SFL Friday -- Rick Scott Can Spend As Much As He Wants!

 Well I'm off to find some cool, cleansing waters to windsurf, but before I go I wanted to mention this dispiriting report on the EPIC FAIL of getting Obama's judicial nominees on the bench:

Judicial confirmations slowed to a trickle on the day President Barack Obama took office. Filibusters, anonymous holds, and other obstructionary tactics have become the rule. Uncontroversial nominees wait months for a floor vote, and even district court nominees—low-ranking judges whose confirmations have never been controversial in the past—are routinely filibustered into oblivion. Nominations grind to a halt in many cases even after the Senate Judiciary Committee has unanimously endorsed a nominee.

Such tactics are completely unprecedented, and so are their results. Fewer than 43 percent of President Obama’s judicial nominees have so far been confirmed, while past presidents have enjoyed confirmation rates as high as 93 percent. And President Obama’s nominees have been confirmed at a much slower rate than those of his predecessor—nearly 87 percent of President George W. Bush’s judicial nominees were confirmed.

 Bork Bork Bork Bork I know, but this is not very healthy is it?

In other news, Rick Scott gets his very own 11th Circuit opinion:

We agree with the district court that Davis requires Florida to justify its excess spending subsidy by reference to the anticorruption interest, but conclude that Florida cannot satisfy its burden of establishing that its subsidy furthers that interest in the least restrictive manner possible. We reverse the judgment of the district court and preliminarily enjoin the Secretary of State of Florida from releasing funds to McCollum under the excess spending provision.

This means Scott can spend almost as much as a huge corporation (thank you, Citizens United).

It also means Big Bad Bill will have to rely solely on his charisma.

(He's screwed.)

Have a great weekend!

UPDATE:  I'm advised that I apparently posted a photograph of a different Rick Scott.  My apologies to the wacky children's singer.

(Sheesh, I'm starting to act like the Herald).

Law Updates for July 23, 2010

Ray, 35 FLW 1552, 4th DCA, vehicle stop - No reasonable suspicion that def had committed a crime at the time of the traffic stop. Officer monitoring the neighborhood based on recent complaints of drug dealing observed def drive up and stop in the middle of the road and engage in a hand-to-hand exchange with unknown adult male. Traffic violation that occurred after the emergency lights were activated not a basis for finding the stop was lawful. Evidence subsequent to the stop suppressed.

Williams, 35 FLW 1554, 4th DCA, Severance - Error to fail to sever GT of a firearm charge from the manslaughter charge that occurred the next day based on an alleged accidental shooting of his friend. Collateral crime evidence, presumptively harmful and prejudicial, outweighs the relevancy of the jury hearing the GT charge.

Ward, 35 FLW 1156, 4th DCA, Error to give the jury instruction regarding inference to be drawn from possession of recently stolen property, where victim could not positively ID the def as one of the two assailants at the scene of the crime, and where stolen property was never found in the def's possession.




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

Friday Morning Digital Dump

Let's see, what do people want to talk about this morning?

Ervin makes a pitch for bringing the Gulf Oil Disaster to Miami:

Ervin A. Gonzales, a Florida lawyer, argued that “clearly, Louisiana is the most affected state, but there may be appearances of conflict” for judges and jurors. He suggested Miami.

Note to NYT -- I know Hispanic names are tricky, but it's Gonzalez, not Gonzales.

(Doesn't anyone fact-check anymore?)

Big surprise -- people don't always understand contracts that they sign, especially when there's lots of fine print:

The agency says DIRECTV buried additional fees in small print in service agreements with customers. For example, it cited a $5 charge for a second receiver; a $19.95 fee for complex installation, handling and delivery; $6 per month for DVR service; and $10 a month for HD access. But the company's offers of free installation in up to four rooms and free HD DVR receiver upgrades didn't include information about these fees.

In addition, the suit says customers who thought they were signing a one-year contract based on ads that offered to lock in a price for a full year were actually signing two-year contracts.
And, the suit says, ads that claimed the service offers more than 130 HD channels, including local channels and exclusive sports packages, added in fine print ``eligibility for local channels based on service address. Programs not delivered in HD in all markets,'' and ``Blackout restrictions and other conditions apply.''

The consumer services department says these conditions didn't clearly explain to consumers that even with the most expensive programming packages, they wouldn't get all channels all the time.

Bit of a hodge-podge of a complaint if you ask me, but here's the important thing: the contract specified a pool of exactly 2530 feet! 

Karmic payback's a b@$ch:

Sam Wyly also funded the Swift Boat campaign that torpedoed Massachusetts Democrat John Kerry's 2004 presidential campaign.

What else -- Thor trailer here (boo, it's been taken down), and happy birthday to Buddy Guy!

The Allegedly Integrated Modern Law Practice?

Stern Lawsuit

Take a gander at this securities lawsuit recently filed against David J. Stern and pending before Judge Zloch that allegedly unpeels the layers behind his large and intricate mortgage foreclosure business.

I like this part of a speech purportedly given at a stock conference:

No matter what Obama rolls out, there is no stopping this inflow of continued defaults that we anticipate to go for another two or three years late behind that is the math of REO’s that need to be liquidated and at the end of the day, the cycle will start again. Well, foreclosure volumes through 2012 are expected to increase dramatically and remain at high levels going on till 2017.

From your lips to God's ears baby -- onward to 2017!

11th Circuit CAFA Ruling Already Creating Ripple Effects.

Absence of Jurisdiction

Judge Tjoflat's CAFA jurisdictional ruling is having the expected effects below:  a rush of motions seeking to have cases dismissed for lack of subject matter jurisdiction.

In the massive Checking Overdraft MDL, for example, which Judge King has presided over with his usual decisiveness and authority for more than a year, several defendant banks immediately filed a motion just days after the 11th Circuit ruling:

The Cappuccitti decision is binding law in this Circuit as of the date of its publication.  Further, each of the above-captioned cases is subject to its rule. In each of these cases, plaintiffs filed complaints in federal district court, claiming subject matter jurisdiction on the basis of diversity and the CAFA provisions relating to class actions with aggregate claims exceeding $5,000,000. But none of these complaints, all of which have been answered, pleaded that any plaintiff has an individual claim of $75,000. Accordingly, under the rule of Cappuccitti, this Court would lack subject matter jurisdiction.

