Lewis Tein RICO Suit Update: Somebody Got "Disemboweled"; Also Martians in Spaceships!

How many pithy quotes can Paul Calli manage to wedge into John Pacenti's latest on the Miccosukee Tribe v. Lewis Tein matter?

And the hits just keep on coming:

"Jasper Nelson's deposition disembowels the tribe's wild accusations and lawsuits," Calli said.

A most unpleasant image!

And this:

"Two things are missing from the tribe's fantastical conspiracy story: one is Martians from outer space delivering the secret conspiracy plans on a flying saucer. The second, as Jasper Nelson affirms, is truth," Calli said.

But I see the Tribe has just filed a second amended complaint -- someone tell me where all the Martian allegations are.

Lewis Tein: The Rest of the (Alleged) Story.

I'm not sure why they waited so long to get their side of the story out on the table, but in both the state court proceedings and in federal court, Lewis Tein has moved for sanctions against the Miccosukee Tribe and their new counsel.

The state court 57.105 motion closely tracks the Rule 11 filing, and for those interested here is the Rule 11 reply filed yesterday.

This is the closing section:

The following four facts are relevant to considering the instant Rule 11 issue:

a. The Tribe maintains that its current chairman has no personal knowledge of the fraud allegations against Lewis Tein.
 
b. The Tribe's current vice-chairman testified that he knew of no facts supporting the Tribe's allegations of fraud against Lewis Tein.
 
c. In the Bermudez Case, the Tribe's attorney testified that he conducted no investigation to support the Tribe's accusations of fraud against Lewis Tein.

d. In the Florida RICO Case, the Tribe has refused to produce a single document or witness to support of its allegations of RICO and fraud against Lewis Tein.

The foregoing facts, combined with the absence of any evidence against Lewis Tein, establish that the Tribe's lawsuit was filed in bad faith and for improper purposes. Knowing there is no evidence, the Tribe and its lawyer continue to pursue this action.

They also have new counsel (artist's rendering below):

I'm sure everyone will be nice and respectful in comments.

Dear Alan Kluger: Don't Sue Marc Randazza!

The Good Randazza has all the details and links here, but my favorite has to be this letter from Kluger to Randazza, where Alan writes "[s]hame on you for continuing to assist and encourage this unscrupulous cyber bully."

Do appeals to shame really work anymore?

Guess we'll see.

Take a look at the draft complaint the big boys sent to Randazza, and judge for yourself.

Suing a lawyer for "acting in concert" with their blogger client seems like a (gargantuan) stretch, but what do I know?

Kluger's complaint against Google(!), pending before Judge Cooke, is here.

Oh, btw -- GO HEAT!!!

"At Some Point in Time, Mr. Jimenez, We Are Going to Have to Talk About It."

That's Judge Cooke to TD Bank lawyer Marco Jimenez, over sanctions motion #5 ("I'll have the #5 with egg drop!") which may involve up to 2600 alerts on Scott Rothstein's accounts that may not have been turned over to plaintiff's counsel David Mandel.

Oy.

That brings up a rant -- is it just me, or is there a general erosion in our communal sense of responsibility to perform acts of civility?

I'm not referring specifically to issues such as turning over bad documents, but more generally gestures like opening doors for frail or pregnant women, or helping someone get their carry on baggage above their seat, small acts like that.

We see that often in our interaction with other lawyers, a general trickling-down of incivility that inevitably winds up affecting how you practice or deal with others.

I recently read of a civility project among elected officials:

 In 2009, author Mark DeMoss launched a Civility Project asking every sitting governor and member of Congress to sign a pledge of civility agreeing to three statements: “1. I will be civil in my public discourse and behavior; 2. I will be respectful of others, whether or not I agree with them; and 3. I will stand against incivility when I see it.” Amazingly, only three elected officials signed it—Sen. Joe Lieberman, Rep. Frank Wolf, and Rep. Sue Myrick. 

Funny thing is, I think Joe "The Weeper" Lieberman is mostly a jerk!

In other news, Wargo French has moved into the old Richman Greer space:

Atlanta-based Wargo French launched its Miami office last August, headed by former long-time Greenberg Traurig shareholder Lori Sochin. Ten associates have been hired including Simon Ferro Jr., a former Lewis Tein lawyer.

The 50-lawyer firm, which also has a Los Angeles office, targeted Miami for growth based on client demand, said managing partner Joe Wargo. Wargo French is a full-service law firm focusing on complex commercial litigation, financial services litigation, labor and employment, class action litigation, creditor's rights and bankruptcy, commercial real estate, construction, general corporate and securities law, among other specialties.

