We find nothing particularly unique in a restaurant fixing its name in red letters on the outside of its building and on its menu, branding items it sells with that name, dressing its staff in khakis and a polo shirt, featuring a center bar with a soffit, offering seating at “high-top” tables, and paneling its walls with wood. These are the prototypical features—what we might call the “common . . . design,” Brooks Shoe, 716 F.2d at 858—of a standard sports bar or brew pub. The particular name affixed on the wall and to menu items, the specific color of the polo shirts, the type of wood on the walls, the placement of the “high-top” tables, and the openness of the kitchen,14 “even if they in combination could be deemed unique,” Wiley v. American Greetings Corp., 762 F.2d 139, 142 (1st Cir. 1985), are all “mere refinement[s]” of this “commonly-adopted and well-known form of ornamentation.”What, no bibs and buttons?
As we have previously held, “[t]here is . . . a strong public policy favoring arbitration. ‘All questions concerning the scope or waiver of the right to arbitrate under contracts should be resolved in favor of arbitration rather than against it.’” Zager Plumbing, Inc. v. JPI Nat’l Constr., Inc., 785 So. 2d 660, 662 (Fla. 3d DCA 2001) (internal citations omitted). The appellants filed their demand for arbitration before filing their motion to transfer. Moreover, the motion to transfer, while specifically referencing the Iberia Lawsuits, did so, on its face, to advise the trial court of the pending demand for arbitration and for the logical purpose of ensuring that in the event the pending litigation cases were transferred to the same division, any potential arbitration award be adopted by trial judge ultimately presiding over the other cases. This is simply insufficient to constitute a waiver of the right to arbitrate.Vorbeck v. Betancourt:
Although it is admitted that the defendant-appellant, Universal Music Venezuela, S.A., has no agents or employees and does no business itself in Florida, the plaintiff claims, and the trial judge apparently agreed, that personal jurisdiction may be asserted against it here because of the activities of an affiliated, but entirely separate corporation, Universal Music Latino, which, under a contract with the appellant, does distribute its products in this state. Because, however, there is no evidence that the appellant in any way controlled or directed the operations of Universal Music Latino, this claim may not be sustained.Chase v. Sosa:
We have no doubt the trial court’s motivation in reaching its decision was inspired by benevolence and compassion for the family. We also are mindful that in equity jurisdiction there is some play in the joints. John Crescent, Inc., 382 So. 2d at 386. However, as we recently have said, “[a] trial court is not free to refuse to follow the law because of some personal disinclination or otherwise.”Excessive empathy?
Plaintiff-Appellant Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta (Plaintiff Order) is a religious order of the Roman Catholic Church that undertakes charitable work internationally. Defendant-Appellee The Florida Priory of the Knights Hospitallers of the Sovereign Order of Saint John of Jerusalem, Knights of Malta, The Ecumenical Order (The Florida Priory) is also a charitable organization, having an expressly ecumenical, rather than Catholic, association.Then there's the factual history, recounted like it came from a Dan Brown novel:
According to these witnesses, Plaintiff Order was founded in Jerusalem in the eleventh century. (D.E. 144, 37:11–12.) It relocated to the City of Acre and later to the island of Rhodes, where it was known as the Knights of Rhodes. (Id. at 37:12–16.) After spending about two hundred years on the island of Rhodes, the group located in Malta (becoming the Order of Malta), which had been ceded for the Order’s use by Emperor Charles V. (Id. at 37:16–18.).....Around 1797 or 1798, the Order of Malta was suffering financial hardship and sought monetary support from Czar Paul I of Russia. (Id. at 108:20–109:3.) Two knights went to Russia seeking to obtain the property of the former Polish priory, and out of this visit came an agreement to create a Catholic-affiliated Russian priory. (Id. at 110:25–111:9.)Ok, I've had enough.
