Ha Ha You Can't Remove Me Because I Didn't Say Anything About Citizenship!

Oh darn!

Judge Marra is on to this:

The Court notes that Smyth does not address the issue of whether she is a Florida citizen; rather, Smyth merely rests on the proposition that Hillstone cannot demonstrate diversity at both the time the complaint was filed and the time the notice of removal was filed because she only alleged her residency in the complaint. If Smyth’s position was accepted, a plaintiff could frustrate a defendant’s ability to exercise its statutory right of removal simply by failing to allege citizenship, even though diversity of citizenship can be demonstrated by resort to evidence outside the four corners of the complaint.

This is why I always tell youngin' attorneys -- argue policy policy policy, the reasons often matter more than the law itself.

Lawyers' Hippocratic Oath?

Good ole' primum non nocere.

I think Judge Marra is suggesting it's not just for doctors:

As stated throughout this litigation, Plaintiffs have made review of this matter particularly difficult because of the summarized or co-mingled manner in which they present their arguments and their extensive use of supra and infra for cites. On more than one occasion, this has pointed to places in the record where there is mere argument without citation, or to cites that do not stand for the proposition asserted.

In a footnote he gets more specific:

Plaintiffs’ manner of presenting their case impedes decision making by forcing the Court to aimlessly search the record for relevant evidence, or the lack of evidence, to support or refute a claim.

Ok, but otherwise how'm I doing?

How Not to Draft a Complaint.

I don't know, but I'd pay attention if a federal judge politely critiques your complaint-drafting skills like this:

There are 12 counts in the Amended Complaint, but they are not numbered consecutively.  Furthermore, it appears that Plaintiff has merged several different complaints into one, one brought against both Defendants and two complaints brought against each Defendant. While all the counts read as if they are brought pursuant to FDUPTA, numerous other statutes are referred to, including RICO and Florida’s Telemarketing Act (Am. Compl. pgs. 3, 18-19.) While the Amended Complaint appears to be a FDUTPA claim, it is repetitive and rambling at times.  Several counts appear to be cut-off mid-count. (Am Compl. pgs. 18-21, 24, 26.) Moreover, specific facts are not related to specific counts and the allegations are not consecutively numbered nor organized. Hence, Plaintiff is directed to plead each legal claim in a separate count with special attention paid to each element of each count. Although other numbered paragraphs may be incorporated by reference, this must be done with particular care so that only relevant paragraphs are referenced. Each count must state with specificity both the factual and legal basis for the claim it sets forth. Finally, several of the numerous exhibits attached to the Complaint provide unnecessary copies of statutes and regulations and should not be attached to any amended pleading.

Other than that, though, not too shabby!

Judge Marra Dismisses Suit Over Holocaust Assets.

In a fascinating dispute over how Jewish property appropriated by the Nazis were administered after the war, Judge Marra has dismissed a suit brought by heirs of a Holocaust victim against an organization specifically established to recover lost Jewish assets.

Judge Marra first lays out the history of this little-known program:

After the conclusion of World War II, five American-based Jewish groups formed a committee to represent Jewish interests in reparations negotiations with the German government. Amended Complaint at ¶ 7. In 1946, the American military authority designated the Jewish Restitution Successor Organization (“JRSO”) as successor to heirless and unclaimed Jewish property. Amended Complaint at ¶ 9. In 1951, the Conference on Jewish Material Claims Against Germany, the Defendant in this case, supplanted the JRSO. In 1952, the Conference incorporated as a non-profit corporation in the State of New York. Amended Complaint at ¶ 11- 12. Also in 1952, the West German federal government admitted responsibility for Nazi crimes against the Jews and agreed to pay reparations to the Jewish people. Amended Complaint at ¶ 14.

Hey, better late than never!

And here's what the plaintiffs claim happened:

Bertha Bach owned a 771 square meter parcel of property in East Berlin. Amended Complaint at ¶¶ 44-45. In 1938, after being threatened by the German government, Bach sold the property to a German citizen. Amended Complaint at ¶ 46-47. On or about December 1992, The Conference filed a claim for the Bach property pursuant to its authority under the VermG.  Amended Complaint at ¶ 48. The Conference was ultimately granted the proceeds of the sale of the Bach property and designated a “legally entitled entity” to file for unclaimed Jewish property.  Amended Complaint at ¶ 50. The decision to grant The Conference the proceeds of the sale was appealed by private German sellers of the property, whose appeal was denied by an administrative court in Berlin on or about August 2004. Amended Complaint at ¶ 51. During or prior to the appeal, The Conference produced a birth certificate of Bertha Bach establishing that she was Jewish. Amended Complaint at ¶ 52.

