Was Baseball Star Aroldis Chapman a Cuban Spy?

Those are the blockbuster allegations in this suit pending before Judge Altonaga.

Chapman, a pitcher for the Cincinnati Reds, is accused of some pretty outrageous things.

According to the complaint, as summarized by Judge Altonaga:

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.

Chapman is represented locally by Manny Garcia-Linares of Richman Greer.

Oh Boy -- Judge Carnes Is at It Again!

Much digital ink has been spilled on this old-and-in-the-way blawg about Judge Carne's propensity for opening paragraph storytelling, analogy or metaphor -- usually invoking a song, cultural or historical reference.

This time I have to believe he's speaking directly to me:

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).
2 Id.

See, that's all you need!

BTW, I figured he would have went with "Silvio," from Down in the Groove (Columbia 1988):

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

3d DCA Watch -- Conform or Be Cast Out!

Hi kids, perhaps it was a bad batch of Thanksgiving stuffing, but this week the bunker-dwellers are a decidedly disagreeable bunch.

Four civil opinions, and half are dissents.

The first one involves a terrible crime committed at The Naked Truth, and whether or not the establishment provided negligent security.

Here in dissent is Judge Rothenberg's description of the security in place at this "pleasure emporium":

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?

The second one involves a purported oral loan modification that occurred "in open court" after a foreclosure judgment.

Judge Rothenberg thinks there is a slight problem with the majority opinion:

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?

In other news, Marc Randazza speaks out on Judge Leesfield's preliminary injunction banning his client, a formerly anonymous blogger, from publishing future defamatory blog posts about a local developer.

What are the odds that order will stand up on appeal?

Spencer Aronfeld and the Perils of Bounce Houses!

Just what kind of parent are you?

Do you want your kid's birthday party to end in unmitigated tragedy?

Take a look:

First of all, this seems like extreme niche marketing -- would someone whose child was injured in a bounce house accident easily find this video on YouTube?

Maybe Spence is Google-optimized!

Secondly, based on concerns properly raised by Spence, I've taken steps to ensure my child's next birthday party is safe and accident-free:

1.  I've removed all plastic cutlery, cups, plates and other choking hazards such as food or cake;
2.  Balloons have been replaced with inflated safety gloves;
3.  To prevent risk to others, no children or parents are permitted to attend; and
4.  I've locked my child in a windowless, empty room for the duration of the party.

Happy Birthday Timmy!!!!

3d DCA Watch -- Post Turkey Day Edition!

Welcome back!

I hope everyone watched football, got soused, gorged on roast beast, fought with their relatives, and then immediately headed to Wal-Mart where they got in a shooting match over a parking space.

Isn't that the true meaning of Thanksgiving?

Meanwhile the wheels of justice grind on, and we dutifully bring you this belated 3d DCA Watch featuring a case that, if the Court adopted the appellant's position, would "shake the foundation of the Rules of Appellate Procedure."

Castelo Dev. v. Rawls:

Note to counsel not a party who happens to be monitoring a hearing:  shut up.

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.

And how was your extended weekend?

Denial of Injunction Modification Reversed by Fourth

The Fourth District Court of Appeal ruled yesterday in Lotridge v. Lobasso, a case in which the Appellant sought to modify a final judgment of injunction based on changed circumstances, and the request was denied without a hearing.  The Fourth reversed and remanded for a hearing to be held, where the Appellant is entitled to a “meaningful opportunity to be heard” pursuant to Colarusso v. Lupetin, 28 So.3d 238 (4th DCA 2010).

Fourth District Reverses Prevailing Party Fee Award

The Fourth District Court of Appeal ruled yesterday in Miller v. Miller, a case in which the Appellant raised seven different reasons why an order granting attorneys’ fees to the Appellee should be reversed.  The Fourth District found merit in the first argument raised, which was that it was error for the Court to grant prevailing party fees under the Marital Settlement Agreement for a modification, when the prevailing party clause was self-limiting to enforcement actions.  The Appellee argued that his action for modification was inextricably intertwined with the Appellant’s simultaneous contempt action.  Citing Wendel v. Wendel, 852 So.2d 277, 282 (Fla. 2d DCA 2003), the Court found that contractual fee provisions are required to be strictly construed, and as such found that the plain language of the agreement prevented an award of fees for a modification action.  The Appellee’s claim of intertwined issues was rejected because the work on the contempt and enforcement were not indistinguishable from each other, pursuant to Franzen v. Lacuna Golf Ltd. P’ship, 717 So.2d 1090, 1093 (Fla. 4th DCA 1998).  On remand the trial court was mandated to vacate the fee award.

Happy Turkey Day!

