Surprise -- Somebody Filed for Rule 11 Sanctions in the Toe-Tapping Yacht Case!

You know how they used to do retrospectives at the end of the TV season, where Tom Bosley or John Ritter would introduce their favorite clips and you could reminisce about how funny it was when Jack Soo used to crack up Barney Miller?

That's sort of what this Rule 11 motion filed by the defendants in the toe-tapping yacht case feels like, a "greatest hits" collection of the high (or low) points of the litigation -- from the defendants' perspective.

Note this was filed after final judgment and after an appeal was taken.

The plaintiffs' response is here, and the reply is here.

More collateral litigation -- will this case ever end?

The Day The Toes Stopped Tapping.

Yes kids, the dreaded second of that foreboding minute of the momentous hour of that portentous day has arrived.

(I have no idea what any of that means.)

SIMPLY AMAZING!!

Here's a taste of Magistrate Judge Brown's order which, true to form in this case, was apparently filed erroneously under restriction (D.E. 1430) ("you do not have permission to view this document"), then refiled as D.E. 1431 in two parts (for which you have to pay(!) as if it's a pleading and not an order):

To be sure, this was a most unusual and unique case. The saga endured by plaintiffs might well make a script for a book. (Ed. -- or a whole mess of blog posts!) The ensuing claims addressed by defendant were as far from "run of the mill'' as anyone could imagine. The Court is not without sympathy for the ordeal plaintiffs went through. Indeed, the record is full of indicators of sympathy on several fronts -including that of at least one of the adjusters handling this case. This clearly contributed to the most unusual happenstance of - on more than one occasion - the defendant paying claims without supporting documentation, simply on the "say-so'' of Mr. Halmos, and in the end resulted in more than one substantial overpayment. The uncontroverted evidence is that an almost symbiotic relationship developed between Mr. Halmos and the primary INA adjuster, Pamela Harting- Forkey . . . until supporting materials for claim s were requested and claims began to be questioned. lt then turned quite adversarial - at least on the part of plaintiffs. Notwithstanding said sympathy, however, the Court reaches its decisions herein without being "influenced in any way by sympathy, or by prejudice, for or against anyone.'' Eleventh Circuit Standard Instruction regarding Consideration of The Evidence.

Let's just say the case came down to credibility determinations, and here's a small example of where the Judge's head was at on that issue:

Third, IYC intentionally misrepresented that the Merideth Law Firm invoices were "legal and Legal Support Services'' related to salvage and protection against loss of the Legacy due to Hurricane Wilma, even though the time was for Halmos, a non-lawyer partner in the District of Columbia-based Merideth Law Firm, and his employees. See FF 148-50. 'I'he Court finds Mr. Halmos' "partnership'' in Washington D.C. of no significance, as the alleged work done and billed) was done in Florida, not in D.C., and by Mr. Halmos' own version of the facts, was done under supervision of a Florida lawyer.   There is no evidence in this record of that lawyers' affiliation with the Merideth Law Firm. In making such representations, Halmos not only violated the District of Columbia Rules of Professional Conduct, see D.C. R. Prof Conduct 5.541) (prohibiting individuals from engaging in the unauthorized practice of law in other jurisdictions, such as Florida); D.C. R.Prof Conduct 5.409(2) & (3) (the nonlawyer in partnership with the District of Columbia law organization must abide by (the District of Columbia Rules of Professional Conduct), he violated Florida law, see Fla. Stat. j 454.23 ("Any person not licensed or otherwise authorized to practice 1aw in this state who practices 1aw in this state or holds himself or herself out to the public as qualified to practice law in this state, or who willfully pretends to be, or willfully takes or uses any name, title, addition, or description implying that he or she is qualifed, or recognized by law as qualified, to practice law in this state, commits a felony of the third degree, punishable as provided in sec 775.082, sec 775.083, or sec 775.084.5').

Huh?

Maybe this loopy version is more appropriate here:

You Heard It Here First -- Toe-Tapping Broken Yacht Case Someday Will End!