Personally, I think the 11th ought to step in en banc and take another look at this before all hail breaks loose.

But I'm just a putzy legal blogger, what do I know?

3d DCA Watch -- Sword-Wielders and Chutzpah Edition.

Blah blah blah Resplendently Robed Ones blah blah blah coffee-swillers blah blah blah hermetically sealed bunker blah blah blah a very special chutzpah and sword-wielding 3d DCA Watch:

Aulet v. Castro:

Judge Rothenberg provides a clinical definition of "chutzpah":

In describing the former wife’s behavior, the term “chutzpah” comes to mind.
“In Hebrew, chutzpah is used indignantly, to describe someone who has overstepped the boundaries of accepted behavior with no shame.” http://en.wikipedia.org/wiki/Chutzpah. Moreover, “chutzpah” is defined as “brazenness; gall.” The American Heritage Dictionary of the English Language 242 (1973).

Oy.

I don't disagree with this definition, but it fails to convey the nuance, the subtleties of a properly placed Yiddishism.

The wikipedia entry cited by the Judge references Leo Rosten, who pretty much nailed it:

Leo Rosten in The Joys of Yiddish defines chutzpah as "gall, brazen nerve, effrontery, incredible guts,' presumption plus arrogance such as no other word and no other language can do justice to." In this sense, chutzpah expresses both strong disapproval and a grudging admiration. In the same work, Rosten also defined the term as "that quality enshrined in a man who, having killed his mother and father, throws himself on the mercy of the court because he is an orphan."

Now that's chutzpah!

Alex Sink v. East Coast:

I can't believe this is an actual legal doctrine:

the “sword-wielder” doctrine, applies when a “plaintiff seeks judicial protection from a real or imminent danger of invasion of the plaintiff’s constitutional rights by the state agency.” Id. (citations omitted). In determining whether the swordwielder doctrine is applicable, “[t]he test is whether the state is the original swordwielder, and the plaintiff’s suit a shield against the state’s thrust. If so, a suit may be maintained in the county where the blow has been or is about to be struck.”

"The State's thrust"?

Doesn't the doctrine, when laid out like that, sound a bit.....juvenile?

The Paminator.

I actually think it's a good nickname:

In the e-mail, Howard suggested that Bondi hire the firm if she wins the race.
``Told me at church today she will use us for consumer protection if she wins,'' Howard wrote on Nov. 22, 2009. ``She plans to announce this week I think, but u would know more than me as usual.''
Both Howard and Bondi now insist such a conversation never took place.
In a brief phone conversation, Howard said: ``There was never any talk about retaining our law firm.''
He said Bondi made no such offer.

``No, she never did. Absolutely not,'' he said in an e-mail reply.

I'm not following Howard's explanation.  If Bondi didn't make such an offer, then why does the email indicate that she did?

Can someone shed some light on this?

Oh hail, I'm voting for one of the Ds anyway.

Judge Seitz Did Not Abuse Her Discretion.

I thought it was pretty funny that the Herald misidentified a photo of Judge Seitz in an otherwise very flattering profile on Monday.

Note to Herald: Try to get these things right the first time.

In related Judge Seitz news, the 11th affirmed her today in a significant decision involving the Alien Tort Statute in a tragic case brought against the Palestinian Authority and the PLO.

Very interesting ruling (and congrats to the Judge for her inclusion in the book Women of True Grit!).

A Ticket Attorney, A Furniture Attorney, And A Traffic Hearing Examiner Go Into A Bar......

And one of them comes out a Palm Beach circuit court judge:

Lemoine fired the first salvo by touting records that show he has handled 684 cases in Palm Beach County courts, compared to Daire's 143, Small's 118 and Goodman's 18. The records, he says, prove who has the needed experience.

Goodman counters that Lemoine is mainly a ticket doctor, which lends itself to high volume. Lemoine said traffic cases represent about 20 percent of his practice. Lemoine, in turn, writes off Daire's high numbers, saying many of the cases are to collect money from customers who stiffed the furniture stores.

Oy, good thing something like this could never happen here in Miami-Dade.

In other news, blind pig......Glenn Garvin.

Finally, Miami is in the running to land the BP Oil Spill litigation:

A federal judicial panel is meeting Thursday in Boise, Idaho, to consider whether to consolidate some or all of the lawsuits for pretrial decisions before a single judge, a development that most observers say is a foregone conclusion. BP and the other companies favor federal court in Houston — near their major U.S. operations — while a majority of plaintiffs' attorneys have suggested New Orleans, closer to the broken well and to many of the hardest-hit victims. Courts in Florida, Mississippi and Alabama also are being suggested as venues.

Bring home the bacon -- this could do more for the local economy than 15 Super Bowls.

Happy Birthday, ADA!!

Boy it's a bit of a slow news day, huh?

Where are all my loyal tipsters?

Perusing the CM/ECF reports, it's obvious that a significant amount of judicial time in our district is devoted to ADA cases, so let's give the statute some props on the 20th anniversary of its signing.

Papa Bush, you did good.

Rhetoric Taken......To New Heights!

New Heights Order

Good....morning!

I had every intention to start the week with something mild and noncontroversial, such as creating a basic Lew Freeman letter generator.

But then that danged case keeps dragging me back in:

The Court finds it quite remarkable, and quite indicative of the merits (or lack thereof) of plaintiffs allegations in this regard, that despite the fact that plaintiffs have filed some 36 motions for enlargement of time, none was filed for responding to the Order to Show Cause ... nor was there a motion for additional pages ... nor was there a motion to take depositions before the matter was briefed. This takes rhetoric to new heights!

I don't know about you, and I certainly don't want to contradict the Judge, but I think I've seen higher rhetoric.

