11th Circuit: Surprise -- Another Florida Law is Unconstitutional!

No, it's not the anti-Sharia "foreign" law (yet), this time it is about foreign law -- namely Cuba:

After careful review, we conclude that Odebrecht has demonstrated a substantial likelihood of success on its claim that the Cuba Amendment violates the Supremacy Clause of the Constitution under principles of conflict preemption. The Cuba Amendment conflicts directly with the extensive and highly calibrated federal regime of sanctions against Cuba promulgated by the legislative and executive branches over almost fifty years. The Supremacy Clause of the Constitution “provides a clear rule that federal law ‘shall be the supreme Law of the Land.’” Arizona v. United States, 132 S. Ct. 2492, 2500 (2012) (quoting U.S. Const. art. VI, cl. 2). The Cuba Amendment differs dramatically from the federal regime as to the entities covered, the actions triggering sanctions, and the penalties imposed. The Amendment also overrides the nuances of the federal law and weakens the President’s ability “to speak for the Nation with one voice in dealing” with Cuba. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 381 (2000). In addition, Odebrecht has demonstrated the other equitable requirements that warrant a preliminary injunction: Odebrecht would have suffered irreparable harm absent the injunction, the balance of harms strongly favored the injunction, and the injunction did not disserve the public interest. We affirm.

In other words -- good job, Judge Moore!

Herald coverage here.

Your Tuesday Morning Digital Dump!

Hi kids, I hope everyone had a nice and restful President's Day weekend.

So let's see what is happening around town:

1.  Yes, that guy also filed a Carnival Triumph lawsuit (pending before Judge Moore).

2.  Florida Supreme Court declines to hear judge/Facebook "friends" case.

3.  You know you want to hire Casey Anthony as your next paralegal:

The lack of a high school diploma and formalized education will not prevent a career in law as a paralegal. Neither will misdemeanor convictions for lying to police, felony convictions for felony bad check charges or even allegations of kidnapping and murder.

Why should it -- welcome to the South Florida job pool!

Judge Moore: Your Affirmative Defenses Are Actually Two Other, Separate Lawsuits.

Continuing our review of recent SD FL opinions on motions to strike affirmative defenses, in walks Judge Moore who strikes two defenses in an FLSA action because the defenses are actually two other pending lawsuits against the plaintiff in disguise:

Here, Defendant's Third and Seventh Affirmative Defenses do not allege an overpayment of wages to Plaintiff, but instead request set-offs due to Plaintiff s alleged theft and destruction of business records. The requested set-offs would force the Court to address the factual circumstances of numerous other claims unrelated whether Plaintiff was adequately compensated according to minimum wage and overtime standards and would "clutter these proceedings with the minutiae of other employer-employee relationships.'' Brerman, 491 F.2d at 4.

Moreover, any set-off applied to a recovery by Plaintiff would result in Plaintiff failing to receive his "cash in hand.'' Id. Plaintiff alleges he is owed $15,445.31 in unpaid overtime plus $2,305.27 for a two week time period in which he claims he was not paid at all. Pl's Statement of Claim (ECF No. 7). Defendant has already filed a lawsuit against Plaintiff in Florida state court for misappropriation of trade secrets, breach of a confidential relationship, constructive fraud, slander, and libel. See Applied Concepts Unlemshed. Inc. v. Matthews, No. 1 1-674-CA (Fla. Cir. Ct. 2012).  Defendant has also filed a lawsuit against Plaintiff in this Court for copyright infringement, computer fraud and abuse, breach of emploment agreement and civil theft. See Axmlied Concepts Unleuhed. Inc. v. Matthews, No. 12-CV-14035-DLG (S.D. Fla. 2012).  In each of these lawsuits Defendant seeks damages in excess of the amount of damages Plaintiff alleges he is owed in the instant action. Therefore, were Defendant to prevail on its Third and Seventh Affirmative Defenses, Plaintiffs judgment might be reduced below the minimum wage level. Accordingly, Defendant's Third and Seventh Affirmative Defenses are inappropriate in this action.

Guess that's what the other lawsuits are for?

Ha Ha -- Florida Can't Have Its Own Foreign Policy!

You know that red-meat "law" that Rick Scott (pictured above) signed, barring companies from bidding on state or local contracts if they have ties to Cuba?

Well you may have heard that Judge Moore found it only violated a slew of major constitutional provisions:  the Supremacy Clause, the Foreign Affairs Power, the Foreign Commerce Clause, plus it is inoperative on its own terms.

On the other hand, Judge Moore found that the law did not in fact violate the prohibition against quartering troops in private homes!

So sort of a split decision.

Nice win for Raoul Cantero and James Moye out of Maitland.

You can read the preliminary injunction order here.

Now let's get back to other important election year legislation, like banning Sharia law (a personal favorite).

Judge Moore Explains How to Download "Corbin Fisher Amateur College Men Down on the Farm" Using BitTorrent.

Hey it's a slow news day, what do you want?

Here's Judge Moore explaining how BitTorrent works (for those of you over 45):

Unlike traditional peer-to-peer ("P2P'') networks that require a user to download a file from a single source, the BitTorrent protocol decentralizes distribution of a file by allowing users to join a swarm of hosts to download and upload from each other simultaneously. The process begins with one user, commonly referred to as a "seed,'' who makes the file available. The seed then creates a "torrent'' file containing (1) a unique string of alphanumeric characters used to verify the data of the underlying file that is being transferred, and (2) a "roadmap'' to the IP addresses of other users who are sharing the file identified by the unique hash code. Am . Compl. 33(a). Other users, referred to as "peers,'' then download the torrent file, which in turn, allows them to identify and download from other peers who possess portions of the file described by the torrent. As each peer downloads a new piece of the file the peer becomes a source of that piece to other peers. Once a peer has accumulated enough individual pieces of the file, software allows the peer to reassemble the aggregate file.

