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!)

Judge Tjoflat Holds An Iqbal Party!

 
It's Friday afternoon, so of course that's the perfect time for the 11th Circuit to drop a major pharmaceutical drug ruling.

Read it and -- depending on your perspective -- weep or woot.

The Judge does adopt a fairly novel policy argument rooted in how insurers supposedly price their premiums, effectively killing any kind of recovery for the insurers.

Not sure where he is coming up with some of this fact-finding in the context of a motion to dismiss:

The insurers have pled no facts in the complaint that suggest the insurers established premiums in a way inconsistent with the insurance industry’s conventional ratemaking procedures. We therefore must infer that the insurers do charge premiums established in that conventional manner. As a consequence, because the insurers consciously chose to assume the risk of paying for all medically unnecessary or inappropriate prescriptions of formulary-listed drugs—like Seroquel—we must further infer that they adjusted their premiums upward to reflect the projected value of claims for these prescriptions. Such estimates, when calculated properly, take into account all known risks that might cause the insurers to pay for medically unnecessary or inappropriate prescriptions.

Ah yes, all businesses and their chief executives always act rationally and utilize the very best business practices, I think that's the big takeaway from the last few years.

Me, I'm hitting the surf -- have a great weekend!

11th Circuit Thinks Bill Amlong Should Have Used X-Ray Glasses!

The meatball man does a nice job covering it, but I want to add a few points about this extraordinary 11th Circuit opinion sanctioning Bill and Karen Amlong.

Preliminary question for Judge Carnes -- why do you note on page two that the plaintiff is an "illegal immigrant"?

Regardless, the good Judge, in a 74-page opinion(!) pulls no punches:

The Amlongs’ attempt to alter their client’s deposition testimony in 868 ways was of a piece with their conduct throughout the litigation. As the magistrate judge found, they had nothing to base Norelus’ claims on other than her “own changing testimony . . . which was totally or nearly totally discredited by plaintiff’s numerous lapses of memory, outright lies, and outlandish comments made during her deposition.” As the litigation unfolded, all of the witnesses  who should have seen or heard something if the claims had any basis in fact not only failed to support her incredible story but actually gave deposition testimony contradicting it.

Still, like Ahab hunting the whale, the Amlongs relentlessly pursued the claims. All the while they blinded themselves to as much of the contradictory evidence as they could. They deliberately did not obtain the deposition testimony of any of Norelus’ co-workers who would have seen or heard something had anything improper occurred. They did not concern themselves with that testimony, according to Karen Amlong, because they assumed all of the witnesses, except for their client, were either lying or simply could not remember witnessing the gross sexual harassment inflicted on her.

When the truth was thrust in the Amlongs’ faces, they stubbornly ignored it and kept on litigating.

It goes on from there, though the Judge does end with a thoughtful "Season's Greetings"!

Thankfully I choose not to do this work, but is there an argument to be made that the co-workers are worried about their jobs and thus did not corroborate the plaintiff's testimony?  Also, that the plaintiff speaks Creole and the deposition required an interpreter?  Also that the Amlongs submitted the client to two polygraph examinations that she apparently passed?  Finally, that the Amlongs are being sanctioned for trying to fix mistakes in the deposition testimony and informing opposing counsel, as opposed to letting it slide?

I admit this case presents a close call, on difficult facts.  But the apparent glee with which Judge Carnes targets the Amlongs seems to me somewhat over the top.

And the prolix opinion, which exceeds the evil errata sheet by 11 pages, will create lots of uncertainty below when imposing  § 1927 sanctions on attorneys, as well as generally mess up the previously settled law dealing with errata sheets and their proper function in depositions.

Judge Tjoflat, in a blistering dissent beginning on page 76, seems to agree.