SFL Friday -- My Bonnie Better Lie Way the Hail Over the Ocean

Like that freaky old gypsy in Drag Me to Hell, Cavs owner Dan Gilbert has apparently cursed all of South Florida with a form of revenge known as "Tropical Storm Bonnie."

Thanks for being such a d$%k, Dan.

So get with your loved one (or ones), hunker down, start serving libations early and roll with the weekend -- but make sure to buy lots of batteries first.

I had a reading comprehension question in connection with this article from the Herald, about an FHP officer who apparently wrote hundreds of bogus tickets:

Lawrence, who was based in Miami-Dade, wrote the tickets to boost his overall count reported to superiors, prosecutors said. FHP has said it doesn't set quotas for tickets.

What part am I missing here? Why can't prosecutors ascertain the relationship between the "overall count reported to superiors" and an officer's job evaluations, pay raise evaluations, or other performance incentives at FHP?

In other news, consider this:

Approximately half of all Americans say they have sex at least once a week.

Now that is just gross -- have you seen what half of all Americans look like?

All I can say to send you off on a wet, dreary weekend is to get on the right side of that statistic, stay safe and let's hope Kathleen Williams gets confirmed sometime before the end of President Obama's third term (congrats!!!!).

Have a great weekend!

Law Updates for July 16, 2010

Koch, 35 FLW 1483, 2nd DCA, Fleeing and eluding a police officer - Error to fail to instruct jury on permissive LIO of refusal to obey officer's lawful order on ground that 316.072(3)(obedience to police and fire department officials) that the statute only applied to emergency situations. Trial court was requested to instruct the jury on offense where elements were alleged in information and evidence of those elements were presented at trial.

Kiss, 35 FLW 1506, 4th DCA, DSP/GT - Trial court committed fundamental error by failing to instruct the jury, pursuant to 812.025, that it could not return a guilty verdict on both charges of grand theft and dealing with stolen property when charges arise in connection with one scheme or course of conduct. Trial court did not properly cure such error by adjudicating the def guilty for DSP and discharge to the GT. Remand for new trial rather than reversing lesser offense conviction and affirming greater. Conflict certified.

Tamulonis, 35 FLW 1535, 2nd DCA, Officers not required to procure a search warrant or subpoena prior to obtaining controlled substance records from pharmacies. Error to grant motion to suppress patient profiles and prescriptions obtained from pharmacies without a subpoena or warrant. Statute, 893.07(4) requiring pharmacists to maintain controlled substance records, including prescription records, and to make records available for inspection and copying by police does not violate constitutional privacy provisions under the Florida constitution, Carter 23 So. 3rd 798(1 DCA 2009).



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

Kiss My Rooker-Feldman!

I once tried to pull a Rooker-Feldman.

In my defense it was way back in college, I got talked into it, and I promised my girlfriend I would never do it again.

But I guess some people never learn:

The Rooker-Feldman doctrine is inapplicable here. In place of it, ordinary preclusion rules govern the effect of the Engle Phase I approved findings. See id. at 284, 125 S.Ct. at 1522 (“Rooker-Feldman does not otherwise override or supplant preclusion doctrine . . . .”).

That sounds like a win for Big Tobacco......or does it:

In the pre-trial order that is the subject of this interlocutory appeal, the district court decided that the Phase I approved findings may not be used to establish any element of the plaintiffs’ causes of action. Brown, 576 F. Supp. 2d at 1348. The district court reached that conclusion without first giving preclusive effect to the Phase I approved findings. See id. The Phase I approved findings have to be given preclusive effect; they do establish some facts that are relevant to this litigation. Otherwise, the Florida Supreme Court’s statement in Engle III that the Phase I approved findings were to have “res judicata effect” in trials involving former class members would be meaningless. See Engle III, 945 So. 2d at 1254, 1269, 1277.

More reax on the opinion here.

Caveat Emptor And Other Foreign Words.

I'm taking the entire afternoon off to engage in what I believe the cavemen referred to as "windsurf-rock," so enjoy this guest post by a close friend.

SFL

Greetings readers, friends and concubines. SFL is enjoying some much deserved R&R, so he "sent me along as a surrogate band," and I'm going to play the fiddle and tap dance for you until he's done digesting all that whimsical sunshine.

SFL makes it look easy, but it's a challenge finding stories that tantalize, while still having a plausible, though tenuous connection to the legal profession. But I think I've managed to come across a couple of things here that fit the bill.

First up is the case of Sabbar Kashur, a 30 year old Palestinian man who was convicted of rape after having consensual sex with an adult Israeli woman. So how was it rape if the sex was consensual? It turns out that Sabbar, going by the name 'David,' convinced the woman that he was a Jewish man looking for a 'serious relationship'. [Ed. note -- oy!] When she found out, she called the cops.

Although Kashur was initially charged with rape and indecent assault, this was changed to a charge of rape by deception as part of a plea bargain arrangement.

Handing down the verdict, Tzvi Segal, one of three judges on the case, acknowledged that sex had been consensual but said that although not "a classical rape by force," the woman would not have consented if she had not believed Kashur was Jewish.

The sex therefore was obtained under false pretences, the judges said. "If she hadn't thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have cooperated," they added.

The court ruled that Kashur should receive a jail term and rejected the option of a six-month community service order. He was said to be seeking to appeal.

I'm particularly alarmed by this case, and not just because I've used that 'serious relationship' line myself. Lying to get someone into bed isn't a crime, it's a venerated tradition. Besides, there is usually a 'little' hint that the man you're sleeping with might not be Jewish, isn't there?

Next it's off to Texas, where everything is bigger, especially the scandals!

The family of Firefighter Thomas Araguz, who died in the line of duty, is suing in probate court to exclude his recently estranged wife from her widow's benefits and to retroactively dissolve their marriage. Sounds mean, huh? The crux of their case is the fact that his 'wife' was born as a man, and Texas doesn't recognize gender reassignment surgery or marriages between two people of the same sex. Mr. Araguz had only recently learned that his wife was born a man, and was reportedly devastated by the news.

