If You Can't Explain Your In Limine Motion Simply, It is Not Likely to Be Granted.

Here's an interesting standard Judge King lays out for an in limine motion -- if you can't explain it simply to the Court pretrial, it's not something the Court should be ruling on pretrial:

In limine consideration of arguments and evidence relating to the Defendants' "strategic planning and strategic planning documents'' is equally misplaced. One need look no further than Defendants' memorandum (pp. 6-10 - D.E. #84) to quickly discern that the complexities of even describing this issue to the Court pretrial renders it not a matter which should be considered in limine. Experienced trial counsel, and certainly the Court, can envision perhaps a half a dozen ways in which these matters might be relevant during the trial presentation of evidence. Counsel will have the full opportunity to make whatever objection they wish to make - materiality, relevancy, work product, etc. - if, and when, the evidence is sought to be presented.

Simplify, simplify, simplify!

Judge King Romances the Stone!

 
Judge King recently completed a bench trial in a fascinating case involving the discovery of priceless emeralds on the ocean floor off the coast of Key West.

Well, either that or the whole thing was possibly concocted:

When all is said and done, there are two options: Jay and Steve legitimately found lost stones on the floor of the Gulf, or Jay and Steve placed stones acquired elsewhere on the ocean floor in order to "find'' them and thereby establish an ancient provenance and greatly enhance the value of the stones and the reputation of the men as treasure salvors. There is just as much support for the theory that Jay and Steve planted the stones as there is for the assertion that they found them . The Court cannot simply accept the un-contradicted testimony of Jay and Steve that they followed a treasure map to the site, dove to the floor, and found the emeralds. Each story represents one possible interpretation of entirely circumstantial evidence, and neither persuades the Court. Even if the Court could determine that Jay and Steve did indeed find the stones on the first day, the Court has no credible evidence upon which to base a finding that the material was lost or abandoned by some other original "finder'' or owner.

Moral of the story:  If it wasn't "lost" in a marine peril, then the law of salvage does not apply.

BTW -- I like the novel use of first names though would have modified it slightly ("Jay and Silent Steve").

11th Circuit Reverses Judge King for Misinterpreting Iqbal!

 
Welcome back, plebes!

And thanks to the murderer's row of guest posts the last few days -- I've always depended on the kindness of strangers....

The capacity of Iqbal to wreak havoc in the district courts has long been a bugaboo of this blawg.

In an unpublished opinion, the 11th Circuit has reversed Judge King for dismissing a complaint with prejudice because he found the allegations mere "legal conclusions" entitled to no weight under Iqbal's vague, contour-less pleading standard:

 Lenbro contends the district court erred in refusing to consider the allegations in the Amended Complaint as to the parties’ state of mind on the basis that such allegations were “conclusory” and therefore not entitled to a presumption of truth. Following the Supreme Court’s approach in Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009), the Eleventh Circuit has suggested that, when considering a motion to dismiss, courts: “(1) eliminate any allegations in the complaint that are merely legal conclusions; and (2) where there are well-pleaded factual allegations, assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quotations omitted). Allegations entitled to no assumption of truth include “[l]egal conclusions without adequate factual support” or “[f]ormulaic recitations of the elements of a claim.” Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011).

In its Amended Complaint, Lenbro alleged it “insisted that Simon Falic personally guarantee to pay the consulting fees provided for in those agreements and made clear that it would not enter into the Consulting Agreements without such a personal guarantee from Mr. Falic.” This allegation as to the parties’ intent is not a mere legal conclusion, nor is it a formulaic recitation of the elements of a claim. Instead, this allegation is factual, providing support for Lenbro’s contention that the Personal Guaranty and Consulting Agreements were inseparable parts of the same transaction. Therefore, the district court erred in determining these allegations were conclusory, and the allegations should be entitled to a presumption of truth for the purposes of a motion to dismiss.

Well that clears up everything, doesn't it?