In fact, he doesn't even think what Karen Amlong submitted to defense counsel was an errata sheet:

The Amlongs did prepare the sixty-three page document, which they labeled “errata sheet” (“‘errata sheet’” or “errata document”), but they did not present it to the court reporter, as Rule 30(e) of the Federal Rules of Civil Procedure requires, so it could be attached to the certificate the reporter affixed to Norelus’s deposition in accordance with Rule 30(f). In short, the sixty-three page errata document was not an errata sheet as contemplated by the Federal Rules of Civil Procedure. Rather, it constituted nothing but a written communication, a letter, from Karen Amlong to defense counsel, in which Karen Amlong informed defense counsel—in keeping with her obligations under the Florida Rules of Professional Responsibility—that her client had testified falsely on deposition and provided the statements she believed her client should have made when deposed. As a consequence, the communication, instead of multiplying the proceedings, informed defense counsel that Norelus had made statements to her attorneys which,when compared to what she had said on deposition, cast substantial doubt on her credibility.

Had defense counsel explained all of this to the district court, the court would have disregarded the “errata sheet” and declared that the Norelus deposition transcript certified by the court reporter constituted Norelus’s deposition; Denny’s, Meos, and Jawaid would not have incurred $387,738 in subsequent attorneys’ fees and costs; and the court would not have sanctioned the Amlongs under 28 U.S.C. § 1927 in that amount.

See kids?

Bad facts make bad law.

Judge Tjoflat: "I Was Wron......"

There's a surprising lack of internet information regarding Fonzie from Happy Days' inability to say "I was wrong."

Here's the best link I could come up with, which isn't much.

But if you watch the above clip starting around 1:45, you'll remember what I mean.

Anyways, Judge Tjoflat overcame his inner Fonzie and admitted he just was flat-out wrong about CAFA jurisdiction, reversing himself in a widely-criticized opinion that was the subject of much tsurris in the district courts:

There is no requirement in a class action brought originally or on removal under CAFA that any individual plaintiff’s claim exceed $75,000.

 There, was that so hard?


"These days are yours and mine, Happy Days!"

The 11th Circuit Creates A Removable Feast?

Continuing with our literary theme, today is Ernest Hemingway's birthday!

Also, the 11th Circuit really went astray with its latest CAFA ruling:

We hold that in a CAFA action originally filed in federal court, at least one of the plaintiffs must allege an amount in controversy that satisfies the current congressional requirement for diversity jurisdiction provided in 28 U.S.C. § 1332(a). Such a conclusion is compelled by the language of § 1332 as well as the general principle that federal courts are tribunals of limited jurisdiction whose power to hear cases must be authorized by the Constitution and by Congress.

I love Judge Tjoflat, and the decision has some surface appeal, but it is almost assuredly wrong.

Although the Court looked for an express statement that section 1332(a) did not apply in CAFA cases and could not find it, there is also nothing stating that the requirements of (a) do apply.

Further, there is no reasoned basis for restricting the result to original jurisdiction cases as opposed to removed cases. Thus, removed cases presumably must meet the same requirements as a class case with "original jurisdiction."

Finally, the citation to the Ninth Circuit case (Abrego) is inapposite, as that case involved a "mass" action, not a "class" action. CAFA expressly restricts removal jurisdiction for mass actions to those plaintiffs who meet the $75k requirement.

But doesn't the contrast between that explicit reference and the silence in the provisions relating to class actions indicate that the 11th Circuit got this one severely wrong?

I'm gonna go re-read Papa's Death in the Afternoon again.

Shotgun Tjoflat!

You know how in federal court you always incorporate all your prior counts into your next count, just to be safe?

That way if you miss an allegation on page 47, count XVI, you can always refer the judge to earlier allegation in a different count 34 pages back.

Works like a charm!

(What, you guys don't do that?)

Neither does Judge Tjoflat:

The amended complaint contains 151 paragraphs and ten counts. Seventy-three paragraphs precede Count I.....

Uh oh.

Count I incorporates paragraphs one through seventy-three, and each of the nine succeeding counts incorporates all preceding counts, such that Count X amounts to an amalgamation of all counts of the complaint.

This is not good. I smell a rant coming on....

The amended complaint is a typical shotgun pleading. This court has condemned such pleadings in a series of cases stretching back at least as far as Pelletier v. Zweifel, 921 F.2d 1465, 1517–18 (11th Cir. 1991) (describing such pleadings as “replete with factual allegations that could not possibly be material to any of the causes of action they assert”), and we do so once more here. Shotgun pleadings impede the administration of the district courts’ civil dockets in countless ways. The district court, faced with a crowded docket and “whose time is constrained by the press of other business, is unable to squeeze the case down to its essentials.” Johnson Enters. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 1333 (11th Cir. 1998). It is therefore left to this court to sort out on appeal the meritorious issues from the unmeritorious ones, resulting in “a massive waste of judicial and private resources; moreover, ‘the litigants suffer, and society loses confidence in the court[s’] ability to administer justice.’” Id. (quoting Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 165 (11th Cir. 1997)) (alteration in Johnson Enters.).

