Dirty Work.....

What's with all these alleged "patsy" stories -- David Rivera/Justin Sternad, the whole Nevin Shapiro thing, sheesh.

In other news, more trouble at U.S. Century Bank,  and what do you know -- something positive -- Judge Cooke to be honored:

Trailblazing U.S. District Judge Marcia G. Cooke will be honored as part of Black History Month observances during a celebration being hosted Feb. 28 by the delancyhill law firm and the Little Haiti Cultural Center.

Cooke will be recognized for her “trailblazing legal career and her unwavering upliftment of black history and cultural awareness in the federal judicial system,” according to a statement from Marlon Hill, principal of the law firm.

The reception will host clients, firm partners, and community leaders from 6:30-8:30 p.m. and will include cultural presentations by the Little Haiti Cultural Center, 212 N.E. 59th Ter., Miami.  

Hey, maybe we can end the week on a good note after all....

Judge Cooke: Court-Imposed Deadlines Almost as Important as Your Fantasy League!

Or a bris, or a marriage, or possibly even the season finale of "Homeland":

Due to the procedural importance of the response(s) at issue, denying Defendants’ Motion for Enlargement of Time to Answer or Response to Plaintiff’s Second Amended seems Draconian in this complex matter. However, a reasonable person, let alone an officer of the court, must understand why it troubles me to grant any further extension to the Defendants. It should go without saying, but in this instance requires stating that a court-imposed deadline is an event of significance in a litigator’s life. It cannot and should not be disregarded in favor of vacation or minor hurdles. Justice Joseph Story cautioned all attorneys, “I will not say with Lord Hale, that the Law will admit of no rival ... but I will say that it is a jealous mistress, and requires a long and constant courtship. It is not to be won by trifling favors, but by lavish homage.”2

She's right -- if you know you need more time, why wait until the last day to seek an enlargement?

Then there's the dog-ate-my-homework feel of the explanation provided by counsel:

Counsel for Defendant Cypress states that upon return to his office following a twelve-day vacation, he learned that his Westlaw service was not operational. This explanation for failure to comply with a court order remains unclear. Defendant Cypress is represented by two distinct attorneys working from two separate offices in two separate locations. Was Westlaw down for both attorneys? Was neither attorney able to use the legal research resources of co-Defendants’ counsel with whom they made an agreement to spearhead the drafting of the response to Plaintiff’s Second Amended Complaint?

Oh boy.

Kluger v. Randazza, the Appeal!

This just in -- formerly anonymous blogger appeals poorly-conceived order enjoining her from posting "defamatory blogs in the future" that concern a local developer.

You can read the opening brief here.

In other news, Jack Reiter wrote a pretty darn good motion to dismiss the RICO suit against Lewis Tein pending before Judge Cooke.

Here's a taste:

Although the Second Amended Complaint is longer, it suffers from the same defect that warranted this Court’s October 10 Order. Despite listing hundreds of invoices purporting to identify legal services rendered to the Tribe, juxtaposed with a litany of Lewis and Tein’s alleged household purchases, the Second Amended Complaint does not identify a single incident of purported fraud. The allegations do not provide any basis upon which Lewis or Tein can defend themselves. Furthermore, because the Court has already given the Tribe the opportunity to allege their RICO claim with the requisite particularity, there is no basis for giving the Tribe yet another opportunity. Simply stated, if the Tribe had the ability to advance a claim for fraud or RICO, it would have done so. The Court should dismiss this case with prejudice as to Lewis Tein.

Listen, it's very hard to properly plead a RICO claim even when you have fantastic facts and evidence.

Methinks Judge Cooke will give this a close read.

Bob Marley Lawsuit Settled!

 
A dispute among family members over intellectual property rights to the great Bob Marley catalogue has finally settled.

A notice of stipulation of settlement was filed before Judge Cooke, and the terms are confidential.

The settlement follows a mediation with Rodney Max.

You can read the complaint here.

The best part is that Bob Marley approves!