So sayeth Magistrate Judge Brown:

Despite this latest motion, the journey will be coming to an end. This Court will not respond to, nor dignify, the latest attack on it except to state the following. It is without dispute that the March, 2005 letter (exhibit B20 in the trial record) is of great significance. In one breath, plaintiff would have the Court believe that plaintiffs produced this document pursuant to Fed.R.CiV.P. 34, that defendant saw this document ... a document which, viewed in a light most favorable to defendant might be grounds for voiding the entire policy and, by extension the Legacy claim from Hurricane Wilma ... yet chose not to copy it. This is particularly relevant because there is no evidence produced (at least so far ...) that said document, nor it contents, nor its subject matter was ever presented to defendant prior to the August, 2005 policy renewal which was prior to the claim arising from Hurricane Wilma.

In the next breath, plaintiff would have the world [ed note -- why thank you, Judge!] believe that defendant knew it had the document but chose not to do any discovery, nor list any witnesses, nor list any experts regarding same - all so defendant could file its motion for sanctions (D.E. 1275).  Defense counsel must have had nightmares when this "biased'' Court denied two similar motions addressing the report prepared after Hurricane Wilma from the vessel manufacturer and the alleged withholding of other materials!  (See D.E. 1238, 1243 and 1284, 1287).

The Court will not allow the journey to continue any further - at least "not on its watch.''

 In other words:  the three-hour tour boat ride from hail sinking ship disaster at sea whatever you want to call it, it too someday will end (someday!).

Promises promises....

Judge Brown Vindicated; Let's Have a Bench Trial!

Judge Brown Vindication

Peter Halmos' last-ditch toe-tapping effort to have Judge Brown's order of reference vacated has been denied by Judge Martinez.

In a comprehensive order, Judge Martinez addresses specifically the "coerced consent" issue, the "mediator then adjudicator" issue, and the SIMPLY AMAZING(!) "judicial rhetoric" issue.

Here's a taste from footnote one:

Before Judge Brown asked any either party about consent individually, however, counsel represented to Judge Brown that the parties had all agreed to consent.  Judge Brown asked the parties one at a time regarding consent only after counsel made that representation.  Plaintiff's motion omits any mention of this portion of the transcript.

Translation = I've got your back!

Now go have some fun spending endless days proving up damages to a leaky boat.

"I Award You No Points, and May God Have Mercy on Your Soul."

To my friends in the media:

There's a little trial over somebody's damaged boat that may or may not start tomorrow in Judge Brown's courtroom.

Heard it could be interesting.

A few points arising from the eve-of-trial Halmos motion linked to above:

(1)  Could the process of consent to Magistrate jurisdiction truly be as depicted?

(2)  What to make of trying a case -- non jury -- after presiding over a confidential mediation of same?

(3) "[F]lamboyant grammatical form" (page 17)?

What on earth is he talking about?

Like I said, should be interesting.....

The Doomsday Cometh.

Let's see, what famous events occurred on May 3rd?

Oh, you had the Herald in 1987 reporting on Gary Hart's dalliance with Donna Rice, ending Hart's otherwise promising bid for the Presidency.

The Luftwaffe bombed Exeter back in 1942.

And of course General Lee decisively defeated the Union Army, which began their withdrawal on this date in 1863 in the bloody Battle of Chancellorsville.

Happy times, to be sure.

But nothing to compare with this:

This case will commence on Tuesday, May 3, 2011 at 9:30 A.M.  This case will proceed that week and the first three(3) days of the following week.  This case will resume Monday, May 16 through Wednesday May 18th, and then continue Monday, May 23rd.

Ok, I can't even follow that crazy trial schedule, but I'm pretty sure everything will proceed smoothly and without incident.

May God have mercy on our souls.

Emergency Verified Motion To Have Judge Brown Speak With Judge Bailey!

Emergency Motion to Have Two Judges Speak to Each Other

Wouldn't you like to be a fly on the wall on that conversation?

