Dwyane Wade Wins Something!

Well D Wade didn't win a title this year, but he (through his school entity) did beat the plaintiff on a summary judgment motion that was pending before Judge Marra.

The basic premise of Lichfield’s complaint is that it signed an agreement with Next Generation’s predecessor, fulfilled its portion of the contract, and deserves compensation from Next Generation pursuant to the agreement. The crux of the litigation is whether the consulting agreement contains a scrivener’s error or whether the parties intended the agreement to apply to a not-yet-formed entity called Dwyane Wade Schools of Florida, LLC. The affidavits conflict on this point as Bruce Fein’s affidavit, which supports Lichfield’s Motion for Summary Judgment, states that the misnaming of the party in the consulting agreement was a simple scrivener’s error. [Fein Aff. ¶¶ 5, 6]. In Mark Rodberg’s affidavit submitted by Next Generation in opposition to the motion, Mr. Rodberg attests that the agreement was intended to be between Lichfield and a corporate entity to be formed, and that it was not a contract with Defendant. therefore, Next Generation owes Lichfield nothing pursuant to the contract [Rodberg Aff. ¶¶ 9, 10]. Because the affidavits conflict on this critical issue, summary judgment cannot be granted.

If the above recitation of facts is accurate, this seems like a really dumb issue to move for summary judgment on, no?

Or am I missing something?

Dwyane Wade Gets Full Custody!

Maybe this will make the Heat play better, but regardless it's good news for Wade as the Chicago court that has been laboring for two years has awarded him full custody:

Still, the 102-page ruling had some sharp words for Wade's ex-wife.

"This court finds that (Siohvaughn Wade) has embarked on an unstoppable and relentless pattern of conduct for over two years to alienate the children from their father, and lacks either the ability or the willingness to facilitate, let alone encourage, a close and continuing relationship between them," read a portion of the ruling entered by Judge Renee G. Goldfarb.

Wade's attorney, James Pritikin, said the custody trial "was one of the longest ever in Cook County history."

These are strong factual findings, which will make it hard to overturn on appeal (the ex-wife's attorney has already stated one is forthcoming).

Dwyane Wade Charter School Lawsuit Survives Motion to Dismiss.

Wade Charter School

Dwyane Wade's charter school project is embroiled in a legal dispute with an entity that alleges it was supposed to provide consulting services and help develop charter schools for 20k a month, but alleges it has not been paid.

Judge Marra has denied defendant's motion to dismiss the complaint, which alleges unjust enrichment in addition to the usual contract and quasi-contract.

I happen to like the simple, straightforward way that Judge Marra deals with unjust enrichment and Rule 8(a):

Next Generation next argues that Lichfield failed to assert all of the ultimate facts necessary for its unjust enrichment and quantum meruit claims. Specifically, Next Generation contends that Lichfield failed to allege the specific services, the dates that the services were provided, and what benefits Next Generation retained.

The essential elements of unjust enrichment are “(1) a benefit conferred on upon a defendant by the plaintiff, (2) the defendant’s appreciation of the benefit, and (3) the defendant’s acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1274 (11th Circ. 2009) (quoting Rollins, Inc. v. Butland, 951 So.2d 860, 876 (Fla.Dist.Ct.App. 2006)).

In count IV of the complaint, Lichfield alleged, in part, that:

45. Plaintiff conferred a benefit upon NEXT GENERATION, which services and materials were appreciated and accepted by the Defendant NEXT GENERATION that resulted in a substantial benefit to NEXT GENERATION thereby.
46. Defendant NEXT GENERATION accepted and retained the benefits of LICHFIELD’s consulting, public-relations, political and other related services to and for the Defendant under circumstances that would make it inequitable, unfair and unjust for Defendant to do so without paying the value of said benefits and
services.
47. Defendant NEXT GENERATION knew that LICHFIELD expected to be compensated for its efforts in an amount not less than $20,000.00 per month for a 12 month period, i.e., August 2009-August 2010.
48. Plaintiff LICHFIELD fully performed said services and provided all required consulting, public-relations, political and other related services to and for Defendant, which resulted in a substantial benefit to Defendant NEXT GENERATION.
***
Compl. ¶45-48.

