As discussed above, there are material disputes in this case as to whether Defendant’s employees conducted a strip search, including a cavity search, of a seventeen-year-old passenger and whether Defendant’s policies permit such a search. If Defendant’s employees performed such a search, the Court cannot conclude that Defendant’s policies permitting the strip search of a minor, if supported by the facts at trial, do not rise to the type of “gross and flagrant” conduct that would support the award of punitive damages.
Hey, so there's that.
But at least they take good care of their passengers when a ship breaks down unexpectedly!
Careful readers know I have a obsession with fondness for certain people and issues that the blog tends to return to again and again -- or maybe I'm just out of material?
Anyways, I'm happy to see the 11th Circuit clarify the Iqbal pleading standard in an opinion reversing Judge Graham, who granted a 12(b)(6) motion on those grounds. Let's see if you can tell what particular (and tragic) factual allegations really tipped the scales in favor of allowing the case to proceed past the initial stages of a motion to dismiss, as opposed to being gone for all eternity:
Appellants’ complaint alleges the following: a Carnival employee encouraged Appellants to visit Coki Beach in St. Thomas; Carnival was familiar with Coki Beach because it sold excursions there; Carnival generally knew of gang violence and public shootings in St. Thomas; Carnival knew of Coki Beach’s reputation for drug sales, theft, and gang violence; Carnival knew or should have known of the gang member’s shooting and funeral taking place near Coki Beach; Carnival failed to warn Appellants of any of these dangers; Carnival knew or should have known of these dangers because Carnival monitors crime in its ports of call; Carnival’s negligence in encouraging its passengers to visit Coki Beach and in failing to warn disembarking passengers of general and specific incidents of crime in St. Thomas and Coki Beach caused Liz Marie’s death; and Appellants have suffered various damages, including the loss of Liz Marie’s life. This negligent failure-to-warn claim is more than a mere recitation of the elements of the cause of action. The facts alleged in the complaint are plausible and raise a reasonable expectation that discovery could supply additional proof of Carnival’s liability. See Twombly, 550 U.S. at 556, 127 S. Ct. at 1965. We consequently conclude that the district court erred in dismissing Appellants’ negligence claim under Iqbal.
Congrats to Phil Parrish on a big win -- now you get to litigate your case and try to prove up some of these allegations (the ruling on duty to warn should help).
It's an frosty blistery day outside, but inside the bunker the robes are resplendently heated, the air smells like fresh gingerbread (Judge Emas has a new cologne!), and the coffee.....well it's cold, dark and bitter -- just how I like it!
Oh boy, did I just read a fact pattern or the script from a Law & Order episode?
Married couple in law office getting divorced, financial records allegedly taken from office and given to one party's divorce lawyer, suit later brought against divorce lawyer receiving docs.....oy.
Apparently the suit against the lawyers lives on, though Judge Salter in concurrence advises Mr. Anthony against continuing to pursue it:
I write only to note several indicia of a terminally ill lawsuit that, while it may have survived a first and second brush with death, has no apparent cure in sight.
Those indicia are:
1. The appellant is an attorney who signed his own complaint and amended complaint (though later memoranda and the briefs here were signed by a junior lawyer in the small firm wholly owned by the appellant). “The old adage that ‘a lawyer who represents himself has a fool for a client’ is the product of years of experience by seasoned litigators.” Kay v. Ehrler, 499 U.S. 432, 438 (1991).
2. The cases arose out of (a) a dissolution of marriage proceeding brought by the former wife in 2004 and (b) the appellant’s subsequent claims against the former wife’s attorneys for allegedly counseling her to copy records from the appellant’s law office before the dissolution petition was filed. The emotional aspect of dissolution cases (particularly, as here, involving minor children) amplifies the possibility of professional misjudgment by anattorney/party. To compound the emotional aspect of the dissolution of marriage proceeding, the former wife had exploited her position as an employee in the small law office to clandestinely copy the otherwise confidential documents. She thus simultaneously sundered not only a longstanding marriage, but also a successful business relationship.
3. On the face of the amended complaint, however, there is no discernible claim of actual harm to a client of the law office or to the ongoing business activities of the law office. The alleged damages principally consist of increased legal expenses alleged to have been incurred by the appellant because of his need to litigate these matters against the former wife and her attorneys. Any such damages were under the appellant’s control—no litigation, no expenses. Many of the allegedly-photocopied records—appellant’s law office tax returns, for example—would have been subject to production as part of the parties’ financial disclosure to one another in any event.
The Judge strongly counsels Mr. Anthony against continuing the litigation and even recommends that he show his suit to an experienced litigator:
[F]or the sake of the trial court’s docket, the ability of the appellant to devote his considerable experience to more productive endeavors, and “closure” for the parties and the two minor children, I will simply recommend that the appellant share the facts and his amended complaint with a detached, experienced trial lawyer before deciding whether to resume hostilities in the trial court after remand.
It's also interesting to note that in the 2007 appeal of the underlying divorce action (which overturned language in the dissolution agreement that would have released the law firm subject to the current suit), Judge Schwartz vigorously dissented, arguing that the possible suit against the lawyers is purely hypothetical:
First, the most basic requirement for judicial activity does not exist in this case. This is because no one has been able to explain how the purported releasors can, let alone will, ever be the subject of a claim against them so that the extent or existence of any release is nothing more than academic. Thus, there is simply no "case or controversy" between the parties presented by this appeal.