Through their Amended Complaint, Plaintiffs allege that The Conference: (1) was unjustly enriched by receiving compensation from the German government for the Bach Property (Amended Complaint at ¶¶ 56-61); (2) breached a fiduciary duty owed to Plaintiffs “to protect their interest in the Bach Property and obtain any compensation on their behalf deriving from the Bach Property a result of the activities of the Nazi’s” (Amended Complaint at ¶¶ 62-66); and (3) violated a constructive trust which arose in favor of Plaintiffs (Amended Complaint at ¶¶ 67- 763). The Conference now seeks to dismiss the Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(3), and 12(b)(6).

Unfortunately for plaintiffs, Judge Marra rules they have no standing:

The Court appreciates that Plaintiffs are not suing under the laws of Germany. Rather, they assert their claim arises out of Defendant’s Articles of Incorporation. However, the sovereign nation of Germany established a system for Jewish people aggrieved by the actions of the Nazi regime to be compensated for their loss of property. Defendant was granted rights under that system and successfully pursued the rights granted to it. Those facts do not impose a corresponding duty on Defendant to act for the benefit of Plaintiffs. Plaintiffs real complaint is with the system established by Germany, not with Defendant which merely acted in accordance with that system. Plaintiffs cannot use Defendant as a scapegoat for their dissatisfaction with the German compensation system. Plaintiffs have failed to set forth any authority that supports the proposition that a non-profit corporation granted rights under a compensation system established by a sovereign nation owes a duty to other potential beneficiaries of that system who failed to pursue their rights in a timely manner. The Court agrees with one New York state court that concluded that The Conference owes “no direct duty to any specific person which would provide standing to sue the organization.” Rottenberg v. Conference on Jewish Material Claims Against Germany, Inc., Index No. 110615/04 (N.Y. Sup. Ct. Feb. 16, 2005)).

Ok, I probably would have left the "scapegoat" part out, but a well-reasoned and interesting opinion.

Your SD FL Affirmative Defense Class is Back in Session!

 
Continuing our series of instructive orders from SD FL judges on affirmative defenses, here is one by Judge Marra granting partial summary judgment on a few truly lame-o ones.

Yes, kids, you can move for summary judgment on affirmative defenses:

Defendant’s First Affirmative Defense states: “Defendant would show unto the Court that at the approximate times and places alleged, the Plaintiff was guilty of negligence materially and proximately contributing to the accidents and/or the injuries complained of and any recovery by the Plaintiff is diminished or extinguished thereby.” In support of her motion for summary judgment relative to this defense, Plaintiff has provided evidence that she was stopped when she was rear-ended [DE 53-1, p. 33]. Plaintiff also noted that the Defendant did not address this affirmative defense in its answers to interrogatories [DE 53-2, No. 6]. At the deposition of the Defendant, the corporate designee refused to answer questions relative to this affirmative defense [DE 39, pp. 67-68]. Plaintiff thus discharged her burden to demonstrate to this Court that there is an absence of evidence to support the Defendant’s First Affirmative Defense. See Celotex Corp., 477 U.S. at 325.

The burden of presenting evidence in support of its First Affirmative Defense thus shifted to the Defendant. Defendant concedes in its Response to Plaintiff’s Motion for Partial Summary Judgment that “at this time there is no evidence to suggest that RIOS was negligent in causing the accident” [DE 54, pg. 2], and withdraws that portion of its affirmative defense. Defendant continues to state:

However, STATE FARM maintains, as is part of its First Affirmative Defense that RIOS’ actions did contribute to her injuries complained of and therefore any recovery by RIOS is diminished or extinguished thereby. STATE FARM continues to contest that accident on July 13, 2008 was the cause of RIOS’ alleged injuries. Further, as made evident in STATE FARM’S Motion for Final Summary Judgment, RIOS’ actions prejudiced STATE FARM’S ability to fully evaluate her claims. . . [T]he only issue left relating to RIOS’ Motion for Partial Summary Judgment would be whether or not SANDRA RIOS was a proximate cause to the injuries complained of, in which there exists a genuine issue of material fact, which can be seen in the pleadings alone.