Federal Rule of Procedure 8(a) only requires that a plaintiff include a “short and plain statement of the grounds for the court’s jurisdiction”, “a short and plain statement of the claim showing that the pleading is entitled to relief”, and “a demand for the relief sought.”  Fed.R.Civ.P. 8(a). Clearly, Lichfield fulfilled the pleading requirements for the unjust enrichment count since it properly alleged that a benefit was conferred upon Next Generation, Next Generation appreciated the benefit, and the circumstances make it inequitable for Next Generation to retain the benefit without paying for it.

This isn't rocket science, people.

Dwyane Wade Settlement!

Looks like a global one, too:

The trial pitting Miami Heat star Dwyane Wade against two former business partners who wanted $25 million after a restaurant deal went sour has come to a quick end, with the sides announcing a confidential settlement.

Court was delayed for unexplained reasons for nearly three hours Tuesday. All parties, including Wade, walked into the courtroom at 2:02 p.m., and the settlement was announced eight minutes later.

Judge Peter Adrien also said the sides worked out deals on other cases, which could include another trial that was scheduled in Miami brought by some of the ex-restaurant partners alleging Wade walked away from an agreement to license his name to for charter schools, and an antitrust suit over potential sales of memorabilia.

I've often wondered why cases like this settle only after the huge expenditure of time and money involved in getting the case ready for trial. (BTW, I'm not talking about cases where the insurance company needs to have it tried before putting any money on the table).

You would think sophisticated, experienced lawyers could evaluate their cases without having a jury seated and witnesses on the stand. I recognize there can be surprises -- a witness could really suck in court even though she was great at her depo -- but one would hope rational parties could figure out a way to avoid incurring expenses that are not really recoverable, along with the huge waste of time and resources (and trees!) that goes along with it.

3d DCA Watch -- Tangled Up in Blue Edition.

I don't know, I'm in a pretty sour mood this morning.

The oil keeps spilling, the idiots keep talking and/or filing things, the kids grow up, great judges pass on, Dwyane Wade testifies before Judge Adrien, tennis stars do silly things -- you see what I mean?

How 'bout this for quality lawyering:

By Davis's estimate, it took 12-15 minutes to get from the rig to the work boat, but it would take another 36-40 hours before they were to return to shore – even though there were dozens of boats in the area and Coast Guard helicopters airlifting the most severely injured to hospital.

Some of the men were openly furious, while others, like Davis, were just numb. He says they were denied access to the onboard satellite phone or radio to call their families.

When the ship finally did move, it did not head for shore directly, stopping at two more rigs to collect and drop off engineers and coast guard crew before arriving at Port Fourchon, Louisiana.

The company was ready for the men then, with portable toilets lined up at the dock for drug tests. The men were loaded on to buses, given a change of clothing and boxes of sandwiches, and taken to a hotel in Kenner, Louisiana, where finally they were reunited with their families.

Lawyers say the isolation was deliberate and that Transocean was trying to wear the men down so they would sign statements denying that they had been hurt or that they had witnessed the explosion that destroyed the rig.

"These men are told they have to sign these statements or they can't go home," said Buzbee. "I think it's pretty callous, but I'm not surprised by it."

Davis had been awake nonstop for about 50 hours by that point. He signed. Buzbee says most of the men did.

Hey, a contract's a contract.

Oh hail, let's see what the Resplendent Ones have been up to:

Flores v. Riscomp:

"Relation back" doctrine in action:

Although additional allegations of fact were inserted into the complaint as it progressed through its steps, and the legal theories of recovery were supplemented and modified, the substantive factual situation remained the same as that found in the original complaint—a slip and fall on property for which Riscomp was responsible.

Nicely written, though it's all apodictic to me.

Sims v. New Falls:

Judge Shepherd gets a case of "lex loci contractus" (I hope there's a shot for that).