Enjoy the holiday and see you on the other side!

Sex Toys and Insurance!

Those two things don't usually go together, but they apparently do at Citizens Insurance, your friendly neighborhood bilker of last resort.

The stuff about an employee running a sex toy business out of the company offices doesn't bother me -- who hasn't had that happen with clerical staff?

I did find this part about unnamed law firms allegedly getting paid millions to whitewash internal investigations to be interesting:

Some of the more embarrassing allegations against top executives at Citizens were outsourced to private law firms to investigate.

Repeatedly, those law firms found that the allegations against the executives were "unsubstantiated."
But when OCI went back to review the external investigations, it found cases where the law firms had been less than thorough in their probes, perhaps shielding executives from full scrutiny.

In one case, Citizens brought in an outside law firm to investigate an anonymous tip that Murphy, the Chief Administration Officer, had been misrepresenting herself as a lawyer for years. While the law firm determined the allegation to be "unsubstantiated," a later probe by the Office of Corporate Integrity found that the law firm failed to include relevant information. After OCI unveiled documents showing that Murphy--who is not a member of the Florida Bar--had identified herself as "corporate counsel," and "attorney" at Citizens, she resigned abruptly.

OCI found that Citizens paid more than $2.4 million to external law firms handling investigations into employee misconduct that ranged from drunken misconduct during company retreats to sexual harassment.

In 92 percent of the cases investigated by outside law firms, the allegations were determined to be "unsubstantiated." For comparison, Citizens' Office of Corporate Integrity found only 48 percent of the allegations it investigated were without merit.

Spill the (mung) beans -- who are the law firms?

Score One for Alan Kluger!

 
As you know, we have been covering the case between Alan Kluger and Marc Randazza over an anonymous blogger and her dispute with a wealthy local developer.

Carlos Miller and Random Pixels have been writing about the controversy as well.

In the state court action before Judge Leesfield (there is also federal litigation before Judge King), Alan won a big victory for his client:  an expansive preliminary injunction order that purports to enjoin "defamatory" blogging, stalking and tortious interference.

Although the Court notes that she made no findings of fact and that a trial on the defamation claim will be held in the future, Judge Leesfield nonetheless ordered the defendant "not to enter defamatory blogs in the future."

Question -- how will the defendant know in advance whether a blog entry is possibly defamatory or not?

Over to you, 3d DCA!

Between the Wars: 11th Circuit Affirms Judge Altonaga on German Inter-War Bonds!

It must be interesting to be a federal judge because you never know what kind of case you'll be assigned.

Sure you have the dreary sentencing stuff, the cookie-cutter FLSA cases etc., but sometimes something really different comes along.

Like this case involving the enforceability of German bonds issued between the First and Second World Wars.

You want complicated?

Take a gander at the statutes, treaties, and protocols involved in this baby:

These appeals present questions of subject matter jurisdiction under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602–1611, and the interpretation of three post-World War II treaties: the Agreement on German External Debts, Feb. 27, 1953, 4 U.S.T. 443, 333 U.N.T.S. 3, also known as the London Debt Agreement; the Agreement Between the Government of the United States of America and the Government of the Federal Republic of Germany Regarding the Validation of Dollar Bonds of German Issue, U.S.-Fed. Republic of Ger., Feb. 27, 1953, 4 U.S.T. 797, also known as the 1953 Validation Procedures Treaty; and the Agreement Between the United States of America and the Federal Republic of Germany Regarding Certain Matters Arising from the Validation of German Bonds, U.S.-Fed. Republic of Ger., Apr. 1, 1953, 4 U.S.T. 885, also known as the 1953 Validation Treaty.

Ahh yes, the "1953 Validation Treaty" -- wasn't that on our Florida Bar exam?

BTW, teaching your young son obscure Al Stewart songs on the piano -- now that's good parenting:

Lewis Tein RICO Suit Update: Somebody Got "Disemboweled"; Also Martians in Spaceships!

How many pithy quotes can Paul Calli manage to wedge into John Pacenti's latest on the Miccosukee Tribe v. Lewis Tein matter?

And the hits just keep on coming:

"Jasper Nelson's deposition disembowels the tribe's wild accusations and lawsuits," Calli said.

A most unpleasant image!

And this:

"Two things are missing from the tribe's fantastical conspiracy story: one is Martians from outer space delivering the secret conspiracy plans on a flying saucer. The second, as Jasper Nelson affirms, is truth," Calli said.

But I see the Tribe has just filed a second amended complaint -- someone tell me where all the Martian allegations are.