[DE 54, pg. 2]. Defendant cites no evidence whatsoever in support of this argument, and has, therefore, failed to meet its burden. Plaintiff’s motion as to Defendant’s First Affirmative Defense will be granted.

See how that works?

Note to litigants -- if you have more than ten affirmative defenses, you probably have two or three more than you really need.

When Is a "Shotgun Pleading" Not a "Shotgun Pleading"?

According to Judge Marra, it's when the defendants can understand the claims made against them:

“Shotgun” pleadings are pleadings in which it is “virtually impossible to know which allegations of fact are intended to support which claim(s) for relief.” Anderson v. Dist. Bd. of Tr. of Cent. Florida Cmty. Coll., 77 F.3d 364, 366 (11th Cir.1996). The Court finds that the Complaint is not a shotgun pleading necessitating dismissal.  Although each count of the Complaint does incorporate by reference all of the preceding allegations, the Court finds the claims are sufficiently definite to enable Defendants to know with what they are charged and to enable Defendants to respond to the allegations. The motion to dismiss the shotgun pleading is denied.

Practitioners, why not just avoid this issue by not incorporating every prior allegation into each count?

Really, how hard is that?

In other news, as David reports, the Bar royally screwed up in how they characterized their "monitoring" of the "underlying proceedings" in a well-publicized case involving Lewis Tein.

Fortunately, I have obtained inside footage of the Bar grievance committee sessions, which seem to be unfolding in the usual manner:

My one piece of advice to these very good attorneys (not that they need any) -- get a mouthpiece/lawyer to do your talking on these types of matters, it's more effective that way.

Bankruptcy Nerds: This Opinion Could Mean Something to Somebody!

 
I bless my lucky stars every day I don't have to think about bankruptcy court and the odd quirks of its jurisdictional reach, the appropriate scope of and standard for district court review, and what can and can't be heard there and why.

(We have geeks skilled bankruptcy specialists for that.)

That's why when I read this important opinion from Judge Marra (involving Judge Stettin, the Rothstein bankruptcy, and TD Bank), I promptly forgot all about it and went to lunch.

Then, as my food was digesting nicely, I felt a sudden rumble in my belly and remembered I forgot to write anything at all about it.

So take that sucker off my bucket list!

Kevin Gleason and Judge Olson -- Yes, There's More.

We've reported extensively on the saga involving bankruptcy lawyer Kevin C. Gleason and his unique brand of written advocacy before Bankruptcy Judge John K. Olson.

Well of course Gleason appealed the en banc sanctions order, leading to yet another Order on this topic, this time from Judge Marra:

Based on the Court’s review of the record, the Court concludes that the Bankruptcy Court did not abuse its discretion in sanctioning Mr. Gleason pursuant to its inherent power. The April 18, 2011 Response to Order to Show Cause and May 13, 2011 Supplemental Response demonstrate bad faith on the part of Mr. Gleason, violated his duty as a member of the bar and damaged the reputation of the Court, the judicial system, the legal process and the legal profession.

 Unfortunately for Mr. Gleason, it goes downhill from there......

Let's Talk About Love!

Yes kids, it's Valentine's Day and I'm feeling impossibly romantic.

I hope you are too?

Let's do a love edition:

1.  Wouldn't it be great if our wide-eyed, reptilian Governor said something like this:

"Look into your hearts and ask yourselves: 'Isn't it time?' " said Gregoire, as cheering supporters chanted "Thank you! Thank you! Thank you!"

"We did what was just. We did what was fair. We stood for equality, and we did it together, Republicans and Democrats, gay and straight, young and old, and a number of our faith organizations. I'm proud of who and what we are as a state," the governor said.

