Was Baseball Star Aroldis Chapman a Cuban Spy?

Those are the blockbuster allegations in this suit pending before Judge Altonaga.

Chapman, a pitcher for the Cincinnati Reds, is accused of some pretty outrageous things.

According to the complaint, as summarized by Judge Altonaga:

Plaintiffs allege Chapman is liable for Curbelo Garcia and Perdomo’s prolonged arbitrary detentions and torture, not because Chapman was personally involved in detaining or torturing Plaintiffs, but because he provided the Cuban government with the false accusations in the first instance. This furnishing of false accusations, Plaintiffs allege, was part of a conspiracy between Chapman and the Cuban government that Chapman entered into on the day he met Raul Castro. (See id. ¶¶ 301–10). When Chapman agreed to the conspiracy, he became part of a pervasive “snitch network of athletes.” (Id. ¶ 216). This network included “athletes in every team in Cuba,” and was so widespread that “[t]here was a special unit of security officials that were in charge of connecting directly with the athletes to seek out reliable informants.” (Aff. of Gregorio Miguel Calleiro (“Calleiro Aff.”) ¶¶ 8–9 [ECF No. 48-5]). Athletes who voluntarily became government informants reported “suspicious” behavior to their individual handlers in the Department of State Security (“DCSE”). (Id. ¶¶ 10–12; see Am. Compl. ¶ 216). In return for providing “actionable information for the state,” the informants received benefits from the Cuban government, such as the ability to travel with a national team. (Calleiro Aff. ¶ 14). Chapman sought the opportunity to travel with the National Baseball Team as a means of defecting. (See Am. Compl. ¶¶ 218, 221).

The Court denied the motion to dismiss and the case is proceeding.

Chapman is represented locally by Manny Garcia-Linares of Richman Greer.

Between the Wars: 11th Circuit Affirms Judge Altonaga on German Inter-War Bonds!

It must be interesting to be a federal judge because you never know what kind of case you'll be assigned.

Sure you have the dreary sentencing stuff, the cookie-cutter FLSA cases etc., but sometimes something really different comes along.

Like this case involving the enforceability of German bonds issued between the First and Second World Wars.

You want complicated?

Take a gander at the statutes, treaties, and protocols involved in this baby:

These appeals present questions of subject matter jurisdiction under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602–1611, and the interpretation of three post-World War II treaties: the Agreement on German External Debts, Feb. 27, 1953, 4 U.S.T. 443, 333 U.N.T.S. 3, also known as the London Debt Agreement; the Agreement Between the Government of the United States of America and the Government of the Federal Republic of Germany Regarding the Validation of Dollar Bonds of German Issue, U.S.-Fed. Republic of Ger., Feb. 27, 1953, 4 U.S.T. 797, also known as the 1953 Validation Procedures Treaty; and the Agreement Between the United States of America and the Federal Republic of Germany Regarding Certain Matters Arising from the Validation of German Bonds, U.S.-Fed. Republic of Ger., Apr. 1, 1953, 4 U.S.T. 885, also known as the 1953 Validation Treaty.

Ahh yes, the "1953 Validation Treaty" -- wasn't that on our Florida Bar exam?

BTW, teaching your young son obscure Al Stewart songs on the piano -- now that's good parenting:

"If It Bends, It's Funny. If It Breaks, It's Not Funny!"

I'm a huge fan of Judge Altonaga and this order is an example why.

I love her understated yet very logical and pointed way of explaining basic principles of law to the parties.

Here she is on how you prepare a statement of facts, or dispute same, for an sj motion:

The Court notes that in responding to Plaintiffs’ Statement of Undisputed Material Facts, Defendants do not expressly admit or deny any of Plaintiffs’ statements, but rather provide the Court with a list of facts through which the Court must sift. (See generally Defs.’ Resp. SMF). To the extent any listed fact does not expressly oppose Plaintiffs’ corresponding fact, Plaintiffs’ fact will be deemed undisputed. Additionally, the parties include several facts within each numbered paragraph of their respective statements of facts. (See generally Defs.’ SMF [ECF No. 57]; Plf.’s Resp. SMF [ECF No. 75]). To the extent that any party fails to direct the Court to the record evidence in support of its asserted facts (or its reasons for disputing an opposing party’s asserted facts) contained in each sentence, the Court does not consider those assertions in deciding these motions. See FED. R. CIV. P. 56(e)(4).