“This was a sensitive case which involved historic facts and many moving parts. The legacy of a great man and a great family were at stake. Fortunately, we were able to come up with a settlement which was amenable to the family members involved,” said Santucci. “From what I learned about Bob Marley and his intentions, he would be happy with our recent achievements, especially the peace brought to the family,” said Santucci.

And so does Rihanna!

 

Gaze Upon Judge Cooke's Scott Rothstein/TD Bank Sanctions Order!

Nice to see Rule 37 get a little teeth.

Here's part of the order dealing with GT and its lawyers:

The individual Greenberg Traurig attorneys’ handling of this case left much to be desired. The document review and production appears to have been conducted in an almost ad hoc manner. The attorneys failed to adequately conduct document searches in response to Coquina’s counsel’s requests and this Court’s inquiries. The attorneys produced key documents on the eve of trial, and in the midst of trial, because of failures in their document search and production procedures. Although I recognize that the attorneys were dealing with a high volume of documents, the amount of production errors that occurred throughout these proceedings were simply incredible, especially coming from lawyers in a well regarded firm like Greenberg Traurig, which in many ways earns its reputation from being able to litigate large, complex actions.

Having reviewed the evidence, however, I do not find that sanctions, including a finding of contempt, are warranted against any of the individual attorneys. The evidence does not support a finding that any of them acted willfully or in bad faith. Although they certainly acted with negligence, I am not prepared, on this record, to enter sanctions personally against them.

So I guess that's a partial victory (at least for the local GT lawyers).

UPDATE:  I love my readers:

Better Watch Those Dismissals Without Prejudice!

This is a fascinating opinion from Judge Cooke and a cautionary tale regarding what can happen when a client decides to no longer pursue a case after a dismissal without prejudice.

First American may be entitled to attorneys’ fees and costs only if it is recognized as the prevailing party. In Florida, a party is the “prevailing party” where it has been awarded relief on the merits of the claims at issue or where there is a judicial imprimatur on the change in the legal relationship between the parties. Smalbein v. City of Daytona Beach, 353 F.3d 901, 905 (11th Cir. 2003). Simply stated, there must be an adjudication on the merits. Pursuant to Federal Rule of Civil Procedure 41(b), an involuntary dismissal “operates as an adjudication on the merits" unless a dismissal order states otherwise. Fed. R. Civ. P. 41(b). In this case, both the Omnibus Order Granting Defendants’ Motions to Dismiss and the Final Order of Dismissal “state otherwise” in that they expressly state that the claims against First American are dismissed without prejudice. The Eleventh Circuit has recognized, however, that a dismissal without prejudice will “become a dismissal with prejudice when no timely amendment [is] filed and no request for an extension [is] submitted.” Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126, 1128 n. 3 (11th Cir. 1994). Dependable Component failed to file a timely amendment and made not request for an extension of time to do so. Consistent with the Federal Rules of Civil Procedure and the law in this Circuit, and to clarify any confusion from prior orders, the Final Order of Dismissal is a dismissal with prejudice as to Dependable Component’s claims for wrongful dishonor of letter of credit, fraud and goods sold, and is indeed an adjudication on the merits.

And, because there was a UCC claim, the defendants filed a motion for attorney fees seeking over $200,000!

Judge Cooke, however, discounted the hourly rate and fee request by 65%; here is what she said about that (disagreeing with defendants' fee expert and my pal Big Ed Moss):

However, despite the fact that the parties did not engage in discovery and First American did not take a single deposition, First American’s lawyers billed at total of 570.85 hours. Assuming First American has provided an accurate total, and assuming each lawyer billed an average of eight hours per day, the billed total accounts for 71.35 days of work. That, in turn, means that it took seven lawyers approximately 1.6 days to review documents and research case law for each page submitted to the Court in a run-of-the-mill wrongful dishonor of letter of credit action that requires no specialized knowledge or training. After a review of the submitted time sheets, I find the requested billable hours excessive.

In other words, a typical billing day at BigLaw!

Dear John Doe: Welcome to Rule 11!

In the anonymous blogger case pending before Judge Cooke, The Kluginator has filed a little document known in legal circles as a "Rule 11 motion."

