Patriotic 3d DCA Watch -- Judge Shepherd, Michael Moore and Melanie Damian Together Again Edition!

Happy Fourth of July everybody!

In honor of the founding of our nation, the Resplendently Robed Ones have issued a special commemorative 3d DCA Watch, filled with fan favorites and fireworks -- let's get right to it:

First off, there is this:

Chief Judge Elect - Frank A. Shepherd to become Chief Judge.

On July 1, 2013, Chief Judge Elect- Frank A. Shepherd will succeed Chief Judge Linda Ann Wells of the Third District Court of Appeal for a term that will run through July 1, 2015.

Dear Time Traveler:  see what happens when you go to 1978 for the weekend?

Congrats to the new Chief Judge!

Marine Resource v. Michael Moore:

Hey, what do you know -- this case involves resident American gadfly Michael Moore!

(True, this Michael Moore is a local attorney, but a Moore's a Moore I always say!)

Omes v. Ultra Enterprises:

This case involves the Ultra Festival and Melanie Damian.

'Nuff said!

Happy holidays!

Attention, Judicial Applicants: Can You Make a Nice Bowl of Pasta?

Just curious is all.

In all seriousness, what a great pick and very well-deserved!

(h/t The Captain)

Your Tuesday Morning Digital Dump.

Hi kids, day two of the school year -- is it almost over yet?

Let's take a peek around the South Florida legal landscape:

1.  Melanie Damian channels her inner Donald Rumsfeld:

"What we don't know at this point is what we don't know," Damian said, indicating that there may be assets Price did not disclose.

Hmm, somehow seems much more reasonable when Melanie says it.

2.  The 11th Circuit affirms Judge Seitz and enforces another arbitration clause against a cell phone provider -- hey, I'm sure no one has ever had a problem with that industry's business practices:

The Supreme Court in Concepcion expressly rejected the notion that the state law should not be preempted because the class action waiver would effectively shield the defendant from liability. See Concepcion, 131 S. Ct. at 1753 (“The dissent claims that class proceedings are necessary to prosecute small-dollar claims that might otherwise slip through the legal system. But States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for other reasons.” (citation omitted)). Pendergast’s attempts to distinguish Concepcion are unavailing.13

For the reasons set forth above, we conclude that we need not reach the questions of whether Florida law would invalidate the class action waiver in the parties’ contract because, to the extent it does, it would be preempted by the FAA. Under Concepcion, both the class action waiver and the arbitration clause must be enforced according to their terms.

State's rights anyone?

3.  In Philly prosecutors are taking second jobs:

CARLOS VEGA is a veteran homicide prosecutor, putting scumbags behind bars, sometimes for life.

His latest high-profile case: Antonio Rodriguez, the so-called Kensington Strangler, who was convicted Thursday of three counts of first-degree murder, rape and related offenses in the deaths of three women.

With his high-pressure job and a daughter who lives at home, you'd think Vega wouldn't have time for anything else.

But his city salary hasn't been enough to give his daughter and son the schooling he wanted for them. So, for 14 years, he's been juggling two jobs. His second gig? He's a UPS supervisor.

In fact, Vega is one of several prosecutors in the city who have taken on second jobs to make ends meet. Others have been bartenders or waiters. One assistant district attorney recently moved back into her parents' house.

"Although we're attorneys, we work for the city," Vega said. "We don't make the money that people think lawyers make."

Note to Carlos -- don't move to South Florida!

4.  Andrew Hall files an odd case:

When Andre Frings returned to his South Beach apartment from a trip to New York last December, his jaw dropped at what had happened to the historic building next door. The 1926 art deco edifice was completely gutted, the graceful façade gone. Frings suspected the developer had broken the Beach's historic preservation codes, so he filed a complaint. The city investigated and, sure enough, found that demolition had exceeded the scope of permits. The developer spent months making fixes.

Democracy at its finest, right? Not for Frings. Last month, the developer -- Brickell-based Jeffrey Schottenstein -- filed a lawsuit against the SoBe resident, seeking more than $15,000 for the egregious crime of reporting his problems to the city.

