S. Bank came to $46,878.20.  This judgment was the largest fee judgment rendered against a bank in Brevard County in 2012.  The hours were much higher in this case because both firms fought the case very hard and “went to the mat.”

Trial & Appellate Files Stacked On Top Of Each Other

U.S. Bank brought in Lee L. Haas, a board certified business litigation attorney to handle the appeal.  Firm attorney, Richard Shuster, who handled the case at the trial level, fought on for the homeowner in the appeals Court.   While this was the firm’s first foreclosure appeal, Shuster had prior appellate experience in the First and Third District Court’s of Appeal.  The firm handled the appeal on a pure contingency fee basis, meaning the client paid no fees to our firm while the appeal was pending and the firm would only get paid if we won the appeal and appellate attorney’s fees were awarded.  During the fifteen months the appeal was pending our client paid nothing for attorney’s fees and made no mortgage payments.  The firm will now collect the original trial level fee award from the appellate bond paid by US Bank and seek additional appellate fees for writing an appellate brief that was approximately 40 pages long.  To view a redacted copy of the 5^th DCA’s Per Curium Affirmed Opinion clink here.  A Per Curium Affirmed opinion means the appellate Court unanimously found that the trial Court did not commit any errors.

About Shuster & Saben:  Shuster & Saben is a civil litigation firm with offices in Miami, Fort Lauderdale and Satellite Beach.  The firm represent consumers in insurance litigation, consumer protection matters, fair debt collection practices act, and foreclosure cases. Homeowners looking for counsel with trial and appellate experience or with foreclosure questions can reach the firm at www.attorneyforeclosuredefense.comor e-mail Richard Shuster at foreclosuredefenselaw@gmail.com 

Zimmerman Verdict Not Guilty - Raw Video

George Zimmerman Verdict Not Guilty - Raw Video

Godwhacker's Week in Rearview

A roundup of the weekly news combined with gratuitous pictures exposing the "rearview" of human anatomy for higher ratings.  

Hi Kiddies, did you miss me? I'm always here. I see you when you're sleeping. I know when you're awake. I'm somewhere between the NSA and Santa, but not as benevolent or malevolent.

So, is there some legal story dominating the news this week? Hell, I can't turn on the news. Zimmerman is like Superman, only his power is to occupy ever freaking channel all at once. This has forced me into TV news wastelands like CNBC. It's like a bad cartoon where I'm waiting for the safe to fall on the idiot's head only that, the good part, never happens. Do these people take themselves seriously? I can't imagine.

Anyhoo;

Do you ever think that Janet Napolitano is really Judge Napolitano in drag?

It was a really bad week for this guy, but how do you go from lead singer of The Smiths to being president of Egypt?

Starvation is back!

da Vinci's dream of a human powered helicopter is finally a reality.

Things are freaky at Walmart.

Gay divorce has come to Florida?

Cancer has been cured (again)!

Finally, here are some more hot backsides, and a serious note from Oliver Stone.

Lesson 1 from Master Steven: A is A and Ass is Ass.