And here she is explaining why the defendants can't prevail on a motion for summary judgment based on a "frivolity" standard:

Defendants first argue that summary judgment should be granted in their favor because the suit is frivolous. . . . As an initial matter, Defendants fail to identify what standard the Court should apply to determine frivolity, which they must do to prevail on their summary judgment motion.

Wait wait I know:

Or maybe this is a better example?

Now that's funny!

Ho Hum. So Cincinnati Reds Pitcher Aroldis Chapman Allegedly Turned Cuban Informant to Throw Someone in Cuban Prison.

Cincinnati Red Aroldis Chapman will have plenty to talk about when he comes to Marlins Stadium -- this new suit before Judge Altonaga that accuses him of collaborating with the Cuban government to put the plaintiff in a Cuban jail, where he has been badly mistreated and even tortured.

Here's the opening paragraph:

Plaintiff CURBELO GARCIA is a Cuban citizen, who is serving a 10-year prison sentence in Cuba, under inhumane conditions, for a crime he did not commit because of Defendants’ false denunciation to officials from the repressive Cuban Departamento de Seguridad del Estado, Departament of Security of the State, (herein after “DCSE”) and because of the false testimony Defendants presented against Plaintiff at a sham trial, which followed no rules of evidence or due process, and which was deliberately skewed against Plaintiff. Plaintiff’s treatment in prison is cruel, degrading, unsanitary, and tortuous.

Ok, that sounds kinda bad.

Chapman's agent had no comment (the guy's busy, what with Chapman's recent arrest and now this).

"Yes Your Honor, I Scheduled a Deposition at a Donut Shop, Wore T-Shirts and Shorts, and Drew Pictures of Opposing Counsel as a Penis -- Is There a Problem?"

 What does "zealous advocacy" look like?

(See above illustration.)

I like to think this blog can have a salutary purpose on occasion, by shining light on what we do as lawyers, and sometimes encouraging us to live up to the highest ideals of our profession.

That, plus dick jokes.

Luckily, this order from Judge Altonaga disqualifying two attorneys and their firm Morgan & Morgan has all of the above, wrapped in a pretty penis-shaped bow:

Tinkler testified that during depositions he witnessed “Mr. Celler . . . drawing photos of — pictures of male genitalia and showing them to Ms. Schulman, describing Mr. Coupal. I told Mr. Coupal after that was occurring and he made mention about it.” (Apr. 2, 2012 Hearing Tr. 17:2–5). Sorci testified that he observed Schulman “laugh[ing] quite a few times” at Celler’s drawings, and that on break Schulman made a comment that “this is typical Richard [Celler], this is what he does at these sort of things.” (Id. 85:5–10). Tinkler further stated that “during Mr. Schatt’s deposition Mr. Celler was playing the game Angry Birds. He admitted it aloud and was bragging that he had just beaten somebody in Minnesota at the game during the deposition.” (Id. 17:6–9). Moreover, Celler would wear a t-shirt and shorts to proceedings to gain “a psychological advantage.” (Id. 17:11–15). Celler chose Dunkin’ Donuts as the site of depositions against Coupal’s wishes.

According to the order, plaintiff's counsel also wrote a few scorching emails to opposing in-house counsel:

The Court finds multiple instances in which Plaintiff’s counsel have violated this Rule. For example, the email exchange regarding the Tinkler communication contained such choice statements from Celler to Coupal as “you are not a trial lawyer;” “We are not interested, nor are our clients, in settlement discussions with you as long as you are the lawyer on the other side. You are causing your client a great disservice;” and “Nobody on this side of the internet cares.” (Jan. 30, 2012 Email Exchange). Celler himself acknowledges the utter lack of professionalism and impropriety of his emails to Coupal, expressing “remorse and disappointment” (Pl.’s Post-Hearing Br. 2 n.2), but chalks his behavior up to “zealousness on his client’s behalf” and “vigorous[]” advocacy. (Resp. 8–9). Needless to say, Celler’s emails are far beyond (and at the same time, far short of) what zealous advocacy would require.

Good point -- which side of the internet truly cares about this stuff?

Judge Altonaga Disqualifies Law Firm for "Switching Sides" in FLSA Action.