First District Reverses Permanent Alimony Award

The First District Court of Appeal has been the first Court to enforce some of the new alimony language in Florida Statute 61.08 today, in its ruling in Margaretten v. Margaretten.  Under that statute, an award of permanent periodic alimony now requires the lower court to find that no other form of alimony would satisfy before awarding permanent alimony.  The Former Wife argued that this finding was implicit in the other rulings made.  The First District rejected this claim, and in fact pointed out that some of the factors cited by the trial court would appear to support a durational award.  As such, on remand, if the trial court again orders permanent alimony, it has been mandated to first exclude all other types of alimony.

First District Court Reverses Rejection of MSA

In Colley v. Colley, the lower court issued a Final Judgment of Dissolution of Marriage which set aside the parties’ Marital Settlement Agreement as vague and in part violating public policy.  On review, the First District agreed with the former wife that there was no showing of fraud, and that any vagueness in the agreement could be solved by the Court’s interpretation.  Likewise, if part of the agreement violates public policy, only that part could be declared invalid.  Because the failure of the agreement to resolve every issue is not a reason, according to the First District, to invalidate the entire MSA, reversal was required with the Court instructed to apply the agreement as valid.

Fifth District Court Reverses Permanent Injunction

In the case of Ricks v. Dodier, the lower court issued a Final Judgment of Injunction for Protection Against Domestic Violence based on the entry of a stipulation and without a full evidentiary hearing.  On appeal, the Fifth District Court of Appeal determined that the stipulation in fact only provided for the extension of the temporary injunction previously entered.  As such, reversal was required.

Fifth District Reverses Insufficient Modification

The Fifth District Court of Appeal reversed today in Scott v. Scott, finding that the downward modification of alimony granted to the Former Husband was insufficient.  The Former Husband had suffered two heart attacks and a significant reduction in income, but the lower court clearly took issue with some of the expenses listed in the Former Husband’s financial affidavit, including a $500.00 per month gas expense despite having no automobile or employment, and as a result reduced a $700.00 per month alimony payment to $500.00 per month.  On review, the Fifth District found that, even without the expenses which the lower court appeared skeptical of, the Former Husband’s other expenses still do not permit him to pay $500.00 per month.  On remand the lower court is to further reduce the obligation to a level both parties can meet their needs upon.

Fifth District Reverses Final Judgment

The Fifth District Court of Appeal reversed today in Hernandez v. Hernandez, both as to equitable distribution and as to alimony.  First, while it was argued that the Court erred in using the tax assessor’s value for the value of one parcel of real property, the Fifth District found that, in fact, the lower court had first reviewed each party’s position as to value, and then found that the assessed value was within the range, and therefore closest to fair market.  However, the lower court was reversed for failing to identify, value, and deduct from the value of real property an existing bridge loan.  Finally, while the lower court was within its discretion to award alimony to the Wife, the Fifth District found that the award was made based on an incorrect and out of date financial affidavit for the Wife.  As such, on remand, the lower court was instructed to make the determination again based on the more accurate affidavit.

Carlos Loumiet in Cross-Hairs Again.

After successfully beating the OCC and suing for $4 million in damages, Carlos Loumiet (now at DLA Piper) finds himself the subject of a suit by the receiver overseeing the R. Allen Stanford Ponzi scheme:

"As a partner at Greenberg Traurig and then Hunton & Williams, Carlos Loumiet helped design the basic architecture of the Ponzi scheme by helping Stanford establish and operate unlicensed foreign bank offices in the U.S. and essentially hijacking the sovereign island nation of Antigua through the use of political corruption, loans made with funds stolen from Stanford's investors, and even writing the laws that governed Stanford International Bank's operations," said plaintiff attorney Ed Snyder, who filed the complaint, in a prepared statement.

Denies impropriety

Loumiet denied any wrongdoing.

"I can say that I have never in my long career knowingly helped any client commit any wrongdoing," Loumiet said in a prepared statement. "I have never represented anyone that I knew was engaged in wrongdoing. And after years of investigations by the federal government and months of trials involving Allen Stanford and his codefendants, I have not been implicated in any wrongdoing."

Likewise, the two named law firms said they had no idea what was going on. Hunton & Williams called the suit "factually and legally baseless and an overreach by Stanford Financial Group's understandably frustrated investors."

The attorney for Greenberg Traurig, Jim Cowles, said the lawsuit is just one more in a series of legal actions intended to "pry open a deep pocket" in order to compensate victims.

More allegations from the suit here.

If Carlos beats this one too, he'll be keeping my friend Andres Rivero plenty busy.

In other news, Spencer Aronfeld speaks through an old Campbell's soup can about the recent Lawyers to the Rescue Hurricane Sandy fundraiser:

Spence -- hire a sound guy!

Florida Supreme Court Clarifies Scope of Non-Final Review!

