Whenever I dine with The KlugerHappy Tuesday!
The caviar, it's always Beluga
The stylish cowboy booties
Are just like you see in the movies
He's larger than life
He's got a great wife
He's also got really nice suities
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.
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?
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.Now when can we have cameras in federal court?
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.
In short, Defendant acknowledges using Plaintiff's copyrighted picture without Plaintiff's consent, but argues that she was not liable under copyright's fair use doctrine. The Court, being fully briefed on the matter, finds that Plaintiff has adequately stated a prima facie case of copyright infringement; on these facts and filings, Defendant's fair use defense is not appropriate for determination on a motion to dismiss. Accordingly, Defendant's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) must be denied.In other words, the fair use doctrine defense will have to be decided on summary judgment:
Here, Defendant alleges that her use of the Image was not for parody but for news reporting and commentary. (DE #14, p. 10). Though news reporting and commentary lend themselves to fair uses, see 17 U.S.C. sec. 107, such a determination is far from automatic and is more appropriately resolved after the complaint has been answered and parties have evaluated any need for discovery.But if the Image and the posts in which it appears are in the complaint, what further discovery would be needed?
Alan J. Kluger's 32-lawyer South Florida law firm falls into that category. Kluger, a founding partner of Kluger, Kaplan, Silverman, Katzen & Levine, said the firm has a sizable line of credit from its bank, Sabadell United Bank in Miami, that goes unused. "They gave us a really big line. We have not ever taken a penny on it," Kruger said, citing solid cash flow from operations.Exactly!
In the instant matter, Hanson lost in federal court on remand not because of any tactical decisions on his lawyer’s part, but because the District Court inexplicably refused to rely upon a prior ruling on an issue that had been raised by the parties, tried by consent at a bench trial, and left untouched by the appellate court. Thus, in this case, no tactical decision and therefore no judgmental immunity are involved. That being said, we nonetheless find that the lawyer and his firm are entitled to a judgment in their favor as a matter of law.But Judge Schwartz in dissent says an inexplicable legal ruling is not an intervening cause for a malpractice case:
In this case, in which, depending on how one likes to put it, the ultimate catastrophe has occurred or the worst case scenario has played itself out in the loss of an otherwise meritorious and valuable position, presents an a fortiori situation. For these reasons, I believe that the wrong party won this case.(I admit I don't understand that sentence but I think it means the negligence claim should proceed.)
In one of the fastest-growing areas of gaming, 1,000 Internet cafes are in operation in strip malls throughout the state, operating slot-machine-like games under a loophole in the state’s sweepstakes law. A variety of Florida’s lawyers represent those businesses, including Alan Kluger, a partner in Miami’s Kluger Kaplan, Silverman, Katzen & Levine.Internet cafes running faux slot machine games in strip malls -- America, I have a dream!
“The gaming laws are going through a complete top-to-bottom examination in order to provide comprehensive legislation,” Kluger said. “The legislators will have to be even-handed and not fall prey to economic pressure from groups pressing only their self-interest.”
Defendant and his counsel have misapplied existing law in Defendant’s Counter-Complaint. To begin with, Defendant cannot maintain the Counter-Complaint under the fictitious name “John Doe” and be permitted to use his anonymity as both a sword and a shield. Moreover, Defendant and his counsel have asserted duplicative counts for declaratory relief that fail to state a cause of action upon which relief may be granted and are merely denials of the properly dismissed Count III, rendering the Counter-Complaint moot and therefore seeks an improper advisory opinion from this Court. Further, Defendant’s Counter-Complaint is a clear attempt at forum-shopping and judge shopping. Despite having proper notice of the frivolousness of their positions, Defendant and his counsel have refused to withdraw the Defendant’s Counter-Complaint [D.E. 1]. Accordingly, sanctions should be imposed against Defendant and his counsel pursuant to Fed. R. Civ. P. 11.Ok, I agree none of that sounds too hot, but on the other hand that's pretty much a day in the life at any given moment in state court.
The judicial conference, Sentelle said, today also increased miscellaneous fees for federal courts, a move designed to create an estimated $10.5 million in additional revenue for fiscal year 2012.I remember 2005 -- that was the year Ghost Whisperer made its debut!
The panel approved a fee increase for electronic public access to court records, from $.08 to $.10 a page. The fee for the Public Access to Court Electronic Records (PACER) system had not been increased since 2005. Sentelle said local, state and federal government agencies will be exempted from the fee increase for three years.
Defendant argues that Plaintiffs failed to comply with the local rules regarding pre-filing conferences for not only the Request, but also for their Request for Oral Argument on Defendant’s Motion to Dismiss [D.E. 27] and their Request for Oral Argument on Plaintiff’s Motion to Remand [D.E. 29] (collectively, the “Requests for Oral Argument”). This is incorrect. Plaintiffs filed the Requests for Oral Argument pursuant to Local Rule 7.1(b)(1), and they are not subject to the provisions of Local Rule 7.1(a)(3). Moreover, the Request is merely a supplement to Plaintiffs’ Motion to Remand. Accordingly, Plaintiffs’ Requests for Oral Arguments and the Request are proper, and this Court should reject Defendant’s argument to the contrary.Ok, stop: what exactly is a "supplement" to a motion for remand?