Araguz died while fighting a fire at an egg farm in Boling, Texas. He was 37. He died without a will and under Texas law, probate courts typically divide a decedent's assets and benefits between the spouse and children. But Ellis said Araguz's mother, who is working with his first wife in this matter, wants all of his benefits to go to his sons.

Ellis said he will challenge the validity of the couple's marriage in probate court as a means to redirect any benefits that may have gone to Nikki Araguz to her husband's 7- and 10-year-old sons from his previous marriage.

His legal argument, Ellis said, is based on both the state's laws against same-sex marriage and a separate 1999 state ruling.

"If you were born a man and have sexual reassignment surgery, you remain legally a man," Ellis said of the 1999 court ruling. "You have the chromosomes of a male. You don't have a uterus."

Seems to me like there is more to being a man or a woman than a few body parts, and if I was from Texas, I might think twice before mentioning 'missing chromosomes'.

While both of these cases represent a cruel deception of the heart, it only reinforces my favorite bastardized line from Forrest Gump ~ "Life is like a cross-dresser's bar. You never know what you're going to get."

MAGISTRATE JUDGE BROWN ENTERS SANCTIONS ORDER...IN 'THAT CASE'... AND ALSO MAKES 'LAST STRAW' FINDING...PLUS SONNY AND CHER!

Beat Goes on Order

Anyone heard about that Peter Halmos case pending before Magistrate Judge Brown?

Wonder what's been happening lately?

LET'S TAKE A LOOK:

The beat goes on - but rises to new heights.

Ok, an intriguing metaphor -- you got me interested.

The Court has no choice but to conclude that this is the latest in a lengthy string of actions by plaintiff IYC which, among other things, "multiplies the proceedings ... unreasonably and vexatiously" (see 28 U.S.C. $1927). This Court has cajoled, warned, and pleaded with plaintiff to act professionally, ethically, and appropriately, but it seems that even significant sanctions and a finding of civil contempt2 have not deferred it from proceeding down a path of obfuscation, delay, and improper and inappropriate activity.

Plaintiff "waives the flag" and argues the "catastrophic" effect on the right of Plaintiffs to a fair trial, but apparently it wasn't "catastrophic" enough in November, 2009 to require all this discovery back then. This is, purely and simply, just another of plaintiffs smokescreens ...heightened, if that were possible, by seeking sanctions against INA for their alleged (and totally unspecified) misconduct (see Resp. p. 19) ... unless opposing depositions that have already been taken in another case and could easily be used herein constitutes bad faith ... or opposing last minute depositions on a matter totally irrelevant to the issues in this case - and without even seeking leave of court to go there - constitutes bad faith ... or unless opposing depositions set after a matter is fully briefed constitutes bad faith.

Could it get any better?

YES IT COULD:

The Court finds that this is "the last straw". PLAINTIFF IYC IS PLACED ON NOTICE THAT THE COURT MUST CONCLUDE, IF FURTHER TRANSGRESSIONS OCCUR, THAT MONETARY SANCTIONS DO NOT SUFFICE, AND THAT DISMISSAL WILL BE THE ONLY REMEDY LEFT.

Last straw....beat goes on....ellipses......ALL CAPS....oh boy.......

3d DCA Watch -- Do You Feel Lucky, Punk?

Hi kids!

It might be hot and balmy outside, but inside the hermetically sealed bunker the air is crisp, cool and a temperature-controlled 72 degrees (unfortunately, so is the coffee).

So let's give a big, warm South Florida welcome to the Resplendent Robed Players™:

Florida Farm v. 360 Developers:

Judge Rothenberg dissents:

Florida Farm purchased a condominium unit within the 360 Development. Florida Farm is required to belong to the 360 Development’s Homeowners’ Association. The Homeowners’ Association is governed by Chapter 720. Section 720.401 requires that certain disclosures be provided to all purchasers of property regulated by a homeowners’ association. These disclosures were not provided to Florida Farm. Because the Developer failed to comply with section 720.401, Florida Farm was entitled to cancel its contract with the Developer and to receive a refund of its deposit. Thus, dismissal of Florida Farm’s complaint was error.

Let me try it another way:

A + B = C.

C + D = F.

F + G = can't you follow simple logic?

What part of that don't you understand????

The 11th Circuit Creates A Removable Feast?

Continuing with our literary theme, today is Ernest Hemingway's birthday!

Also, the 11th Circuit really went astray with its latest CAFA ruling:

We hold that in a CAFA action originally filed in federal court, at least one of the plaintiffs must allege an amount in controversy that satisfies the current congressional requirement for diversity jurisdiction provided in 28 U.S.C. § 1332(a). Such a conclusion is compelled by the language of § 1332 as well as the general principle that federal courts are tribunals of limited jurisdiction whose power to hear cases must be authorized by the Constitution and by Congress.

I love Judge Tjoflat, and the decision has some surface appeal, but it is almost assuredly wrong.

Although the Court looked for an express statement that section 1332(a) did not apply in CAFA cases and could not find it, there is also nothing stating that the requirements of (a) do apply.

Further, there is no reasoned basis for restricting the result to original jurisdiction cases as opposed to removed cases. Thus, removed cases presumably must meet the same requirements as a class case with "original jurisdiction."

Finally, the citation to the Ninth Circuit case (Abrego) is inapposite, as that case involved a "mass" action, not a "class" action. CAFA expressly restricts removal jurisdiction for mass actions to those plaintiffs who meet the $75k requirement.

But doesn't the contrast between that explicit reference and the silence in the provisions relating to class actions indicate that the 11th Circuit got this one severely wrong?

I'm gonna go re-read Papa's Death in the Afternoon again.

Your Daily Dose of Michael Napoleone.

Hi kids, sorry I'm a bit late this morning, but it's summer ok?

I'm really excited about the new unexpurgated version of Mark Twain's autobiography due to be released shortly.

I've already committed to memory Twain's vivid description of an Italian countess which I intend to unleash at the next judicial reception:

“excitable, malicious, malignant, vengeful, unforgiving, selfish, stingy, avaricious, coarse, vulgar, profane, obscene, a furious blusterer on the outside and at heart a coward.”