"It's ridiculous because I don't have any influence. I'm just a resident," Frings says. "All I did was write to the city about my concerns."

Andrew Hall, Schottenstein's attorney, says Frings was wrong to air his grievances when work was already underway. "Guys like this, they think they're smarter than everyone else," he says. "He doesn't care about the consequences of his actions."

Frings's attorney, Michael Schlesinger, has a different take on the suit. "It's a frivolous action brought solely to intimidate and punish [Frings]," he says.

 WTF?

As someone smart once said, what we don't know at this point is what we don't know.

Vote, You Plebes!

 For Melanie Damian to always appear on the front page of the DBR!

What a glorious way to start the morning.

She's going to be a very tough receiver -- she already hired a locksmith to open a safety deposit box and found lots of valuable rare coins, but unfortunately no whole wheat pasta bolognese.

GAME ON!

Oh yeah, there are also judicial elections.

I suppose we should probably take a peek, especially given how much money we've donated this cycle.

In general I echo Rump's recommendations, as follows:

 In no particular order, we like Judge Wolfson, Judge Don Cohn, Kathy Fernandez-Rundle, Robert Copel, Alex Jimenz-Labora, Mauricio Padilla, Michelle Alvarez, Judge Teretha Lundy-Thomas. Best of luck to all.

Except I voted for Judge David Miller, as well as Teresa Pooler, Judge Marino-Pedraza, Judge Lobree, Ivonne Cuesta, and the great Tanya Brinkley.

And yes the pit bull law is stupid and needs to be repealed.

Welcome to My New "Pop-Up" Restaurant!

It suddenly occurred to me -- much like my fledgling entry into the food truck craze -- that I should immediately open up a "pop-up" restaurant.

Here are the broad contours of my concept:

1.  Hip hop music will be banned.

2.  I plan to only serve food from Wisconsin.

(So I guess it's a pop-up lutefisk 'n cheese shop?)

3.  It will be located right next to my food truck.

Wish me luck kids, but then again -- how could it go wrong?

In other news, the talented Mr. and Mrs. Markus whooped it up on eighty-seven (or eight, but who's counting?) fed lawyers and scored a big win on behalf of his client before Magistrate Judge Torres.

Other than continually referring to himself in the plural ("our findings," "we" etc. -- it's ok, I do it too) it's a thorough and well-reasoned R&R.

Finally, we offer congrats (see?) to the Most Effective Lawyers in town -- if you did not win, that means you have a chance to be more effective next year -- that's what New Year's resolutions are all about.

SFL Friday -- I Like Exactly HALF This Picture!

Dang does Frank dress up nice!

I'm so pissed at Blogger for eating my posts and making me have to focus today almost exclusively on (1) my cases; and (2) deciphering the contents of Osama's porn stash.

Nearly as interesting as what's hawt right now in Abbottabad is this genuinely amusing defamation suit filed against the Internet.

Even better, our local intertubular representative in this epic legal fiasco is none other than bashful Brian Tannebaum.

Given the heavy hitters comprising the "Rakofsky 74" I am quite certain they will be ably represented, either by themselves or by that fabulous Coral Gables restaurateur Marc Randazzao.

This is the legal equivalent of Charlie Sheen -- someone needs to stop the train before it runs off the cliff.

(Let's see when -- or if -- Blogger posts this.)

Announcing the All-New SFL Whole Wheat Pasta Bolognaise Foodtruck!

I've decided it's about time I jump right in and tap into the food truck mania that is sweeping South Florida.

And, like any good marketer, I am focusing on a niche market.

In fact, my niche market is exceedingly small -- I plan to park my truck in only one location, 1000 Brickell Ave, and I plan to serve only one item: whole wheat pasta bolognaise.

Why, you may ask, have I focused my new food truck business so narrowly?

Well let's just say I have my reasons, but I assure you they have absolutely nothing to do with certain food rituals observed by certain attorneys at La Loggia:

American Bar Association members and committee heads Melanie Damian and Peter F. Valori were there too, ritually ordering the whole-wheat pasta bolognaise while working hard to sway Florida Bar Business Law chair Michael J. Heiger into steering a portion of his leadership efforts toward the bar organization’s national arm. Heiger, apparently familiar with the payoffs of preparation, arrived at lunch armed with one of his young associates, whom he seemed to be offering up in his place.