 
If you do such a good job prosecuting FLSA actions against a defendant, can the defendant hire you to represent it in subsequent FLSA actions involving the same alleged misclassification brought by a different lawyer?

Judge Altonaga, in a well-written and well-reasoned order, says NO WAY:

The Court cannot but agree with Plaintiff that Kleppin’s conduct has had every appearance of  impropriety — an unsurprising conclusion since the conduct is actually improper.

Don't you just love the economy of language in that sentence?

Be Careful When Firing the Pregnant Human Resources Manager.

 
They usually know where the bodies are buried (and who buried them).

In this very comprehensive opinion from Judge Altonaga, the Judge denies defendant Crown ("rocking lounge") Liquors' motion for summary judgment on a FMLA claim brought by the human resources manager:

It appears to the Court that the parties can hardly dispute whether Williams’s discharge was motivated by her pregnancy-related conditions. Crown itself states the following:

. . . WILLIAMS’ claim of discriminatory treatment regarding working at home misses the larger point that, in the June 18 understanding, CROWN allowed her to work at home for the duration of her pregnancy. This understanding was defeated, not by CROWN’S insistence that she work in the office, but by WILLIAMS’ deteriorating medical condition.
(SMF ¶ 34) (emphasis added).

No one disputes that this deteriorating medical condition was due to Williams’s pregnancy. This purported change in the understanding, from Crown’s point of view, is what led to Williams’s termination. (See id. ¶ 35; Aug. 14 Letter). In fact, Judge Meale’s findings, which Crown endorses wholesale, could not be clearer in stating that the termination “was due to complications associated with her pregnancy.” (Recommended Order 4–5).

At the very least, there is an issue of fact as to whether Crown’s leave policies were applied unequally to Williams.

Nice win by Boca's Ellen Marcie Leibovitch! 

Come on people, is it the summer slow down already? -- send us some tips.

Broad and Cassel's Effort to Disqualify Feldman Gale Denied.

In a messy legal malpractice case against Broad and Cassel and some of its attorneys, Judge Altonaga has denied a motion to disqualify Feldman Gale, largely relying on client consents obtained after the motion was filed:

And in this case, after the present Motion was filed, both Delaware Valley and Esprit executed written waivers of conflict. (See Notice Waivers ¶ 4; Waivers 4–8). Now, Broad speculates that Delaware Valley and Esprit’s consent is not “informed” because “the very fact that Feldman Gale argues that . . . there is no such conflict makes it questionable that Feldman Gale provided the [information] necessary for a conflict waiver to be valid and effective.” (Reply 8). Admittedly, Broad lodged its objections to the waivers prior to their filing, not knowing the waivers’ contents. But subsequent to Shaw’s filing of the waivers, Broad has not requested the opportunity to submit any further argument addressing why the waivers are insufficient.

But the Judge gives a big hint:

Moreover, Broad has not requested an evidentiary hearing or the opportunity to engage in discovery concerning the former clients’ understanding of the nature of the conflict and how it may present itself during the course of this litigation. Appropriately viewing Broad’s Motion with “skepticism,” and without more explanation from Broad beyond the conjecture presented prior to the waivers being revealed, there is no reason to discount the effectiveness of the waivers. Accordingly, the waivers are preliminarily found to be sufficient under Rule 4-1.9(a) to permit Feldman Gale’s representation of Shaw.

Hey, anybody want to schedule some depositions?

Yes, Virginia, Parties Can Plead in the Alternative.

You would think after forty-seven thousand gazillion years of jurisprudence, litigators would be savvy enough to not argue the same redundant or pointless things over and over again.

Yet, like the sunshine of a new day, they come back again bright and fresh in a spankin' new motion, as if there's no context, or history, or....caselaw....

Case in point:  pleading in the alternative.

