Boy, Did This Lawyer Get Screwed.

The 11th's approach to this issue seems problematic.

Those Local Rules Are There for a Reason!

Hi there, hope your week is moving along smoothly.

Did you know our federal courts have local rules on all sorts of things?

Some of them are even quasi-important -- like dates by which you have to file motions for attorneys' fees:

Southern District of Florida Local Rule 7.3(A)(vii) states that all motions for attorneys' fees filed upon entry of a final judgment or order "shall be filed and served within thirty days of entry of a Final Judgment or other appealable order that gives rise to a right to attorneys fees and/or costs.''  S.D. Fla. R. 7.3(A)(vii). In this case, Bank of America filed its motion for attorneys' fees on January 23, more than thirty days after this Court granted Bank of America's motion to dismiss on December 6. Accordingly, it is

ADJUDGED that the motion is DENIED.

Try explaining THAT one to your client.

REMINDER: Your SD FL Inclement Weather Policy!

Are you looking to get out of work tomorrow or Monday -- then pray that the schools close, as set forth by Chief Judge Moreno in 2007 when he issued the new SD FL inclement weather policy:

IT IS ORDERED that as of the date of this order, in the event of hazardous weather that causes the local public schools within a particular county to close, the Federal Courthouses in that county will also close. Thus, if Miami-Dade County public schools close, so will the Miami Federal Courthouses. If Broward County public schools close, so will the Broward Federal Courthouse. If Palm Beach County public schools close, so will the West Palm Beach Federal Courthouse. If St.Lucie County public schools close, so will the Ft. Pierce Federal Courthouse. If Monroe County public schools close, so will the Key West Federal Courthouse.

Are you following, people? 

If XXXXX County public schools close, so will the YYYYY Federal Courthouse.

What do I have to do, repeat the same exact mantra for every single county in the district??

(I guess so.)

So the 11th Circuit Does Reverse Summary Judgments Sometimes.

 

We always hear about the abysmal reversal rate before the 11th Circuit, but miracles do happen, even when they involve our highly esteemed Chief Judge:

In a supplemental summary judgment order the district court held as a matter of law that the purchase price of LanBox was $450,000. In its analysis, the district court rejected LanLogistics’s argument that, under the reasoning in Pantry Pride Enterprises., Inc. v. Stop & Shop Cos., Inc., 806 F.2d 1227, 1231 (4th Cir. 1986), the determination of the purchase price of a company in a package purchase requires that the fair market value of the company be considered. We find the reasoning in Pantry Pride persuasive and the district court’s holding in error.
. . . . 

Because the issue of LanBox’s purchase price was disputed and the fair market value of LanBox and the other companies in the package deal should have been considered, summary judgment was improper. By deciding the issue on summary judgment before LanLogistics had an opportunity to present evidence on the fair market value of the companies or possible tax incentives for its purchase price allocation, the district court prematurely decided a disputed issue of material fact. See Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1264 (11th Cir. 2007).

In other news, I know a lot of you are fitness enthusiasts and are gearing up for the Corporate Run next week, so here's another interesting charity race for a good cause -- see you there!

Plus tonight begins Holocaust Remembrance Day.

(Wow, those three things do not go together.)

David J. Stern Scores a Rare Victory!

Judge Moreno gives beleaguered foreclosure king David J. Stern a rare victory in his efforts to collect fees against Bank of America:

Plaintiff, the Law Offices of David J. Stern, filed suit to collect unpaid legal fees for work done on foreclosure actions for Defendants. Plaintiff s claim s are for breach of an oral agreement, Open account, account stated, and quantum meruit.Defendants have m oved to dism iss the claims, but for Count 9, a cause of action for breach of a written contract.The Court finds the Statute of The Court Frauds does not bar Plaintiff s claim s for breach of an oral agreement. also finds that Plaintiff sufficiently states causes of action for open account and account stated. Finally, the Court finds Plaintiff is able to plead in the alternative and can state claims for quantum meruit.  Accordingly, the Court denies the motion to dismiss.

 Happy days are here again!

Hold On -- Did Someone Just Reverse Judge Moreno?

Am I reading this right?

Appellant Kathryn Pereda (“Pereda”) appeals the district court’s dismissal of her two-count complaint alleging interference and retaliation under the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601, et seq., against Appellee Brookdale Senior Living Communities (“Brookdale”). The district court held that because Pereda was not an eligible employee at the time she was terminated, she could not bring either claim under the FMLA. This appeal presents an issue of first impression for this Circuit: whether the FMLA protects a preeligibility request for post-eligibility leave. We answer that question in the affirmative, and therefore reverse.

Hmm -- exception, rules and all that.

Judgment Day!

 Hi folks, so Judge King approved the BoA checking overdraft settlement.

Now the fun begins!