2.  More depos for Rothstein (somebody somewhere is loving this).

3.  Judge Marra refuses to dismiss punitive damages allegations in case involving an allegedly defective pain pump.

Through their Complaint, Plaintiffs allege actual knowledge of the danger posed by using the pain pump through the reports identified in subsections 20(c) and 20(d) of the Complaint. Plaintiffs further allege that “Although I-Flow had the capacity to use vendors to reach out to all orthopedic surgeons nationally, I-Flow’s officers and/or directors chose not to send out any Dear Doctor or Dear Healthcare Professional letters to surgeons or hospitals.” Complaint at ¶ 20(f). At least one Florida Court has determined that a product manufacturer’s actual knowledge of a danger followed by a failure to warn of that danger supports punitive damages. See Holmes v. Bridgestone/Firestone, Inc., 891 So. 2d 1188, 1191-92 (Fla. 4 DCA 2005) (“We agree with plaintiffs that the proffer reflected facts from which it could be found that Firestone knew about the tread separation, but delayed warning the public in order to protect its own financial interests. Such a finding would support punitive damages.”) The Court finds that Plaintiffs have met the pleading requirements articulated in Iqbal and Twombly and dismissal of their claim for punitive damages is not warranted.

(Ok, I only quoted this because I love talking about Iqbal/Twombly.)

4.  More love for Jeremy Alters:

The former nanny, Katelyn Sullivan, meanwhile, said in a suit filed two weeks ago that Alters charged more than $170,000 on her credit cards, withheld $20,000 in pay, and even made her sell her old Volvo because he didn't like how it looked in his driveway.

Both are bunk, Alters says. He has filed a motion to dismiss the Argentine case and this week plans to file a similar motion against Sullivan's claims.

"Her lawsuit is nonsense. Her claims are false," he says.

The part about the Volvo better be!

SEC Loses Summary Judgment Motion Against Pro Se Defendant?

How does the SEC lose an sj motion against a pro se defendant?

It's like shooting fraudulent fish in a barrel!

Actually it's not, as Judge Marra explains:

[CENSORED]

I'm sorry I'd like to quote from the opinion but I see it makes repeated reference to the "risk-enhancing" features of an "Inverse Floater" -- which apparently is a defined term(!).

Ahh, thanks but no thanks.

(No wonder this guy had to proceed pro se.)

Your Monday Morning Digital Dump.

Hi kids, it sure felt like we had a monumental weekend, is everyone ready to get back to work?

Here are a few random things I am thinking about at this moment:

RKRPEVN Rasco Klock (hey, they took up my suggestion!) partner Jack Shawde is a pretty damn fine guitarist.

Check him out with Magda Hiller, above.

Wife responsible for not turning in husband's fraud?

On Friday, surrounded by family and friends, Gamblin was sentenced to 15 months in prison for being loyal to Roger Gamblin, her husband of 28 years, instead of turning him into authorities and admitting what she knew about the spectacular collapse of Flagler Title Co.

"I'm a good person," the much thinner and grayer version of the once bubbly blonde told U.S. District Judge Kenneth Marra. "I just made some really bad decisions. I'd do anything I could to make it right."

After listening to Gamblin's sister pledge to help her sibling regain her moral compass and an insurer criticize Roger and Peggy Gamblin for the widespread damage they caused, Marra chose a middle ground.

Girl in a Bar, your thoughts please.

Somebody in Indiana (ok, it's the AG) isn't buying what Palm Beach foreclosure defense attorney Thomas Matevia is selling.

And finally, today is is the anniversary of the Beatles' last live concert (not counting the Apple rooftop), in Candlestick Park, San Francisco in 1966(!).

Thirty three and a third minutes of off-key screaming adulation.

(Just like when I make an appearance at calendar call.)

Rock on John and Georgy!

Dwyane Wade Wins Something!

Well D Wade didn't win a title this year, but he (through his school entity) did beat the plaintiff on a summary judgment motion that was pending before Judge Marra.

The basic premise of Lichfield’s complaint is that it signed an agreement with Next Generation’s predecessor, fulfilled its portion of the contract, and deserves compensation from Next Generation pursuant to the agreement. The crux of the litigation is whether the consulting agreement contains a scrivener’s error or whether the parties intended the agreement to apply to a not-yet-formed entity called Dwyane Wade Schools of Florida, LLC. The affidavits conflict on this point as Bruce Fein’s affidavit, which supports Lichfield’s Motion for Summary Judgment, states that the misnaming of the party in the consulting agreement was a simple scrivener’s error. [Fein Aff. ¶¶ 5, 6]. In Mark Rodberg’s affidavit submitted by Next Generation in opposition to the motion, Mr. Rodberg attests that the agreement was intended to be between Lichfield and a corporate entity to be formed, and that it was not a contract with Defendant. therefore, Next Generation owes Lichfield nothing pursuant to the contract [Rodberg Aff. ¶¶ 9, 10]. Because the affidavits conflict on this critical issue, summary judgment cannot be granted.