First off, congrats to Judge Thomas for his nomination as a federal judge in the SD FL.

A great pick!

And here's Senator Leahy on the clogged federal judicial nomination process:

If we do not find a solution to both the vacancy crisis and the threat to judicial resources, it will be harder for Americans to obtain justice in our Federal courts.  Our courts are already overburdened, and the sequester will result in cuts that will force courts to hear fewer cases, which means that court proceedings will be delayed even longer.  This will be especially damaging in civil cases, where there are already over 40,000 cases that have been pending for more than three years.  Sequestration cuts could even result in the suspension of civil jury trials.  Even more alarming, is what is at stake in the criminal context.  If probation and pretrial services offices are downsized or closed, Federal courts and their staff will be unable to properly supervise thousands of persons under pretrial release and convicted felons released from Federal prisons.  It is critical, then, that we work together.

Gee, who in general benefits from delay?

(h/t Glenn Sugameli)

In other news, the Florida Supreme Court again seeks to clarify the scope of appellate court review of non-final orders, this time in a case involving a claim of immunity by Citizens Property Insurance:

With this backdrop, we address the use of extraordinary writs to review non-final orders not designated as appealable under rule 9.130(a)(3). We first decide the certified conflict issue involving the propriety of utilizing a petition for writ of prohibition to seek interlocutory review of a non-final order denying Citizens’ motion to dismiss. We next address whether a writ of certiorari is appropriately used under these circumstances. Finally, consistent with how this Court has proceeded when this type of issue is presented, we consider whether we should amend rule 9.130(a) to create a new exception to allow for review of a non-final order denying a motion to dismiss based on a claim of immunity asserted by a state-created entity.

Don't you love the textbook way Judge Pariente framed the issues?

Finally, we have a bunch of happy lawyers in South Florida.

(For now.)

First District Reverses Denial of Modification of Injunction

The First District Court of Appeal reversed yesterday in Goodwin v. Whitley, a case in which the lower tribunal denied a motion seeking to modify the terms of an injunction against repeat violence after taking four words of testimony from the petitioner, and none from the moving party.  The First District ruled that the Appellant was entitled to cross-examine the Appellee, to testify, and to present argument to the court, and denying that opportunity to him denied him due process as well.  On remand a full evidentiary hearing is required.

Fourth District Reverses Denial of Petition for Injunction

The Fourth District Court ruled today in Hernandez v. Silverman, a case in which the Court below denied the petition without conducting a full evidentiary hearing.  The Fourth District ruled that, as the allegations were pled with sufficient specificity and additional evidence given at hearing might have justified the injunction, the hearing was required.  On remand the lower court is required to hold a full evidentiary hearing.

3d DCA Watch -- Yes Judge Leesfield, Illinois Courts Really Do Exist!

I'm sure many of you woke up this morning with a burning sensation question -- do Illinois courts exist?

I mean, do they really?

You hear a lot about them, but has anyone actually seen one in real life?

Luckily, in resolving a forum selection clause dispute, Judge Cortinas has arrived just in time with the definitive answer:

There is absolutely no set of facts that Appellee could plead and prove to demonstrate that Illinois state courts do not exist. Illinois became the twenty-first state in 1818, and has since established an extensive system of state trial and appellate courts. Clearly, Appellee failed to establish that enforcement would be unreasonable since the designated forum – Illinois – does not result in Appellee’s having “no forum at all.”

Hmm, but maybe Judge Leesfield was thinking about something other than the theoretical existence of the Illinois judicial system in ruling as she did:

Appellee’s third amended complaint alleges the forum selection clause was a mistake that was made at the time the agreement was drafted. Additionally, Appellee attached an affidavit which states that, in drafting the agreement, Appellee’s principal copied a form version of an agreement between different parties, and by mistake, forgot to change the venue provision from Illinois to Florida.

Ahh, the old "scrivener's error"!

Let's see what Judge Cortinas thinks of that:

Appellee would have us create an exception to our jurisprudence on mandatory forum selection clauses based on their error in cutting and pasting the clause from another agreement. Of course, the origin of "cutting and pasting" comes from the traditional practice of manuscript-editing whereby writers used to cut paragraphs from a page with “editing scissors,” that had blades long enough to cut an 8½"-wide page, and then physically pasted them onto another page. Wikipedia, http://en.wikipedia.org/wiki/Cut,_copy,_and_paste (last visited September 17, 2012). Today, the cut, copy, and paste functions contained in word processing software render unnecessary the use of scissors or glue. However, what has not been eliminated is the need to actually read and analyze the text being pasted, especially where it is to have legal significance. Thus, in reviewing the mandatory selection clause which Appellant seeks to enforce, we apply the legal maxim “be careful what you ask for” and enforce the pasted forum.