(Actually, I just tried it out on a summer associate a few minutes ago -- he didn't seem to mind).

Speaking of books, here is Richman Greer attorney and Palm Beach County Bar Association President Michael Napoleone on the best business books he's read:

Best business books you've read: What Got You Here Won't Get You There: How Successful People Become Even More Successful by Marshall Goldsmith, and Made to Stick: Why Some Ideas Survive and Others Die by Chip Heath and Dan Heath.

Ok, these are perfectly fine choices.

But I might have went in a different direction if forced to answer such an insipid question:

Best business books you've read: Thank you for asking that probing and entirely non-clichéd question. Two dramatically different books come immediately to mind: Hop on Pop by Dr. Seuss, a crazed and frightening post-apocalyptic vision of a world gone horribly mad (a trio of plump, self-satisfied fish perched atop globular branches as two stymied hybrid dog-rabbit-humanoids look on in consternation??); and of course the charming Blood Meridian by Cormac McCarthy, a heartwarming and comical buddy yarn involving a young boy and his delightful sidekick, The Judge.

Maybe that's why Mike's the PBC Bar President and I'm not?

Eggs.

What the hail, it's my blog.

News Flash: Alan Fertel Is A Sports Nut!

I used to see Alan a lot at the gym, and here's a prototypical example of a conversation we would have quite frequently:

SFL: Hi Alan.

AKF: The Fins will be SLAMMING this year!!

SFL: Aah, yep, I sure hope so.

AKF: How 'bout the moves [insert player here] made on [insert another player here]??

SFL: Pretty impressive.

AKF: Was that AMAZING, or what???

SFL: Sure was.

AKF: Just F*&KING AWESOME!!

[pause]

AKF: Want to play hoops?

Anyways, I'm reminded of this by Alan's exuberant column today extolling the Troika that Saved Miami.

Let's hope Alan's even partially right.

Gelber vs. Aronberg on BP Resignation

Here's an interesting video that puts together a point-counterpoint from the candidates on Dan Gelber's resignation from Akerman as that firm took on the massive BP Oil Spill defense work.

I've said it before, and I'll say it again -- Dan was slightly slow off the dime on this issue, and initially offered some weak tea in defense of his original argument that no conflict exists.

So David could certainly raise that as a legitimate issue.

But now that the issue has been resolved, I'm not following David in his continuing pursuit of it.

Could BP move to recuse Dan from the case if he is elected Attorney General?

Not likely in my view.

On the other hand, Dan has a slight case of exaggerated vapors in his reaction to it all, don't you think?

What strikes me, as I listen to Dan explain the timeline, is that it's pretty clear he didn't get much of a heads up from the firm as it aggressively (and successfully) sought out the business.

That's BigFirm life for you.

Search Warrant | I Phone | Cell Phone | Florida Attorney

Cell Phone Search Warrant

Tampa Technology Lawyer and Criminal Defense Expert, W.F. ''Casey'' Ebsary, Jr. in Florida has spent time reviewing a rather interesting Search Warrant for a cellular telephone. Specifically, an iPhone that Apple Computer Corporation wanted to retrieve. Take a look at the 22 page warrant and what was seized for yourself: Cell phones, text messages, and email are a frequent target of state and federal law enforcement when investigating technology cases.

iPhone Search Warrant

Search Warrant for a Cell Phone? Tell Me Your Story Toll Free 1-877-793-9290 or Click the Call Me Button to Your Right at the top of this page.

Shuster & Saben Obtains Wavier of Deficiency for Orlando Real Estate Investors

Shuster & Saben has successfully saved resolved an Orange County foreclosure case filed against our Orlando clients. In the case our clients owed more than $100,000 more than their investment condominium was worth. Both of our clients signed the note, were professionally employed, and faced the real possibility of the lender obtaining a deficiency judgment and seeking to garnish the husband or wife’s wages. If our firm had not successfully resolved the case our clients faced the real possibility of having to file bankruptcy.

The first time the case was set for summary judgment at the Orange County courthouse firm attorney Richard Shsuter, traveled from our Melbourne office and successfully thwarted the lender’s attempt to obtain summary judgment. On the day before the deposition of the bank’s representative a settlement was reached wherein the lender agreed to waive all claims for deficiency judgment. A copy of the stipulation to waive the deficiency can be viewed by viewed by clicking the link below. A deficiency judgment is a judgment for the difference between the amount owned on the mortgage note and the amount the lender obtains for the property.

To view a copy of the stipulation for wavier of deficiency please click the link below:

Stipulation for Waiver of Deficiency

Shuster & Saben offers a comprehensive approach to foreclosure defense that integrates asset protection guidance with aggressive foreclosure defense by experienced litigation attorneys. Where appropriate we refer our clients to other professionals such as C.P.A.s to mitigate tax consequences of shorts sales and deed in lieu of foreclosure transactions. For high net worth individuals we also work with financial planners and to place client funds into assets that are protected from the claims of potential creditors. From the firm’s four offices in Miami, Doral, Plantation and Melbourne we defend homeowners in foreclosure in Dade, Broward, Palm Beach, Collier, Lee, Martin, St, Lucie, Indian River, Brevard and Orange Counties. For more information about our firm please visit us at www.attorneyforeclosuredefense.com

SFL Friday -- Mother and Child Reunion.

I see my friend Willy Ferrer is due to be invested today -- thanks for the heads up, David!

Also congrats go out to all those old farts -- I mean Legal Legends -- who will be honored in November. Well-deserved all.

I'm gonna have to cut short this entry -- I was fully dressed and equipped for a lengthy windsurfing session -- but now I have to go back home and put on a suit for Willy and hurry back downtown.

Thanks again David.

BTW I found an old picture of my and my mom (see above).

What, is something weird?

Oh well have a great weekend everybody!

Because I Don't Have a Wooden Heart.

"The Motion for protective order is GRANTED."

Special 3d DCA Watch -- Coffee-Swilling At Half-Mast Edition.