Plaintiffs filed their Motion to Remand this case on July 27, 2011. [D.E. 10]. Plaintiffs’ Motion to Remand was essentially a response to Defendant’s Notice of Removal. [D.E. 1]. Defendant’s counsel, Robert Kain (“Mr. Kain”), personally hand-delivered the Notice of Removal to the undersigned, who advised Mr. Kain at that time that Plaintiffs would be seeking remand to state court. Mr. Kain did not agree to the remand, as further evidenced by Defendant’s Opposition to Motion to Remand. [D.E. 13].Oh boy.
Undersigned counsel did not include a certification of good faith compliance with Local Rule 7.1(a)(3) in the Motion to Remand because the motion was in essence a response to the Notice of Removal and because it was obvious that Defendant opposed the remand. Undersigned counsel has since attempted to resolve the issues raised in Plaintiffs’ Motion to Remand with Defendant, and Defendant remains unwilling to agree to the Motion to Remand or Plaintiffs’ Request for Attorneys’ Fees [D.E. 30] that was filed in connection therewith. Plaintiffs will include certifications of good faith conferences in all forthcoming motions that are subject to such certification if and as this case proceeds in this Court.
Defendant's motion for reconsideration and the attached Declaration of Defendant's counsel, Robert C. Kain, Jr., (the "Kain Declaration"), are infested with falsehoods and mischaracterizations of law and facts in an underhanded effort to create an issue...There is no dispute that Defendant chose not to attend the hearing (or retain counsel to do so) in the State Court on the Motion to Quash that Defendant filed and which resulted in the Order (the "Hearing"). There was no court reporter at the Hearing, and Mr. Kain never contacted Plaintiff's counsel to inquire what actually transpired at the Hearing. Incredibly, however, in the Motion for Reconsideration and the Kain Declaration (in which Mr. Kain, as an officer of the Court, swore to the truth of the matters asserted therein), Defendant and Mr. Kain argue due process concerns regarding specific matters they claim occurred or did not occur during the Hearing. These statements are blatant lies, and were sworn to by Mr. Kain without any basis or investigation (as such would have revealed the fallacy of the statements).The brief goes on to call the statements "material fabrications" and "willfully false assertions" -- I should add that Todd Levine's declaration is also pretty incendiary.
Plaintiffs, a series of real estate holding and management companies, and their directors,Marc's adversary is longtime fave Alan Kluger, ably assisted by Todd Levine, who warned Tim over at New Times to be very very careful -- did I mention careful? about what he writes concerning the case:
accuse DOE of publishing defamatory statements concerning their business practices and other dealings through Google's Blogger service. Blogger is a service that allows users to create their own web blogs, or "blogs," on which they can express their opinions on numerous issues. Some blogs are general interest, while others may address specific, local issues, such as problems within a community, political matters, or topics of concern to consumers. Users of Blogger who create content - themselves known as "bloggers" - have the option of publishing their writings anonymously, as DOE has done in this case. Plaintiffs sued DOE for alleged defamatory material in a blog located at www.rkassociatesusa.blogspot.com and for false advertising under the Lanham Act 15 U.S.C. 1125(a).1 Plaintiffs have subpoenaed Google for its records relating to DOE in an
effort to learn his true identity. Plaintiffs' request is improper, and implicates fundamental Constitutional protections.
Free speech is a central Constitutional value, and one of great historical significance. The Federalist Papers, for instance, were all written anonymously while being pointedly critical of the policies and leaders many people championed during America's move toward adopting a written constitution. The United States Supreme Court has further sanctified anonymous speech in an honest and open society through decisions including McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) and Talley v. California, 362 U.S. 60 (1960). See also City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994) (noting that "the identity of the speaker is an important component of many attempts to persuade").
With these principles as a backdrop, courts have grappled with the First Amendment significance of subpoenas used to unmask anonymous speakers who speak via the internet on message boards, review services and other forums. Here, Plaintiffs' Complaint demonstrates no basis upon which a defamation or false advertising action can proceed, and they have not made the required prima facie showings.
In the meantime, Levine has strong words for anyone who would consider writing about Katz's lawsuit. "I'd ask you not to publish anything about this," he says. "Even pointing people toward that blog could constitute further defamation."How precisely?
But during the Hukilau in June, everything's pumped up a notch.Oy vez rock-a-hula baby!
That's when Fort Lauderdale gets the vintage-clad crowds, cocktail seminars, tiki vendors galore and a constant soundtrack of retro surf and lounge music. During a recent Hukilau, DJ Lounge - aka Laura Taylor - conjured a bubbly Barbarella world, while the Stolen Idols - fronted by her husband, Drew Farmer - played lush jazz "exotica". My wife, in her tallest go-go boots, stomped and bent to Los Straitjackets' hyperactive renditions of King of the Surf, Sleepwalk and The Magnificent Seven. "You know what this tiki culture is?" a Miami lawyer friend, Al, asks during an introspective moment by the pool. "I think it's like goth for middle-aged people."
Alan Kluger, founder of the Miami law firm Kluger Kaplan, spent Tuesday shuffling his calendar this week. He expected to be in Manhattan for client meetings. Instead, they're coming to him.
``A bunch of my New York clients, they came down to their houses in Boca,'' Kluger said Tuesday. ``They said: `I'm getting out.' I have a meeting in Boca tomorrow and one on Thursday.''
