3d DCA Watch -- Judge Cortinas Goes Full Carnes!

 Hi kids, can you feel the winter break taking hold in your practice yet?

The lawyers coming in later, leaving earlier, judges cancelling hearing, depositions being moved to 2013....let's just slide into the holidays, shall we?

Only two civil opinions of note this week, let's take a look:

FIGA v. Karelas:

Yes, it's nearly 2013 and Judge Schwartz is still entering orders like it's disco-era 1978!

Galleon Bay v. Bd. of Cty. Comm:

Whose writing style does this opening paragraph remind you of:

When apt-named Galleon1 first set out to develop its property, it could not have possibly imagined the tumultuous seas it would encounter in the decades that followed. While galleons have not been spotted on our shores since the Eighteenth Century, this is our Court’s seventh encounter with this case.

The Judge went full Carnes!

Oh Boy -- Judge Carnes Is at It Again!

Much digital ink has been spilled on this old-and-in-the-way blawg about Judge Carne's propensity for opening paragraph storytelling, analogy or metaphor -- usually invoking a song, cultural or historical reference.

This time I have to believe he's speaking directly to me:

Bob Dylan’s recognition that “[b]ehind every beautiful thing there’s been some kind of pain” 1 might seem painfully ironic to Amber Wright. Her quest for what she deemed to be more beautiful hair allegedly led not just to pain but also to emotional “scars that the sun didn’t heal,”2 all of which led to this lawsuit. Wright filed this products liability action under Georgia law alleging that a hair bleaching product manufactured by Farouk Systems burned her scalp, causing her to suffer physical, mental, and emotional pain. She claims that the product—colorfully named “Blondest Blonde”—is defective because it contains isolated areas of high reactivity, called “hot spots,” that can lead to burning of the scalp. She also claims that Farouk failed to adequately warn users of the product of the risk that burns can result if the product touches the scalp. The district court granted Farouk’s motion for summary judgment on all of Wright’s claims, and this is her appeal.

Note to Magistrate Judge Goodman -- here's the clean and lean way the Judge cites the Dyl-Bard:

1 Bob Dylan, “Not Dark Yet,” on Time Out of Mind (Sony Records 1997).
2 Id.

See, that's all you need!

BTW, I figured he would have went with "Silvio," from Down in the Groove (Columbia 1988):

I can tell you fancy, I can tell you plain
You give something up for everything you gain
Since every pleasure's got an edge of pain
Pay for your ticket and don't complain

Judge Jordan Goes Full Carnes!

We've written at length about Judge Carnes' predilection for a strong "cold opening" to his opinions, frequently drawing from history, literature, pop music, and even beloved children's stories.

Not to be outdone, Judge Jordan tries his hand with an always-in-style Abe Lincoln reference:

Following the 1860 election, President Abraham Lincoln chose a cabinet “comprised of enemies and opponents,” including three men who had been his “chief rivals for the Republican nomination,” because they “‘were the strongest men in the party’” and he “‘had no right to deprive the country of their services.’” DORIS KEARNS GOODWIN, TEAM OF RIVALS: THE POLITICAL GENIUS OF ABRAHAM LINCOLN 319 (2005). When she was elected in 2008 as superior court clerk of Lumpkin County, Georgia, Rita Harkins did not emulate President Lincoln; in her first official act as clerk, Ms. Harkins dismissed her co-worker and former political rival, Sarah Jane Underwood, whom she had defeated in the Republican primary.

Ok, not bad for a first try -- this one actually fits.

Roughly translated, I believe the Judge is saying:  "Ms. Harkins, you are no Abe Lincoln."

"Deep Cuts" With Judge Fay!

Sure we've seen our learned friend Magistrate Judge Goodman reference Tom Petty, Elvis, Keith Urban and others in the course of issuing opinions, and even Judge Carnes gave it a try, but Judge Fay takes it to another level by going deep, way deep and way back with this musical reference:

On July 23, 2009, Connie Strickland had been “working on the railroad / All the live-long day.” 1 In fact, he claims he was working his customary twelve-hour shift when, towards the end of that shift, he suffered a massive shoulder injury as a result of a faulty handbrake.

And here's Judge's Fay citation (note to the wordy):

1 A popular American folk song, the first published version of “I’ve Been Working on the Railroad” seems to have been in a 1894 Princeton University songbook. See James J. Fuld, The Book of World-Famous Music 309 (Dover, 4th ed. 1996).