BTW, there's some good stuff in the email discussion between the lawyers attached as Exhibit C (Judge Brown had earlier denied the motion for not having a certificate indicating that counsel conferred).

Simply Amazing! And the Beat Goes On!

Simply Amazing! Order

I can't adequately do this Order justice, you'll have to just read it yourself.

A few highlights and questions.

(1)  Like the "Tale of Two Cities" intro.

(2)  Shouldn't sanctions orders have findings?

(3)  "Simply amazing"!

(4)  "Almost laughable"

(5)  "not in this instance"!

(6)  "caught with their hand in the cookie jar"

(7)  Federal Rules and Local Rules "mere suggestions."

(8)  Deft switch to criticizing defendant's response.

(9 ) ... wasting "trees".

(10) "The history of this case is self-explanatory."

(11)" .... and the beat goes on."

(12) Sanction includes letter being introduced without authentication -- ouch!

Seriously, though, the sanctions as ordered seem like they will be difficult in practice to actually implement in a trial setting, but who knows -- things have turned out pretty well in this case so far.

Important Tip for Deponents: Don't Look at Anything.

Halmos Note Order

More fun and games in the never-ending, endlessly entertaining Pete Halmos yacht insurance dispute, now hitting docket entry HOLY CRAP I CAN'T BELIEVE THE NUMBER OF DOCKET ENTRIES:

This matter is before this Court sua sponte. The Court was contacted regarding an issue in a continuing deposition of Mr. Halmos taking place on January 26, 2011. The issue had to do with a refusal on the part of plaintiff( s) to produce a document looked at by Mr. Halmos during the course of that deposition (see 6 et. al of the deposition).

This Court instructed plaintiffs to produce that document for the Court to review in camera and to produce the transcript of the pertinent part of the deposition. This was done. The Court has now reviewed both and finds there is nothing of evidentiary value, or discovery value in the document withheld, it's not really a summary, and at best it might be said to be some sort of index to other documents ... and it takes a little stretching to say that.

Ok, let's break this down.

First off, what the hail does any of this mean?

How can it be possible Mr. Halmos is still being deposed this late in the case -- I thought the matter was set for trial in a few weeks.

Then there's the issue of the document -- unless there's a predicate laid in the deposition (such as refreshing memory or some such), what would be the possible basis to request the production of a document looked at by a deponent, or even to order that it be produced for in camera review?

Then you got to love Judge Brown's description of the document -- it does take a little stretching (toe-tapping?) to say that!

Magistrate Judge Brown Refuses to Sanction Plaintiffs!

I guess that's good news?

Read the order and see for yourself:

Interestingly, and not surprisingly, the response starts with attacking the Court and then jumps into the argument made at the hearing.  The first paragraph of the order to which this is a response begins with the fact that "[N]o law has been cited for the filing of "objections" to a hearing...." and "[T]o the extent the Court construes same as motions (sic) again they violate Local Rule 7.1(a)(1)".  This is totally ignored in the response.  Apparently things like following the law and the local rules take a significant backseat to ranting and raving and attacking the Court.  Nonetheless it is those very rules and laws that govern our practice and procedure.

The ranting includes using a statement made by the Court after the plaintiffs filed their objections to the hearing (in D.E. 1094) as justification for the filings they made before any such statement was made!

It goes on (downhill?) from there.

The Footsie Follies Live On!

The collateral litigation over the alleged foot-tapping lawyer has itself spawned collateral litigation, which of course no one could have ever predicted.

Wasn't this case at one time about Peter Halmos' yacht?