The always intrepid Julie Kay breaks the news of Judge Cope's resignation:

Third District Court of Appeal Judge Gerald Cope Jr. is leaving the bench after 22 years to return to private practice with Akerman Senterfitt, the law firm confirmed Wednesday.

Cope did not return calls for comment by deadline.

He practiced law with two Miami firms — Arky Freed Stearns Watson & Greer and Greer Homer Cope & Bonner — before being appointed to the bench by former Gov. Bob Martinez. He served as chief judge from 2005 to 2007 and has been retained in three merit elections.

We're happy for Judge Cope and wish him all the very best, but this is bad news for the rest of us, don't you think?

(I hope Judge Salter writes A LOT more opinions now.)

What's the Right Way to Cite "My Way"?

That's the urgent question posed by Judge Carnes to whichever clerk helped him write this opinion:

Allen was arrested in California three months later and brought back to Florida. During his first meeting with his appointed attorney, Allen set out the terms of their relationship. He said it was going to be “a Frank Sinatra case,” by which he meant they were going to conduct the case the way he wanted. Cf. Frank Sinatra, My Way (Reprise Records 1969). He told the attorney that “from start to finish on my case we [are] going to do it my way; not the way [you] thought or the way [the prosecutors] thought, we will do it my way because it is my case.” In the words of the song that served as his inspiration, Allen “planned each charted course, each careful step along the byway” of the defense, and when done he could say that he “saw it through without exemption,” and “I faced it all and I stood tall and did it my way.” Id.

As a loyal tipster points out, when your client uses this song to describe her lawsuit, you have a problem client.

In fact, I remember a client a few years back who told me "I better get a chaperon because she can't stop messin' with the danger zone."

I was somewhat unclear about what she meant, so if I recall correctly she clarified that "I won't worry, and I won't fret, ain't no law against it yet."

Still uncertain over her meaning, she then exclaimed -- quite delightfully as I look back in retrospect --"oop--she bop--she bop."

Does anyone know what she was talking about?

Cf. Cyndi Lauper, She Bop (Epic Records 1983).

3d DCA Watch -- Court Holds Nose, Reverses SJ.

".....we are constrained...."

Anytime you see that in a opinion, you know the judge is just seething at having to do something she really doesn't want to do and thinks is probably wrong.

So let's see whose nose is pinched in an uncomfortable manner this week in our world-famous, completely affectionate and surprisingly snark-free 3d DCA Watch:

Bradley v. Cooper:

The hardest working future judge I know, the Big Man himself, Miguel de la O, scores an impressive SJ reversal using that pesky thing known as the "laughably loosey-gooesy state court summary judgment standard":

On this state of the record, the trial court granted Defendants’ Motion to Prohibit Phillips’ Testimony, describing it as “a matter of bold face, on the record, lies.” We are hard-pressed to disagree with the trial court’s assessment of Phillips’ testimony. However, unaided as we are by the laudably less exacting federal summary judgment standard to which we might like to have access in this case, see e.g., Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-1480 (6th Cir. 1989) (discussing the “new era” in federal summary judgment jurisprudence where a trial court may summarily dispose of an action “[w]here the record taken as a whole could not lead a rational trier of fact to find” for the respondent) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)), we are constrained2 to reverse and remand this case for further proceedings.

I also like footnote two, which basically warns plaintiff's counsel on remand not to suborn perjury.

Special appellate advocacy award to whomever can correctly guess the author of this one.

Law Updates for July 9, 2010

Caldwell, 35 FLW 425, Fla. Supreme Court, Miranda. An officer's reading of Miranda during a otherwise consensual search does not always transfer the consensual encounter into an investigatory stop. Reading of Miranda may add to the coercive nature of the encounter sometimes and must be decided on a case by case basis. In this case does not convert the consensual encounter into a seizure. Def not seized before voluntarily entered a police vehicle; confession not a product of an illegal detention.

Gomez, 35 FLW 432, Fla. Supreme Court, Forefeiture, Probable Cause. Seizing property initially does not require that the owner knew, or should have known after reasonable inquiry, that property was employed or likely to be employed in criminal activity.

Tindall, 35 FLW 1449, 4th DCA, Error to adjudicate def guilty of two counts of aggravated kidnapping where charges were based on movement of child victims of sexual battery from front door of the house to a bedroom where the sexual battery occurred and victims were held in the room for as the long as the crime occurred and then released.

Hill, 35 FLW 1455, 3rd DCA, Consent-Investigatory stop. Where one ofc positioned his vehicle directly in front of the def and pointed the vehicle's spotlight on the def, another ofc approached def on foot in a manner that indicated a sense of urgency, and immediately thereafter two other officers joined at the scene. Investigatory stop and not a consensual encounter, no reasonable suspicion of criminal activity, def's consent to search during the stop while the ofc retained his license to run a warrants check was not voluntary.

Lowe, 35 FLW 1463, 5th DCA, Lewd and Lascivious exhibition. Def's actions of placing a dildo in his mouth in the presence of a seven year old child does not constitute sexual activity within the statutory definition. Definition of sexual activity in the statute does not include the simulation of oral sex with an object. Error to deny the motion to dismiss the information.

Downs, 35 FLW 1465, 5th DCA, Sexual Battery on a child, Uncharged crimes. Def was charged with digital penetration of a child. Error to admit evidence of later incidents in which the def came into the bathroom while the victim showered and touched her inappropriately. Not admissible that was inexplicably intertwined with charged crime when two years after the charged crime. Not admissible as separate crime or acts of child molestation where the def had not been given notice of evidence the State intended to offer.


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

Wife of Lawyer Fails to Arrange Birth Around Husband's Deposition Schedule.

Baby Motion

Since last we checked in on our favorite SD FL case, there have been about forty EMERGENCY MOTIONS TO EXPEDITE BRIEFING ON EMERGENCY MOTION FOR PROTECTIVE ORDER REGARDING AMENDED SCHEDULING ORDER or something like this.