Judge Cope, however, thinks an exception applies, and also uses the fancy phrase "in para materia."

I think I'm glad I'm a litigator instead of a real estate lawyer.

Park Adult v. Dan Designs:

Oh crap, more Rothstein:

At the time the agreed order was entered, the tenant was represented by attorneys at the firm of Rothstein Rosenfeldt Adler (“RRA”) in Ft. Lauderdale, Florida. On Sunday November 1, federal authorities seized the law firm premises in connection with an alleged Ponzi scheme carried out by the law firm’s senior partner, Scott W. Rothstein.

Turmoil at the law firm ensued. According to the attorneys, the firm no longer had an ability to issue trust account checks. It was therefore necessary for the tenant to obtain cashier’s checks to deposit in the court registry. On Monday November 2, the tenant obtained two official checks issued by Citibank, each in the amount of $21,400, for a total of $42,800. On November 3, the tenant provided these checks to counsel. Counsel arranged for one of the RRA law firm’s in-house couriers to deliver the checks to the registry of the court inMiami. The same day counsel served a notice of payment to the court registry and attached copies of the Citibank checks.

However, during the work day on November 3, the law firm employees were informed that they would no longer be paid. Many employees, including the one or ones responsible for delivering these checks, walked off the job. Accordingly the November 3 deadline passed without the checks being deposited in the registry of the court.

On November 4, counsel learned of the nondelivery of the checks. Counsel personally took the checks to the court registry in Miami on November 4 but the clerk refused to accept the checks because they were tendered a day late.

Judge Gersten says the "trial court may not consider the reasons why the deposit was not made," though he offers some "rachmones" to the displaced, totally-screwed tenant.

That's nice, says Judge Cope, but the tenant might have preferred a little justice with his schmaltz.

Brad, if you're listening, take this one up.

Dwyane Wade Cites Iqbal!

Hey, two of my favorite things, together again:

First, Plaintiff again fails to plead sufficient facts to clear the pleading hurdle set forth by the Supreme Court in Ascroft v. Iqbal, 129 S. Ct. 1937 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). As the Court recognized in the Order, when facing a Rule 12(b)(6) motion to dismiss “a plaintiff’s obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Order at 4 (quoting Twombly, 550 U.S. at 555.)

In Twombly, the Supreme Court confirmed that in order to survive a motion to dismiss under Rule 12(b)(6) an antitrust complaint must contain factual allegations which are “enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true.” Twombly, 550 U.S. at 555.

Citing Iqbal, this Court also reminded the parties that “Plaintiff must plead enough facts to state a plausible basis for the claim.” Order at 4. Ultimately, the facts set forth in the complaint must be sufficient to “nudge the[ ] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.

Let me offer some unsolicited advice (the best kind!) to my pal Bob Turken.

Your motion was plenty strong without a throwaway Iqbal argument (you can read the whole thing here).

Do you really think Judge Marra will blow past your smartly presented and credible "market definition" deficiency argument ("South Florida NBA sports stars who have a funnily-spelled first name" or something), conclude that indeed a proper market definition was provided but then bounce it on Iqbal plausibility grounds?

If he did, would that be what you want to be arguing about on appeal?

Reminds me of that old brief-writing maxim I tell my associates -- get rid of arguments four, five and six.

Otherwise, nicely done and I think Wade's in pretty good shape here.

Hump Day Digital Dump

Hi kids, just another day in paradise.

Let's see what's pinging around in my brain this morning:

Steve Carell has a schmuck problem.

Related -- I want to marry Sarah Silverman.

I've got a brand new pair of roller skates, Mike Eidson's got a decades-old key.

Dwyane Wade -- oy.

Congrats Willie!!

So Senator Bennett looks at a little soft porn while on the Senate floor?

But don't worry, sez the Senator, it was totally my best friend's fault!

“Last Friday, I took a moment to check my personal email account during a quiet minute on the Senate floor. I received several emails from a former city colleague and life-long friend. I had no prior knowledge as to what the emails would contain and when the contents of one was discovered to be less than appropriate, it was promptly closed. I cannot control what individuals may send me and am disappointed that at a time when there are major issues impacting Florida, an insignificant issue such as this receives any attention.”