Ok, aside from the digression into the origins of "cutting and pasting" (which as a history buff I like!), what do you think of this strict application as a matter of policy?

Should there be no exceptions for screwing up the text of a document?

What if -- God forbid -- the parties had to litigate in a barren wasteland, like, say, Oklahoma?

(Do Oklahoma courts exist -- stay tuned for next week!)

Bankruptcy Judge Cristol Laments Loss of Trees Due to Lawyers' "Show of Force"!

Attention bankruptcy lawyers -- you don't need to lug boxes and boxes of documents to court anymore.

They have a thing called a "scanner" which allows you to store said documents on a "laptop" or even an "iPad."

Bankruptcy Judge Cristol recently pointed out the blow-back effect of boxes of documents in the courtroom that remain untouched:

In view of the Court’s findings of fact and conclusions of law, the Court retains jurisdiction to enter such further orders as may be reasonable and just, including whether to sanction the lawyers who tried this case for needlessly killing forests of trees simply to display a show of force in the form of bankers boxes filled with documents. Each side brought about 65 boxes to the trial and did not seem to use more than 2 – maybe 3, at most. Wasteful! The Court believes the planting of 65 trees for each party may be an appropriate sanction, but it will decline to order the sanction at this time.

Judge, I know some nice land in Israel that could use new trees.

(Just no etrogs please -- they taste terrible!)

Should You Always Get a Stay of Discovery When You File a Motion to Dismiss?

Parties always think their positions have merit, as opposed to that swill being peddled by the other side.

That's why the position that all discovery should be stayed pending disposition of a motion to dismiss is such a slippery slope.

Parties would be encouraged to file a motion to dismiss in every case, and the rules of civil procedure would essentially be abrogated while everyone waits for a ruling.

That doesn't seem to make much sense, as Judge Scola in a well-reasoned opinion points out:

Nor will it grant a wholesale stay of discovery either. Dismissal of the case with prejudice is not a foregone conclusion. Spirit muses that Plaintiffs’ RICO claims are “untested” and “comprised of allegations that have never been sustained against an airline,” and regulation of airline price advertising falls into the exclusive domain of the Department of Transportation. Mot. at 5. The problem is, these arguments do no more than rehash Spirit’s position, made in its motion to dismiss, that it should win. While the Court must conduct a “preliminary peek” at the motion and the Complaint to see whether the Plaintiffs’ claims are likely baseless or dubious, Feldman, 176 F.R.D. at 652-53, the Court is not required to move Spirit’s dismissal motion to the front of the line, ahead of other cases with pending motions, and fully adjudicate it on the spot. Such a requirement would be unfair to other parties, as well as to the Court.

But Judge Scola recognizes that there can be a time and place for such extraordinary relief -- just not in every single case that comes across your desk, especially when there are more targeted ways to deal with the issue:

In the interim, nothing herein should be construed as a blank check for Plaintiffs to burden or harass Spirit with ridiculous discovery requests. Should that come to pass, the multitude of tools provided by the discovery rules remain at Spirit’s disposal. Any appropriate motions seeking protection or relief from discovery may be addressed by the Magistrate Judge, under this Court’s automatic reference of such matters. That will allow particularized discovery issues to be addressed and resolved on a case-by-case basis, which is a more prudent approach than an indiscriminate blanket stay of discovery.

Happy Veteran's Day!

And how was your weekend?

SFL Spotlight: Meet Allen West's Lawyer!

I know our justice system works only if everyone has access to the courts and the right to adequate counsel -- no matter how despicable, how heinous, or in this case how out there a client might be.

But seriously, what lawyer would willingly represent local oddball/politician Allen West?

Meet P. Christopher Winkelman:

Chris Winkelman is an associate with HoltzmanVogelJosefiak PLLC, providing counsel in the areas of campaign finance and election law, lobbying and ethics compliance, and tax-exempt organizations.

Prior to joining the firm, Chris served as a law clerk to Judge William A. Moorman at the U.S. Court of Appeals for Veterans Claims. During his term, he handled appeals brought by veterans who were dissatisfied with the level of benefits awarded by the Department of Veterans Affairs. Previously, Chris served at the U.S. District Court for the Middle District of Florida and clerked for a private firm focusing on various litigation matters, including contract disputes and fraud.

Chris attended Rollins College and received his J.D. from Stetson University College of Law where he was a member of the Stetson Law Review and a graduate of the school's Honors Program. He was also a member of the Moot Court Board, earning recognition as the Best Individual Advocate in international competition. Chris is a member of the Florida Bar.