Here is the blockbuster opening paragraph:

Defendant and his counsel have misapplied existing law in Defendant’s Counter-Complaint. To begin with, Defendant cannot maintain the Counter-Complaint under the fictitious name “John Doe” and be permitted to use his anonymity as both a sword and a shield. Moreover, Defendant and his counsel have asserted duplicative counts for declaratory relief that fail to state a cause of action upon which relief may be granted and are merely denials of the properly dismissed Count III, rendering the Counter-Complaint moot and therefore seeks an improper advisory opinion from this Court. Further, Defendant’s Counter-Complaint is a clear attempt at forum-shopping and judge shopping. Despite having proper notice of the frivolousness of their positions, Defendant and his counsel have refused to withdraw the Defendant’s Counter-Complaint [D.E. 1]. Accordingly, sanctions should be imposed against Defendant and his counsel pursuant to Fed. R. Civ. P. 11.

Ok, I agree none of that sounds too hot, but on the other hand that's pretty much a day in the life at any given moment in state court.

What am I missing here?

(I sure hope they met and conferred on this one!)

Scott Rothstein....Yawn.....

He's so 2008, come on!

What with the watches, cars, Kimmie, cigars, idiot hangers-on, massive law firm implosion.....who the hail cares anymore?

I guess the investors who lost everything.

So for them the Rothstein saga rolls on, including this sj order by Judge Cook on investor Coquina Investments' case against TD Bank.

The Court dismisses two of the key RICO counts, but allows two lesser tort claims to proceed.

Read it if you want to get all nostalgic for life way back then -- there's a fairly good summary of the "structured settlement" scheme drawn from undisputed facts.

New Math: Joe Klock + Notice of Appearance = Judge Seitz Recusal.

We've been tracking the sanction proceedings before Judge Seitz triggered by counsel's filing of an emergency motion to stay one of the Judge's orders.

Since then Receiver David Mandel filed an order to show cause and motion to disqualify the subject law firm, and on October 5th none other than Joseph P. himself entered an appearance to handle the disqualification motion only.

Joe's notice directly led to Judge Seitz' recusal:

Last night attorney Joseph P. Klock, Jr. entered his appearance in this matter on behalf of the law firm and attorneys of Ivy, Miller & Walker, P.A. Klock's clients are presently subject to a motion to disqualify counsel and may also be called as witnesses in this case. Klock is the former law partner and father of the goddaughter of the undersigned Judge. The undersigned Judge is currently planning a bridal shower for Klock's daughter scheduled for next month.

Mazel tov on the wedding Joe!

(Sorry about that, Judge Cooke.)

Judge Cooke Goes to the 11th Circuit!

Did you know the judiciary is now the "feeblest branch"?

(Shh, don't tell some of our judicial brethren).

But yes, apparently there can be a problem with equal access to the courts when you gut funding and fail to fill judicial vacancies:

This means that the courts are limiting access just when Americans need more adjudication. The recession left a vast legacy of foreclosures, personal and business bankruptcies, debt-collection and credit-card disputes. In Florida in 2009, according to the Washington Economics Group, the backlog in civil courts is costing the state some $9.8 billion in GDP a year, a staggering achievement for a court system that costs just $1.2 billion in its entirety. To make up the funding shortfall, courts are imposing higher filing fees on litigants. This threatens the idea of the equal right to justice, says Rebecca Love Kourlis of the Institute for the Advancement of the American Legal System.

Oh well -- I'm sure the Florida legislature will do the right thing.

In other news, Judge Cooke pays a visit to the 11th Circuit and sits on a very interesting securities fraud case:

We hold that the securities laws prohibit corporate representatives from knowingly peddling material misrepresentations to the public -- regardless of whether the statements introduce a new falsehood to the market or merely confirm misinformation already in the marketplace. In other words, a defendant may be liable for fraudulent statements intentionally made that have the purpose and effect of propping up an already inflated stock price in an efficient market.

Now good luck finding a judge to hear your case -- or just pay Paul Siegal to adjudicate the darn thing.

How Many "Surs" Are in a Reply?

Good morning!

Let's see what's happening this a.m.

1.  Magistrate Judge Turnoff denies unopposed motion for leave to file "Sur-Sur-Reply" in anonymous blogging case before Judge Cooke.