And all just to see young men perform vigorous farmwork!

Judge Moore Presiding Over Florida Tuition Lawsuit!

Are you following the lawsuit recently filed by the Southern Poverty Law Center over US citizens and Florida residents who are children of undocumented immigrants being charged out-of-state tuition fees at Florida universities?

This may be one of the more stupider actions taken up in Tally in recent memory:

Born and raised in Miami, Ruiz is a U.S. citizen. But in the eyes of Florida’s higher education system, she’s a dependent student whose parents are undocumented immigrants — and not considered legal Florida residents.

As such, Ruiz is charged higher-priced out-of-state tuition, even though she has a Florida birth certificate, Florida driver’s license and is a registered Florida voter. One semester of in-state tuition at Miami Dade College costs about $1,200, while out-of-state students pay roughly $4,500.

Many students are simply unable to absorb the increased cost. Ruiz has been attending Miami Dade College and, so far, has a 3.7 GPA but must work multiple part-time jobs just to pay for one class. Other similarly-affected students have completely given up on college.

“As an American, and a lifelong Florida resident, I deserve the same opportunities,” Ruiz said. “I know that I will be successful because I have never wanted something so bad in my life like I want this.”

 Here's an excerpt from the lawsuit, now before Judge Moore:

Florida’s public colleges and universities classify applicants and students who are unable to show that their parents have lawful immigration status as “non-residents,” even though the applicants are United States citizens who reside in Florida. Being classified as a non-resident more than triples the cost of tuition. As a result, many talented American students must either forego higher education or incur extraordinary costs, in both money and time, in order to obtain the same education made available to other Florida residents at a small fraction of the cost.

The individuals who bring this action were born in the United States, graduated from Florida high schools, and have lived in Florida for many years. Some have lived in Florida all of their lives. They went to the same high schools, held down the same part-time jobs, and participated in the same after-school activities as their counterparts who are granted in-state tuition status. The only difference between the plaintiffs and the students granted in-state tuition is that the plaintiffs cannot prove that their parents have lawful immigration status.

Forcing children to carry the status or non-status of their parents seems inherently un-American, or is that too quaint a notion nowadays?

Daubert Happens.

Lest any of you forget that whole "gatekeeping thing," the 11th reminds us by affirming Judge Moore in a case where an otherwise well-respected, accomplished, and qualified expert offered an opinion that was not deemed reliable either as to general or specific causation.

Here's a key passage on the expert's flawed "differential diagnosis" methodology:

Kilpatrick is correct that differential diagnosis itself has been recognized as a valid and reliable methodology. But that is not the issue about which the district court found fault. Rather, the district court found that Dr. Poehling’s application of this methodology was flawed. In order to correctly apply this methodology, Dr. Poehling must have complied a comprehensive list of potential causes of Kilpatrick’s injury and must have explained why potential alternative causes were ruled out. However, Dr. Poehling only ruled out two causes – thermal energy and gentian violet contrast dye. He clearly testified that he could not explain why potentially unknown, or idiopathic alternative causes were not ruled out. Dr. Poehling also admitted that neither he nor anyone else in the medical community “understands the physiological process by which [chondrolysis] develops and what factors cause the process to occur.” Thus, the key foundation for applying differential diagnosis was missing, and based on these deficiencies, the district court found that Dr. Poehling failed to apply the differential diagnosis methodology reliably.

Why doesn't the darn doc just do some good, old-fashioned epidemiological studies?

Oh yeah, there is this:

Kilpatrick’s argument that conducting any epidemiological studies would be unethical, because it would require the potential destruction of a person’s shoulder cartilage, has some merit.

I'm not seeing the problem.

Judge Moore Certifies Travel Tax Class

Price Line Tax Cert

You ever wonder whether online travel sites properly remit tourist development taxes for booking hotel rooms?

So has Monroe County.

Interesting opinion and pretty much a total defeat for the defendants (represented by Skadden Arps, Jones Day and McDermott's Steve Siff).

New Local Rule -- All South Florida Lawyers Must Have Something To Do With Chinese Drywall.

If I hear the words "Chinese Drywall" one more time I will pull a Carver, or a Shumie, or something and heads will roll.

For the love of God please don't send me things like this:

Attorney C. David Durkee, partner with the Florida law firm Roberts & Durkee, announced the scheduling of a town hall meeting in Lake Worth, Fla., to discuss possible toxic Chinese drywall in the community as well as other communities throughout Florida. Durkee, who is filing a series of lawsuits on behalf of homeowners who say the Chinese-made drywall is causing health issues and damaging their homes and belongings, will answer questions at 7 p.m. Tuesday, May 19, at the Holiday Inn West Palm Beach - Turnpike, 7859 Lake Worth Road, Lake Worth, Fla., 33467. The event is free and open to the public. Attorney Wayne S. Kreger, partner with the national law firm Milstein, Adelman & Kreger, based in Santa Monica, Calif., will help lead the town meeting. Kreger is handling California class-action suits concerning toxic Chinese drywall and collaborating with Durkee and other attorneys nationwide.

Unless "Chinese Drywall" is some euphemism for "feminine tannins" (which incidentally I also hope is a euphemism) keep me the hail away from it, and the litigation too.

Have fun Judge Moore and the two hundred or so lawyers involved in this monstrosity!