Here's Judge Altonaga having to -- once again -- explain how this whole pleading thing works:

Under the Federal Rules of Civil Procedure, a Plaintiff may plead claims in the alternative. See FED. R. CIV. P. 8(d);3 United Techs. Corp. v. Mazer, 556 F.3d 1260, 1273 (11th Cir. 2009) (“Rule 8(d) of the Federal Rules of Civil Procedure expressly permits the pleading of both alternative and inconsistent claims.”). A party need not use any special words to properly plead in the alternative; it only must be “‘reasonably inferred that this is what [it was] doing.’” G-I Holdings, Inc. v. Baron & Budd, 238 F. Supp. 2d 521, 536 (S.D.N.Y. 2002) (alteration in original) (quoting Holman v. Indiana, 211 F.3d 399, 407 (7th Cir. 2000)). Breach-of-contract and declaratory-relief claims may be pleaded alternatively. See Great Am. Ins. Co. v. Sch. Bd. of Broward Cnty., Fla., No. 09-61636-CIV, 2010 WL 4366865, at *24 (S.D. Fla. July 30, 2010); In re Andrew Velez Const., Inc., 373 B.R. 262, 275 (Bankr. S.D.N.Y. 2007). If any inconsistencies exist, they can be dealt with at summary judgment or through jury instructions. See Formula LLC v. RSUI Indem. Co., No. 09-60592-CIV, 2009 WL 2342455, at *3 (S.D. Fla. July 28, 2009).

 Seriously?  

Somebody made her write this one more time?

Like Droz says to Gutter in PCU, "don't be that guy."

Don't be that guy.

Should You Include Reasons in Your Motion to Dismiss?

Judge Altonaga tackles a hot-button issue that is all the rage among us civil litigators -- when you prepare a motion to dismiss, should you include reasons why the action should be dismissed as to your client?

My own feeling is as follows:

I'm an artist.  You wouldn't ask John Coltrane to explain one of his mind-blowing sax solos, nor would you ask Chagall to explain one of his paintings or James Joyce to explain Finnegans Wake.

Likewise, my 12(b)(6) motion stands on its own, inviting -- nay, challenging -- the reader to find his or her own meaning in my random collection of important-sounding legal words, and arrive at the correct conclusion in spite of (and most definitely not because of) my brillant if maddeningly obscure wordcraft.

Isn't that the very definition of transcendent art?

Alas, Judge A has a different view:

As a general observation, the Court notes that, in their Individual Motion, Barillas and Chaveco address the 12 counts of the Complaint in a cursory fashion. They argue, without citation to any authority or analysis, that the Complaint fails to allege with specificity what it is they did to be liable in all 12 counts. In their Reply [ECF No. 36], Defendants attempt to make concrete arguments relating to some of the counts, for instance by pointing out that the Complaint does not allege what actions they took to make them personally liable under the FDUTPA or for unfair competition. Nonetheless, they cite to no law and do not provide any legal argument addressing the sufficiency of the non-Lanham Act claims. As the court noted in Rux v. Republic of Sudan, “a moving paper makes a specific request for relief of some sort . . . [a] memorandum of law in support, on the other hand, supplies the reasons why the moving party is entitled to that relief.” No. Civ.A. 2:04CV428, 2005 WL 2086202, at * 14 (E.D. Va. Aug. 26, 2005) (emphasis in original). In the absence of any meaningful legal analysis regarding the sufficiency of the remaining claims stated against these Defendants, the Individual Motion fails to persuade.

 Ok, perhaps she has a point, but how bourgeois is that?

Always Be Nice to Your IT Guy.

It's Monday, a day where there is so much to do and so little interest in doing it.

What to write about?

We have Carlos Loumiet and several others leaving Hunton for DLA Piper.

This is my favorite part of that story:

A Hunton attorney who did not want to be identified said that no announcement had been made by the firm about the departures. The departing attorneys' names and biographies were removed from Hunton's website.

Of course!  Your fellow partners and associates are always the last to know.

Better start checking your firm's bios daily.

But at least macher Marty Steinberg had a quick retort and was fully prepared to address the mighty Julie Kay on the unannounced departures:

Marty Steinberg, Hunton's managing partner in Miami, declined comment on the departures, saying, "you'd have to ask the lawyers themselves."

I would, but their emails are down!

In other news, here is a truly inspiring story about Judge Altonaga returning to her high school to talk about grad night, dating, how to properly apply an iron-on to a tee shirt, and what going to high school in Miami in the late 70s was really like (hint:  it involved lots of Foreigner):

Wait -- David reports that she apparently talked about important topics such as race, discrimination, gender issues, and tolerance.

Kudos Your Honor for paying it forward.

SFL Friday -- PACER and the Pussycat

I think everyone besides Judge Altonaga pretty much takes PACER for granted nowadays.