You know what they say:  replies are like Martinis -- one is not enough and three is too many.

2.  Watch your favorite or most detested Supreme Court Justice actually deign to testify before the rubes in Congress.  Details here.

3.  Cecil B. DeMille-like hearing scheduled in Checking Overdraft this afternoon before Judge King.

DeMille-like is better than Hitchcockian (I think?).

Alan Kluger Further Explains the "Meet and Confer" Requirement.

The parties in the anonymous blogging case could have had ten thousand "meet and confers" in the amount of time (not to mention money) they have spent debating the finer points of the Local Rule.

In our latest installment, The Kluginator further elucidates the difference between a "motion" and a "request" for purposes of the governmental mandate to actually communicate with opposing counsel:

Defendant argues that Plaintiffs failed to comply with the local rules regarding pre-filing conferences for not only the Request, but also for their Request for Oral Argument on Defendant’s Motion to Dismiss [D.E. 27] and their Request for Oral Argument on  Plaintiff’s Motion to Remand [D.E. 29] (collectively, the “Requests for Oral Argument”). This is incorrect. Plaintiffs filed the Requests for Oral Argument pursuant to Local Rule 7.1(b)(1), and they are not subject to the provisions of Local Rule 7.1(a)(3). Moreover, the Request is merely a supplement to Plaintiffs’ Motion to Remand. Accordingly, Plaintiffs’ Requests for Oral Arguments and the Request are proper, and this Court should reject Defendant’s argument to the contrary.

Ok, stop:  what exactly is a "supplement" to a motion for remand?

Is that what happens when you forget to ask for fees in the actual remand motion, and then you have to file another document later asking for fees should the remand be granted?

Given the precarious nature of the "supplement" in the first place, how would it have hurt to get an angry polite response (ed. -- new oath and all) email from opposing counsel advising you to go to hail?

Now let's talk "requests" for oral argument.

Again, what if opposing counsel also wanted a hearing?  Wouldn't your request be stronger if the parties were united in their view that Judge Cooke should hold a hearing?

How would it have hurt to conferred?

Bismarck's Descendant Met With Chilly Reception at Broward Federal Courthouse.

Can't Bismarck's descendant just keep filing lawsuits against David Rockefeller/President Obama/Al Sharpton/The Pointer Sisters without continually being hassled by The Man?

(For tonight's performance, the role of "The Man" is being played by kindly deputy USMs in the Broward federal courthouse.)

After having one complaint dismissed by Judge Zloch (and his motion for in forma pauperis denied) and another dismissed by Judge Martinez and then another by Judge Cooke (but his in forma pauperis motion was granted!), it seems our erstwhile Squinky, Blinky, and Mod Nazi spy/pro se plaintiff got into a little kerfuffle while one his way to filing yet another magnum opus up in Broward federal court.

Here's the best part:

It took five (5) DUSM's to finally control DELANEY and place him under arrest as he continued to kick and throw closed fist strikes at them.

Five deputy marshalls??

And it only took two of Obama's goons to jump the poor guy as he slept fitfully on an Hawaiian beach.

It's funny I happened to be in line at the courthouse just as all this unfolded, and managed to capture the entire encounter on my smartphone (see above).

Bismarck's Drafting Skills Could Use Some Work!

Oh the poor hapless descendant of Bismarck's pro se travails in federal court continue.

First, Erica Jung's (sic) loving son got no love from Judge Martinez, even though he specifically namechecked the Pointer Sisters.

Now Judge Cooke offers the royal plaintiff some brief-writing tips.

Admittedly, some of her suggestions in terms of structure and flow are quite technical:

The complaint barely articulates an intelligible sentence and certainly fails to assert a colorable claim for relief. The 12-page document is a rambling collection of quotes, references to historical landmarks, celebrities, movies, and obscure and apocalyptic bible references. Throughout the body of the complaint, Plaintiff has underlined selected words, in no discernable pattern, to reveal what he has identified to be a “coded message.” These “messages” are nothing more than a random collection of words arranged together in incoherent paragraphs.

Hey, this guy's stealing my act!