Score One for Alan Kluger!

 
As you know, we have been covering the case between Alan Kluger and Marc Randazza over an anonymous blogger and her dispute with a wealthy local developer.

Carlos Miller and Random Pixels have been writing about the controversy as well.

In the state court action before Judge Leesfield (there is also federal litigation before Judge King), Alan won a big victory for his client:  an expansive preliminary injunction order that purports to enjoin "defamatory" blogging, stalking and tortious interference.

Although the Court notes that she made no findings of fact and that a trial on the defamation claim will be held in the future, Judge Leesfield nonetheless ordered the defendant "not to enter defamatory blogs in the future."

Question -- how will the defendant know in advance whether a blog entry is possibly defamatory or not?

Over to you, 3d DCA!

Kluger v. Randazza!

 
And Carlos Miller has the video.

Random Pixels adds his $.02.

This is like an internet party!

(To be fair, people do make mistakes sometimes.)

Props to Judge Leesfield for putting the issue of cameras in the courtroom to bed quickly and efficiently (and correctly).

She will make a GREAT mediator.

BTW, in the related federal case, Judge King just denied a joint motion for protective order, noting the SD FL's liberality when it comes to public records and public proceedings:

In addition, the parties elected to seek (and defend) relief in a publicly operated forum, namely the United States District Court for the Southern District of Florida. The proceedings held in federal and state courts are open to public observation by any interested party. Pursuant to Local Rule 5.4 for the Southern District of Florida, absent some extraordinary need for secrecy, the judicial acts performed should be open to public scrutiny.

The Court finds that the parties have not shown good cause to justify their desire for secrecy. Therefore, the Court cannot, and does not, approve the motion for protective order.

Now when can we have cameras in federal court?

11th Circuit Affirms Judge King in Checking Overdraft Arbitration Waiver!

Finally Judge King gets affirmed in a Checking Overdraft arbitration decision, this time in a situation where the bank did not move to compel arbitration until after the Supreme Court's Concepcion opinion:

The district court twice invited Wells Fargo to move to compel arbitration, first in November 2009 and again in April 2010, but Wells Fargo declined those invitations. A year later, Wells Fargo reversed course and moved to compel arbitration soon after the Supreme Court held in AT&T Mobility LLC v. Concepcion, __ U.S. __, 131 S. Ct. 1740, 1753 (2011), that the Federal Arbitration Act, 9 U.S.C. § 1 et seq., preempts state laws that condition the enforceability of consumer arbitration agreements on the availability of classwide procedures. The district court denied the motion based on waiver. Wells Fargo argues that it did not waive its right to compel arbitration because it would have been futile to move to compel arbitration before the Supreme Court decided Concepcion. But we conclude that Concepcion established no new law. Because we conclude that it would not have been futile for Wells Fargo to argue that the Act preempts any state laws that purported to make the classwide arbitration provisions unenforceable, we affirm the denial of its motion to compel arbitration.

Oops!

Hopefully the decision to not seek arbitration was made by Wells Fargo's in house counsel.

Developer's Suit Against Blogger Survives Motion To Dismiss!

We've been tracking this case brought by a wealthy developer against a local, formerly anonymous blogger over negative blog posts for a while, and now Judge King has authorized the suit to proceed:

In short, Defendant acknowledges using Plaintiff's copyrighted picture without Plaintiff's consent, but argues that she was not liable under copyright's fair use doctrine. The Court, being fully briefed on the matter, finds that Plaintiff has adequately stated a prima facie case of copyright infringement; on these facts and filings, Defendant's fair use defense is not appropriate for determination on a motion to dismiss. Accordingly, Defendant's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) must be denied.

In other words, the fair use doctrine defense will have to be decided on summary judgment:

Here, Defendant alleges that her use of the Image was not for parody but for news reporting and commentary. (DE #14, p. 10). Though news reporting and commentary lend themselves to fair uses, see 17 U.S.C. sec. 107, such a determination is far from automatic and is more appropriately resolved after the complaint has been answered and parties have evaluated any need for discovery.