What's worse -- four seconds of harmless skin during the workday, or publicly throwing your life-long friend under the bus?

Guess where I come down on that one.......

Dwyane Wade Lawsuit Hits Mediation Impasse

Anyone wondering what's up with the suit against Dwyane Wade pending before Judge Marra?

Last we checked, motions related to the proposed deposition of Pat Riley were pending, and the parties were about to conduct a mediation before Bill Hearon.

That was back on September 16.

Well, here's the latest -- the mediation impassed.

In his notice filed on November 2, Hearon advises that after the mediation conference in September, the parties had multiple telephone conferences in an effort to broker a settlement:

No agreements were reached as a result of the mediation conference or the telephone conferences and, as a result, an impasse was declared.

Alright, it's not all that descriptive but it's interesting that the parties were working with the mediator for the last two months to try to get a deal done.

I wonder what the final stumbling block was?

Fast Zombies Suck!

Before we turn to, you know, legal issues, let's dispense with today's Glenn Garvin.....

Hey now! You know what they say -- a blind pig finds a broken clock twice a day inside an acorn, or something, but Glenn actually is right -- this show is awesome (I watched it this morning on video-on-demand).

But, as usual, Glenn gets the politics of Night of the Living Dead all wrong:

But with racial violence wracking America in the wake of Martin Luther King's assassination, a black character decapitating and disemboweling white people by the score -- even white people who were already technically dead -- inevitably assumed epic political proportions.

First off, the context is incomplete -- in addition to riots in the streets and MLK and RFK, you had the Tet offensive and the escalating violence in Vietnam.

Moreover, the black character wasn't just "killing whitey" in Glenn's reductive formulation, he was a bold and courageous leader -- giving orders, saving lives, and taking command -- not something seen in American cinema very often at that time.

Most importantly, Glenn misses the entire point of the ending, filled with grainy black-and-white photo images of Southern, white law-enforcement authorities with guns, laughing and committing cheery violence -- clearly evocative of historic newspaper accounts of white-on-black lynchings, ongoing KKK violence, Medger Evers, church bombings etc.

Speaking of zombies, what sane parent would intentionally submerge their child in a vat filled with Disney total-immersion purchasing opportunities:

“The world does not need another place to sell Disney merchandise — this only works if it’s an experience,” said Jim Fielding, president of Disney Stores Worldwide. The company plans to unveil the new look in May in Southern California, Long Island and Madrid, and is close to signing a lease for that Times Square flagship.

Theaters will allow children to watch film clips of their own selection, participate in karaoke contests or chat live with Disney Channel stars via satellite. Computer chips embedded in packaging will activate hidden features. Walk by a “magic mirror” while holding a Princess tiara, for instance, and Cinderella might appear and say something to you.

It’s your birthday? With the push of a button, eight 13-foot-tall Lucite trees will crackle with video-projected fireworks and sound. There will be a scent component; if a clip from Disney’s coming “A Christmas Carol” is playing in the theater, the whole store might suddenly be made to smell like a Christmas tree.

In other words, another remake of Dawn of the Dead.

Ok, I already reported about a month ago that Pat Riley really doesn't want his depo taken.

Now, in addition to the plaintiff's motion to compel and Pat's motion to quash, Dwyane Wade has also filed a motion for protective order regarding Riley's impending deposition.

In it, Robert Turken of Bilzin argues that deposing Riley would be a "fishing expedition" and that Riley knows nothing about the underlying facts of the alleged antitrust action. He also argues that the plaintiff's effort to depose Riley is for an improper purpose -- to gain leverage in the pending state court action.

Of course, it's possible a depo can be legitimate and permissible under Rule 26, and yet also have a collateral benefit to one of the parties in ancillary litigation.

My advice -- when you're going after someone who looms as large as Pat Riley, it's like taking down a zombie -- your first shot better be the right one.

This one feels like a misfire.