But there was a time -- in the dark ages, 'natch -- when you had to actually run to the Courthouse to "pull a file" and copy a pleading or motion.

Let me correct that -- you had to send some lowly associate to go to the Courthouse and do all that, but still!

(And phone messages were on little slips of paper!)

Perhaps that's why I found this article by the former chair of the Judicial Conference's Court Administration and Case Management Committee to be so interesting.

Apparently some smart people are studying how to upgrade and improve PACER:

Nearly 40 percent of PACER's revenues are generated by less than 1 percent of its active accounts, and the vast majority of the remaining PACER accounts incur less than $500 in fees per year.

What happens to the funds collected each year from PACER users? In compliance with statutory language, the money is used to pay the expenses of maintaining and improving the public access program. Moreover, all uses of electronic public access fees are approved by Congress through annual submission and approval of the judiciary's financial plan.

Certainly PACER and the services it offers can be improved. That is why we are conducting a yearlong comprehensive program assessment to identify potential enhancements to existing services and new public-access features that could be provided to PACER's varied users. User surveys will be a big part of the assessment, and this input will help shape a final report, expected by June.

Functionality is an important component of the assessment. We already know that usage of PACER's U.S. Party/Case Index application continues to grow, with more than 200,000 searches daily. The application has been running in its current format since 1999, and needs updating. Its search functionality is limited, but the judiciary is working on a new version that will provide enhanced search capabilities and result formats that can be easily imported to other programs for analysis. The new version is being tested, and it should be available to users soon.

Furthermore, we continue to explore ways to enhance already available services. A pilot program is under way to evaluate the expansion of PACER to include access to digital recordings of court proceedings in district and bankruptcy courts.

In other words -- iPACER!

(I hope no one else has thought of this).

BREAKING -- if you're interested in what Barbra Streisand thinks of Citizens United, you can find her trenchant legal analysis here.

Oy -- such a voice, but dear you're not helping.....

Let's see, it's Friday and as usual I have packed my necessary windsurfing items --- chewing gum, reading material, pulled pork -- you know, the basics.

It's always best to be prepared.

Have a great weekend!

3d DCA Watch -- CANCELLED DUE TO LACK OF ANYTHING TO WRITE ABOUT

Boy that was some Federal Bar Luncheon today, huh?

I sure hope Herman finds out exactly when the right time is to apply for judicial clerkships, I don't want him to miss out.

Also, Judge Seitz doesn't really "do" email, and Judge Altonaga managed to make a discussion of CM/ECF very interesting -- seriously.

One suggested expansion category for the drop down selection screen -- to do lists.

Nice group of clerks you both have, btw -- but Mikey you'll have to wait before you can start hiring them all.

Now, let's talk about the 3d DCA.

If I didn't know any better, I would think that maybe, just maybe some Resplendently Robed jokester was trying to make our lives difficult this week, by purposely only releasing opinions that have the word "State" in them.

Was it you, Judge Ramirez?

It's ok, you can come clean now.

Ha ha no civil orders, I get it boy do I have egg on my face.

Point made, Your Honor.

Now how about even one measly civil opinion, you know, for the good times?

SFL Monday -- The Path Life Leads You.

Hi kids, it's a short week and we have lots to do so let's see what is going on in the world:

Rothstein may have had extraordinarily bad taste but his partner in crime is worse:

The other was the late Stuart Rado, a consumer watchdog who died of cancer before the Classic Motor Carriages sentencing in 1999.

Rado’s estate attorney said in a statement that GGL’s tactics included “silencing” its critics and filing two lawsuits against Rado, even though the company knew Rado was dying of cancer.

Nice. Who was the lawyer who did what George Levin asked and sued a dying man for attorney's fees?

My favorite comment from the weekend was this Sarah Palin fan waiting in line at a book signing, who said this about President Obama:

“He isn’t governing, he’s still campaigning,” said Joe Miller, a lab technician who had taken a vacation day to wait in line Thursday at a Meijer superstore in Fort Wayne.

Joe, you realize that the person you have been waiting all day for actually quit governing in order to make a lot of money, go on a megabook tour, and campaign for 2012?

Sigh -- my head hurts.