If the above recitation of facts is accurate, this seems like a really dumb issue to move for summary judgment on, no?

Or am I missing something?

Judge Marra Allows Columbian Paramilitary Suit Against Chiquita To Proceed.

 A closely-watched case involving application of the Alien Tort Statute and related terrorism claims against Chiquita for their alleged involvement with Colombian paramilitary groups will proceed in part, thanks to a 95-page(!) order from Judge Marra that grants and denies in part Chiquita's motion to dismiss.

I plan to read the whole thing as soon as I finally complete Proust's Remembrance of Things Past (I still have it on my bedside table, I promise!).

Does the First Amendment Apply to Lowe's Parking Lot?

Lowes First Amendment Opinion


Have you ever been pissed off at a business and decided to take action by standing in its parking lot, holding up a protest sign?

Me neither, but apparently Anthony V. Laterza did, but then the cops came and the hassling began and then the whole lawsuit stuff started.

It all wound up in front of Judge Marra, who had to grapple with the question of First Amendment rights on private property, throwing us all the way back to law school again:

By removing Plaintiff from the parking lot, Plaintiff asserts that Defendant has denied him his First Amendment right to free speech and he seeks a declaratory judgment to allow him to continue to exercise his right of free speech in the parking lot without facing the threat of arrest. (Compl. ¶ ¶ 28-32.)

Defendant moves for judgment on the pleadings, claiming that the First Amendment to the United States Constitution is a prohibition on government action and Plaintiff has no First Amendment right to picket on Defendant’s private property. In addition, Defendant has filed a motion to stay discovery until a ruling has been entered on the motion for judgment on the pleadings. In response, Plaintiff contends that he should be able to develop the facts of the case through discovery to prove any differences between the instant action and the cases cited by Defendant.

Boy this is an interesting question.

Let's see how the Court ruled:

For the foregoing reasons, the Court grants Defendant’s motion for judgment on the pleadings. Plaintiff’s complaint fails to state a claim upon which relief can be granted as a matter of law. Allowing Plaintiff to amend his complaint would be futile. Plaintiff cannot in good faith claim that the parking lot in question was public, not private property. As a result, Defendant’s motion to stay discovery is denied as moot.

Ok, for some reason I thought there were more considerations than that -- distributing flyers in malls etc?

Dwyane Wade Charter School Lawsuit Survives Motion to Dismiss.

Wade Charter School

Dwyane Wade's charter school project is embroiled in a legal dispute with an entity that alleges it was supposed to provide consulting services and help develop charter schools for 20k a month, but alleges it has not been paid.

Judge Marra has denied defendant's motion to dismiss the complaint, which alleges unjust enrichment in addition to the usual contract and quasi-contract.

I happen to like the simple, straightforward way that Judge Marra deals with unjust enrichment and Rule 8(a):

Next Generation next argues that Lichfield failed to assert all of the ultimate facts necessary for its unjust enrichment and quantum meruit claims. Specifically, Next Generation contends that Lichfield failed to allege the specific services, the dates that the services were provided, and what benefits Next Generation retained.

The essential elements of unjust enrichment are “(1) a benefit conferred on upon a defendant by the plaintiff, (2) the defendant’s appreciation of the benefit, and (3) the defendant’s acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1274 (11th Circ. 2009) (quoting Rollins, Inc. v. Butland, 951 So.2d 860, 876 (Fla.Dist.Ct.App. 2006)).

In count IV of the complaint, Lichfield alleged, in part, that:

45. Plaintiff conferred a benefit upon NEXT GENERATION, which services and materials were appreciated and accepted by the Defendant NEXT GENERATION that resulted in a substantial benefit to NEXT GENERATION thereby.
46. Defendant NEXT GENERATION accepted and retained the benefits of LICHFIELD’s consulting, public-relations, political and other related services to and for the Defendant under circumstances that would make it inequitable, unfair and unjust for Defendant to do so without paying the value of said benefits and
services.
47. Defendant NEXT GENERATION knew that LICHFIELD expected to be compensated for its efforts in an amount not less than $20,000.00 per month for a 12 month period, i.e., August 2009-August 2010.
48. Plaintiff LICHFIELD fully performed said services and provided all required consulting, public-relations, political and other related services to and for Defendant, which resulted in a substantial benefit to Defendant NEXT GENERATION.
***
Compl. ¶45-48.