And Judge Moreno ruled against Watson Pharmaceuticals in a big patent infringement case.

Plus I only have 14 judicial fundraisers to attend this week.

Gosh it's slow around here -- doesn't anyone have some tips for your friendly neighborhood blawger?

My Baby Steve Zack, He Wrote Me A Letter!

Not one to simply let Chief Judge Moreno hog all the spotlight, ABA Prez Steve Zack (captured mid-phone above) has jumped in with his own letter about all those darn federal judicial vacancies, and why can't the Senate just get along pre-recess and confirm a few of these folks so that whole system of laws thing doesn't break down, don'tcha know:

Thirty-eight of the present vacancies have existed for so long and created such untenable workloads for the remaining judges on the courts that the seats have been declared judicial emergencies by the Administrative Office of the U.S. Courts. As lawyers who practice in federal courts across this nation, ABA members know firsthand that long-standing vacancies on courts with staggering caseloads impede access to the courts and create strains that will of the courts to vindicate constitutional rights or render fair and timely decisions. In Arizona, for example, the Speedy Trial Act has been temporarily waived, and criminal defendants wait up to 6 months for a trial, while businesses and individuals wait up to 2 years before their cases are heard.

So far so good (I mean bad).

But then Steve continues:

We realize that the aging of our federal judiciary has contributed to the growing vacancy crisis.

 Hey now!

Being the silver-tongued devil that he is, Steve politely refers to the nationwide decaying judge issue as "attrition":

According to Department of Justice estimates, 60 new vacancies will be created through attrition each year for the next decade. Obviously, progress toward reducing vacancies requires a confirmation rate that outpaces the attrition rate; at present, it is barely keeping abreast of it.

So I believe what Steve is saying is we either need to develop new methods of preserving and extending the lives of our aging federal judges -- perhaps through alien intervention, cloning, cryonics, or sophisticated and groundbreaking time-travel technologies that are currently beyond our scientific capabilities -- or we just need to confirm some of these nominees.

Hard to tell which is a more realistic and practical course of action given what's happening in DC at the moment.

Senator Leahy Speaks Out on Behalf of Stalled SD FL Judicial Nominations

As David noted the other day, Chief Judge Moreno has started writing letters in hopes of getting Kathy Williams and Bob Scola confirmed as judges sometime this century.

And Glenn Sugameli, a DC wonk who has done great work on this issue, passed along this floor statement by Senator Leahy in which the Senator quotes Judge Moreno's letter and highlights the larger context in which very qualified nominees are being held up for no good reason:

Recently, Chief Judge Moreno of the Southern District of Florida wrote to the Senate leaders urging that they expedite action on two nominations to fill judicial emergency vacancies in that district. Both Kathleen Williams and Robert Scola are among the many judicial nominees who were reported unanimously by the Judiciary Committee, yet both are being delayed for no good reason.

Chief Judge Moreno writes:

 [T]he judicial shortage with three vacancies in our district is becoming acute. For this reason, I ask your assistance in expediting both confirmations. The Judiciary Committee has found the nominees qualified and the people of South Florida eagerly await their service. 

Both of these nominees have the support of their home State Senators— Senator NELSON, a Democrat, and Senator RUBIO, a Republican. The two Senators have set aside partisan actions, and the Senate Judiciary Committee has set aside partisan actions by voting for the nominees unanimously. Why should they be held up because of partisan actions on this floor?

 Good question -- anyone have an answer?

Judge Moreno Denies William Levy Motion to Dismiss!

William Levy, the Latin hearthrob recently in the news for allegedly canoodling with Jennifer Lopez, just got another piece of good news -- Judge Moreno has denied a motion to dismiss in a defamation action Levy filed against an CA attorney arising from an alleged underage sex scandal.

Celebrities -- they really are just like us.

Has William Levy Case Settled?

Someone told me that if you can sustain and maintain certain heightened feelings for as long as possible, the ultimate resolution will be that much more satisfying.

Of course I am referring to Hispanic novella/soap star William Levy's lawsuit pending before Judge Moreno (prior coverage here):

As a result of the mediation, there has been a tentative resolution of the California case between the parties whose scope covered the instant case.  The terms of the settlement are confidential.

The parties have stipulated to a sixty day (60) stay.

You know, some of you have very dirty minds.

Missed It By That Much.

Talk about chutzpah, what do you make of a defendant that goes through a full  bench trial before Judge Moreno, loses a breach of k to the tune of $5 million, then moves to vacate the judgment for lack of diversity jurisdiction?

Not much, according to the Judge.

Practitioner's tip -- perhaps this motion would have been better received before you answer, litigate the case, go through a whole trial, and then lose?

Just a suggestion.

Chief Judge Moreno Has One Small Favor to Ask.