The latest sideshow involves Ms. Dennis' testimony at the evidentiary hearing, and whether defendant's in-house counsel possibly mischaracterized Magistrate Judge Brown's order and thus....oh I don't know you can read it yourself:

On October 22, 2010, John F. Roth, asked that this Court’s October 7, 2010 Order, which found that Mr. Roth violated this Court’s previous Order (D.E. 1020), be amended since it was “issued without affording him notice and an opportunity to be heard or present evidence . . . .”  That motion should be denied not only for the reasons originally given by the Court, but also because in his response, not only does he not exculpate himself, but he has (1) exacerbated his improprieties, and (2) provided direct evidence that contradicts the “credible” Ms. Dennis. Furthermore, the Court should impose stricter sanctions against Mr. Roth as it is clear that he, a lawyer, in fact willfully violated this Court’s Order, sanction INA’s lawyers for leading this Court astray in regards to Ms. Dennis’s testimony. The Court should also find Ms. Dennis in contempt of Court for lying to it.

BTW, the word "sanction" only appears five times in this brief!

Toe-Tapping Lawyer Controversy Stays On High Road -- Ends Amid Charges of "Racial Slant."

 Motion to Reconsider

Ok, since we last checked in the Court denied the footsie motion, then plaintiffs moved to reconsider, then Magistrate Judge Brown denied the motion to reconsider (all links are Scribd).

There's a treasure trove of material in there, but I'm going to put up the plaintiff's motion to reconsider, because pound for pound it's a start to finish must-read.

BTW, I scoured the reconsideration motion for the source of this seemingly out of nowhere comment by the Judge in his order denying reconsideration: 

The court will not dignify the racial slant with a response.

Where did that come from?

Although it took me many hours of careful review, I think I may have found what prompted it:

It must be noted that the only witness asked as to whether or not he had been convicted of a felony and whether or not his employer had represented him in the past, was of the young African-American witness, and not of the other two witnesses.

All I can say is since the Court struck the plaintiffs' jury demand this is going to be one very interesting bench trial.

Magistrate Judge Brown: Case "Totally and Completely Out of Control"!

Totally Out of Control Order

You know how when a big piece of litigation ends there is a feeling of loss, sometimes even a little remorse?

That's how I'm going to feel when this case ends, which apparently will be exactly March 18, 2011:

The Court finds that it must manage its calendar, and this case in particular as it has gotten totally and completely out of control.  To allow it to go unfettered will allow what this Court stated early on - "it's all about the journey, not the destination."

"Allow it to go unfettered"?

As in "if the disease is allowed to go unfettered the parasite will spread rapidly through the body, leading to paralysis, coma, and ultimately a slow, painful death."

(He probably meant "unfettered" in some other sense.)

"Alas,'Twas Not To Be!"

Remember how the plaintiffs tried to cancel the evidentiary hearing before Magistrate Judge Brown?

Turns out he no likey:

Plaintiffs have been sanctioned and even held in civil contempt......Plaintiffs have been warned of the possibility of more severe sanctions.  None of these have stemmed the tide of impropriety.  The Court finds plaintiffs' continued and repetitive conduct tantamount to bad faith.  At some point, the Court will have to seriously consider the sanction of dismissal.  Although the Court announced at the hearing that sanctions would be imposed, upon further reflection, plaintiffs are entitled to "due process" on this issue.

So the judge already announced from the bench that sanctions would be imposed, finds in this Order that plaintiffs' "continued and repetitive conduct" is "tantamount to bad faith" but "upon further reflection" is going to allow some "'due process.'"

I like how "due process" is in quotes -- nice touch!

The Court: (Yelling at Mr. Klock) SIT

Biased Judge Objection

I've often wondered, in the toe-tapping lawyer case before Magistrate Judge Brown, when the s%&t would hit the fan, when all hail would break loose, when the "thin veneer of civilization" (to use a favorite Edgar Rice Burroughs phrase) would lift and more primitive impulses start to emerge, overcoming the good intentions of all involved and just tearing the whole danged thing apart.

That seems to have happened with an extraordinary filing by Peter Halmos, acting pro se.  It is titled "Pro Se Plaintiff's Objections to Biased and Prejudiced Court Orders" and is sort of a greatest hits package of allegedly prejudicial quotations from Court orders, transcripts, and various accusations of judicial misconduct.

My favorite part is Peter's lengthy collection of adverse statements in Court orders, which are neatly summarized in a easy-to-read chart.  That's a must-read.