Hmm, I wonder how the judge is going to rule?

Seriously, since it's been a while since I've seen a complaint in which each count incorporates the last, I wanted to confirm that the amended complaint incorporates all prior paragraphs into each count, and actually it does not.

The complaint is not a work of art by any stretch, but to be fair each count seems to incorporate all the precatory paragraphs 1 through 73 that precede the first count beginning on paragraph 74, but not each successive count.

Thus, count X (which begins on paragraph 150), incorporates paragraphs 1 through 73 but no other paragraphs.

I still agree with the Judge's basic point, which if I'm not mistaken amounts to:

You can't make a record if you ain't got nothin' to say
You can't make a record if you ain't got nothin' to say
You can't play music if you don't know nothin' to play

UF Frat Permitted to Be Most Boring In Nation!

I don't know about you, but I don't recall Charlie Crist or my rush hazing to be anything like this wholesome little frat at UF, which is the subject of this 11th Circuit opinion today written by Judge Tjoflat:

BYX is a national fraternity founded in 1985. It has twenty-two chapters in nine states. According to its constitution, it “exists for the purpose of establishing brotherhood and unity among college men based on the common bond of Jesus Christ.” BYX espouses a strict approach to the Christian faith, and membership in the fraternity is contingent upon what the fraternity deems “a credible profession of faith in Jesus Christ.” This requires agreement not only with the traditional core Christian beliefs and values contained in such ancient expressions as the Nicene Creed, but adherence to a demanding view of the faith. In its doctrinal statement, BYX explains that members must “believe that the Bible is God’s written revelation to man, that it is inspired, authoritative, and without error in the original manuscripts.” Accordingly, BYX bars from membership non-Christians, Roman Catholics, and adherents to the traditional Christian orthodoxy taught by the mainline Protestant denominations.

BYX also demands moral and “sexual purity.” According to its code of conduct, BYX believes that “sex is a gift of God to be enjoyed inside the covenant of marriage between a man and a woman. Therefore, we will not condone such activity as homosexuality, fornication, or adultery.”

. . . .

After admission into the fraternity as a pledge, the applicant must complete the pledge process. The purpose of the pledge process is to examine the applicant’s understanding of salvation, his personal relationship with Jesus Christ, and his willingness to accept and promote BYX’s doctrine. As part of the process, the pledge must participate in BYX’s “Big/Little Brother Program” and is assigned to an active member of the fraternity who serves as the pledge’s “Big Brother.” The Big Brother is required to watch over the pledge and ensure that he is conducting himself in conformity with the fraternity’s code of conduct. Ideological, theological, and moral purity are central elements of BYX’s foundational purpose, and the “Big Brother” program is designed as a safeguard against the pledge going astray. As BYX’s constitution states,

BYX has fulfilled its purpose over the years, and Satan hates it. He wants to sift this group like wheat and is roaming on [ ] campus like a roaring lion waiting for the chance to destroy us. If the devil sifts our group, he will probably do it primarily through alcohol, but also through sexual impurity or lust, pride, laziness, and contention. So be on your guard.

The “Big Brother” is the first line of defense against such impurities and influences infiltrating the group.

. . . .

All BYX members and pledges participate in Cell Groups, which are weekly meetings where the members and pledges hold one another accountable to living consistently with BYX’s Christian beliefs and values. BYX also holds weekly meetings, which include prayer, worship, encouragement of specific members, a testimony or Bible message from a fraternity member, and announcements pertaining to fraternity business.

Ummm -- sounds like fun??

Forget Fast Times, Animal House, or even Revenge of the Nerds.

Haven't any of you guys seen PCU? Real Genius? Back to School?

Does any of this ring a bell at all?

Related -- do any of you know a lawyer in Leesburg?

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.