What, nothing about the recording studio where it was first cut?  What about how high it charted in the UK?  Who played bass on the original version? Where can I find John Denver's cover of this classic?

Come on, these are basic musical reference questions we expected answered down here.

Judge Carnes vs. Magistrate Judge Goodman -- The Citation Wars.

Here you go, the trademark Carnes introduction (with a homage/challenge? to Magistrate Judge Goodman):

People who compete against each other in the same business or profession don’t have to dislike one another. A few years back there was even a song lyricizing about “Lawyers in Love.” But no one has ever written a song about “Car Dealers in Love,” and if this case is any indication, no one ever will. These two car dealers are bitter business rivals in overlapping markets. One of them used a software program to compete more aggressively with the other one over the internet. That program produced a multiplicity of mini-websites, a host of hard feelings, and of course litigation. This is the appellate part of that litigation.

Very curious -- note how the Judge casually, unobtrusively cites the great Jackson Browne song "Lawyers in Love" without an elaborate, digressive 300-plus long footnote/citation/educational string.

Now let's edit in a standard Magistrate Judge Goodman song reference and see how it reads:

People who compete against each other in the same business or profession  don’t have to dislike one another. A few years back there was even a song lyricizing about “Lawyers in Love.”1 But no one has ever written a song about “Car Dealers in Love,” and if this case is any indication, no one ever will. These two car dealers are bitter business rivals in overlapping markets. One of them used a software program to compete more aggressively with the other one over the internet. That program produced a multiplicity of mini-websites, a host of hard feelings, and of course litigation. This is the appellate part of that litigation.

1 -- For a musical reference to "lawyers being in love," see "Lawyers in Love," a song sung by Jackson Browne. Recorded in Los Angeles, the song was written by Jackson Browne and reached the #13 position on the U.S. music charts in the summer of 1983.  http://www.allmusic.com/song/lawyers-in-love-mt0005091017 (last visited June 21, 2012). Focused on Cold War concerns and a distrust of the perceived superficial, empty values of the Reagan Era, the song contains the following lyric: "God sends his spaceships to America, the beautiful They land at six o'clock and there we are, the dutiful Eating from TV trays, tuned into to Happy Days Waiting for World War III while Jesus slaves To the mating calls of lawyers in love" http://www.oldielyrics.com/lyrics/jackson_browne/lawyers_in_love.html (last visited June 21, 2012).

Hmm, which do you like better?

Yes, Judge Carnes Went There.

Ok, so you have an ERISA case involving Home Depot.

You're an appellate judge well-known for crafting stories in your opinions, filled with historical references, and for starting those opinions with "a grabber."

Home Depot is about building things.  And the lawsuit involves a retirement plan.

Ergo:

People build many things over the course of their lives. Throughout the time allotted them, they build houses and homes, character and careers, relationships and reputations. And if they’re wise like Aesop’s ant, during the summer and autumn of their lives they store up something for the winter.  Although the ant in the fable did well enough without its savings plan being protected by ERISA, the plaintiffs in this case seek the protections of that statute. They claim that the fiduciaries of their retirement plan violated ERISA in ways that damaged their efforts to stockpile savings for their winter years.

Alright, it's a bit of a stretch but I see the connection, however tenuous.

Still, I've come up with my own introduction -- see what you think:

People frequently grow murderous when they can't find the nail aisle and no one in an orange blazer seems to even know what a "nail" is.  Though all they want to do is fix the shutter their spouse keeps complaining about, they also wanted to catch the game and now their kid is getting cranky and maybe it's time to buy a new grill and forget all about the friggin' nail.  And if they're lazy and fat like Aesop's pig, they may never live long enough to see the ass later that evening.  Although the pig in the fable did well enough with the free meal right up until he was slaughtered , the plaintiffs in this case have acted like proverbial asses in suing Home Depot over their retirement plan.

I don't know, they both have that whimsical, "old-school" charm!

11th Circuit Affirms Judge King in Cruise Line Arbitration Decision.

From what I've seen, Judge King has been one of the more exacting SD FL judges when considering the scope and validity of arbitration provisions.

In a significant decision involving horrific allegations on a Princess cruise ship, Judge Carnes has for the most part affirmed Judge King's decision that the claims fall outside the scope of the arbitration clause and thus may proceed publicly in federal court.

