Sorry, Your Cruise Ship Wrongful Death Claim Must Be Litigated in Wales!

Wow, I'm an attorney and have been on many Royal Caribbean cruises out of Miami and this is news to me:

In the fall of 2009, Tore Myhra and his family vacationed on a cruise ship operated by Royal Caribbean Cruises, Ltd. During his voyage, Mr. Myhra fell ill, and he died sometime later. His Estate instituted this action against Royal Caribbean, seeking damages for his injuries and death. It alleged that a bacterial infection that he had acquired while on board Royal Caribbean’s vessel had caused these tragic events. Royal Caribbean moved to dismiss the action for improper venue under Federal Rule of Civil Procedure 12(b)(3); it relied upon a forum-selection clause among the conditions in Mr. Myhra’s passage contract. That clause required that all personal injury claims be litigated in the courts of England and Wales and be governed by English law.

Wales?

Ok, I see they booked passage through a British travel agency.

We hold that 46 U.S.C. § 30509(a) does not bar a ship owner from including a forum-selection clause in a passage contract, even if the chosen forum might apply substantive law that would impose a limitation on liability. We further hold that, under the particular circumstances set forth in the record before us, the forum-selection clause was reasonably communicated to the Myhras and, therefore, cannot be invalidated as having been achieved by overreaching on the part of Royal Caribbean.

If the limitation of liability by proceeding under Wales law is so severe, why not put that in all their contracts?

In other news, Ben Kuehne says the former Mayor of North Miami Beach did his very best to comply with all those really hard to understand, complex campaign finance laws:

 “As a political candidate, he has always attempted to follow the complex requirements of election and campaign finance laws,” he said. “He is confident he has done his best to comply with the law, and any errors that resulted were neither intentional nor harmful.”

Just like his term in office!

Finally, Steve Geller knows what a proper Holocaust Museum should look like -- it should look like it's not in the City of Hollywood.

Happy Friday!

ad more here: http://www.miamiherald.com/2012/09/20/3012078/former-north-miami-beach-mayor.html#storylink=cpy

Judge Tjoflat's Magic Transcript Ride.

I love it when Judge Tjoflat gets all technical, like when he insists that you need a transcript of a district court ruling in order to appeal.

Here he is dissenting from a denial of en banc review, where he calls out the panel for reversing a provisional, pretrial ruling from Judge King (excluding an expert) because the appellant failed to transcribe the actual trial where Judge King ruled the same way -- except this time during trial:

The panel assigned to hear Rosenfeld’s appeal overlooked the fact that Rosenfeld’s argument for reversal was based on a provisional pretrial ruling and treated the argument as if it were addressed to the District Court’s trial ruling. The panel then concluded that the District Court erred in excluding the proffered evidence, that the error was not harmless, and that the District Court should have granted Rosenfeld a new trial. In overlooking what Rosenfeld had done, the panel failed to recognize that Rosenfeld, in basing her new trial motion on a provisional pretrial evidentiary ruling rather than an evidentiary ruling at trial, had effectively waived her argument that the District Court abused its discretion in not granting a new trial. Had the panel recognized this fact, it would have rejected Rosenfeld’s appeal out of hand.

I get it Judge -- there is a difference between a pretrial and trial evidentiary ruling.

(Enough with the underscoring!)

And the Beat Goes On!

All the way to the Eleventh Circuit, with Mark Hicks now manning the controls:

Notice is hereby given that Peter Halmos, International Yachting Charters, Inc., and High Plains Capital Corporation, plaintiffs in the above named case, hereby appeal to the United States Court of Appeals for the Eleventh Circuit from the Findings of Fact and Conclusions of Law entered in this action on November 22, 201 1 (D.E. 1431) (Ex. 1).

I wonder if there are any appellate issues?

Tampa Federal Conviction Reversed by United States Supreme Court

Conviction Overturned on Appeal

Tampa Defense Attorney / Lawyer previously reported here a team of Defense Attorneys from Tampa, Florida went to the United States Supreme Court seeking to overturn a conviction. Today we find out the case was overturned. Congratulations to Steve Crawford and Tampa Appeal Attorney / Lawyer Ken Siegel. The complete Opinion is available as a free download here:

Tampa Defense Attorney Supreme Court Opinion.

FOWLER v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 10–5443. Argued March 29, 2011—Decided May 26, 2011

While preparing to rob a bank, petitioner Fowler and others were discovered by a local police officer, whom Fowler killed. Fowler was convicted of violating the federal witness tampering statute, which makes it a crime “to kill another person, with intent to . . . prevent the communication by any person to a [Federal] law enforcement officer” of “information relating to the . . . possible commission of a Federal offense,” 18 U. S. C. §1512(a)(1)(C). Rejecting Fowler’s argument that the evidence was insufficient to show that he had killed the officer intending to prevent him from communicating with a federal officer, the Eleventh Circuit held that a showing of a possible or potential communication to federal authorities was sufficient.

