$250 an Hour to Mediate a Federal Case? HAHAHAHAHA!

That's the problem Judge Scola encountered after the court-appointed mediator balked at the hourly rate:

The Defendant relays that the court-appointed mediator has refused to accept the hourly rate of $250 set by Administrative Order 2008-08, instead demanding to paid at $400 per hour.  As such, Defendant would like the Court to order the Clerk to appoint a different mediator.

Hey, it's government work -- $250 an hour ain't bad!

But the mediation must go on:

This Motion [ECF No. 23] is GRANTED. The Clerk is directed to strike Patrick C. Massa of Matrix Mediation as mediator in this case for failure to follow this District’s Administrative Order 2008-08. The Clerk shall also appoint a new mediator forthwith.

I don't know, if I was selected as a court-appointed mediator, I'd rather do this one job for less than have the Court order me removed for failing to agree to the specified government rate.

In 1985 I Used to File Notices of Unavailability When I Went on Vacation -- So Now There's a Problem?

I remember the days when my senior partners were getting ready to go to Europe and I had to make sure we had properly filed "notices of unavailability" in each and every case in the office, alerting unsuspecting judges that Italy is just lovely this time of year and therefore don't enter any orders until at least three days after the senior lawyer on the file gets back from Milan.

But I used to wear parachute pants back then and Hardcastle and McCormick was my favorite TV show (I hated Thirtysomething).

Indeed, as Judge Scola reminds us, those days are long gone:

THIS MATTER is before the Court following Plaintiff counsel’s filing of a “Notice of Vacation and/or Unavailability” [ECF No. 22]. Counsel asks that “no hearings or depositions be scheduled” while he is out of the country and that “no motions, request to produce, interrogatories, or other pleadings to be filed which require a timely response during this time; and that all pending matters remain in status quo, during this time period.” Not. at 1. Counsel then unilaterally declares that “[t]he filing and service of this Notice shall constitute an application and request for continuance, extension of time and/or protective order as appropriately required for the above reasons.” Id.

This will not do. This type of filing is not authorized by the Federal Rules of Civil Procedure or this District’s Local Rules. It is unreasonable to expect this Court to sua sponte issue continuances and extensions of time whenever a “Notice of Unavailability” is filed in a case. The Court is unwilling and unable, practically speaking, to keep tabs on the scheduling needs and travel plans of every lawyer appearing before it. Counsel is best positioned to know whether or not any case deadline actually conflicts with his vacation schedule. If it does, counsel should confer with the other side and then, if necessary, file a proper motion seeking a continuance, extension of time, or other relief. If this procedure is followed, the Court will make every effort to accommodate reasonable requests to continue and/or for additional time. The Court is confident that opposing counsel will likewise extend reasonable professional courtesy in such matters, consistent with the professional and ethical standards that guide all members of this profession.

Thus, for the reasons explained above, the Court hereby STRIKES counsel’s “Notice of Vacation and/or Unavailability” [ECF No. 22], as ineffective and unauthorized by the Federal Rules of Civil Procedure and this District’s Local Rules.

Hooray!!

Should You Always Get a Stay of Discovery When You File a Motion to Dismiss?

Parties always think their positions have merit, as opposed to that swill being peddled by the other side.

That's why the position that all discovery should be stayed pending disposition of a motion to dismiss is such a slippery slope.

Parties would be encouraged to file a motion to dismiss in every case, and the rules of civil procedure would essentially be abrogated while everyone waits for a ruling.

That doesn't seem to make much sense, as Judge Scola in a well-reasoned opinion points out:

Nor will it grant a wholesale stay of discovery either. Dismissal of the case with prejudice is not a foregone conclusion. Spirit muses that Plaintiffs’ RICO claims are “untested” and “comprised of allegations that have never been sustained against an airline,” and regulation of airline price advertising falls into the exclusive domain of the Department of Transportation. Mot. at 5. The problem is, these arguments do no more than rehash Spirit’s position, made in its motion to dismiss, that it should win. While the Court must conduct a “preliminary peek” at the motion and the Complaint to see whether the Plaintiffs’ claims are likely baseless or dubious, Feldman, 176 F.R.D. at 652-53, the Court is not required to move Spirit’s dismissal motion to the front of the line, ahead of other cases with pending motions, and fully adjudicate it on the spot. Such a requirement would be unfair to other parties, as well as to the Court.