As usual, Judge Carnes begins with a snazzy introduction:

On its website, Princess Cruise Lines proclaims to the world, as one of its “core values,” that: “The safety and security of our passengers and employees is our most important responsibility.”  The cruise line says that it recognizes crew members as its “greatest asset,” and shows its appreciation to them by making their “life onboard the best it can be.”  It boasts of making “every effort possible to offer its crew members an enjoyable environment and a rewarding career.”

All of those statements are but empty words, and cynical ones at that, if the allegations in the complaint that is before us are to be believed.

See kids, this is why you have to add this type of flavor to a well-pled complaint.

I also like Judge Carnes' discussion of "invited error":

Princess Cruise Lines contends that we should reverse the district court’s denial of its motion to compel arbitration for two reasons. One of those reasons is its contention that the district court should not have decided the arbitrability issue but instead should have sent that issue, along with the others, to an arbitrator for decision. This contention is a non-starter because, as the cruise line concedes, it asked the district court to decide for itself whether the dispute was subject to arbitration. Only when the matter was illuminated by the light of an unfavorable decision from the district court did the cruise line suddenly see that the court ought not have answered the question after all.

The invited error doctrine stands for the common sense proposition that someone who invites a court down the primrose path to error should not be heard to complain that the court accepted its invitation and went down that path.

In other words -- chutzpah. 

BTW the Arbitration Fairness Act, introduced in 2009 and reintroduced earlier this year, remains stalled in Congress (what else is new?).

Judge Carnes, Karaoke Singer?

It must get frustrating up at the 11th, constantly ruling on sentencing appeals, habeas petitions, and other important matters I instantly forgot about after booking crim pro.

That's why I totally understand Judge Carnes' saying "screw it" and just moving on to some cool old-school karaoke:

It may be true, as the song lyrics say, that “When the moon is in the Seventh House / And Jupiter aligns with Mars / Then peace will guide the planets / And love will steer the stars,” but there was no peace and love between these parties after their contractual dispute arose.

 Oh man, that's a mighty long reach-around.

But I respect the effort.

Hold on -- Karaoke Carnes is not done:

Nothing plus nothing is nothing, just as “nothing from nothing leaves nothing.”

 Billy Preston?

The Fifth Beatle??

The 14th Rolling Stone???

Ok, I gotta give him that one -- well done, Your Honor!

11th Circuit Thinks Bill Amlong Should Have Used X-Ray Glasses!

The meatball man does a nice job covering it, but I want to add a few points about this extraordinary 11th Circuit opinion sanctioning Bill and Karen Amlong.

Preliminary question for Judge Carnes -- why do you note on page two that the plaintiff is an "illegal immigrant"?

Regardless, the good Judge, in a 74-page opinion(!) pulls no punches:

The Amlongs’ attempt to alter their client’s deposition testimony in 868 ways was of a piece with their conduct throughout the litigation. As the magistrate judge found, they had nothing to base Norelus’ claims on other than her “own changing testimony . . . which was totally or nearly totally discredited by plaintiff’s numerous lapses of memory, outright lies, and outlandish comments made during her deposition.” As the litigation unfolded, all of the witnesses  who should have seen or heard something if the claims had any basis in fact not only failed to support her incredible story but actually gave deposition testimony contradicting it.

Still, like Ahab hunting the whale, the Amlongs relentlessly pursued the claims. All the while they blinded themselves to as much of the contradictory evidence as they could. They deliberately did not obtain the deposition testimony of any of Norelus’ co-workers who would have seen or heard something had anything improper occurred. They did not concern themselves with that testimony, according to Karen Amlong, because they assumed all of the witnesses, except for their client, were either lying or simply could not remember witnessing the gross sexual harassment inflicted on her.

When the truth was thrust in the Amlongs’ faces, they stubbornly ignored it and kept on litigating.

It goes on from there, though the Judge does end with a thoughtful "Season's Greetings"!

Thankfully I choose not to do this work, but is there an argument to be made that the co-workers are worried about their jobs and thus did not corroborate the plaintiff's testimony?  Also, that the plaintiff speaks Creole and the deposition required an interpreter?  Also that the Amlongs submitted the client to two polygraph examinations that she apparently passed?  Finally, that the Amlongs are being sanctioned for trying to fix mistakes in the deposition testimony and informing opposing counsel, as opposed to letting it slide?

I admit this case presents a close call, on difficult facts.  But the apparent glee with which Judge Carnes targets the Amlongs seems to me somewhat over the top.