But surely one of the best recent filings has to be this one where various depositions were all scheduled to be taken on July 13th:

The deposition of Mr. Strickland was scheduled to be and is to be taken by Hugh Morgan, Joe Klock was to defend the deposition of Mr. Brakenhoff, and Juan Carlos Antorcha was scheduled to take the deposition of Mr. Pennekamp, however this morning Mr. Antorcha's wife went into labor and subsequently delivered her baby.

The footnote at the end of this sentence is as follows:

Undersigned counsel had specifically asked Mrs. Antorcha over last weekend to arrange the delivery for Friday evening, July 16, after 6:00 P.M., but Ms. Carolina Antorcha, with whom counsel was unable to converse, apparently was unwilling to accommodate the request.

The nerve!

What the hail is wrong with Ms. Antorcha -- didn't she get the specific request from counsel to delay her labor until after 6:00 P.M. on Friday -- not a minute earlier -- but now it's all about Ms. Antorcha and her selfish "unwillingness" to accommodate a simple and very clear request to delay her child's birth to a date certain so her hubby can take an important deposition!!!

I am sick to death of women and their narcissistic, ill-timed "birthing" obsessions.

Love and mazel tov on the new addition,

Mel Gibstein.

(I realize the footnote is sarcasm....I hope?).

Aronberg Tars Gelber With "BP's Law Firm"

I've previously criticized my friend Dan Gelber's initial reaction over his firm Akerman getting all the BP Florida work.

Basically, when the news broke Dan did what lots of politicians do (he was joined by several other Akerman state legislators) -- he went into defense mode.

Specifically Gelber argued there was no conflict for two reasons I thought were pretty bogus:

1. He's "of counsel" (a contract lawyer) and therefore doesn't make any more money from the firm receiving the humongous BP business; and

2. The firm would build a "Chinese Wall" and isolate him from any BP work at Akerman.

As I detailed in my original post, both arguments and the conclusion (no conflict) are beyond weak, and to his credit Dan thought better of his initial reaction and left the firm shortly after making his initial comments on the matter.

Apparently, on the same day Dan announced his resignation, his opponent -- also my friend -- Dave Aronberg called for Dan to resign, leading to a predictable pissing match over who should get credit for Dan doing the right thing.

Now Dave has ratcheted it up with a flier that seems a bit over the top:

Aronberg, of Greenacres, recently began using the name of a defunct statewide Democratic group — the Florida Mainstream Democrats — to help raise money for his campaign.

And last week, Aronberg's campaign mailed Democratic voters a flier with a picture of an oily bird to attack Gelber, of Miami Beach, for working at the law firm retained by BP to handle its civil litigation in Florida.

State Rep. Rick Kriseman, the former chairman of Florida Mainstream Democrats, said he was "disappointed" Aronberg was using his group's name.

"It's misleading people," said Kriseman, who closed the political committee earlier this year after struggling to raise enough money.

He also is no fan of the BP ad for much the same reason. In a call that went to Democratic voters this weekend, Kriseman said he was "disappointed and frustrated that Dave Aronberg has sent out to Democratic voters mail pieces which are very misleading and are simply not true. Dan Gelber has been a leader in going after BP for the damage they have caused our communities."

The St. Petersburg Democrat said he had been neutral in the attorney general race, but decided to record the automated phone call for Gelber's campaign after he saw Aronberg's flier.

At least two other Democratic representatives, Luis Garcia of Miami Beach and Keith Fitzgerald of Sarasota, have lent their names to Gelber in opposition to the flier, which tells voters that 80 million gallons of oil gushed into the Gulf of Mexico before Gelber quit Akerman Senterfitt. It also refers to Gelber has having worked for "BP's law firm."

Ok, now it's Dave's turn for some criticism -- oily birds and "BP's law firm."

Dan might have reflexively defended his Akerman connection when the news first broke -- in fact I suggested Akerman might have thrown him under the bus to go after the BP business -- but days later Gelber did the right thing and it's time to move on.

The flier is beneath Dave's good judgment and I hope we never see another ad like it.

Like I always say, play nice kids!

Has the 11th Circuit Done Anything Interesting Lately?

Here I sit, half-watching Watchmen (hi Carla!) for the umpteenth time, as I reflect on the noble practice of law detailed in the NYT:

Collection law firms are able to handle such large volumes of cases because computer software automates much of their work. Typically, a debt buyer sends a law firm an electronic database that contains various data about consumers, including name, home address, the outstanding balance, the date of default and whether interest is still accruing on the account.

Once the data is obtained by a law firm, software like Collection-Master from a company called Commercial Legal Software can “take a file and run it through the entire legal system automatically,” including sending out collection letters, summonses and lawsuits, said Nicholas D. Arcaro, vice president for sales and marketing at the company.

No group has definitive statistics on debt collection lawsuits, but federal regulators, collection lawyers and judges say the numbers have increased and are straining the court system.

Does any part of that constitute the "practice of law"?

Indeed, if the entire lawsuit is automated, why even have judges?

Just let "Collection-Master" enter judgment and be done with it -- the taxpayer savings would be huge!

Meanwhile you can't find a file in the LA courthouse anymore because people like Lindsay Lohan and Mel Gibson have to do stupid things there (and then get caught):

With California $20 billion in debt, the Los Angeles court system has been forced to lay off more than 300 employees. These cutback come as the courtrooms are overflowing with celebrities. And many say our system of justice is being short changed.

"You're seeing hundreds of thousands of dollars, if not millions of dollars, just for the security when a celebrity comes in to court," Sax told ABC News

Dear LeBron: please don't get in any legal trouble.

Oh well, whenever I get depressed about the state of our state legal system (the intrepid one's interview with our Chief Justice is here), I always ask myself -- has the 11th Circuit done anything interesting lately?

Surprisingly, the answer is yes -- it reversed Judge Moreno in yet another HMO opinion.

The issue this time around has something to do with claim preclusion, res judicata, whatever you want to call it.