In 1798, Napoleon expelled the Order of Malta and its knights from the island of Malta, and the organization relocated to present-day Italy. (D.E. 144, 37:17–19; D.E. 145, 111:13–25.)2 The Order of Malta’s Grand Master at the time, Ferdinand von Hompesch zu Bolheim, wrote to Czar Paul I for support after this expulsion. (D.E. 145, 111:12–18.) Czar Paul I, in response to the request for assistance and “for reasons best known to himself,” created a non-Catholic order for the non-Catholic members of his court. (Id. at 112:6–10.) What happened next forms the crux of both parties’ historical arguments.
After this Court’s consideration of all of the issues presented on appeal, we conclude the complained of errors cumulatively rose to the level where they permeated the entire trial and were fundamental so as to deprive the appellee, Dr. Uribe, of a fair trial. We therefore do not find that the trial judge abused his discretion by ordering a new trial.OJ's effort to have Genden removed was denied as well.
Due to the procedural importance of the response(s) at issue, denying Defendants’ Motion for Enlargement of Time to Answer or Response to Plaintiff’s Second Amended seems Draconian in this complex matter. However, a reasonable person, let alone an officer of the court, must understand why it troubles me to grant any further extension to the Defendants. It should go without saying, but in this instance requires stating that a court-imposed deadline is an event of significance in a litigator’s life. It cannot and should not be disregarded in favor of vacation or minor hurdles. Justice Joseph Story cautioned all attorneys, “I will not say with Lord Hale, that the Law will admit of no rival ... but I will say that it is a jealous mistress, and requires a long and constant courtship. It is not to be won by trifling favors, but by lavish homage.”2She's right -- if you know you need more time, why wait until the last day to seek an enlargement?
Counsel for Defendant Cypress states that upon return to his office following a twelve-day vacation, he learned that his Westlaw service was not operational. This explanation for failure to comply with a court order remains unclear. Defendant Cypress is represented by two distinct attorneys working from two separate offices in two separate locations. Was Westlaw down for both attorneys? Was neither attorney able to use the legal research resources of co-Defendants’ counsel with whom they made an agreement to spearhead the drafting of the response to Plaintiff’s Second Amended Complaint?Oh boy.
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Although the Second Amended Complaint is longer, it suffers from the same defect that warranted this Court’s October 10 Order. Despite listing hundreds of invoices purporting to identify legal services rendered to the Tribe, juxtaposed with a litany of Lewis and Tein’s alleged household purchases, the Second Amended Complaint does not identify a single incident of purported fraud. The allegations do not provide any basis upon which Lewis or Tein can defend themselves. Furthermore, because the Court has already given the Tribe the opportunity to allege their RICO claim with the requisite particularity, there is no basis for giving the Tribe yet another opportunity. Simply stated, if the Tribe had the ability to advance a claim for fraud or RICO, it would have done so. The Court should dismiss this case with prejudice as to Lewis Tein.Listen, it's very hard to properly plead a RICO claim even when you have fantastic facts and evidence.
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“This was a sensitive case which involved historic facts and many moving parts. The legacy of a great man and a great family were at stake. Fortunately, we were able to come up with a settlement which was amenable to the family members involved,” said Santucci. “From what I learned about Bob Marley and his intentions, he would be happy with our recent achievements, especially the peace brought to the family,” said Santucci.And so does Rihanna!
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Although these six employees may well be able to provide relevant information (or information likely to lead to admissible evidence), the Court nonetheless cannot compel Plaintiff to produce them for deposition. Only a party to the litigation may be compelled to give deposition testimony pursuant to a notice of deposition. If the party is a corporation, it’s deposition may be noticed pursuant to Federal Rule of Civil Procedure 30(b)(6), in which case the corporation must designate an individual to testify as the corporate representative. Alternatively, the party seeking a corporate deposition may identify a specific officer, director, or managing agent to be deposed and notice that individual under Federal Rule of Civil Procedure 30(b)(1). But, a corporate employee who does not qualify as an officer, director, or managing agent is not subject to deposition by notice.How about that?