Pat Riley Would Rather Not Be Deposed.

So Dwyane Wade and his Bilzin attorney Mike Kreitzer are gearing up for a big mediation tomorrow before Bill Hearon that may resolve a number of lawsuits pending against the Heat megastar:

Wade attorney Michael Kreitzer said the Heat star wants all issues on the table. The mediation session was ordered by a federal judge in an antitrust case accusing Wade of seeking a South Florida monopoly on his sports memorabilia, the sales of which were to be a cornerstone of the failed D. Wade's Place restaurant chain.

"We simply suggested, and the other side agreed, that if there was going to be a discussion about settlement, it made sense for the discussion to encompass all of the cases," Kreitzer said in an e-mail. "If a resolution could be reached, the resolution would be final as to all matters."

Wade also was sued by his former partners, Mark Rodberg and Richard von Houtman, for breach of contract in the restaurant venture. A similar case brought by Rodberg accuses Wade of walking away from obligations to the charter schools, now known as Mavericks in Education Florida LLC. Wade has accused von Houtman of defaming him in e-mails to Heat president Pat Riley, and von Houtman has filed a countersuit to that.

Without a deal, Wade could find himself in courtrooms and law offices for months instead of focusing on the Heat season that begins with training camp on Sept. 27.

"This has got to hang like the sword of Damocles over his head," said Washington attorney Bruce Fein, who represents the plaintiffs in the memorabilia case.

Among the pending issues is a subpoena served on Heat President Pat Riley in the antitrust case before Judge Marra. Riley, represented by Alan Fein, has so far refused to appear for his deposition.

Reading the plaintiff's motion to compel Riley's deposition is a hoot. Here's their framing of the dispute:

Plaintiff has strong reason to believe that Pat Riley’s deposition could lead to the discovery of admissible evidence, which is the Rule 26 standard for witness depositions under the Federal Rules of Civil Procedure. Defendant Henry Thomas has stated under oath in a deposition that Pat Riley spoke to him twice about Wade’s involvement in the JVA and Riley’s concern over Wade’s business partners, i.e., Plaintiff. Wade may have spoken directly to Mr. Riley or vice versa about the JVA. The Miami Heat had a clear incentive to conspire with Wade to destroy the JVA because the latter was a competitor in the retail sale of personalized Wade sports memorabilia and in demands on Wade’s advertising availability and time. Wade may have informed Riley of why he was abandoning the JVA. Defendant Andrews or Defendant Case 9:09-cv-80607-KAM Document 41 Entered on FLSD Docket 09/10/2009 Page 3 of 7.

Thomas might also have done so. As President and former head coach of the Miami Heat, Pat Riley would be knowledgeable of Wade’s unique market niche as an NBA superstar and the value of Wade’s name, likeness, and image in promoting the Miami Heat. In summary, Pat Riley inarguably is a proper person for Plaintiff to depose under Rule 26.

Plaintiff’s attorney, Bruce Fein, spoke by telephone with Mr. Riley’s attorney, Alan Fein, on August 25, 2009, in an attempt to discuss the issued raised by Ms. Melchiondo and to set a deposition date. Mr. Fein, however, insisted that Pat Riley would not agree to any deposition at any time. The reasons given by Mr. Fein were at least fourfold: Plaintiff’s antitrust claims gave legal frivolity a bad name; Plaintiff should have named the Miami Heat as a Defendant if it were surmised that the Heat were implicated in Wade’s alleged antitrust violations; Mr. Riley knew of no “smoking gun” that would conclusively prove Wade guilty of an antitrust infraction; and, Mr. Riley did not track retail sales of sports memorabilia by the Miami Heat.

The plaintiff says these arguments are "frivolous" and "amateurly misconstrue the discovery standard under Rule 26."

It's one thing to misconstrue the discovery standard, but come on, at least do it like a professional!

The motion seems like a stretch, however, and even though it's not technically an APEX depo I think the equities are not in the plaintiff's favor here, at least not before other discovery is taken first.

Wade, my advice is to settle these suckers tomorrow.