Not only do I get emails from Congressman Kucinich containing extensive details regarding his dental history, but I also get some from inside that funny building downtown that looks like a cruise ship:

On behalf of Chief Judge Federico A. Moreno, the following survey is being sent again to members of the Bar who are registered users of the CM/ECF system in the Southern District of Florida. The purpose of this survey is to obtain your thoughts about the Mediation Program in the Southern District of Florida.

Because input from the Bar is important, Chief Judge Moreno has asked the Clerks Office to again provide access to this survey to give those of you who have not previously responded with an additional opportunity to provide feedback about the Mediation Program.

Please complete this survey by February 14, 2011. Your comments will be kept confidential. You may elect to provide your name and contact information at the end of the survey. [ed. note -- suckas!] The results of this survey will be reviewed by the Ad Hoc Advisory Committee on Court Annexed Mediation, and if you have provided your name and contact information, it is possible that a member from the Committee may contact you to discuss your comments.

Thank you for your time.

To access the survey, click here: https://www.surveymonkey.com/s/certifiedmediatorblast 

This certainly seems like a worthwhile endeavor, but question -- will we be eligible to win an iPad?

Judge Moreno Now Has Less (None?) of an Interesting New Case!

Back in August we reported on hot Latino soap star (Glenn, are you listening?) William Levy's $10 million suit against an LA attorney involving an alleged extortion plot, oral sex, and venereal disease.

In other words, nothing compared to what certain senior federal district judges are allegedly up to nowadays!

The case, brought by Ralph Patino, was pending before Judge Moreno.

Well it looks like Ralph dismissed without prejudice a whole bunch of counts, but stated that he was specifically not dismissing two counts of intentional infliction of emotional distress and a count for defamation.

Judge Moreno then entered a final order of dismissal, closing the case and dismissing the (whole?) cause without prejudice.

Or are my ham-and-schlepper eyes reading that wrong?

UPDATE:   Ok, I was reading it right -- the Judge just reopened the case, indicating that it was closed in error.

Judge Moreno Rules Against Paris Hilton!

Judge Moreno Paris Hilton Order
This is David's beat but he's sorta busy at the moment, so let me step in and post Judge Moreno's order on the Paris Hilton/"Pledge This" dispute.

He greatly reduced the damages, as I predicted, but still found her failure to promote that execrable film to be worth a whooping $160k!?!?

Paris appeared shocked and devastated by the ruling, and made this forceful public comment :

Judge Moreno Has An Interesting New Case!

Hmm, I wonder if Judge Moreno has anything interesting on his docket.

Let's see, admiralty, wage claims, ADA......hey now:

Spanish-language soap opera star William Levy demands $10 million from a Los Angeles attorney and his clients, claiming they tried to extort $950,000 from him with false accusations that he forced a girl to perform oral sex on him, and gave her a venereal disease.
     Levy, an unmarried actor whose life has become tabloid fodder for Spanish-language media, claims attorney Steven Lerman at Steven A. Lerman & Associates "maliciously misstated the facts" in order "to blackmail/extort him into a settlement for alleged acts defendants knew were fabricated and untrue."
     Levy also sued the young woman, Karla Alvarez, and her mother, Ana Saucedo, in Federal Court.
     Levy acknowledges in the complaint that he spent time alone with Alvarez in his hotel room on the night of July 18-19. He claims that Alvarez told him that she was 19 years old. He disputes Alvarez's alleged claim that he "held her against her will, threatened her, strangled her and forced her to have oral copulation."
     Levy claims that "On Wednesday, July 21, 2010, plaintiff was informed that defendant Alvarez had filed criminal charges against him for nonconsensual oral copulation and batter on a minor. Defendant Alvarez claimed that Levy knew she was seventeen (17) years old while she allegedly performed oral copulation on him."
     Levy adds: "The allegations further state that Levy transmitted a sexually transmitted disease (hereinafter 'STD') to defendant Alvarez. All of these allegations are known to be false by defendant Lerman and Law Firm. None of these allegations were corroborated by the authorities nor is there any evidence which would support such allegations."
     Levy claims that "defendant Alvarez and defendant Lerman acted in concert and with deliberate malice to cause Levy harm by virtue of attempting to blackmail/extort him into a settlement for alleged acts defendants knew were fabricated and untrue."

In other words -- boring!

Courtesy of Scribd, you can read a full copy of Coral Gables litigator Ralph Patino's muy caliente complaint here.

(Godwhacker, that photo is for you my friend.)

Has the 11th Circuit Done Anything Interesting Lately?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Paris Hilton Allegedly Owes Restitution

Yeah, you read right, restitution:

Investors in Paris Hilton's 2006 box-office bomb "Pledge This!" claim she owes $1 million in restitution for supposedly not promoting the movie enough.

The investors asked a Miami federal judge Thursday to force Hilton to repay her fee from the film. They contend she ignored at least nine requests for interviews and other promotion events in violation of her contract.

