3d DCA Watch -- Empathetic, Intellectually Mediocre Latina Judges Edition

Hi kids -- are you sick to death yet of all the hacktacular Sotomayor coverage?

Between Sotomayor and Jon and Kate all day, everyday, I'm about ready to pull a Papa Hemingway myself if this doesn't end soon.

Have we returned to 2005 and entered Stupidville again?

For example, did you know that if you graduated summa from Princeton and were EIC of the Yale Law Review, that makes you "intellectually mediocre"?

Employing the laziest of stereotypes, it's a proven fact that if you are Hispanic and female you are by definition "temperamental and excitable" and possibly "Che Guevara in robes."

Also, although the Obama election proved that our nation has moved past identity politics and we are living in a post-racial world, the only reason Sotomayor was picked is because of affirmative action and also because Obama thinks like a 21-year-old Hispanic girl.

Can someone explain how being a state prosecutor, corporate attorney, and Bush I appointee (with votes from Jesse Helms, Rick Santorum, Bill Frist and others) makes you, as the Herald described today in a front page news article, an "unabashed liberal"?

Shhh, don't tell the WSJ, who had this to say of her business decisions:

The judge has favored corporate defendants in suits that test when cases can be brought as class actions. Judges often must determine whether plaintiffs' claims should be pre-empted by more defense-friendly federal and international laws.

"There is no reason for the business community to be concerned" about Judge Sotomayor, said Lauren Rosenblum Goldman, a partner at Mayer Brown LLP who has represented businesses including Wachovia Corp. and Dow Chemical Co.

In King v. American Airlines Inc., Judge Sotomayor ruled against an African-American couple who claimed they were bumped from a flight because of their race. The judge concluded their case was pre-empted by international law that governs air travel. "We urged a different interpretation, but her decision was in conformity with what other courts were doing," said Robert Isseks, a New York attorney who represented the plaintiffs. "We were paddling upstream."

In 2006, the judge was part of a Second Circuit panel that ruled investors couldn't proceed with a class-action suit accusing Wall Street banks of fraudulently pricing initial public offerings. The ruling negated settlements that would have yielded investors more than $1 billion. "That ruling demonstrated that in securities litigation, she is in the judicial mainstream," said Barry Ostrager, a partner at Simpson Thacher LLP who represented a unit of J.P. Morgan Chase & Co. in the matter.

Simpson Thacher? Mayer Brown? What do those pikers know about commercial litigation anyhow?

Oh hail I can't take it anymore.

Let's wade into the relative peace and security of our resplendently robed ones to the south, who swill coffee with great empathy from their concrete bunker of instajustice, and who dispense PCAs like lumps of coal on a cold Christmas morning, yes it's our patented always exciting, never intellectually mediocre 3d DCA Watch:

Diaz-Hernandez v. State Farm:

Hey, the 3d makes actual law!

Dear State Farm, requiring the insured to also sue the uninsured motorist in addition to the insurer is kind of a jerk move that contravenes public policy of the UM statute and is unenforceable:

[T]he purpose of the UM coverage is to protect the injured motorist, not to benefit the UM carrier or the uninsured motorist. See also Varro v. Federated Mut. Ins. Co., 854 So. 2d 726 (Fla. 2d DCA 2003). If State Farm is in doubt as to whose negligence caused the action, it may call the uninsured motorist as a witness. If State Farm intends to seek subrogation against the uninsured motorist, it may bring the uninsured motorist into the lawsuit. Placing the burden upon the Insured by making it a contractual obligation benefits State Farm, not the Insured. We, therefore, conclude that the provision is against the public policy of the UM statute, section 627.727, and therefore invalid.

Darn activist judges!

Lonestar v. Leview-Boymelgreen:

Who knew you are not supposed to consider affirmative defenses at the motion to dismiss stage:

A motion to dismiss under rule 1.140(b) tests whether the plaintiff has stated a cause of action, not whether the plaintiff will prevail at trial.

State court, what a gas.

Kosoy Kendall v. Los Latinos:

So I guess if you're a tenant facing eviction you have to put a month's rent into the registry of the court. If you don't the statute says you can get an ex parte immediate default.

But here Judge Cohen Lando refused, leading Judge Schwartz in muted tones to patiently observe:

Because the trial court refused, after an adversarial hearing which was itself unauthorized, to issue the writ and, notwithstanding such wholly irrelevant facts as that the payment was subsequently tendered, see Main St. Corp., 947 So. 2d at 492, we grant the present application for mandamus and order that a writ of possession issue forthwith.

When is something not just "irrelevant," but "wholly irrelevant"?

When Judge Schwartz says so!

How's that for empathy?