Ok, sounds like a good firm and I wish them well, but what a great name -- "Wargo French" -- that's got to be a character from an old Coen Brothers movie?

Alan Kluger vs. Marc Randazza in Anonymous Blogger Free Speech Fight!

I've not been shy in my admiration for the clever, snarky wit and attendant legal and writing skills of internet warrior/trailblazer Marc Randazza.

(Note to Surfside city attorney Lynn "Rage Against the Bloggers" Dannheiser -- your hilarious funny confusing Marc with the Italian place Randazzo's in the Gables remains a kneeslapper -- keep 'em coming!)

As Popehat documents, it is also a fact that Marc happens to find himself in the middle of lots and lots of interesting cases.

Marc's latest finds him before Judge Cooke in an important battle to preserve the rights of citizen journalists to blog anonymously -- does that sound too high-faluting for the kind of crap that passes for content here on this humble, time waster of a blog?

Yes, it does.

(Tim Elfrink provides all the background here).

But Marc eloquently lays out the larger principles involved in his motion to dismiss:

Plaintiffs, a series of real estate holding and management companies, and their directors,
accuse DOE of publishing defamatory statements concerning their business practices and other dealings through Google's Blogger service. Blogger is a service that allows users to create their own web blogs, or "blogs," on which they can express their opinions on numerous issues. Some blogs are general interest, while others may address specific, local issues, such as problems within a community, political matters, or topics of concern to consumers. Users of Blogger who create content - themselves known as "bloggers" - have the option of publishing their writings anonymously, as DOE has done in this case. Plaintiffs sued DOE for alleged defamatory material in a blog located at www.rkassociatesusa.blogspot.com and for false advertising under the Lanham Act 15 U.S.C. 1125(a).1 Plaintiffs have subpoenaed Google for its records relating to DOE in an
effort to learn his true identity. Plaintiffs' request is improper, and implicates fundamental Constitutional protections.

Free speech is a central Constitutional value, and one of great historical significance. The Federalist Papers, for instance, were all written anonymously while being pointedly critical of the policies and leaders many people championed during America's move toward adopting a written constitution. The United States Supreme Court has further sanctified anonymous speech in an honest and open society through decisions including McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) and Talley v. California, 362 U.S. 60 (1960). See also City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994) (noting that "the identity of the speaker is an important component of many attempts to persuade").

With these principles as a backdrop, courts have grappled with the First Amendment significance of subpoenas used to unmask anonymous speakers who speak via the internet on message boards, review services and other forums. Here, Plaintiffs' Complaint demonstrates no basis upon which a defamation or false advertising action can proceed, and they have not made the required prima facie showings.

Marc's adversary is longtime fave Alan Kluger, ably assisted by Todd Levine, who warned Tim over at New Times to be very very careful -- did I mention careful? about what he writes concerning the case: 

In the meantime, Levine has strong words for anyone who would consider writing about Katz's lawsuit. "I'd ask you not to publish anything about this," he says. "Even pointing people toward that blog could constitute further defamation."

How precisely?

Or will that just lead to another interesting Randazza defense?

Alan's vigorous response to the motion to dismiss is here, in which he describes Marc's argument as "specious" and his client's blog postings as "vile and defamatory per se."

To which I simply say -- carry on gentlemen, the yacht case can't continue forever!

Judge Cooke Denies NRA's Motion to Intervene!

You know how tea partiers want the government to get out of their lives, except when they want the government to get in the middle of the relationship between a doctor and patient, and dictate via government fiat what doctors can and can't discuss with their patients when it comes to firearms?

Well the NRA has a point of view on this (guess!) and thus want to do a little intervening of themselves, this time in the lawsuit brought by doctors over the "Firearm Owner's Privacy Law" signed into law by Governor Scott and pending before Judge Cooke.

But Judge Cooke says file an amicus, thank you very much:

The NRA seeks to defend the constitutionality of the Firearms Owner’s Privacy Law.  Governor Scott, in his official capacity, has the same objective. The NRA has not presented any evidence to suggest that Governor Scott may not adequately represent its interests.

Come on, let's have an evidentiary hearing on that!

Judge Cooke Voids Carnival Arbitration Clause.

This is a pretty interesting opinion from Judge Cooke, voiding an arbitration clause in a Carnival Cruise line employee contract.