But Judge Scola recognizes that there can be a time and place for such extraordinary relief -- just not in every single case that comes across your desk, especially when there are more targeted ways to deal with the issue:

In the interim, nothing herein should be construed as a blank check for Plaintiffs to burden or harass Spirit with ridiculous discovery requests. Should that come to pass, the multitude of tools provided by the discovery rules remain at Spirit’s disposal. Any appropriate motions seeking protection or relief from discovery may be addressed by the Magistrate Judge, under this Court’s automatic reference of such matters. That will allow particularized discovery issues to be addressed and resolved on a case-by-case basis, which is a more prudent approach than an indiscriminate blanket stay of discovery.

Happy Veteran's Day!

And how was your weekend?

What is "Good Cause" For Filing Untimely Affirmative Defenses?

 
Come on -- you know that is the first thing on your mind this morning.

Luckily, Judge Scola provides the answer:

In order to raise the two new defenses, then, Commonwealth must demonstrate “good cause” for leave to amend under Rule 16(b), which requires a showing of diligence. See Sosa, 133 F.3d at 1418. As to the mitigation affirmative defense, Commonwealth contends that leave to amend should be allowed because the defense was not available until June 4, 2012, when Regions declined Commonwealth’s April 17, 2012 offer to defend and provide coverage under a reservation of rights. This Court disagrees. Commonwealth’s duty to defend and indemnify Regions in the state court suit goes to the heart of this litigation. Under such circumstances, a failure to mitigate defense should have been reasonably obvious to Commonwealth the minute that Regions declined its offer, if not before that time. Indeed, it might have been a reasonably anticipatory defense even as early as April, when Commonwealth tendered the offer. Yet, Commonwealth waited an additional three-and-a-half months after Regions refused the offer before requesting leave to amend. Such conduct does not evince diligence.

The idea that a defense is a pure "legal defense" also doesn't wash:

 As to the contract illegality affirmative defense, Commonwealth merely argues that it should be allowed to amend because it is “a pure legal defense.” Mot. at 6. But to admit as much dooms Commonwealth’s request. Commonwealth does not even attempt to explain why it did not knowabout, or assert, this defense from the get-go. As “a purely legal defense,” Commonwealth could be expected to assert it at the time it originally answered Regions’s Complaint in April, not some five months later. So the Court finds that here, too, Commonwealth has failed to show the diligence required by Rule 16(b).

Oh well -- hope you didn't really need these defenses to defend the case.

(Arbitration) Pop Quiz, Hot Shot!

This would be a good question for a law school exam -- do you think Judge Scola should enforce an arbitration agreement if:

Between the initiation of this lawsuit and the Defendants’ invocation of the right to arbitrate, the Defendants answered the Complaint and Amended Complaint, responded to Plaintiff’s Statement of FLSA Claim, provided mandatory Rule 26 disclosures, propounded discovery requests upon the Plaintiff, responded to Plaintiff’s discovery requests, took her deposition, participated in discovery motions practice, obtained additional time to schedule depositions and complete discovery, and obtained an extension of the trial date.

WHAT DO YOU DO?  WHAT DO YOU DO?

But the client's records were really messed up, Your Honor:

It is no answer, either, to say that Defendants did not know about the agreement until three weeks before moving to compel arbitration. See Plows, 812 F. Supp. 2d at 1066; Ritzel Commc’ns, Inc., 989 F.2d at 969. That they were apparently subjectively unaware of where the arbitration agreement was located, and did not in fact find it until they undertook a paper file audit in connection with an unrelated case some seven months after this case began, does not help their argument. The fact that Defendants’ files were disorganized and the form was not where it was supposed to be is no excuse. It does not reflect diligence.

It reflects that your case will not be going to arbitration.

Here's That Humdrum Judge Scola Order No One Is Talking About!

I don't get lawyers sometimes -- if I received an unprecedented, groundbreaking, one-of-a-kind order from a federal judge, the last thing I would do is tell everyone how unprecedented, groundbreaking, and one-of-a-kind it is.

Because last I checked, aren't there still appellate courts?

But not everybody thinks like me (and that's probably a good thing):

In a landmark decision, a Miami federal judge ruled Friday that a class action brought by investors can proceed against the Securities and Exchange Commission in one-time billionaire R. Allen Stanford's investment scheme.

Plaintiffs attorneys called the ruling by U.S. District Judge Robert N. Scola Jr. rejecting the SEC's motion to dismiss "historic."

"Historic"?

Come on, Brown v. Board of Education is "historic," landing on the moon is "historic," Bo Derek running on the beach in a gold suit is -- well, you get my drift.

And if asked I would simply state that the Order was well-reasoned and a solid application of longstanding federal law, policy, and jurisprudence.

But what do I know -- I've never received an "historic" order before.