Lawyers, Help Your Judges Out!

Listen, you're in federal court.

You are all big corporations (McArthur Dairy, Dean Foods) so you have good lawyers to represent you.

You have filed a summary judgment motion, which is a carefully-defined pleading with technical and substantive requirements and important consequences if granted.

Yet you have left Judge Cooke with the following:

Rather than articulating independent legal arguments for summary judgment, McArthur and Dean Foods elected to “incorporate by reference the arguments sets [sic] forth in the memorandum in support of their motion to dismiss (ECF No. 18) and their reply in support of their motion to dismiss (ECF No. 22).” (Mem. in Support of Mot. for Summ. J. 6 n.4 (ECF No. 31)). Ordinarily, an order granting or denying a motion for summary judgment identifies the relevant factual findings related to the issues ripe for summary disposition. Unfortunately, in this case, McCowtree has failed or otherwise refused to respond to merits of the motion, with factual contentions or otherwise, and McArthur and Dean Foods have not concisely set forth all facts which are material to the resolution of the claims. The record pleadings, specifically the Complaint, Counterclaims, and answers and affirmative defenses thereto, provide even less clarity as they raise numerous issues of material fact.

Come on folks, don't you want the Judge to rule in your favor?

Ancillary Rothstein Proceedings Churn On.

TDBankorder

The latest Rothstein news comes from Judge Cooke, who denied TD Bank's motion to stay a civil suit pending before her on the grounds that TD's former Regional Vice President, Frank Spinosa, is about to be indicted and therefore TD can't mount an effective defense:

TD Bank seeks a stay of this civil action pending the outcome of criminal proceedings against Frank Spinosa, its former Regional Vice President. The Government has not indicted Mr. Spinosa. Shortly before the close of fact discovery in this case, TD Bank deposed Plaintiff’s corporate representative, and several of its partners and agents. Two of Plaintiff’s deponents testified about an alleged September 25, 2009 meeting and an alleged August 17, 2009 phone call where Mr. Spinosa made false representations to Plaintiff. The crux of TD Bank’s Motion is that these are new allegations, and that it cannot defend itself against them because Mr. Spinosa has invoked his Fifth Amendment privilege against self-incrimination. Thus, TD Bank seeks a stay of these civil proceedings.

Judge Cooke doesn't buy it:

In light of the allegations in Plaintiff’s Complaint, Plaintiff’s deponents’ testimony that Mr. Spinosa made misrepresentations in an August 17, 2009 phone call and in a September 25, 2009 meeting can hardly be characterized as “new allegations.” This case should not be stayed merely because TD Bank waited until just before close of fact discovery to take the deposition of Plaintiff’s corporate representative, agents, and partners. That Mr. Spinosa would invoke his Fifth Amendment privilege is also not new information. Mr. Spinosa invoked the privilege on June 10, 2010 and December 3, 2010, in two other cases, and he invoked the privilege in a February 17, 2011 deposition in this case.

Hmm, not to put too fine a point on it.

Judge Cooke To Decide Important Issues of "Body Darkness Prejudice."

Folks I've been slammed today so I apologize for getting this up a little late.

Let's see, the 11th upheld certain Florida statutory caps on noneconomic damages in med/mal cases, but also certified a few issues to the Florida Supremes because -- surprise -- these issues are "unsettled":

Plaintiffs next challenge the cap under several provisions of the Florida and United States Constitutions. We first address Plaintiffs’ argument that the cap violates the United States Constitution. We then review Plaintiffs’ challenge to the cap under the Takings Clause of the Florida Constitution, Art. X, § 6, because Florida constitutional law on the matter is well settled. Florida constitutional law on the other provisions of the Florida Constitution under which Plaintiffs challenge the statutory cap, however, is unsettled. For this reason, we will certify several questions of state constitutional law to the Florida Supreme Court under its certification procedure.

(Shh, don't tell Governor Scott.)

But the more significant story, of course, is one man's quixotic fight against "body darkness prejudice" at our public parks and beaches, now undressing unfolding in Judge Cooke's courtroom.

Fight the power (and do it the way God intended)!

