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

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

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

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

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

Stay away from the boroughs.

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

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

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

Are these judges cutting-edge hipsters or what?

Onward:

Wolfe v. Foreman:

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

Guess who wins:

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

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

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

Appellate fees and costs awarded to Kenny Nachwalter btw.

See you all on the pickle ball courts!

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

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

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

So take this job disclaimer and shove it!

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

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

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

Score one for the federal rules?

Foreclosure Appeal Victory for Space Coast Homeowner

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

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

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

Trial & Appellate Files Stacked On Top Of Each Other

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

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

Zimmerman Verdict Not Guilty - Raw Video

George Zimmerman Verdict Not Guilty - Raw Video

Godwhacker's Week in Rearview

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

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

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

Anyhoo;

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

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

Starvation is back!

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

Things are freaky at Walmart.

Gay divorce has come to Florida?

Cancer has been cured (again)!

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

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

Now Your Condo is a Dangerous Instrumentality!

Love the handkerchief!

3d DCA Watch -- Post-Judgment Pretermitted Poppycock!

Hi there, true fact:  no matter the outside temperature or prevailing weather conditions, it is always exactly 51 degrees Fahrenheit in the bunker!

(A "no-prize" will be given to the most creative back story explaining precisely why that is the case.)

Onward:

Citizens Property v. Mango Hill:

"Appraisal awards" are not arbitration awards; also something was "pretermitted" (look it up plebes!), all according to new Chief Judge Shepherd.

Pugliese v. Regional Hosp.:

Somebody down below forgot to do something:

Prior to addressing the merits of the appeal, we note the trial court did not include in the order on appeal its rationale for granting Plaintiff’s motion for new trial. The order granting a new trial was unsupported by any fact or law as required by section 768.043 (2)(a)-(e), Florida Statutes (2013), or even the bare finding that the verdict was contrary to the manifest weight of the evidence.  Indeed, such a minimum finding must also provide a basis in the record to sustain the grant of a new trial.

So grading on a scale you would give the new trial order a C+?

Greenwald v. Eisinger:

This is a messy appeal involving legal malpractice and what the proper standards are for establishing liability as well as preserving error below.

Here's a taste:

Although the trial court sustained an objection to the two questions (the first of which was in fact answered by the witness and never stricken), the court had made no definitive ruling on the motion in limine. The fact the trial court sustained an objection to the question and denied a request for a sidebar did not obviate the need for a proffer in this case, nor did it suffice to preserve the claimed error.

Wells v. Castro:

Another arbitration boo boo by the trial judge:

Because Castro’s Prevailing Party Motion did not set forth any of the statutorily enumerated grounds to vacate an arbitration award, the trial court was required to confirm the Initial Award as modified by the Remand Order. Instead, the trial court entered its own unauthorized order finding Castro to be the prevailing party. The trial court’s action was in direct contravention of section 682.12.

One thing I always say - "never be in direct contravention of section 682.12" (that would make an excellent tattoo!).

Have a pretermittently sunny day!

Florida Criminalizes Most Internet - Web Devices

Florida Criminal Defense Attorney has been researching a new law that may make anyone with a cell phone or computer with Internet access a person possessing an illegal gambling device. Specifically, the definition of "slot machine" may now include most web devices. When a law captures innocent conduct it can be void for vagueness. The law may also violate the Equal Protection Clause.

Internet Devices
Banned

Void for Vagueness

The State Attorney in Miami Dade has now been sued and the lawsuit alleges, "The definition of “slot machine or device” now contained in Fla. Stat. § 849.16, as amended, fails to adequately describe the prohibited machine or device such that a person of common understanding cannot know what is forbidden. 

For your convenience we have highlighted the changes to the Florida Criminal Law:  The definition of a “slot machine” now includes: any machine or device or system or network of devices that is adapted for use in such a way that, upon activation, which may be achieved by, but is not limited to, the insertion of any piece of money, coin, account number, code, or other object or information,such device or system is directly or indirectly caused to operate or may be operated and if the user, whether by application of skill or by reason of any element of chance . . . .

The Florida Legislature rewrote  (Fla. Stat. § 849.094) to permit only retailers that conduct “a nationally advertised game promotion” to conduct games. The statute creates a protected class of nationally advertised game promoters. A 19 Count, Forty - page lawsuit has been filed challenging the new law. You can review the lawsuit here: http://miamiherald.typepad.com/files/internet-cafe-complaint.pdf

Equal Protection Violation

It has been alleged that, "Fla. Stat. § 849.094, as amended, accordingly violates the Plaintiff’s right to equal protection under the law because similarly situated businesses that happen to advertise game promotions nationally rather than locally are expressly permitted to employ the use of game promotions, but the Plaintiff is prevented from doing so unless it opts to advertise same nationally."

The Florida Supreme Court has just invalidated a law on loud car stereos that attempted to allow loud political speech coming from motor vehicles. A protected class of political speakers was created in the Statute, just like the new gambling statute has created a class of national advertisers. We have previously written about that case here: http://news.duifla.com/2012/12/florida-court-loud-music-legal.html

I Hate Lame Affirmative Defenses.

Don't you just love it when a two-count complaint or single counterclaim somehow engenders an answer containing 58 affirmative defenses?

I don't know about you, but my eyes glaze over as you waste time reviewing pointless and rote affirmative defenses that are clearly so general as to be meaningless or merely restate or "reserve" arguments and defenses that aren't ripe or have no applicability to the facts at hand.

Generally I ignore them and, at the appropriate time, ask the Court to ignore them as well.