Federal Rule of Procedure 8(a) only requires that a plaintiff include a “short and plain statement of the grounds for the court’s jurisdiction”, “a short and plain statement of the claim showing that the pleading is entitled to relief”, and “a demand for the relief sought.”  Fed.R.Civ.P. 8(a). Clearly, Lichfield fulfilled the pleading requirements for the unjust enrichment count since it properly alleged that a benefit was conferred upon Next Generation, Next Generation appreciated the benefit, and the circumstances make it inequitable for Next Generation to retain the benefit without paying for it.

This isn't rocket science, people.

Strategic "Shotgun Pleading" Defense Tragically Misfires.

I always say file a motion that won't be a complete and utter waste of time for everyone involved.

That's sort of a baseline rule of thumb that we like to practice by here in SFL land.

Well, take a gander at this Order from Judge Marra and judge for yourself if the baseline was hit in this case:

Defendants Planet Kids, Inc., Planet Kids at Cypress Lakes, Inc., Planet Kids II-IX, Inc., Planet Kids XII, Inc., Planet Kids XIV, Inc., Planet Kids XVI-XVII, Inc. and Manuel Sarriea (“Defendants”) move to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the sole basis that the Complaint is a “shotgun pleading.” According  to Defendants, the Complaint impermissibly “incorporates by reference every paragraph that precedes it which is the definition of a shotgun pleading.” (Mot. at 4.)

The Court begins its discussion by noting that the proper remedy for a shotgun pleading is the alternative relief of a more definite statement under Rule 12(e), and not a motion to dismiss pursuant to Rule 12(b)(6) as sought here. Anderson v. District Board of Trustees of Central Florida Community College, 77 F.3d 364, 366 (11th 1996). A defendant faced with a shotgun pleading “is not expected to frame a responsive pleading;” however, once a more definite statement is provided, “the defendant will be able to discern what the plaintiff is claiming [in order] to frame a responsive pleading.” Id. Significantly, in the instant action, Defendants filed an answer to each and every count of the Complaint. (DE 10.) Filing an answer suggests to this Court that it was not “virtually impossible” for Defendants “to know which allegations of fact are intended to support which claim(s) for relief.” Id.

Indeed, it is clear from the Complaint that Plaintiff is accusing Defendants of violating various intellectual property and trade practices relating to its “Your Baby Can®” products. In other words, both the Court and Defendants can ascertain from the Complaint how Plaintiff was allegedly wronged by Defendants, what legal theories Plaintiff is pursuing and how the factual assertions play into those legal theories. As such, this is not a shotgun pleading and Defendants' motion is denied.

 Ok, let's start with the "shotgun pleading" part.

Sure you could file a motion for more definite statement, as opposed to a 12(b)(6) motion, but why file anything at all?

How about calling opposing counsel and saying "you know that guy who files a complaint and includes by reference every single paragraph of the preceding count in each count, thus converting the complaint into an M.C. Escher-esque nightmare where each count folds up upon each other, endlessly, over and over and over again?  You're that guy."

That way the lawyer can amend, use up his free shot, and you can frame a response against a properly-pled complaint without making the other guy look bad.

Or you can file a 12(b)(6) motion and make everyone look bad.

Then you have the fact that the defendants answered anyway -- which as pointed out by Judge Marra moots the substantive purpose of the requested dismissal (assuming there ever was one).

Oy with this whole practice of law.

South Florida Tea Partiers -- We're All Mischpocha Now.

After all that tsurris and farmisht and the fartust and with all the khazers and then the whole megilla, the feuding South Florida tea partiers are sitting down to a nice flanken, legally speaking of course.

Ok, even I'm not sure what any of that means, but they appear to have possibly settled their differences or at a minimum abandoned their lawsuit before Judge Marra.

And this to me shows great seykhl.

SFL Friday -- The Economic Loss Rule Is Officially Dead.

Well, I should say, it's on life support.

Kids, there once was a time when the economic loss rule was everywhere and applied, or sometimes applied, or was argued to apply, to just about everything.