But if the Image and the posts in which it appears are in the complaint, what further discovery would be needed?

If they are not, perhaps put them in the answer and move for judgment on the pleadings?

Attention E-Discovery Nerds: Judge King Has Weighed In!

And by e-discovery nerds, I mean specifically John Barkett, who wrote a thoughtful piece not long ago for the DBR on whether electronic databases and the like can be taxed as costs under Section 1920(4) as the "exemplification of....materials."

In walks hotshot cyberwarrior Senior Judge King, to throw water on this exciting new way to make plaintiffs pay:

Moreover, it is the opinion of this Court that, as noted above, Congress's amendment of Section 1920(4) did not expand taxable costs beyond digital copying to the creation of new, modified, or enhanced digital files. A prevailing party may tax the costs of making digital copies, but Section 1920(4) does not state that all steps that lead up to the production of copies of materials are taxable.'' Race Tires, 674 F.3d at 169. A holding to the contrary would be "untethered from the statutory mooring,'' id , and would muddy the distinction between taxable costs, which are generally available to the prevailing party, and attorneys fees, which generally are not available under absent a fee-shifting agreement or statute.

He even added some policy grounds!

John if you're reading this we'd be most appreciative of your insights on Judge King's opinion (we basically have none).

Judge King Reversed Again on Checking Overdraft Arbitration Provision!

Judge King isn't having too much luck before the 11th Circuit on these bank arbitration provisions.

Here's another reversal, this time involving BB&T and North Carolina law:

We affirm the district court’s determination that the unconscionable cost and-fee-shifting provision forms a part of the arbitration agreement, and reverse the district court’s refusal to sever unconscionable sentence. We also reverse the district court’s determination that the set-off provision is unconscionable. Therefore, we reverse the district court’s dismissal of BB&T’s motion and remand it with instructions to sever the unconscionable clause and compel arbitration.

I guess it's all up to Senator Franken to get his Arbitration Fairness Act passed (don't hold your breath).

Judge Tjoflat's Magic Transcript Ride.

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

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

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

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

(Enough with the underscoring!)

Glenn Squared -- The Apocalypse is Officially Here.

What does it mean when the ideologically separated-at-birth brothers Glenn -- Garvin and Greenwald -- both agree that our government's inhuman drone war is, well, inhumane and spinning out of control?

Maybe that third-way consensus business Thomas Friedman is always prattling on about has some merit?

"I'm sorry Dave.  I'm afraid I can't do that."

In other news, Rumpy and Random Pixels report that somebody tweeted something.

What am I missing -- if it wasn't about the trial, where's the harm?

BTW, I just had the pleasure of seeing Square Grouper, Rakantur's riotous look at Miami's drug culture in the late 70s-early 80s.

Brings back those burned-out-Porsche memories....

PS -- lots of good stuff in there (some of it negative) about Judge King's lengthy sentencing of Robert Platshorn of the Black Tuna Gang.

C'mon kids -- what else is happening?

Judge King Nixes Delta Baggage Delay Reimbursement Case!

Did you know you are entitled to up to $3300 in expenses from Delta if your bags are delayed?

Neither does anybody else.

But in a suit brought by Aaron Podhurst over Delta's failure to advise customers of this policy, Judge King has dismissed the suit with prejudice, holding that it is preempted under the Airline Deregulation Act:

Plaintiff's claims clearly rest on allegations that "relate to the heart of services that an airline provides.'' Koutsouradis, 427 F.3d at 1344 n.2. Permitting this claim to move forward as plead would thus impermissibly sanction regulation of the manner in which the airline advertise their reimbursement services and would interfere with the provision of baggage handling services to their passengers, thereby offending the stated purpose of the Deregulation Act.

You can't win 'em all, I guess.