 (*Chris’ practice is limited to matters of federal law.)

Ok, Chris seems plenty qualified to handle West's "voting irregularities" challenge -- and we certainly know there was plenty of that in Florida again this year -- mostly thanks to GOP efforts to strangle and/or suppress the vote.

Ain't irony a bitch?

Chris is also a member of the Republican National Lawyers Association, which claims as its mission the advancement of "open, fair and honest elections."

Good to know!

Chris, if you're out there reading this we'd love to interview you about the case and what you see as the challenges to success.

My pal Gerry Richman has already identified a few:

Shortly after the hearing was rescheduled, an attorney for Murphy filed court papers seeking to intervene in the court case. According to Murphy’s attorney, Gerald Richman, the court papers filed by West’s attorneys were riddled with errors, including failing to name a defendant and how West would be “irreparably” harmed if the ballots and machines were not impounded.

So you still need to name a defendant and show irreparable harm nowadays to prevail on an injunction?

Good to know!

This should be a fun hearing at noon today.

(Chris may wish he's back in federal court.)

Fourth District Reverses Order Lacking Jurisdiction

The Fourth District Court of Appeal ruled yesterday in Campbell v. Campbell, a case in which the lower court entered an order modifying the parties’ parenting plan, and then vacated it while it was on appeal.  The Fourth District Court found that the lower court lacked jurisdiction to vacate its Modification Order while an appeal of that order was still pending.  As the Former Wife voluntarily dismissed her appeal in apparent reliance on the order now reversed, the issue is closed for further review.

Election Day Hangover.

Has everyone left for the long weekend already?

Where are my tipsters?

What is "Good Cause" For Filing Untimely Affirmative Defenses?

 
Come on -- you know that is the first thing on your mind this morning.

Luckily, Judge Scola provides the answer:

In order to raise the two new defenses, then, Commonwealth must demonstrate “good cause” for leave to amend under Rule 16(b), which requires a showing of diligence. See Sosa, 133 F.3d at 1418. As to the mitigation affirmative defense, Commonwealth contends that leave to amend should be allowed because the defense was not available until June 4, 2012, when Regions declined Commonwealth’s April 17, 2012 offer to defend and provide coverage under a reservation of rights. This Court disagrees. Commonwealth’s duty to defend and indemnify Regions in the state court suit goes to the heart of this litigation. Under such circumstances, a failure to mitigate defense should have been reasonably obvious to Commonwealth the minute that Regions declined its offer, if not before that time. Indeed, it might have been a reasonably anticipatory defense even as early as April, when Commonwealth tendered the offer. Yet, Commonwealth waited an additional three-and-a-half months after Regions refused the offer before requesting leave to amend. Such conduct does not evince diligence.

The idea that a defense is a pure "legal defense" also doesn't wash:

 As to the contract illegality affirmative defense, Commonwealth merely argues that it should be allowed to amend because it is “a pure legal defense.” Mot. at 6. But to admit as much dooms Commonwealth’s request. Commonwealth does not even attempt to explain why it did not knowabout, or assert, this defense from the get-go. As “a purely legal defense,” Commonwealth could be expected to assert it at the time it originally answered Regions’s Complaint in April, not some five months later. So the Court finds that here, too, Commonwealth has failed to show the diligence required by Rule 16(b).

Oh well -- hope you didn't really need these defenses to defend the case.

Kluger v. Randazza!

 
And Carlos Miller has the video.

Random Pixels adds his $.02.

This is like an internet party!

(To be fair, people do make mistakes sometimes.)

Props to Judge Leesfield for putting the issue of cameras in the courtroom to bed quickly and efficiently (and correctly).

She will make a GREAT mediator.

BTW, in the related federal case, Judge King just denied a joint motion for protective order, noting the SD FL's liberality when it comes to public records and public proceedings:

In addition, the parties elected to seek (and defend) relief in a publicly operated forum, namely the United States District Court for the Southern District of Florida. The proceedings held in federal and state courts are open to public observation by any interested party. Pursuant to Local Rule 5.4 for the Southern District of Florida, absent some extraordinary need for secrecy, the judicial acts performed should be open to public scrutiny.

The Court finds that the parties have not shown good cause to justify their desire for secrecy. Therefore, the Court cannot, and does not, approve the motion for protective order.

Now when can we have cameras in federal court?

3d DCA Watch -- It's Over, Johnny.

So everyone take a deep breath -- it's over.