"[R]itually ordering the whole-wheat pasta bolognaise"?

Thanks for the tip!

BTW Mike -- nice touch to offer up an unnamed and not-worthy-of-being-mentioned-in-this-article young associate as a sacrificial lamb -- we are talking about the ABA, after all!

3d DCA Watch -- Salter v. Cope Smackdown!

Well I got ready for my deposition this morning the way I often do -- by rewatching Paul Williams' sensitive, nuanced portrayal of a badly misunderstood romantic in Phantom of the Paradise, then downing two shots of kettle-corn gin and heading to the office and just flat-out wingin' it.

I thought it went awesome.

God I love being a lawyer!

Then I realized it was bunker time, and that I would have to trudge through the Very Important Thoughts™ of the Robed Ones®, and my inner Paul Williams started to rise up again, hurt and betrayed by a tragic and senseless disfigurement, my only refuge to hide behind a (blog) mask and play clunky old synthesizers and type out this latest 3d DCA entry......

Wow, was that too much?

Anyways, let's go:

Trust Care Services v. AHCA:

Salter v. Cope in a battle of statutory interpretation!

For old times' sake, I'm going with Cope on this one.

Alvarado v. Bayshore Grove:

Hey this case involves Melanie Damian!

Wait a second, who the hail is Russell Landy?

Moving on....

Actually,  this case is notable because Judge Schwartz references the "tipsy coachman":

Although the ground was not relied upon below, we invoke the “tipsy coachman” modernized as the “drunken cabbie” rule....

With all respect, "drunken cabbie" is not even modern enough -- the kids nowadays call it "drunk texts from last night."

My work here is done.

Hey, An Actual Interesting Judicial Panel!

My undying yet entirely professional devotion to Melanie Damian is well-known, and fortuitously the restraining order just happens to expire at the end of the month.

But there are other reasons why I have purchased all seats in the first three rows to this fabulous DBR event.

Let's see, Judges Gold, Jordan, Salter, Thornton, Huck, Walsh, and don't forget a certain Resplendently Robed One who seldom leaves the rarefied air of that bunker by the highway.....

In other words....this one actually looks good!

(BTW, I'll be wearing my hand-made, personally tie-dyed "3d DCA JUDGES ROCK!!" t-shirt)

Your Useless and Pointless Knowledge

Let me ask you something -- what is the point of the Herald's five-minute summary, or whatever it's called -- that occupies a half page yet provides no new content of any kind?

Are there really people out there who are unable to scan a newspaper like the Herald in five minutes, without having a pointless summary that attempts to replicate what the Herald looks like on the internet?

Seriously, the paper's thin enough without having repetitive filler that serves no purpose whatsoever.

For that matter, I feel the same way about Tables of Contents and Authorities in briefs -- if your brief is 30 pages or less, and you are not in an appellate court that requires it, you are wasting everyone's time by clogging up the beginning of your document with something that no one ever looks at or refers to ever again.

Have you ever read a 25 page brief but suddenly went "where is Venetian Salami, I must find it immediately, I'm unable to simply skim the brief and find it quickly, there must be a mildly faster way -- YESSS!"

In other news, I heard Peter Valori on the radio the other day:

PETER VALORI, ATTORNEY, DAMIAN & VALORI LLP: Typically the person that you're trusting knows nothing of the fraud. They've been victimized themselves, but they just don't know it yet. So they make the perfect candidate to draw in new investors because they have no sense that what they're doing could potentially be harmful to their friend or family member.

Peter, you're a good guy and fine attorney, but come on, you definitely want to put your best face out there, know what I mean?

Another Judicial Reception!! (Yawn)

Well I don't know about you, but I'm getting ready for tonight's big Judicial Reception, which means I have prepared the following to do list:

1. Immediately down two large dry Gin Gibsons;

2. Track down and punch Brett Barfield.

3. Find the one judge willing to speak to me (Sam Slom?) and unleash new self-aggrandizing anecdote that reveals my wit, trial skills, wealth, humor, A-type dominance and general good taste.