Oh yeah -- happy almost Good Friday, plebes!

Checking Overdraft Settlement Approved!

Judge King's 59 page order here.

Julie Kay gets a few good quotes from Podhurst here.

Drinks on him (I certainly hope).

Who'll Stop the Rain?

Hi kids, it's still soggy, dark, and gloomy -- and that's just inside my law office.

Glenn Garvin finally explains what motivates almost everything he ever writes -- the "feminists" in college thought he was a total dweeb.

(I knew it was Maude all along.)

I love the simplicity of these short, declarative statements on the 11th Circuit website:

Published Opinions are binding precedent.
Unpublished Opinions are not binding precedent.

 If only life could be so easy!

Judge King grants sj to Stiefel Labs in case brought by former employees, upholding general releases.

Finally, things are tough all over -- BoA made $6 billion this quarter and Citigroup limped by on only $3.8 billion -- but every cent well earned you can be sure!

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?).

Your Friday Morning Digital Dump.

Hi kids, are you interested in watching Alvin Davis masticate flagellate lay prostate orate?

(Ok, let's go with the last one.)

You can see the red-glassed Jedi at work -- actually traveling to (ick!) Tallahassee -- to deliver a master class before the Florida Supremes on the various forms of equitable estoppel, promissory included.

And he did it all for Don King!

(Oral argument transcript here, and the well-written briefs are here.)

In other news, the 11th Circuit finds that filing an amended complaint that expands the class definition revives an otherwise waived right to arbitrate; and Judge King is reversed because he excluded plaintiff's expert testimony in a cruise passenger injury case.

Finally, more bad news for the lawyer whose response to Judge Seitz' order to show cause is due today -- apparently David Mandel thinks she may have a conflict of interest and her law firm possibly disqualified.

When it rains it rains.....

Oh hail it's Friday, let's misbehave:

World's Worst Motion for Judgment on the Pleadings?

I must admit I'm no fan of motions for judgment on the pleadings.

Although I can appreciate their merit in certain situations, oftentimes they are used like "gotcha" moves in a chess match, preying upon technical or innocent errors that are not usually very substantive and which can (and should) be readily fixed in an amended pleading.

For that reason they can be timewasters, and thus frequently pointless.

Judge King seems to have encountered one of the type I'm complaining about:

(1) We have a premature "shotgun pleading" allegation that winds up making you look bad (instead of your opponent); and

(2) We have an Albert Brooksian "look only at paragraph 22 72" argument that asks the Court to ignore entirely the rest of the well-pled allegations in the complaint.

Other than that, I think the motion could be described as a qualified success.

Judge King Denies (Again) Checking Overdraft Arbitration Agreements.

11th Circuit, 11th Schmircuit, that's what I always say.

And I see I'm not alone.

On Friday in the closely-watched Checking Overdraft litigation, Judge King has denied renewed motions to enforce bank arbitration agreements in the wake of the Supreme Court's Carlos Concepion decision, finding them both procedurally and substantively unconscionable.

Here's what plaintiff's counsel Aaron Podhurst had to say:

"WOOOOHOOO!!!!"

Ok, I'm paraphrasing; here were his exact words:

"Concepcion only said that you don’t knock out arbitration automatically,” Aaron Podhurst, the lead plaintiffs’ lawyer, said in an interview. “Concepcion said it’s a fact issue, so Judge King applied the facts. We have Judge King finding that in four different states, the arbitration agreements are unconscionable.” 

In other post-Labor Day news, Governor Scott has decided he really hates "regulations":

“Every dime a company spends on regulations is a dime they add to what you care about as a purchaser of a product or service,” he said. “You hear the stories. Why do we have to do this? What’s the benefit?

Exactly!

Why do I have to check for razor blades when I sell apples to the public schools?

Who can really keep track of the permissible amounts of rat droppings in Rice-A-Roni?

Why do we have to do this?  What's the benefit?