Let's return to the real world of bunkers and broomsticks and take a gander at what the Robed Ones have been doing while we were busy manning the polling stations yesterday:

Catalina Halnat v. Sun City:

Better watch your parking meters appellate deadlines:

We do not have jurisdiction to review the final judgment docketed January 27, 2011. The judgment was final and appealable on that date, and no notice of appeal was filed within the thirty days allowed. See Fla. R. App. P. 9.110(b). Sun City Vending’s motion for a supplemental final judgment (for attorney’s fees and costs) was not an “authorized and timely” motion that would suspend rendition of the final judgment under Florida Rule of Appellate Procedure 9.020(h).

ABA Capital v. Provincial:

Another day, another Kinney forum non analysis.

Did you know the trial court does not have to put its findings in an order as long as the hearing transcript makes clear all the factors were considered?

Pretty risky, I say -- just submit an order to be safe.

BTW, congrats to all  the attorneys and leaders of all political stripes who came together to defeat the unprecedented effort to remove our Florida Supreme Court Justices.

Well done!

Broward Court -- The New World Model for Justice!

Hi everyone, is there something happening today?

All I know is my phone will be very quiet today as every lawyer in town is working the polls and helping to protect the vote --  that means it's probably a good day to serve a 57.105 letter!

But seriously, it's all in the hands of a few coders from Mongolia now.

Speaking of Mongolia, when you think of a model location in this entire world for the effective and efficient administration of justice, naturally you think "Broward County Circuit Court."

I mean where else can you see a judge have to use her own cell phone and put it on speaker in order to conduct a hearing?

That's why visiting judges from Mongolia traveled all the way across this great green Earth to watch Broward County justice in action.

Note -- this is a real story!

As a result of this important fact-finding mission, the Mongolian judges agreed to make some changes back home.

For one, they have installed an impossible-to-understand elevator system that takes people to different "ninth floors" and forces litigants to go up half-a-floor to find their courtroom.  They also agreed to cover all surfaces in the courthouse with asbestos and mold and to periodically cut off electricity and water at critical moments, particularly during trials.

God it feels good to be emulated!

Try to Vote, Plebes!

Wow, so a lot going on this morning.

First off -- RIP Neil Jay Berman.

Second, an actual Herald editorial expressing a real opinion:

While we’re at it, there are other aspects of our voting process that desperately need to be changed.

• Voter purges late in the election year. It’s hard to avoid the conclusion that the purge carried out in Florida targeted minority voters and other communities that favor Democrats. It was ill-crafted and designed to restrict voting rights, rather than guarantee them. This is contrary to the best American traditions.

• Fewer early voting days. Was it just a coincidence that the early-voting schedule pushed by Gov. Rick Scott eliminated the last Sunday before the election, a day traditionally used by black churches to get their congregations to vote? You’d have to believe in the tooth fairy to buy that.

• Long, perplexing ballots. This year’s ballot goes on and on, with 11 constitutional amendments written about as clearly as those manuals that “explain” how to assemble a complicated children’s toy with 23 moving parts. Let’s not do this again.

Voting is a right, as well as a duty. Too many Americans take it for granted. Do your part and vote, and let’s hope that next time around those who make the laws make voting easier instead of harder. 

Third, here's the lawsuit Kendall Coffey, Mike Olin, Bruce Rogow, and Seth Miles filed to keep the early voting sites open, pending before Judge Ungaro:

12. The voting facilities within these Counties were plainly inadequate to meet the
needs of County electors seeking to exercise their right to vote during the early voting period provided by Florida law.

13. The extraordinarily long lines deterred or prevented voters from waiting to vote.
Some voters left the polling sites upon learning of the expected wait, and others refused to line up altogether.

14. These long lines and extreme delays unduly and unjustifiably burdened the right to vote.

The complaint is only nine pages long and was prepared in a hurry, but can anyone seriously dispute the above three factual allegations?

Fourth, make fun of Spencer all you want (I certainly do!), but the kid has his heart in the right place:

"A Great Time For A Great Cause"

Fundraiser for Hurricane Sandy Victims Sponsored by Lawyers to the Rescue

Join Lawyers to the Rescue as we raise funds and awareness for victims of Hurricane Sandy. Money raised will be sent to the American Red Cross Hurricane Sandy Fund.

The event will include:
-Great Networking Opportunity
- Wine Tasting
- Free Food
- Music
- Prizes

Event Entrance Fee: $20.00 goes to the Red Cross Hurricane Sandy Relief Fund

To make a donation to this cause, please click on the link below:
http://www.lawyerstotherescue.org/HurricaneSandyRelief.html

I told you there was a lot going on today!

d more here: http://www.miamiherald.com/2012/11/05/3079929/the-right-and-duty-to-vote.html#storylink=cpy

Tom Julin: Not Everything an Attorney Says On a Website Is True!

Hi kids, it's Friday!