Held: In such circumstances, the Government must establish a §1512(a)(1)(C) violation by showing there was a reasonable likelihood that a relevant communication would have been made to a federal officer. Pp. 3–10.

(a) In a §1512(a)(1)(C) prosecution, “no state of mind need be proved with respect to the circumstance . . . that the law enforcement officer is an . . . employee of the Federal Government,” §1512(g)(2). Thus, the Government must prove (1) a killing, (2) committed with a particular intent, namely, an intent (a) to “prevent” a “communication” (b) about “the commission or possible commission of a Federal offense” (c) to a federal “law enforcement officer.” P. 3.

(b) Nothing in §1512(a)(1)(C)’s language limits it to instances in which the defendant has some identifiable law enforcement officers particularly in mind. Any such limitation would conflict with the statute’s basic purpose. Witness tampering may prove more serious (and more effective) when the crime takes place before the victim has engaged in any communication at all with officers—at a time when the precise communication and nature of the officer who may receive it are not yet known. Hence, the statute covers a defendant, like petitioner, who kills with intent to prevent communication with any and all officers. The Court must consequently decide what, if anything, the Government must show about the likelihood of a hypothetical communication with a federal officer where the defendant did not think specifically about any particular communication or its recipient. Pp. 4–7.

(c) To determine what the Government must prove in such instances, the Court looks to the dictionary definition of the statutory word “prevent,” which means rendering an “intended,” “possible,” or “likely” event impractical or impossible by anticipatory action. No one suggests that the word “intended” sets forth the appropriate standard here. The Government and the Eleventh Circuit would rest their standard on the word “possible.” But that standard would eliminate the independent force of the statutory “federal officer” requirement, and would extend the statute beyond its intended, basically federal, scope. Fashioning a standard based on the word “likely” is consistent with the statute’s language and objectives. Thus, where the defendant kills a person with an intent to prevent communication with law enforcement officers generally, that intent includes an intent to prevent communications with federal officers only if there is a reasonable likelihood under the circumstances that, in the absence of the killing, at least one of the relevant communications would have been made to a federal officer. The Government need not show that such a communication, had it occurred, would have been federal beyond a reasonable doubt, nor even that it is more likely than not. But it must show that the likelihood of communication to a federal officer was more than remote, outlandish, or hypothetical. Pp. 7–10.

(d) Because Fowler’s argument that the evidence is insufficient to satisfy a “reasonable likelihood” standard was not raised at trial, the lower courts must determine whether, and how, the standard applies in this case. P. 10. 603 F. 3d 883, vacated and remanded.

The Eleventh Circuit Goes Iqbal-Crazy!

Iqbal Iqbal Iqbal.

I'm already sick to death of this opinion, and the mania over it has not yet even started.

As I have written before, Iqbal is the standard of review legal equivalent of flatbread -- inert, tasteless, yet somehow incredibly trendy and inexplicably popular.

Today the Eleventh released its opinion in the closely-followed case of the union organizers who were tortured and killed at a Columbian bottling plant, Sinaltrainal, where claims were being asserted against Coca-Cola under the Alien Tort Statute and the Torture Victims Protection Act.

In an opinion by Judge Black, the Eleventh affirmed the Southern District, and held that the complaints did not state a claim -- probably the right result.

In doing so, however, Judge Black adopted Iqbal (as it must) and attempted to lay out for us the brave new post-Iqbal world:

Although it must accept well-pled facts as true, the court is not required to accept a plaintiff’s legal conclusions. Ashcroft v. Iqbal, 556 U.S. ---,129 S. Ct. 1937, 1949 (2009) (noting “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions”). In evaluating the sufficiency of a plaintiff’s pleadings, we make reasonable inferences in Plaintiff’s favor, “but we are not required to draw plaintiff’s inference.” Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005). Similarly, “unwarranted deductions of fact” in a complaint are not admitted as true for the purpose of testing the sufficiency of plaintiff’s allegations. Id.; see also Iqbal, 129 S. Ct. at 1951 (stating conclusory allegations are “not entitled to be assumed true”).

A complaint may be dismissed if the facts as pled do not state a claim for relief that is plausible on its face. See Iqbal, 129 S. Ct. at 1950 (explaining “only a complaint that states a plausible claim for relief survives a motion to dismiss”); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561-62, 570, 127 S. Ct. 1955, 1968-69, 1974 (2007) (retiring the prior “unless it appears beyond doubt that the plaintiff can prove no set of facts” standard). In Twombly, the Supreme Court emphasized a complaint “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S. Ct. at 1965. Factual allegations in a complaint need not be detailed but “must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555, 127 S. Ct. at 1964-65 (internal citations and emphasis omitted).