The Second District Court ruled yesterday in Weissman v. Weissman, granting in part the Petitioner’s Petition for Writ of Certiorari regarding the lower court’s emergency ex parte order which denied him all timesharing for a period of 90 days. The Court ruled that, while extraordinary circumstances justified the remainder of the lower court’s emergency order, there were no such circumstances justifying a denial of timesharing, and more importantly there was absolutely no notice allowed to the Petitioner prior to the ruling on that point. As a result of that denial of procedural due process to the Petitioner, the Court granted cert as to that issue, and quashed the no-contact provision of the order.
The First District Court of Appeal ruled Monday in Therriault v. Therriault, first affirming the lower court’s award of permanent alimony despite the “moderate” term of the marriage. However, the First District was compelled to reverse the award of life insurance as security for that alimony in that the lower court failed to make the requisite findings regarding availability and cost of the insurance, ability to pay by the former husband, and the special circumstances warranting security for the support award, such as a spouse in poor health, one in arrears, or the like.
I would deny the petition for a writ of certiorari on the ground that the petitioners have not met their burden of showing irreparable injury.Finally, RIP dear Mr. Shankar.
Appellants brought this action for declaratory and injunctive relief on the ground that the RNC’s delegate-reduction penalty violates the Equal Protection Clause of the Constitution, as well as 42 U.S.C. § 1983 and Section Two of the Voting Rights Act, 42 U.S.C. § 1973.2 Appellants allege that the RNC’s rules “underenfranchise[]” Hispanic Republican voters, because they allow early voting states—namely, Iowa, New Hampshire, South Carolina and Nevada— with comparatively small percentages of Republican Hispanic voters to skew the debate toward the interests of those states’ dominant demographics. As a result of the influence the RNC’s rules bestow on those states, Appellants contend that presidential candidates adopt positions contrary to those of Hispanic voters.Naah, the GOP just loves Hispanic voters!
In sum, because Appellants have not shown RNC is a state actor, the district court did not err in dismissing their complaint for failure to state a cause of action. Therefore, we affirm the district court’s grant of Preibus’s Rule 12(b)(6) motion to dismiss for failure to state a claim.Unleash the Rubio!
Ms. Centorino certifies that she is a member in good standing of the Florida state bar but not a member of the bar of this Court. D.E. 41 at 4. However, the Court notes that Ms. Centorino also resides and practices within this District. Rule 4 of the Special Rules Governing the Admission and Practice of Attorneys before this Court specifically provide that “[a]ttorneys residing and practicing within this District are expected to be members of the bar of this Court.” Ms. Centorino has not demonstrated why the Court should depart from this rule in her case, and therefore, the Court DENIES her pro hac vice motion.Hmm, but what if your practice is limited to state court and you only appear in federal court infrequently?
Appellant 907 Whitehead Street, Inc., d/b/a Ernest Hemingway Home and Museum (“the Museum”), appeals the district court’s post-trial order denying the Museum declaratory and injunctive relief. The Museum challenges the jurisdiction of the U.S. Department of Agriculture and its Animal and Plant Health Inspection Service (collectively the “USDA”) to regulate the Museum as an animal exhibitor under the Animal Welfare Act (“AWA”), 7 U.S.C. § 2131 et seq. The district court concluded that the Museum is indeed subject to the USDA’s regulatory reach pursuant to the AWA. After considering the parties’ arguments and having the benefit of oral argument, we agree with the district court’s findings of fact and conclusions of law and hold that the Museum is an AWA animal exhibitor subject to USDA regulation.Here's an example of the findings relied on by the district court and affirmed by the 11th:
The Museum has always kept, fed, and provided weekly veterinary care for the Hemingway cats. The cats live and roam freely on the grounds that are enclosed by a brick fence at the property’s perimeter. To prevent population beyond the historical norm of 50–60 cats, the majority of the cats are spayed or neutered so that only a couple of cats of each sex are reproductive. At the time of the district court’s bench trial, the Museum had 44 Hemingway cats.Ok, thank God I don't charge admission to my house, or else the dogs and hamster would definitely subject me to USDA regulation.
No Hemingway cat has ever been bought or sold, although some cats have been given away at various times.2 However, the Museum charges admission for a tour of the property, and the tour includes seeing and discussing the roaming Hemingway cats.