Judge Scola Allows SEC Suit against BankAtlantic to Proceed!

Is this not the most litigious client in Florida?

(Hooray!)

Read on BankAtlantic junkies (or stockholders) and various and sundry securities fraud lawyers/hobbyists.

Hey Baby, Do You "Meet and Confer" Here Often?

In Miami, back in the old days, lawyers used to meet and confer over drinks at Sally Russell's and inevitably wind up going home with each other's wives.

Hey, it was the 70s!

But like our President we evolved, and by the 80s we had teams of waiting "faxers" who would instantly (well, it took about 25 minutes) send late-Friday nastygrams to opposing counsel, designed to ruin the weekend and necessitate a faxed response on Sunday.

Aah such pleasant memories....

But now we can "meet and confer" by having a Twitterwar, or by pinning mean things about each other on Pinterest, or via my personal favorite -- assembling a guild of World of Warcraft characters who simultaneously attack and destroy opposing counsel in a dungeon.

Either way, the one thing we NEVER do is actually speak with each other face to face.
 
But there's a new Sheriff federal judge in town, and he kicks it old-school:

Apparently, the parties disagree as to whether the Court’s Initial Order requires them to meet and confer in person or whether a telephone conference will do. The Court’s Order provided that, within the time prescribed, “the parties shall meet and confer regarding discovery and scheduling issues, as set out in Federal Rule of Civil Procedure 26(f) and Local Rule 16.1(b).” See Initial Order ¶ 2 [ECF No. 2]. This District’s Local Rule 16.1(b) expressly states that the parties shall meet and confer “in person, by telephone, or by other comparable means[.]”  See S.D. Fla. L. R. 16.1(b)(1). This Court has not ordered otherwise. Accordingly, the parties are free to meet by telephone, if they prefer. The Court has no preference, as long as the conference is conducted in timely fashion and the parties comply with their obligations set forth in the Rules and the Court’s Initial Order.

So WoW dungeon-war it is!!

But then there is this:

This Court is not in the business of babysitting the parties.

Such bright-eyed optimism, and I certainly hope he's correct -- but has he seen how our Bar behaves?

Thanks for the Shout-Out, Judge Scola!

Let's start by heaping praise on Brett Barfield and his team at the FBA who continually put on highly informative and well-run programs and events, including today's must-attend, completely sold-out Judge Scola luncheon.

The ever eloquent Judge took time from his busy calendar to answer pressing and important questions from curious federal court practitioners, such as:

1.  What is your favorite color?
2.  Boxers or briefs?

and my personal favorite:

3.  How do you pronounce Reese's Pieces?

In other words, all your important questions were answered!

Seriously, the Judge is a major dude and a fantastic speaker, and we appreciated the shout out -- it's probably better to be known for repeatedly highlighting a recent flawed Supreme Court opinion than, say, Bo Derek or the pros and cons of Keytars.

Thanks for taking the time, Your Honor.

Your First Practice Tip of 2012!

Welcome to the apocalypse 2012!

Your first practice tip of the year comes courtesy of our newest federal jurist, Judge Scola -- we're of course delighted he's on the federal bench and thrilled he's finally able to write opinions that are published and available in the future as precedent -- you know, that whole "rule of law" thang.

Here he is helping an insurance company defendant on how to do basic research and brief writing, especially in the context of a motion for reconsideration:

After appearing at a calendar call on December 27, 2011 and announcing ready for trial and after being told the case was the number one case for trial on Tuesday, January 3, 2012 at 9:00 a.m., QBE filed this motion on Friday afternoon, December 30, 2011. In its Motion for Reconsideration, QBE takes no issue with the court’s ruling granting its motion for summary judgment in part. QBE claims, however, that the court’s order granting Ocean View’s Corrected Motion on QBE’s second and third affirmative defenses - which are premised on Ocean View’s alleged failure to comply with the policy’s post-loss obligations prior to filing this law suit – was wrongly decided. In support of its Motion for Reconsideration, QBE cites numerous opinions from the Southern District of Florida in cases involving this very same Defendant -- none of which were cited by QBE in its Response to the Corrected Motion for Summary Judgment. It boggles the mind to consider how QBE could not be aware of opinions in its own cases from the same federal district court and yet not cite those cases until after receiving an adverse ruling from the court.

You mean that's not a basis under the rule?

(At least it was worth burning up the midnight oil over the holidays both preparing for trial and scrambling to crank out a motion for reconsideration that went over like a Led Zeppelin.)

Judge Scola's First Order as a Federal Judge?

It has to do with a massive Ponzi scheme where investors were defrauded out of more than $50 million.

How cute!