More recently, in Iqbal, the Supreme Court reiterated that although Rule 8 of the Federal Rules of Civil Procedure does not require detailed factual allegations, it does demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 129 S. Ct. at 1949. A complaint must state a plausible claim for relief, and “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss. Id. The well-pled allegations must nudge the claim “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570, 127 S. Ct. at 1974.

Again, what the difference is between conceivable and plausible is a mystery and this "test" seems to me completely unhelpful to litigants in the real world.

Indeed, does anyone know what any of that means?

By that I mean, is there any complaint that you would not throw an Iqbal challenge against, given the vagaries of the current formulation?

The new test seems to me to vest a huge amount of discretion in the district court at the initial stages to make a good old-fashioned 3d DCA-styled "gut check" and determine -- without discovery or a sustained effort by counsel to flesh out the allegations -- that the case should be gone forever.

Question -- if Rule 8 did not change, then how come the pleading standard did?

That's why I'm intrigued by Senator Spector -- currently being assailed by misinformed angry white folks who want God to rain justice on his cancer-ridden corpus -- and his efforts in Congress to return Rule 8 to its 1957 Conley-era roots.

You know, the good old days....when people just ate bread.

Michael Kreitzer Wants Plaintiffs To Be Diligent.

Every so often I guess I have to write something about, you know, the law or the legal profession or something boring like the rules that actually govern what we do. I know I know -- snooze city. But it's the only way dear readers in big firms can justify their 4.6 hours of daily billing on "professional matters" or "legal development" or "wasting most of the day acting like you are working on something important at your computer."

So here's a news flash on a burning issue that has consumed our profession since those randy barons tried to serve the Magna Carta Libertatum on King John, yes, it's the dreaded Last Served Defendant Rule:

Weighing in on a long-standing circuit split over when the time for removal runs in a multidefendant suit, the Eleventh Circuit in Bailey v. Janssen Pharmaceutica, Inc. [PDF] has adopted the so-called last-served defendant rule, suggesting that the U.S. Supreme Court’s decision in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc. supports that rule.

In Bailey, the plaintiff served the last of four defendants over 30 days after service on the other three defendants. The last-served defendant filed a notice of removal 30 days from the date it was served. Both the district court and the Eleventh Circuit held that the notice of removal was timely because it was filed 30 days after last defendant was served.

This holding is at odds with the Fifth Circuit’s decision in Brown v. Demco, Inc. There, the Fifth Circuit held that the time for removal expires 30 days after the first defendant is served, regardless of whether other defendants have been served. The Fifth Circuit reasoned that the first-served defendant rule was appropriate because removal requires the unanimous consent of all defendants. Once the first-served defendant decides against removal, removal is impossible.

The Fifth Circuit is in the minority on this issue. The Bailey case follows more recent decisions in the Sixth and Eighth Circuits (Brierly v. Alusuisse Flexible Packaging, Inc. and Marano Enterprises of Kansas v. Z-Teca Restaurants, LP [PDF]), which conclude that equity requires that each defendant have 30 days from the date it was served to file a notice of removal. Otherwise, later-served defendants could lose their statutory right to removal before ever receiving process.

The Eleventh Circuit based its Bailey decision in part on its view that the last-served defendant rule is supported by the U.S. Supreme Court’s decision in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc. In Murphy Brothers, the Court held that the removal period does not begin until the defendant receives formal process. The Eleventh Circuit reasoned that the Fifth Circuit’s first-served defendant rule is inconsistent with the Murphy Brothers holding because it obligates a defendant to seek removal prior to receiving formal process.

Now I know what you're thinking. It's probably the same thing I first thought when I heard about this dramatic 11th Circuit development:

What is Michael Kreitzer's reaction? For gosh sakes get me handsome Mike Kreitzer on the horn and tell me what he thinks of all this! Seriously, I need to know what Michael thinks NOW!

Thankfully, Michael was indeed available for comment:

“A plaintiff who cries foul because its case, which had been litigated in state court for some time, is surprisingly removed to federal court by a later-served defendant may only have itself to blame,” states Michael Kreitzer, Miami, cochair of the Federal Rules Revision Subcommittee of the Section’s Pretrial Practice and Discovery Committee. “The plaintiff is the master of choosing the defendants and the order in which they are served, and if the plaintiff is diligent in identifying potential defendants presuit, then the plaintiff likely would not face the late arrival of a defendant with removal rights.”

Sounds reasonable and all Michael, but that's a low blow -- everyone knows plaintiffs don't think that far ahead.