11th Circuit Rules Against "Peek-a-Boo" Lounge!

The 11th Circuit, with Judge Cooke sitting by designation, has ruled against a Bradenton strip club, the "Peek-a-Boo" lounge, which had challenged a ridiculous ordinance designed to take all the fun out of life:

The ordinance allows employees of sexually oriented businesses to appear “semi-nude,” id. § 2-2.5-18(b), defined as “a condition in which a person is not nude, but is showing a majority of the female breast below a horizontal line across the top of the areola and extending across the width of the breast at that point, or is showing the majority of the male or female buttocks,” id. § 2-2.5-2. Employees appearing semi-nude, however, must “remain[] at least six (6) feet from any patron or customer and on a stage that is at least eighteen (18) inches from the floor and in a room of at least one thousand (1,000) square feet.””

Seriously?

That would mean at least half the parents at any South Florida children's birthday party held near a body of water would be in violation of this ordinance.

Now that you mention it, I am in violation of this ordinance right now.

But the First Amendment was not designed to protect a majority of the female breast below a horizontal line across the top of the areola and extending across the width of the breast at that point, according to Judge Marcus, mostly because of the "secondary effects" (no, not that kind).

The district court took extensive evidence and, indeed, the County spared no expense, sending in a top investigator, Tom McCarron, to find out exactly what goes on in these clubs:

At Pandora’s Box, Mr. McCarren was able to pay a dancer for a private dance, during which the dancer removed the tape over one of her nipples and allowed Mr. McCarren to touch her breast, buttocks, and genital area. At Paper Moon, Mr. McCarren was able to pay a dancer to go into a back room with him, where she removed all clothing except her G-string and allowed Mr. McCarren to touch her breasts.

Mr. McCarren, you sir deserve a medal for your fierce and relentless pursuit of the facts.

(Or at least a nice massage -- oh wait, that's your next case!)

But in the end, it was Mr. McCarren's dedicated muckraking that made all the difference:

The bottom line (ed. note -- ha ha) is that the County has presented a substantial body of evidence to support its rationale for adopting the ordinance. Peek-a-Boo has failed even to address much of that evidence at all, and it has failed to show that the County’s rationale or this body of evidence was unreasonable.

In other words, "Peek-a-Boo" has bottomed out.

Luther Campbell Doesn't Really Care Much For Judge Cooke.

It's true we broke news of and have been actively covering the Luke Campbell case that Richard Brodsky masterfully tried before Judge Cooke, but now Uncle Luke, a columnist at the very fine Riptide, breaks his silence over the controversy and has some harsh words for Judge Cooke:

When I finally heard about the allegations, I fought to vacate the judgment and dismiss the case.

The judge refused me, ruling there was enough evidence to send the case to trial. It didn't look good for Miami's favorite uncle. So I hired Richard Brodsky, former attorney of the Securities and Exchange Commission, to defend me. At that point, I had spent a lot of money, and knew I would have to spend a lot more.

When the trial began two weeks ago, Butler was allowed to talk about her job, child, and community service. The photographer was afforded the same opportunity. But when I was on the stand, the judge instructed my lawyer to stop asking me questions about myself. She said that information was irrelevant.

I respect some judges, but not all of them. There is always a chance you'll get one who doesn't like you, your political leanings, or your core values. I would rather face a jury of my peers, who can debate the merits of the argument and come to an unbiased conclusion. In my case, the jury saw through the judge's power play.

Me:  Be a gracious winner.  You won the case, for chrissakes!  You don't need to slam Judge Cooke for her "power play," whatever that means.  Litigants don't really hold equal power with the presiding judge in a federal case, anyways.

Also, and I'll let my buddy Brodsky weigh in on this if he's so inclined, but maybe the judge let in evidence of the plaintiff's background because it went to her damages?

Just take the "W" and move on.

BTW, I'm happy Luke spent a lot of money on Richard -- it was evidently worth every penny.

Your Daily Morning Luke Campbell Verdict Form.

Luke Campbell Verdict Form

A fresh read (along with your coffee).

Note -- excessive use of exclamation points temporarily suspended due to mockery by David O. Markus.