4. Listen to similar self-aggrandizing anecdotes and think to myself how it's all total bullcrap.

5. Count other people's money.

6. Pretend to remember that guy's name.

7. Kiss Melanie Damian (professionally, of course!).

8. Sneak into photo op of Judge Moreno and Bob Josefsberg.

9. Kiss Melanie Damian (did I already write that?).

Judge Ryskamp Affirmed In Reducing FLSA Attorney's Fee Request

Boy oh boy, posts about two of my favorite subjects all in one day.

I know -- going to the well.

So you guys remember the time Judge Ryskamp slashed fees in a FLSA case by 60 percent because of excessive requests for extension of time to respond to discovery?

You're right, let me be more specific:

The Court is concerned, however, that the total number of hours claimed, 547.5, is unreasonable. Plaintiffs filed an extraordinary number of motions for extensions of time in this matter. Indeed, on August 16, 2007, the number of extensions requested from Plaintiffs became so excessive that the Court barred Plaintiffs from seeking any further extensions. The extensions were largely filed because Plaintiffs struggled with responding to discovery requests in a timely manner. Plaintiffs’ counsel billed for time spent requesting these extensions. Defendant cannot be expected to bear the financial burden for Plaintiffs’ counsel’s inability to comply with discovery deadlines. Plaintiffs' dilatory conduct reached the point Defendant was forced to file a Motion to Compel Discovery and Deem Facts Admitted. Plaintiffs' counsel also spent several hours drafting an opposition to Defendant’s motion for rehearing regarding the motion to amend the complaint. Defendant filed a motion for rehearing due to a clerical error on the part of the Court: the Court initially granted the motion to amend because it failed to note that Defendant had filed an opposition to same. It was plain from the docket that the order granting the motion to amend was premised on the administrative error, but Plaintiffs nonetheless opposed the motion for rehearing. Plaintiffs have also submitted fees in a relation to a summary judgment motion, but Plaintiffs never moved for summary judgment in this matter. The hours spent researching and preparing this motion are not compensable because they had no effect on the outcome of this matter.

This litigation was not complicated. Litigation of this matter consisted largely of responding to discovery requests, examining the applicability of potential defenses and negotiating settlements. Although this matter involved 11 Plaintiffs, FLSA cases frequently have multiple plaintiffs. The larger number of plaintiffs in this matter did not alter the legal complexity of this case: this case boiled down to a question of numbers – the amount of additional compensation to which Plaintiffs were entitled. The legal questions presented in this case were not difficult or novel. The motions practice was virtually nonexistent; there was no motion to dismiss, nor was there was there a motion for summary judgment. The Court therefore applies a 60% reduction to the number of hours each counselor or paralegal claimed in this matter, reducing the number of hours claimed from 547.5 to 219.

Ouch.

The Judge also denied any discovery into what defense counsel billed in defending the case and also any time spent trying to get at those figures. He even bounced as unsubstantiated a request for travel expenses to take two depos in Tampa, even though no one disputes the depos were taken. Maybe they used a teleporter to get there?

So plaintiffs' counsel -- the lovely and talented Melanie Damian and the not especially lovely but also talented Tim Schranck (I hope I spelled it right this time, Tim!) -- took it up, and in an order today the 11th affirmed, and included this cryptic statement:

Finally, we conclude appellants’ claim of bias is meritless.

First of all, sorry about the hit, fellas.

Second -- anyone know what that last line is about?

Melanie!

I was going to stop my post right there, it works for me.

Ok ok, here's what I was going to say --

I don't know all that much about the merits of Charlie's lawsuit against WPLG, but he has a very good lawyer:

Perez, 46, now plans to add a retaliation charge to his complaint, his attorney Melanie E. Damian said late Thursday.

WPLG, you screwed up with Art Carlson (horrors -- he got old!), and you're screwing up now.