What else -- the BigLaw biz sucks:

Among the top 75 law firms, 15 had reductions of more than 100 lawyers. Of the top 50, seven cut more than 200 attorneys. The firm with the largest percentage decrease was No. 95 Fried Frank Harris Shriver & Jacobson, which declined by 26.4 percent to 468 attorneys from 636 in 2008. Last year, the firm held the No. 58 slot in the rankings.

I've heard more unconfirmed reports, so anyone with more information please drop me a line.

Do you care that Judge Marra ruled on a motion to dismiss or that the 11th affirmed Judge Altonaga? No, you just want more and more Rothstein.

What about the fact that Stu Rosenfeldt, under investigation by the Florida Bar, was just named one of Broward's "leaders of the year":

Rosenfeldt formed a new firm with attorney Shawn Birken. He said he’d like to avoid being dragged into the legal morass his law partner created, but to some extent he knows he will be.

“I didn’t plan it this way,’’ he said. “ … I guess you just have to follow the path that life leads you. … God has a plan. Hopefully He’ll show it to me.’’

Oh boy.

I think I liked "Clueless Stu" better.

SFL Friday -- Holiday Windsurfing Edition

So there I was, my eyes locked and staring directly at Judge Altonaga, as I smiled slightly and prayed for a favorable ruling.

"You can have this table, SFL, we were just leaving."

"Thanks Judge. Have a nice weekend."

What -- you thought we were in court? I'm a civil litigator, don't be silly. I was talking about lunch this afternoon at La Loggia.

Well it's nearly 2:30 so that means it's time for me to start packing up for a nice long weekend of windsurfing. Don't forget, Monday is the first day of Chanukah. I hope all you big-firmers have your hours logged in for the year, because I can feel everything gradually shutting down.

Lawyers on vacation, judges on vacation, economy on vacation, key indicators in decline.....oh hail, I'm outta here.

Let's schedule that depo the second week of January, ok?

Have a great weekend everybody!

Judge Altonaga Gets It Right

How about that -- Judge Altonaga strikes down Miami-Dade's idiotic loitering and parade-permit restrictions:

Miami-Dade's bans on loitering and its permit requirements for public protests are too vague, too broad and could cross First Amendment rights, according to a federal judge who struck down those ordinances late Wednesday.

Organizers of a 2007 protest sued after being denied permission to close streets in front of Miami Dade College during President Bush's speech at the Kendall Campus. County police have few rules about when to approve or deny such requests.

ASSUMED INTENTIONS

''We are left simply to assume the benevolence and good intentions of the sheriff in denying the application,'' wrote U.S. District Judge Cecilia Altonaga.

County Mayor Carlos Alvarez declined to comment; his spokeswoman said the administration had not fully reviewed the ruling. The county attorney's office has not decided whether to appeal.

The protesters -- including Miami for Peace, South Florida Peace and Justice Network and Haiti Solidarity -- also complained that police could have used the county's loitering ordinance to arrest protesters.

That ordinance is broad enough to ban standing on a public sidewalk in a way that hinders pedestrians and, according to Altonaga's ruling, ``criminalizes virtually all behavior likely to take place at a public demonstration.''

The permit rules provide no standards, no clear appeal and no timeline, leaving police the freedom to sit on a request until the last minute.

''It gave them completely unlimited discretion,'' said Mara Shlackman, an attorney for the groups.

Altonaga's order, like the ordinances themselves, only applies to unincorporated parts of Miami-Dade; cities have their own regulations.

You can read the Judge's summary judgment opinion here. It's a nice, clean logical ruling. I like the way the Judge mocks the awful language of the county ordinance:

The awkward and sweeping language of the Ordinance results in a legislative pronouncement that defines loitering with use of the term it seeks to define: “knowingly . . . [l]oitering” in selected public areas, “so as to hinder or impede the passage of pedestrians or vehicles” or “the orderly conduct of instructional, recreational, or other school activities.” Id. Indeed, even the only arguably “objective” component of this construction – “so as to hinder or impede” – is also relatively subjective.

She then concludes:

Since the Loitering Ordinance lacks virtually any objective standards regarding its application, every participant in a public demonstration, or indeed anyone using a public right of way, may be deemed to be in violation of the ordinance and be subjected to its stated penalties.

Yeah, so? We said we would only exercise this power sparingly and with the very bestest of intentions.

It's a good feeling when simple constitutional rights are vindicated.