3d DCA Watch -- Summer Bunker Time (and the Living Is Easy).

You can tell it's August in the bunker, as the PCAs pile up and nobody even bothers with appearances anymore.

Today we have exactly one opinion, with a Judge Shepherd dissent, involving a class action by some condo owners against Citizens Property Insurance.

I'd keep going but based even on the limited description above -- can you guess what happened?

The standard of review discrepancy is interesting -- either it's trial court abuse of discretion (majority) or full-on de novo review (dissent).

Congrats btw to Judge de la O for the win on appeal (back when he was litigating for a living).

Oh shoot -- it's almost 2:30 and I'm late for the afternoon bunker yoga class.

Gotta love this time of the year!

3d DCA Watch -- Court Holds Nose, Reverses SJ.

".....we are constrained...."

Anytime you see that in a opinion, you know the judge is just seething at having to do something she really doesn't want to do and thinks is probably wrong.

So let's see whose nose is pinched in an uncomfortable manner this week in our world-famous, completely affectionate and surprisingly snark-free 3d DCA Watch:

Bradley v. Cooper:

The hardest working future judge I know, the Big Man himself, Miguel de la O, scores an impressive SJ reversal using that pesky thing known as the "laughably loosey-gooesy state court summary judgment standard":

On this state of the record, the trial court granted Defendants’ Motion to Prohibit Phillips’ Testimony, describing it as “a matter of bold face, on the record, lies.” We are hard-pressed to disagree with the trial court’s assessment of Phillips’ testimony. However, unaided as we are by the laudably less exacting federal summary judgment standard to which we might like to have access in this case, see e.g., Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-1480 (6th Cir. 1989) (discussing the “new era” in federal summary judgment jurisprudence where a trial court may summarily dispose of an action “[w]here the record taken as a whole could not lead a rational trier of fact to find” for the respondent) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)), we are constrained2 to reverse and remand this case for further proceedings.

I also like footnote two, which basically warns plaintiff's counsel on remand not to suborn perjury.

Special appellate advocacy award to whomever can correctly guess the author of this one.

Miguel Does The Right Thing.

I've always said he's a mensch, but Miguel de la O (pictured above) did the right thing last night in a note about suspending his campaign:

Dear friends and supporters:

I am disappointed to inform you that I am suspending my campaign for Circuit Court Judge in Group 21. As many of you already know, the replacement judge for Group 21 will no longer be selected by election, but rather by gubernatorial appointment. The explanation for this change is both simple and complicated. If you are interested in the intricate details, I set them out below. The simple explanation is that the incumbent judge in Group 21, who was scheduled to retire in January 2011, unexpectedly resigned last week.

I am grateful for the wise counsel many of you have provided me during the last five days. Based on that counsel, and my own thoughts and principles, I have made several decisions. First, all campaign contributions will be returned in full. I am going to personally absorb all campaign expenses that I have incurred.

Second, I will not run for election in any of the existing races for open seats to the Circuit Court. Those races already have qualified attorneys who have been actively campaigning (in some cases, for even longer than I have).

Third, I will not challenge any incumbent judges who are up for re-election. Although I have been encouraged to run against various incumbents, I believe lawyers should have good reasons to run against an incumbent. The mere fact I might win is not a good enough reason. Good incumbent judges deserve our support. I would be betraying my principles to challenge a sitting judge simply because of the likelihood of success on election night.

Fourth, I intend to apply to the Judicial Nominating Commission for appointment to the seat for which I was running, and hope my qualifications and proven commitment will weigh favorably in the minds of the JNC and – if nominated – the Governor.

I have been campaigning for over 14 months. During that time, I have benefited immensely from the opportunity to learn what members of our community, lawyers and non-lawyers, expect from judges who daily have the privilege and burden to make decisions that affect the lives of many, many people. Although disappointed that I will not stand for election this year, the support I have received over the past year has been humbling and energizing. I am as committed as ever to serving my community. I am also deeply grateful for all of the support you have shown me. I hope I continue to earn it, and that despite my decision not to run this election, I can count on you when I decide to run again.

I am especially grateful for the support of my family and my firm. Rosa and our children have borne the burden of my absence due to endless campaign events – as has the firm of de la O, Marko, Magolnick & Leyton. These contributions cannot be returned in full, I can only repay their support with love and appreciation.

Miguel

Rump's coverage of this year's judicial election mess is here.

PACER Surfing With SFL!

You guys ever PACER surf?

You know, go onto PACER and plug in some attorney's name or law firm or some defendant to see what they're up to here in the Southern District?

No, me neither.

But just for kicks I plugged in two of my favorite South Florida attorneys, Chris Carver and Hilarie Bass.

Chris is involved in a mess of a maritime case before Judge Moreno and the fastest Mag in the West, Judge Torres, In Re: MS "Madeleine" Schiffahrtsgesellschaft mbH & Co. KG, Reederei Alnwick Harmstorf & Co. GmbH & Co. KG and Bangor Castle Shipping Company Limited.

It's pretty exciting stuff, with Fowler White, Shutts & Bowen, and a bunch of local maritime lawyer-types involved.

I would summarize the litigation, but the last few times I tried I fell asleep at the keyboard and had to be revived by a double-cafecito and repeat viewings of "10."

You guys are on your own on that one.

Hilarie has an interesting piece of litigation involving the owner of Mykonos Restaurant who is suing the Baltimore City Paper for defamation. My friend Miguel de la O's partner Joel Magolnick is representing the plaintiff.

Ok Joel, you're my friend too.

Reading the complaint and also the pending motion to dismiss for lack of venue that Hilarie filed, it seems that the paper allegedly got the owner of the restaurant confused with a Baltimore federal fugitive that also happens to have the same name as Joel's client. After getting a letter, the City Paper allegedly ran an apology and retraction:

On September 24, 2008, City Paper posted an online retraction, stating that it “regrets the confusion and apologizes to [Plaintiff] for any troubles they've had as a result of the stories.” (Compl., Exh. C.) On October 8, 2008, City Paper re-ran the August 27, 2008 article, prominently prefaced with a “Correction,” clarifying that there is no connection between Plaintiff and “Crazy John” Kafouros.

Joel's complaint, of course, lists a number of other problems and alleged errors with the story.

Plaintiff filed in state court, defendants removed, and they are moving to dismiss or transfer based on improper venue.

The interesting issue is whether online dissemination of a story can subject you to long-arm jurisdiction somewhere else where the article is read. Hilarie's analysis focuses on Young v. New Haven Advocate, 315 F. 3d 256 (4th Cir. 2002), where the court established an "effects" test to determine where the "primary effects of the defamatory statements" were felt.

It looks like GT associate D. Porpoise Evans wrote the brief and did a fine job.

Joel just got an enlargement from Judge Gold so his response brief has not yet been filed.

Meanwhile, all I can say is the plaintiff runs a great restaurant and I hope there is some in-kind edible payment involved for Joel's legal efforts.