But if push comes to shove it's nice to see a judge "get" it:

The Court's order denying the motion to dismiss also found that Plaintiff had sufficiently pled her claim to survive a motion to dismiss. Affirmative Defense 19 essentially argues that Plaintiff has not adequately pled her claim, despite the Court's prior ruling. Furthermore, Affirmative Defense 19 is neither an affirmative defense or a specific denial of any of Plaintiffs allegations. Lastly, because Defendant cannot amend its pleadings without leave of Court, its reservation of rights is meaningless. Accordingly, Affirmative Defense 19 is stricken.

Question -- how much did an associate bill and/or partner review to file this defense?

So a Nine Year Old Girl Got Handcuffed for Not Performing Jumping Jacks Correctly in P.E. Class -- Welcome to Alabama!

But because it's such an "obvious violation" of the child's Fourth Amendment rights the 11th Circuit reversed the district court and found that no public purpose was served and therefore no attorney's fees were appropriate for the lengthy litigation (including trial) necessary to vindicate that right:

The majority opinion emphasizes that Bostic’s handcuffing of Gray was an “obvious violation of Gray’s Fourth Amendment rights.” Id. at 18 (emphasis in original) (internal quotation marks omitted).  Because it was an “obvious violation,” says the majority opinion, Gray’s litigation could not possibly be significant, because she did not “change the law.” Id. at 18–19. By this logic, any future decision by this court that denies qualified immunity to a government actor will be deemed insignificant, because every denial of qualified immunity stems from “obvious” constitutional violations.

There's no crying in P.E. class!

Your Friday Lawyer's Orgasm!

Get ready to indulge your wildest fantasies, as long as those fantasies involve senior arcades, Dave & Buster's. and Broward attorney Michael Wolf:

“The law is a lawyer’s haven, a lawyer’s orgasm,” said Fort Lauderdale attorney Michael Wolf, who represents the senior arcades. “You’re going to see a lot more litigation before this is finished.”

Who else needs a cigarette?

Have a great weekend!

Read more here: http://www.miamiherald.com/2013/07/02/3481991/video-arcades-sue-dave-busters.html#storylink=cpy

Patriotic 3d DCA Watch -- Judge Shepherd, Michael Moore and Melanie Damian Together Again Edition!

Happy Fourth of July everybody!

In honor of the founding of our nation, the Resplendently Robed Ones have issued a special commemorative 3d DCA Watch, filled with fan favorites and fireworks -- let's get right to it:

First off, there is this:

Chief Judge Elect - Frank A. Shepherd to become Chief Judge.

On July 1, 2013, Chief Judge Elect- Frank A. Shepherd will succeed Chief Judge Linda Ann Wells of the Third District Court of Appeal for a term that will run through July 1, 2015.

Dear Time Traveler:  see what happens when you go to 1978 for the weekend?

Congrats to the new Chief Judge!

Marine Resource v. Michael Moore:

Hey, what do you know -- this case involves resident American gadfly Michael Moore!

(True, this Michael Moore is a local attorney, but a Moore's a Moore I always say!)

Omes v. Ultra Enterprises:

This case involves the Ultra Festival and Melanie Damian.

'Nuff said!

Happy holidays!

Happy July 4th!

Be safe.

Forty at Fifty in Eleven

There must be something in our water.

Forty lawyers in the Eleventh Circuit are celebrating their Fiftieth year as members of the Bar. That's incredible.

There are too many folks to list but check out page 10 of the July 1, 2013 Florida Bar News. The list reads like a Who's Who. Congratulations to all.

N.B. Please tell me I won't be doing this for another 29 years ...

11th Circuit Tackles Costa Concordia Conundrum!

Can a defendant join a bunch of separate suits together as a "mass action" and remove under CAFA?

That's what Carnival did when faced with two state court suits -- each with less than a hundred plaintiffs -- brought by Costa Concordia passengers.

Judge D said that's cute but no way, and the 11th Circuit -- in a case of first impression in our Circuit -- basically agreed:

Since we know for sure that a mass action cannot be one joined on the defendant’s motion, it follows that the proposal must originate either with the plaintiffs or, perhaps, with the state court.

You know how defendant's counsel always think they know about your complaint than you do?  This takes it to a whole other level.

Guess plaintiffs are still masters of their complaint, at least for a while.

I'm Back! (The Situation, Not So Much).

Hi kids, did June even happen?

It feels like a Dallas/Newhart fever dream, what with Guest Blogger, Godwhacker, someone named Faker SFL, someone named "Patrick Goggins" (I'm kidding!), lots of prurient content (if you're grumpy gus Scalia) -- plus a certified Time Traveler.

I wish I could say I'm fully rested and restored, but I spent a month in sybaritic pursuit of frivolous, purely hedonistic pleasures, pushing myself to and beyond all known mental and physical limits, until I literally collapsed from exhaustion, unable to imbibe through my senses or pores even one more delectable morsel of transitory joy from my decadent surroundings, leaving me drained and emptied of all energy and life force, quaking quietly and gasping for breath as I pulled myself together and somehow crawled with trembling hands and unsteady feet back into my law office.

And summer's just kicking in!

Let's start the week off with a thorough, devastating legal defeat for our good friend The Situation, courtesy of the always dapper Magistrate Judge O'Sullivan:

The undersigned finds that the plaintiffs have failed to present a triable issue of fact as to whether the defendants’ “The Fitchuation” t-shirt was likely to confuse consumers into believing that the shirt came from the plaintiff rather than A&F. Additionally, the plaintiffs did not satisfy their burden of showing that they had valid rights to “The Situation” as a trademark covering apparel at the time that A&F introduced its “The Fitchuation” t-shirt.

See, this is important legal stuff!

My informed legal opinion:  Once the Houlinator™ entered an appearance, put a stick in it, The Situation was done.

But that's why God gave us appellate courts, right?