If I were your counsel I would work out a quick and reasonable settlement before the fees accrue and Melanie sinks her teeth into this one.

BTW, you can read Charlie's own take on what he is doing, and WPLG's reaction over at the blog of my friend Random Pixels.

Don't Let It Bring You Down.

Well, that was some spectacular event at the Epic in honor of Chief Justice Quince tonight. I know I saw many of you there, including my friend Randy Kroner, because it was packed. And what a great speech she gave about helping those at-risk kids who emerge from foster homes and need caring, loving mentors to help shepard them into young adulthood.

Also, Melanie Damian looked and sounded awesome.

This is all good stuff.

Plus, tonight I wound up watching the great American Masters series episode on Neil Young from a few nights back, which was amazing.

Young plebes, please learn what it means to commit to and dedicate yourselves to something bigger, better, and more meaningful than anything you could hope to forge by just billing a bunch of hours for The Man.

Neil was there, folks, he felt it, lived it, and recorded about it.

Try to do the same, peoples.

3d DCA Watch -- Melanie Damian Still Rules Our World.

Oy, let us begin our review of the written utterances of those resplendently robed, coffee-swilling judges who must impose their judgments upon us, yes those too-cool-for-school-mensches (hi all clerks who read the blog!!) who labor in the concrete bunker by that beautiful ribbon of highway, yes it is time to examine the exciting, spiritual, almost zeit-geist opinions of our favorite, dreaded Overlords:

United Auto v. Millennium Diagnostic:

Listen, everyone in town knows that lawyers make a lot of money suing and defending United Auto claims. Judges spend a lot of time on these claims too! And they don't make any more money from doing so.

Poor county court judges, thank you for your service.

Lorillard v. French:

Can you believe we are still dealing with the aftermath of the flight attendant suits? Back then Clinton was President, Jeb was Governor and we all made a lot of money!

Here, Judge Salter in an opinion dealing with prejudgment interest, lays it out pretty clearly:

In this case, the qualifying conditions occurred in 2002. The years of further pleadings and arguments about the validity, sufficiency, or good faith of the offer and offeror did not result in any finding of “disentitlement” or “disapproval.” If trial courts defer the accrual date for prejudgment interest until the date any issues pertaining to the validity or good faith of the offer are determined, that will incent the offerees/obligors to delay the day of resolution. Such a result is clearly contrary to both the spirit and the letter of the rule and the statute invoked in this case.

As always, we are pleased to see your intelligence and good judgment on the bench.

Axa Equitable v. Gelpi:

Oh oh. Two of my favorite persons, Richard Tuschman and Melanie Damian, are on opposite side of this appeal.

I like Melanie a lot more than Richard (sorry, dude). See, I should be a judge too!

Unfortunately, the 3d did not agree.

Thus, I can speak no more about this opinion.

That is all, folks!

Help Out on MLK Day -- Take An Associate to Lunch!

Let me say it up front -- I love Melanie Damian (Chris, you're ok, too).

I even like Pete Valori.

And that's why I want everyone reading this blog to take this associate of theirs out to lunch:

Even though Russell Landy, 26, has a good job as an associate at Damian & Valori, a downtown Miami law firm, he notices a new frugality creeping into his spending decisions.

He goes out to lunch less often and chooses cheaper restaurants for dinner with his girlfriend or forgoes dessert at more expensive eateries. A big football fan, he decided earlier this month against spending $100 or more for a ticket to the Miami Dolphins playoff game.

When it comes to buying a new car to replace his 8-year-old Chevy Trailblazer, Landy's thriftiness shines through. He is shopping for a less expensive car than he otherwise could afford because he wants money for other purchases and to set aside for his retirement.

''You have the desire to get the nicest car you can possibly get, and while I'm in a relatively good financial situation and lucky to have a job, I'm looking to take one step down so maybe I'll have a little more disposable income for other stuff,'' said Landy, who bought a town house last year near Dadeland Mall.

Come on, lend a hand -- you don't want this hard-working, capable associate stuck at his desk at lunch, do you?

I tell you, I'm starting to get really ticked off at this whole economy thing.