And the prolix opinion, which exceeds the evil errata sheet by 11 pages, will create lots of uncertainty below when imposing  § 1927 sanctions on attorneys, as well as generally mess up the previously settled law dealing with errata sheets and their proper function in depositions.

Judge Tjoflat, in a blistering dissent beginning on page 76, seems to agree.

In fact, he doesn't even think what Karen Amlong submitted to defense counsel was an errata sheet:

The Amlongs did prepare the sixty-three page document, which they labeled “errata sheet” (“‘errata sheet’” or “errata document”), but they did not present it to the court reporter, as Rule 30(e) of the Federal Rules of Civil Procedure requires, so it could be attached to the certificate the reporter affixed to Norelus’s deposition in accordance with Rule 30(f). In short, the sixty-three page errata document was not an errata sheet as contemplated by the Federal Rules of Civil Procedure. Rather, it constituted nothing but a written communication, a letter, from Karen Amlong to defense counsel, in which Karen Amlong informed defense counsel—in keeping with her obligations under the Florida Rules of Professional Responsibility—that her client had testified falsely on deposition and provided the statements she believed her client should have made when deposed. As a consequence, the communication, instead of multiplying the proceedings, informed defense counsel that Norelus had made statements to her attorneys which,when compared to what she had said on deposition, cast substantial doubt on her credibility.

Had defense counsel explained all of this to the district court, the court would have disregarded the “errata sheet” and declared that the Norelus deposition transcript certified by the court reporter constituted Norelus’s deposition; Denny’s, Meos, and Jawaid would not have incurred $387,738 in subsequent attorneys’ fees and costs; and the court would not have sanctioned the Amlongs under 28 U.S.C. § 1927 in that amount.

See kids?

Bad facts make bad law.

Judge Carnes Continues Trend of Discursive Opening Paragraphs

Judge Carnes is sure on a roll.

Yesterday we wrote about the opening of his opinion in Stein, which crisply distilled the entire history of American real estate into a single pithy and readable paragraph.

Today the Judge starts an opinion by likening a debt collector's efforts to rely on the "bona fide error" defense under the FDCPA to America's bloody involvement in the Vietnam War:

In an oft-repeated statement from the Vietnam War, an unidentified American military officer reputedly said that “we had to destroy the village to save it.” That oxymoronic explanation may be apocryphal, but the debt collection agency in this case offers up much the same logic to explain why it violated the Fair Debt Collection Practices Act: it was necessary to violate the Act in order to comply with the Act.

Ok, it's a bit of a reach but I really like this opinion -- it's well-organized and written in very simple, short, declarative sentences. The opinion flows logically and makes perfect sense both legally and intuitively.

What's next -- a short primer on Alexander Graham Bell before he rules in a TCPA case?

Judge Carnes Keeps His Eye On The Sparrow

Boy did we screw up the Everglades.

"Progress" and all that.

In a well-written and thoughtful opinion released yesterday, Judge Carnes lays out the history of man's intervention in the region in two succinct paragraphs:

For centuries, a broad, shallow sheet of fresh water that covered most of South Florida flowed south from Lake Okeechobee to the Florida Bay. This phenomenon was the “river of grass” or Everglades, which supported unique and fragile flora and fauna. As so often happens with natural treasures, people sought to control and manipulate the Everglades for their own ends. After the State of Florida’s efforts to tame the Everglades failed, in 1948 the Army Corps of Engineers got involved.

The Corps undertook the Central & Southern Florida Flood Project, which it hoped would control flooding, divert water away from developing areas, provide a source for irrigating crops, facilitate recreation, and “enhance” wildlife. See Miccosukee Tribe of Indians v. United States, 980 F. Supp. 448, 454 (S.D. Fla. 1997). In order to bend the water to its will, the Corps created thousands of miles of canals and levees supported by scores of pumps, gates, and dams. This massive plumbing project drained the northern portion of the original Everglades for agricultural use and diverted water into distinct, deeper Water Conservation Areas for controlled release into the southern part of the original area, which became Everglades National Park. There followed what the government artfully calls “unplanned environmental consequences." This case involves one of those consequences, which pits a sparrow against a hawk.

This opinion was a pleasure to read, even though the 11th waded into the always-tricky area of "legislative intent" to buttress its conclusions.

Back to the drawing board on this one, it seems.

(Dexter, your job is secure.)