She finds the arbitration provision to be null and void because it violates the statutory remedies provided to seamen by the Jones Act:

The Jones Act confers seamen the statutory right to sue their employers for the negligence of fellow crew members. 46 U.S.C. § 30104; Thomas, 573 F.3d 1115 n. 1. In the event of personal injury or death of a seaman, the personal representative of the seaman may elect to bring a civil action at law, with a right to trial by jury, against the employer. 46 U.S.C. § 30104. There is no dispute that the law governing the Agreement and the arbitration clause is Panamanian law. Panamanian law, however, does not provide a seaman a reasonable equivalent to the statutory rights conferred by the Jones Act. Accordingly, the arbitration clause violates public policy, operates as “prospective waiver” of a Plaintiff’s right “to pursue statutory remedies” under the laws of the United States, and is “null and void” under the Convention.  Absent a valid arbitration clause under the Convention, this Court lacks subject matter jurisdiction over this action. 9 U.S.C. § 205.

Hmm, this has pretty broad implications, no?

Any guesses on how the 11th will handle this?

Judge Cooke Allows Lawsuit Against Luke Campbell To Proceed!

Looks like UM-loving Luke Campbell may be in some legal trouble again.

Plaintiff Aueishua Buckner has sued Luke's companies over alleged unauthorized appropriation and use of her image.

Now the plaintiff wants to sue Luke personally, but Luke apparently was not cooperative with her discovery efforts, leading to this order from Judge Cooke:

Now, on the eve of trial, Plaintiffs wish to amend the Complaint to remove the Luke Corporate Defendants and pursue the action against Luther Campbell for personal liability, personal negligence, and fraudulent transfer so that the pleadings conform to the evidence offered during trial. See Fed. R. Civ. P. 15(b). In light of the discovery challenges Plaintiffs have faced in this case, I find no reason to deny Plaintiffs’ request for leave to amend the Complaint as the Defendants, who at all times were aware of the recently disclosed information, will not be prejudiced.

Luke is represented by Chris Benjamin of The Brown Law Group.

Judge Fay Explains How CocoDorm.com Works!

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Professor Donald Jones Sues ATL!

Anyone remember that old arrest involving UM Law Professor D. Marvin Jones?

The one everyone told me they already knew about and I was such a schmuck for not being clued in?

Yep, that one.

Well as David reports here, and our friend Guest Blogger at MaL does too, the ole' Perfesser has decided to go pro se and sue AboveTheLaw in Miami federal court!

You can read the complaint here, which is pending before Judge Cooke.

ATL's prior coverage on Professor Jones is collected here.

Call me crazy, but this one's easy; I have a feeling you don't even have to go all-Iqbal-chronic to make it fade away.

See, Arlen Specter was right -- Conley v. Gibson works just fine.

I now return you to your regularly scheduled Scott Rothstein programming.

UPDATE: Here's a fantastic analysis of the glaring deficiencies in Professor Jones' complaint by lawyer/blogger Ben Sheffner.

Ben Kuehne Freed!!!

Well, not quite (it's kinda my version of the "CASTRO ALMOST DEAD" teasers the Herald has been feeding readers every couple of months for the last decade or so).

Still, as David says, let's hope the feds dismiss the rest of the case.

Nice opinion by Judge Barkett, which concludes that Judge Cooke's opinion below was "eminently correct."

Indeed.

Has Tom Tew Embraced His Inner Lou Costello?

I don't know, I'm starting to get sick of writing about the law all the time. Are you folks getting sick of reading about it?

A friend passed along Judge Tjoflat's recent spankdown of Judge Cooke the other day. My reaction -- why be so personal? You don't agree with her ruling, fine, but no one needs to go overboard or embarrass anyone, particularly when you are in a position of power as an appellate court. It's just not necessary.

(Judge Schwartz, are you listening?)

And another friend passed along this spankdown of Tom Tew and Rachlin Cohen -- what the hail?

I guess Tom is the Receiver and was trying to get Rachlin paid for some tax work, but it kinda went off the rails, big time.

The opinion needs to be read in full, but this snippet gives you a flavor:

Through emails, memoranda, revised, re-revised, and thrice-revised invoices, the Receiver and Rachlin offered a stream of unresponsive and obsfucatory answers to the Monitor's inquiries reminiscent of the "Who's on First?" Abbott and Costello comedy routine.

Oy.

The opinion ends with a finding of an actual conflict of interest and a strongly worded show cause order.

Maybe my age is showing, but I don't recall that bit in the Abbott and Costello routine.

The Revolution's Here, Baby!

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