In fact, that's precisely the realpolitik formulation offered by Chief Judge Dubina:

In consideration of these goals, our circuit has used a variety of labels to describe the methods by which we judge the similarity of two causes of action. Compare NAACP v. Hunt, 891 F.2d 1555, 1561 (11th Cir. 1990) (noting that the “principle test” for comparing cases involves inquiry into the primary rights and duties implicated) with In re Atlanta Retail, Inc., 456 F.3d 1277, 1288 (11th Cir. 2006) (examining whether cases involve “the same nucleus of operative fact”) and In re Piper Aircraft, 244 F.3d at 1296–97 (noting that claims are the same “when they arise out of the same transaction or series of transactions”). Nothing in our jurisprudence suggests that any meaningful analytical difference derives from the label we affix to the method of comparison. See e.g., Ragsdale, 193 F.3d at 1239 & n.8 (concurrently reciting all three of the above labels in describing our comparative approach).

I love that, even though I think Judge Moreno was right -- who are we kidding, these claims are identical (cue prosecutor from My Cousin Vinny).

I wonder how "Collection-Master" would have ruled?

Does BP Dream of Electric Gene Stearns?

Charlie Crist thinks so:

The council recruited veteran Miami attorney Gene Stearns as an unpaid adviser. Stearns is a former aide to Democratic Gov. Reubin Askew and a champion of minority voting rights. It also recruited Dan Gerber, a Republican and a “toxic tort” expert who is a member of the conservative Federalist Society. Both are routine inhabitants of Florida Trend Magazine’s “Legal Elite.”

Ok, I have no problem adding Gene Stearns to any "legal dream team," and I happen to know and like Dan Gerber but first of all -- Dan's from Orlando.

Also, I wonder if there's any issue conflict at a minimum with some of Dan's writings or positions taken in the past with respect to the damage issues that will have to be sorted out before Special Master Feinberg?

Oh well, I'm sure they'll sort all that out.

Besides, what do I know?

Just like nearly everyone on these here intertubes, my strongly-held opinions are factually inaccurate and not especially subject to change, even when presented with direct proof that my "facts" are wrong.

(It's a self-esteem issue.)

Mel Gibson' Latest Rant -- You Forgot the Jews!

Sure Mel Gibson's latest rant is offensive -- deeply misogynist, violently demeaning and aggressive toward women, and don't forget patently racist -- but nothing about the Jews?

He must not have been drunk enough.

Enjoy the latest Mel Gibson rant remix here.

The Flamingo Kid -- A Classic Summer Movie.

THE FLAMINGO KID: Movie Trailer - The best bloopers are here

I recently re-watched The Flamingo Kid, a 1984 coming-of-age comedy starring Matt Dillon and the severely underrated Richard Crenna.

It's well worth another look.

Set in the "Mad Men" era of the summer of 1963, the nominal story concerns Matt Dillon's character Jeffrey Willis, a Brooklyn plumber's son who lucks into a summer job at a posh beach club out on Long Island.

There he falls under the spell of flashy auto king Phil Brody, memorably played by Richard Crenna as a seductive, wealthy overconfident Master of the World who in the end turns out to be a corrupt, lying swindler.

At the club Jeffrey romances the beautiful and very cultured Janet Jones and is taken under Brody's wing, which irks Jeffrey's hard-working father, again played memorably by Hector Elizondo.

In the sure hands of veteran director Gary Marshall, there's a lot more at work under the surface -- questions of father/son conflict, the emerging civil rights movement, class issues, and the essential inquiry of what path does a young boy take to become a man -- the high-flying though immoral "short cut" path taken by the brash Brody, or the modest, careful and unflinchingly honest path taken by Jeffrey's father.

Of course this is all hilariously played out against the backdrop of a summer long gin rummy game which culminates in all-day duel between Brody and Jeffrey (with Big Sid and the Captain as unfortunate victims).

Filled out by a tremendous cast of future young stars (Marisa Tomei, Fischer Stevens, Bronson Pinchot) and Garry Marshall regulars, the film is a charming, funny slice of life that deserves a second chance.

STL, back to you my friend.

Law Update for July 2, 2010

Gonzalez and Garcia, 35 FLW 1402, 2nd DCA, Search warrant - Facts as alleged in pc affidavit, which reference uncorroborated tip that the def's were allegedly growing marijuana and selling cocaine, failed to demonstrate reasonable probability that contraband would be found in the residence at the time the warrant was issued. Info contained in the tip was received more than 3 months before warrant issued was stale. Def possession of one gram of cocaine on her person during a traffic stop did not suggest a fair probability that the def was selling cocaine from her home. Good faith exception to warrant requirement does not apply where objectively reasonable officer would have known affidavit was insufficient to establish probable cause.


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

Roger P. Foley Named Legal Elite by Florida Trend Magazine

FOR IMMEDIATE RELEASE:

Roger P. Foley Named Legal Elite by Florida Trend Magazine

Fort Lauderdale, Florida - July 8, 2010 – The Law Offices of Roger P. Foley, P.A. is pleased to announce that Mr. Roger P. Foley has been named to Florida Trend magazine's 2010 Legal Elite list which recognizes the top tier of attorneys practicing in Florida as chosen by their colleagues.

Balloting for this year’s list began in October 2009, when Florida Trend invited all in-state members of The Florida Bar to participate. Announcements in The Florida Bar News publicized the ballot deadline and voting guidelines. Lawyers were asked to name attorneys whom they hold in the highest regard or would recommend to others.

The ballots were processed, checked and tabulated by Bradenton-based Outsource America and Suncoast Opinion Surveys in St. Petersburg. Each lawyer was given a score based on the number of votes received: one point for votes from within their firm or three points for votes from outside their firm. Only lawyers who are currently licensed and practicing in Florida were eligible for selection.

The list of top vote recipients was further examined using membership status and histories provided by The Florida Bar. A panel of previous Legal Elite winners, representing different practice areas in cities across the state, reviewed the selection process and the list of finalists.

The Legal Elite Award is given to less than 2% of the active, practicing lawyers in the State of Florida.

Contact:
Arthur James
arthur@rpfoley.com
Law Offices of Roger P. Foley, P.A.
524 South Andrews Avenue, Suite 200N
Fort Lauderdale, Florida 33301
Ph 954-467-2946

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