Someone Is Not Reading David's Blog.

Here we go again:

Notices of Unavailability.

There, I said it.

Practitioners, let me be your (mostly secular) Rabbi.

When you are about to tell a federal judge not to do anything in your case for a month -- nothing at all, don't do a single thing even if she is about to grant your summary judgment motion and end the case in your favor -- DON'T DO IT JUDGE because I plan to be (a) in Aruba (b) having my goiter removed (c) farting around the house watching internet porn or (d) going to a Star Trek convention.

Ok, maybe the last one.

But otherwise, don't do it.

Do you really think Judge King is going to care about your personal schedule?

Last summer when I had the pleasure and honor of filling in for DOM, we discussed this thanks to a fantastic order on the subject by Magistrate Judge Brown:

The parties should note that there is no local rule in our Court providing for the filing of same, and no federal rule supporting same.  While the Court is not precluding anyone from filing same, and as a matter of professionalism and courtesy they should be considered, the parties should understand that these filings have no legal significance.

Although there were several valid points made in comments worth considering, I stand with Judge Brown on this -- unless you know of an imminent date scheduled in your case that you currently have a conflict with, then why are bothering the Judge with the possibility that at some theoretical point in the future there may be a development in the case, and if and only if that were to happen, and the event required my physical appearance, and no one in my office could cover it, and I can't get back to deal with it, and my magical iPad stopped working and I can't download your orders anymore, then and only then it could be a problem and I just wanted you to know my personal comings and goings because there exists a remote possibility that this incredible confluence of events could somehow come together over the next thirty days and thereby create a personal problem for me.

Other than that, Judge, carry on!

Checking Overdraft -- I Move to Strike Your Motion to Strike My Motion!

In light of the recent Supreme Court and 11th Circuit rulings on arbitration provisions, many of the checking overdraft bank defendants have asked Judge King to reconsider his rulings denying their motions to compel arbitration.

Naturally, the plaintiffs have responded like all good plaintiffs should -- by aggressively attacking the very motion to reconsider and moving to strike the reconsideration motion as improper.

Turns out, however, that it may be improper to move to strike a motion to reconsider as being improper:

No relief is available to Plaintiff under her Rule 12(f) Motion to Strike. First, and most important, a motion to strike applies only to pleadings, which does not include motions. See Santana v. RCSH Operations, LLC, 2011 U.S. Dist. LEXIS 21814, *2–4 (S.D. Fla. Feb. 18, 2011); see also Croom v. Balkwill, 672 F. Supp. 2d 1280, 1285 (M.D. Fla. 2009) ("To object to the substance contained in a motion, the opposing party should raise such objections in the material it submits in opposition to the motion, rather than in a motion to strike."); Mann v. Darden, 2009 U.S.Dist. LEXIS 63044, *2 (M.D. Ala. July 6, 2009); Pimentel & Sons Guitar Makers, Inc. v. Pimentel, 229 F.R.D. 201, 203 (D.N.M. 2005) ("There is no provision in the Federal Rules of Civil Procedure for motions to strike motions and memoranda."); Phinney v. Paulshock, 181 F.R.D. 185, 207 (D.N.H. 1998); Weiss v. PPG Indus., Inc., 148 F.R.D. 289, 292 (M.D. Fla. 1993); 2-12 Moore's Federal Practice, Civil § 12.37 (2011) ("Only material included in a 'pleading' may be the subject of a motion to strike, and courts have been unwilling to construe the term broadly. Motions . . . may not be attacked by the motion to strike."). Plaintiff cites no authority to the contrary. Thus, Plaintiff's Motion to Strike BB&T's Renewed Motion is not permitted and the Court should deny the Motion to Strike for this reason alone.

I hope the plaintiffs reply by moving to strike the response to their motion to strike, which will be met with a motion to strike their motion to strike D's response to their motion to strike.

And then come the reconsideration motions.

Welcome to federal court!