Quick example -- the Rabbi at my wedding actually pontificated on its applicability while we were signing the Ketubah.

Anyway, in this majestically concise opinion today by Judge Marra, you will find a perfect delineation of what remains of the ELR, and it ain't much and you can generally plead around it unless you truly are trying to sue someone in tort for breach of contract (in which case you shouldn't be in federal court).

In other news, what kind of bonehead gets a boner when a woman is crying, the Nazis are Democrats (according to Fox News), and I wish I was in Hawaii.

Have a great weekend!

Hey -- Anything Happening in the SD FL Tea Party Case?

Tea Party Withdrawal Motion

Funny you should ask!

First, the plaintiffs filed an emergency motion seeking to file a motion under seal because the motion allegedly contained defamatory statements made by defendants about plaintiffs and they did not want these allegedly false statements further disseminated.

 Judge Marra, however, said that if that were so then all actions for defamation, slander, or libel would be entitled to be filed under seal.

(Smart guy, this judge.)

Also, the plaintiffs filed the emergency motion through the CM/ECF system, which is a no-no.

So then what?

Well, funny you should ask.

Then plaintiffs' counsel Gus Sardinia and Frank Herrera filed a motion to withdraw as counsel, saying that there may be conflict in continuing to represent the plaintiffs because the lawyers are considering filing their own lawsuit against the defendants over the allegedly defamatory statements:

On or about July 29, 2010 it came to the undersigned’s attention that the Defendants had begun defaming the Plaintiffs and their counsel. Plaintiffs attempted to bring the same to the attention of the Court under seal, but such relief was denied. (D.E. 56 & 57).1 Having evaluated the defamatory statements, Plaintiffs’ counsel is considering bringing an action of their own against the Defendants in connection with the defamatory statements.

 They also ask Judge Marra the following:

Based on a recent string of emails between counsel and Mr. Guetzloe, the undersigned anticipates that the Defendants will oppose this Motion falsely asserting that the undersigned have perpetuated some wrongful campaign of injustice on the Defendants. In the event that the Defendants’ opposition to the instant Motion includes any defamatory statements against the undersigned (as it is anticipated it will), or reference to prior defamatory statements, counsel asks that the Court immediately strike or seal the same to avoid the perpetuation of such defamation.

So in other words everything is pretty much hunky dory in Tea Party land!

More on it all here.

"I Shot the Scrivener"??

Scriveners Error

Ahh the perils of a scrivener's error.

Here somebody wasted a bunch of time and money on a summary judgment motion based entirely on a rog where the defendant -- excuse me, the defendant's scrivener -- apparently left out the word "not" when responding.

Judge Marra gets to the heart of it:

Plaintiff’s motion is based solely on Defendant’s answer to Plaintiff’s interrogatory. Immediately upon receiving Plaintiff’s motion for summary judgment, Defendant filed its amended answers to Plaintiff’s interrogatories, attempting to correct what it claims was a scrivener’s error which should have obviously read, “Defendant did not call Plaintiff on Easter Sunday at 9:30 pm.” (DE 12, Resp. to Plaintiff’s Mot. Ex. B.) Defendant also provided Plaintiff with a letter explaining that “[t]he [amendment to the answer] was necessitated by a scrivener’s error regarding interrogatory [number thirteen]. The word NOT was inadvertently omitted.” (Resp. Ex. D.) Defendant’s contention that the answer to interrogatory thirteen was a mistake is buttressed by Defendant’s repeated denials of Plaintiff’s claims that Defendant allegedly called at 7:00 a.m., 9:30 p.m., on Easter Sunday at 9:30 p.m., or at any other time that would violate the FDCPA or the FCCPA. (Resp. Ex. B, C.) Defendant’s answer to interrogatory number twelve is instructive as the question reads, “[w]hy did Defendant call Plaintiff at 7:00 am and 9:30 pm?” (Resp. Ex. B.) Defendant’s response states that “Defendant did not call Plaintiff at those times or at any times that would violate the call times restrictions imposed by the FDCPA or FCCPA.” Id. Further, in response to Plaintiff’s request for admissions, on or around November 19, 2009, Defendant unequivocally denied any requests to admit that calls were made at inappropriate times including on Easter Sunday. (Resp. Ex. C.)

Ok, this seems ridiculous or am I missing something here?

And yes, it is a slow news day.