Notwithstanding our holding, we appreciate the Museum’s somewhat unique situation, and we sympathize with its frustration. Nevertheless, it is not the court’s role to evaluate the wisdom of federal regulations implemented according to the powers constitutionally vested in Congress.Indeed.
When apt-named Galleon1 first set out to develop its property, it could not have possibly imagined the tumultuous seas it would encounter in the decades that followed. While galleons have not been spotted on our shores since the Eighteenth Century, this is our Court’s seventh encounter with this case.The Judge went full Carnes!
The closest Plaintiffs come to making a specific allegation that something traveled from Pratt & Whitney to the Acreage is in Paragraphs 236 and 238, but those fall short of the mark. Plaintiffs allege that Pratt & Whitney and The Acreage “are underlain by” the same aquifer, and that “groundwater is drawn” from the Corbett Wildlife Management Area and Pratt & Whitney to the Acreage. Complaint, ¶236. Plaintiffs then allege that their experts:YUM -- time to bottle and sell that delicious vaguely contaminated Acreage water!confirm that the types of CCOCs . . . known to have been spilled . . . at the P&W site and by Pratt & Whitney in the Corbett National Wildlife Refuge [sic] have traveled to and physically invaded The Acreage, and are present in the groundwater of The Acreage Neighborhood and have contaminated the groundwater that the Plaintiffs’ and class members’ properties share with [THMs].Sec. Am. Compl., ¶238. This allegation superficially appears specific, but is yet another generalized allegation that the “types of CCOCs” found at Pratt & Whitney traveled to somewhere under “The Acreage”—as opposed to under each Plaintiff’s property—and that these types of CCOCs “are present” in “the groundwater of The Acreage Neighborhood.” The mere allegation that chemicals at Pratt & Whitney “are present” in the groundwater of “the Acreage” does not mean that the chemical traveled from Pratt & Whitney to the Acreage, as any chemical in the Acreage could have come from a different source than Pratt & Whitney.
“We respectfully disagree,” he said. Contrary to Ryskamp’s ruling, Zobel said, he submitted thousands of pages of records linking Pratt & Whitney to the cancer cluster. He hired an appraiser, who reviewed all 17,000 pieces of land and methodically showed how property values plunged. He hired hydrologists to track how toxins moved through underground water supplies. He hired urologists and toxicologists who linked Magaly Pinares’ kidney cancer to the toxins found in her well.But how much of it was in the second amended complaint?
“We had a wealth of data,” he said.
“The format of the lawsuit reflects an effort to extort money from us,” Bass said. “Our shareholder agreement has an arbitration clause that she is well aware of and instead she chose to file a class action in federal court.” Bass said even if the case ends up in court, she believes it will be an individual lawsuit rather than a class action.The "format" of the lawsuit -- what an unusual word choice.
The suit alleges that Lehr, regional operating shareholder in charge of Philadelphia, told Griesing at one point that only “tall, male and Jewish GT lawyers generate business” and that there is “no formula” for compensation and that it is entirely subjective, commenting that female shareholders are “lucky” to get paid as much as they do."Tall, male and Jewish" -- just like Cesar Alvarez!
Plaintiffs allege Chapman is liable for Curbelo Garcia and Perdomo’s prolonged arbitrary detentions and torture, not because Chapman was personally involved in detaining or torturing Plaintiffs, but because he provided the Cuban government with the false accusations in the first instance. This furnishing of false accusations, Plaintiffs allege, was part of a conspiracy between Chapman and the Cuban government that Chapman entered into on the day he met Raul Castro. (See id. ¶¶ 301–10). When Chapman agreed to the conspiracy, he became part of a pervasive “snitch network of athletes.” (Id. ¶ 216). This network included “athletes in every team in Cuba,” and was so widespread that “[t]here was a special unit of security officials that were in charge of connecting directly with the athletes to seek out reliable informants.” (Aff. of Gregorio Miguel Calleiro (“Calleiro Aff.”) ¶¶ 8–9 [ECF No. 48-5]). Athletes who voluntarily became government informants reported “suspicious” behavior to their individual handlers in the Department of State Security (“DCSE”). (Id. ¶¶ 10–12; see Am. Compl. ¶ 216). In return for providing “actionable information for the state,” the informants received benefits from the Cuban government, such as the ability to travel with a national team. (Calleiro Aff. ¶ 14). Chapman sought the opportunity to travel with the National Baseball Team as a means of defecting. (See Am. Compl. ¶¶ 218, 221).The Court denied the motion to dismiss and the case is proceeding.