The above 15 minute "educational" video (i.e., kinda boring) stars a lot of old white men from Tally who are red-faced, wear bow-ties, and who seem to know something about the history of merit retention in this State.

Oh yeah, plus Justice Barkett.

If you want to skip the video, here's the takeaway:  vote NO on all the Constitutional Amendments and YES to retain our Justices.

In other news, Tom Julin says not everyone who claims to be an expert on social media actually is one:

"There is so much written about social media and technology these days that I see a lot of attorneys boast about being experts on the subject on their websites," Julin said. "It's not clear to me that they are legitimate experts in that field, but there is certainly money to be made in it."

Hmm, just what is Tom trying to say?

Finally, is it the anniversary of Kristallnacht yet?

Oh well, close enough.

Have a great weekend!

Insurer to Judge Huck: Good God Did You Get Things Wrong!

Let's say you have an insurance company as a client, and the company doesn't want to defend a class action, relying on an alleged policy exclusion.

The insured and you both file cross-motions for sj before Judge Huck, and you wind up losing the motion because the Court finds there was a duty to defend.

What do you do?

Of course, the only logical option is to go back to the well on a motion for reconsideration and explain that Judge Huck simply screwed up in three major ways and thus committed "clear error."

Guess how that turned out.

Interesting side note -- the Judge goes all "deep cuts" with a reference to the doctrine of noscitur a sociis -- quick, does anyone know what means?

(No fair if you Googled it.)

Volunteer on Election Day!

Justices Quince, Pariente, and Lewis need your help on election day, according to the DCBA:

As you know, Justice R. Fred Lewis, Justice Barbara Pariente and Justice Peggy Quince are asking Floridians to vote "yes" in this election to retain them on the Florida Supreme Court. While the DCBA does not take any position on ballot issues, many of our members have asked us how they can support the three Justices in this crucial election.

The campaigns are looking for at least two volunteers per shift to pass out literature at early voting locations and on election day. If you are interested in volunteering, please contact the following coordinators today:

Nadean Stone (305) 374-6366 nadean@ratzanlawgroup.com  

Anna Quintana (305) 371-3666 aquinta@fdlaw.net

Ana Gomez (305) 371-3111 agomez@goldfarbpa.com

In other news, Palm Beach County Judge Barry M. Cohen is in trouble for speaking his mind about our drug laws:

The Judicial Qualifications Commission panel filed formal charges with the Florida Supreme Court on Wednesday, alleging that Judge Barry M. Cohen has abused his position by using it as a "bully pulpit" and undermined his impartiality through his comments. The panel cited Cohen's comments from the bench, in written orders and at public forums.

Cohen has been accused of saying, among other things, that minorities are disproportionally arrested and jailed for drug trafficking, law enforcement officers may be motivated by the race or status of suspects and blacks do not feel free to exercise their constitutional rights in the county.

The judge's lawyers linked the allegations against Cohen to recent attacks on the judiciary they say are threatening its independence.

"Judge Cohen will vigorously defend himself against allegations which infringe on the ability of judges to perform their duties in an independent manner," wrote attorneys Scott Richardson and Donnie Murrell.

They added that Cohen is confident a full airing of the allegations "will demonstrate he has performed his duties ethically and honorably."

Ok, what the Judge said seems pretty accurate to me -- is truth a defense?

Finally, in more election-related news, I see Gerry Richman is going after the Palm Beach County GOP chair for what he calls a "frivolous" lawsuit against commission candidate David Levy:

Attorney Gerald F. Richman, who represented Levy in the case, called the suit “frivolous,” and said that Levy has asked a judge to force Dinerstein to pay his attorney’s fees. He pointed to a state law that allows defendants to recoup their fees if a judge finds that a lawsuit is not “supported by the material facts.”

Richman had argued that Levy was not required to get his financial disclosure form notarized.

“The point of all of this is, this is absolute evidence that the lawsuit was frivolous,” Richman said. “It basically shows to me that this was a political ploy to cause David Levy to undergo expenses. I would call it an act of desperation on the part of the party.”

Circuit Judge Catherine Brunson last week denied Dinerstein’s request for an injunction to block Levy from the ballot. Dinerstein sued Levy and Supervisor of Elections Susan Bucher last month, alleging that the disclosure form, filed in June, was not stamped by a notary. Notary Marilyn Jacobs signed and dated the form but did not put her seal on it.

Dodger Arp, Dinerstein’s attorney, said the suit was legitimate.

“We don’t have a frivolous lawsuit,” Arp said. “My clients decided that they have had their day in court, we decided to drop it. The court has spoken and we respect that.”

Dodger Arp -- is that a real name?

Ok I checked, yes it is, a former Marine to boot.