If you feel like blowing $2.40, you can read the trial brief on restitution damages here.

BTW, I find it pretty amusing that Raoul Cantero was appointed by Judge Moreno to serve as a mediator in this case (Raoul declared an impasse on March 24th).

The order required both the receiver and Ms. Hilton to personally appear at the mediation.

I can just imagine how things went at the mediation. Luckily, a spy passed along a partial transcript:

Raoul Cantero: Did you know I used to be a Justice on the Florida Supreme Court?

Paris: [to assistant] tell that man with the glasses to shut up.

Raoul Cantero: I also chaired the Florida Supreme Court's Commission on Professionalism.

Paris: [to assistant] Did that person say something?

Raoul Cantero: I make lots of money at White & Case.

Paris: [looks directly at Cantero] That is so hawt!

Judge Moreno Spanks Lawyer For Missing Deadlines

Order Denying Extension

Hey, what's the big deal, it was just a deadline to file a notice of appeal?

Let's see, first you lose the case.

Then you get hit with an order granting defendant $550k in attorney's fees plus another $80k in costs.

Then you blow the deadline to file the appeal.

Then you explain to Judge Moreno that you were really really busy, also on vacation, and your secretary miscalendared the appeal deadline anyways:

Attorney Matthew S. Gibbs set up his ECF account with the United States District Court for the Southern District of Florida with a copy of all filings to be forwarded to his paralegal, Susan Cavallone, for calendaring purposes.1 (See Declaration of Matthew S. Gibbs) Mr. Gibbs was out of the office between November 19 and 30, 2009 for two out of town court proceedings and a family vacation in Florida. (See Declaration of Matthew S. Gibbs) Due to an error by Ms. Cavallone, the deadline for filing the Notice of Appeal was miscalendared. (See Declaration of Susan Cavallone)

Mr. Gibbs realized the Notice had not been filed the afternoon of December 23 and immediately contacted opposing counsel regarding the missed deadline. Based on the Final Judgment issued on November 19, 2009, ECF Administrative Rule 3K(2), and FRAP 26(b)(2), the Notice of Appeal was due to be filed on or about December 21, 2009.

At this point Matthew is probably employing a few of the expletives recently laid out by Judge Marcus.

What do you think -- will Judge Moreno find this to be "excusable neglect"?

Don't let the door hit you....

Plaintiff's explanation that he was out of town for court proceedings and on a family vacation (Pl. Mot. 3) is not "excusable neglect."

Lastly, Plaintiff's cumulative effect of missing deadlines exhibits an absence of good faith. Plaintiff's practice of routinely missing deadlines throughout the litigation betrays Plaintiff's consistent disregard for these proceedings. Indeed, Plaintiff's habitual pattern and practice of missing deadlines throughout the three year long litigation is evidence of a lack of good faith.

I've never understood why lawyers wait until the final permissible day to take an action they know they will take a month or more earlier, yet it is almost always routinely done with no real consideration of whether waiting makes any sense or not.

Well, Matthew, at least now you have another order to appeal.

(Best to double check the calculation just to be safe.)

Judge Moreno Awards Fee Enhancement in MBC Receivership

Remember Judge Moreno's reaction to the requested $11 million MBC fee enhancement request?

It almost caused a judicial heart attack:

“I needed a defibrillator,” he joked. “We’re talking about a lot of money.”

Well the judge must have had a nice herbal tea which settled his nerves, because on Friday he granted most of the request:

In this case, the uniqueness and complexity of the issues required lawyers with substantial skill, expertise, and tenacity, and it is undisputed that the lawyers' excellent representation enhanced the asset pool of funds to be distributed. Under these facts, these great lawyers did make a difference, and they should be compensated at a rate higher than $2 18 or even $264 per hour.

On the other hand, as the Receiver concedes, the Court wrote in WaIco Investments, Inc. v. Thenen, 975 F. Supp. 1468,1472 (S.D. Fla. 1997), that "the presence of a consistently paying client for four years, even at a reduced hourly rate, would warm the heart, let alone the pocketbook, of even the most successful securities litigator." Therefore, the Court must consider the good results obtained as a result of the attorneys' great work, but at a rate less than the $550 to $765 being paid by clients in the free market in South Florida.

Balancing these factors, the Court believes that $450 per hour is a reasonable rate in this case in the Southern District of Florida. At $450 per hour, the total compensation for 18,740 hours should be $8,433,000. The Receiver's motion states that the Receiver's lawyers have already been paid $3,876,081. Thus, the Receiver's lawyers shall be entitled to an additional award of $4,556,919 for its work through April 2009. Moreover, because the 18,740 hours worked by the law firms do not include work past April 2009, the Court will grant attorneys' fees for the work done after April 2009.

Seems like the right call to me.