Bob Dylan’s recognition that “[b]ehind every beautiful thing there’s been some kind of pain” 1 might seem painfully ironic to Amber Wright. Her quest for what she deemed to be more beautiful hair allegedly led not just to pain but also to emotional “scars that the sun didn’t heal,”2 all of which led to this lawsuit. Wright filed this products liability action under Georgia law alleging that a hair bleaching product manufactured by Farouk Systems burned her scalp, causing her to suffer physical, mental, and emotional pain. She claims that the product—colorfully named “Blondest Blonde”—is defective because it contains isolated areas of high reactivity, called “hot spots,” that can lead to burning of the scalp. She also claims that Farouk failed to adequately warn users of the product of the risk that burns can result if the product touches the scalp. The district court granted Farouk’s motion for summary judgment on all of Wright’s claims, and this is her appeal.Note to Magistrate Judge Goodman -- here's the clean and lean way the Judge cites the Dyl-Bard:
1 Bob Dylan, “Not Dark Yet,” on Time Out of Mind (Sony Records 1997).See, that's all you need!
2 Id.
I can tell you fancy, I can tell you plain
You give something up for everything you gain
Since every pleasure's got an edge of pain
Pay for your ticket and don't complain
It is undisputed that the establishment is well-lit, with regular and neon lighting throughout the store; there were sixteen cameras in operation at the time of the assault (some of the cameras record continuously, twenty-four hours a day, while others record when triggered by a motion sensor); there were signs inside the store informing patrons that they were being videotaped by cameras on the premises; the store utilized “drop safes” to limit the cash being held in the registers to an amount of less than $200; the sales clerks were able to view twelve of the sixteen cameras simultaneously via a monitor from a slightly elevated platform that also provided greater visibility of the store and its patrons; there was only one door (except for an emergency exit) which was locked; and patrons were only able to enter if the sales clerk “buzzed” them in. The store also contained several alarm systems, including a perimeter alarm, a fire alarm, a burglar alarm, police alarms, and panic alarms that could be triggered by pressing a fixed alarm button or activated remotely.What does it say about us as a society that a local porn shop needs to go to these lengths to keep their employees safe?
I also disagree with the majority’s decision to affirm on grounds not relied on by the trial court or argued on appeal—that the statute of frauds, section 687.0304(2), Florida Statutes (2012), requires that “an agreement to lend or forbear repayment of money . . . , to otherwise extend credit, or to make any formal financial accommodation” must be in writing. Because this issue was not relied on below, nor argued on appeal, we are in no position to consider the merits of such an argument, especially since the loan modification offered by Deutsche Bank was in writing, and was accepted by and executed by the Vargases, and the posture of the proceedings was a motion by the Vargases to compel Deutsche Bank to execute the agreement it allegedly agreed to honor.Aren't there some rules about deciding on grounds no relied on below or argued on appeal?
From the record before us, it appears counsel for Mortgage Bankers first appeared below at a hearing on Castelo’s motion for reconsideration of the order vacating the foreclosure sale. At the outset of the hearing, counsel for Mortgage Bankers identified himself, but stated he was “not appearing as part of this litigation.” However, unable to contain himself, counsel took the bait from Castelo’s counsel, who, near the end of the hour-and-ten-minute-long hearing, asked the court to give Mortgage Bankers’ counsel “two minutes.” Counsel then jumped directly into the fray. We believe this act comprised an abandonment of any prior position he had articulated and constituted a general appearance by Mortgage Bankers.Judge Shepherd's opinion brings to mind the old adage: Better to remain silent and be thought a fool than to speak and to remove all doubt.