There's also an extended riff on Judge Brown not disclosing that he was an "Insurance Defense Lawyer" for more than 20 years (is that true?) and a nice set of transcripts in which Judge Brown is allegedly (and repeatedly) yelling at Pete's lawyer Joe Klock.

All in a day's work kiddies.....

SFL Friday -- He Went Out Ant-Hunting With His Elephant and Gun....

I can't believe we made it to Friday.

Let's get right to it:

I Scribd this so you can click on the link, but Magistrate Judge Brown has scheduled a hearing on whether or not the plaintiffs in the toe-tapping lawyer case can unilaterally cancel a Court-ordered hearing.

Can this get any better?

(I'm thinking YES IT CAN)

Here's a highlight:

Plaintiffs are completely disingenuous when they claim they will not waive any matter that is properly before the jury ... they already have!

Unfortunately, plaintiffs wish to "kill an ant with an elephant". The real issue is the scope of the hearing. Filings of proposed testimony to be offered by defendant (which may or may not be allowed at the hearing) do not change the scope of the hearing. It will be governed by the Joint Motion of the parties (D.E. 698) and subsequent Order of the Court (D.E. 706). In large part, plaintiffs are correct -the hearing is to resolve question(s) surrounding the documentation supporting claims. Defendant will not be permitted to take a position at this hearing that it has not taken prior to the filing of the Joint Motion. However, the task of determining whether the items at issue are covered under the policy clearly is an issue at this hearing. Undoubtably, plaintiffs have understood this all along. See, e.g, D.E. 964.

Ok, sounds like the Court has already determined the issue -- so why is there a half-hour hearing on the hearing again?

In other news, you need to be at the right place at the right time, oy with this Carl Paladino, and salt turns out to be good for you.

Have a great weekend!

Let's Have A Meet and Confer!

Has anyone heard about that case involving the (alleged) toe-tapping lawyer?

Well for you junkies and obsessives, in rolled the defendants' response to an attempt by the plaintiffs to cancel an evidentiary hearing (not the toe-tapping one, which I believe is still on).

Plaintiffs allegedly filed their notice of cancellation without conferring first with the defendants, prompting this love note:

OBJECTION TO PLAINTIFFS' NOTICE

Plaintiffs failed to confer with INA regarding their Notice in violation of Local Rule 7.1.A.3.  Had Plaintiffs done so, INA would have informed them of the pending Court Orders, Plaintiffs' obligations pursuant to those Orders, and the lack of any basis upon which Plaintiffs could conceivably attempt to unilaterally cancel a COURT ORDERED evidentiary hearing.  INA would further have informed Plaintiffs that their actions were sanctionable.  Due to the Plaintiffs' failure to confer with INA regarding this relief, Plaintiffs violated Local Rule 7.1.A.3 and this Court should strike the Notice.

Boy, that would have been some conference!

I'm not singling anyone out, but I often say it's pointless to have a "conversation" with someone who is unwilling to entertain the possibility that they could be wrong, that maybe they missed something, who is unwilling to be persuaded through open and collaborative inquiry, and who is just waiting for you to stop talking so they can continue their argument.

That's why I find so much of the political intertubes chatter to be so utterly lame.

However, through intertubular magic, we now bring you the missed "conference" described by defendants above:

Plaintiffs' Counsel ("PC"):  Hi, we're thinking about cancelling that big evidentiary hearing and wanted to confer with you about that.

Defendants' Counsel ("DC"):   (silence)

PC:  Hello, is this thing on?

DC:  (building.....)

PC:  Aaah well, ok, just wanted to let you know.   Have a nice.....

DC:   (slowly, through clenched teeth)  There are two pending Orders.  You have obligations pursuant to those Orders.  There is a lack of any basis upon which you could conceivably attempt to unilaterally cancel a COURT ORDERED evidentiary hearing.  Your actions are sanctionable. 

PC:  So glad we had a chance to talk!

DC:  Wait, did you see Glee last night?

PC:  (click)