Dear John Doe: Welcome to Rule 11!

In the anonymous blogger case pending before Judge Cooke, The Kluginator has filed a little document known in legal circles as a "Rule 11 motion."

Here is the blockbuster opening paragraph:

Defendant and his counsel have misapplied existing law in Defendant’s Counter-Complaint. To begin with, Defendant cannot maintain the Counter-Complaint under the fictitious name “John Doe” and be permitted to use his anonymity as both a sword and a shield. Moreover, Defendant and his counsel have asserted duplicative counts for declaratory relief that fail to state a cause of action upon which relief may be granted and are merely denials of the properly dismissed Count III, rendering the Counter-Complaint moot and therefore seeks an improper advisory opinion from this Court. Further, Defendant’s Counter-Complaint is a clear attempt at forum-shopping and judge shopping. Despite having proper notice of the frivolousness of their positions, Defendant and his counsel have refused to withdraw the Defendant’s Counter-Complaint [D.E. 1]. Accordingly, sanctions should be imposed against Defendant and his counsel pursuant to Fed. R. Civ. P. 11.

Ok, I agree none of that sounds too hot, but on the other hand that's pretty much a day in the life at any given moment in state court.

What am I missing here?

(I sure hope they met and conferred on this one!)

Alan Kluger Further Explains the "Meet and Confer" Requirement.

The parties in the anonymous blogging case could have had ten thousand "meet and confers" in the amount of time (not to mention money) they have spent debating the finer points of the Local Rule.

In our latest installment, The Kluginator further elucidates the difference between a "motion" and a "request" for purposes of the governmental mandate to actually communicate with opposing counsel:

Defendant argues that Plaintiffs failed to comply with the local rules regarding pre-filing conferences for not only the Request, but also for their Request for Oral Argument on Defendant’s Motion to Dismiss [D.E. 27] and their Request for Oral Argument on  Plaintiff’s Motion to Remand [D.E. 29] (collectively, the “Requests for Oral Argument”). This is incorrect. Plaintiffs filed the Requests for Oral Argument pursuant to Local Rule 7.1(b)(1), and they are not subject to the provisions of Local Rule 7.1(a)(3). Moreover, the Request is merely a supplement to Plaintiffs’ Motion to Remand. Accordingly, Plaintiffs’ Requests for Oral Arguments and the Request are proper, and this Court should reject Defendant’s argument to the contrary.

Ok, stop:  what exactly is a "supplement" to a motion for remand?

Is that what happens when you forget to ask for fees in the actual remand motion, and then you have to file another document later asking for fees should the remand be granted?

Given the precarious nature of the "supplement" in the first place, how would it have hurt to get an angry polite response (ed. -- new oath and all) email from opposing counsel advising you to go to hail?

Now let's talk "requests" for oral argument.

Again, what if opposing counsel also wanted a hearing?  Wouldn't your request be stronger if the parties were united in their view that Judge Cooke should hold a hearing?

How would it have hurt to conferred?

Alan Kluger Explains Local Rule "Meet and Confer" Requirements.

In the anonymous blogger lawsuit filed by Alan Kluger's developer client, Alan has filed an explanation for why he didn't include a certificate of compliance with the "meet and confer" Local Rule 7.1.

I've said it before, but I see this case having a lot of potential:

Plaintiffs filed their Motion to Remand this case on July 27, 2011. [D.E. 10]. Plaintiffs’ Motion to Remand was essentially a response to Defendant’s Notice of Removal. [D.E. 1]. Defendant’s counsel, Robert Kain (“Mr. Kain”), personally hand-delivered the Notice of Removal to the undersigned, who advised Mr. Kain at that time that Plaintiffs would be seeking remand to state court. Mr. Kain did not agree to the remand, as further evidenced by Defendant’s Opposition to Motion to Remand. [D.E. 13].

Undersigned counsel did not include a certification of good faith compliance with Local Rule 7.1(a)(3) in the Motion to Remand because the motion was in essence a response to the Notice of Removal and because it was obvious that Defendant opposed the remand. Undersigned counsel has since attempted to resolve the issues raised in Plaintiffs’ Motion to Remand with Defendant, and Defendant remains unwilling to agree to the Motion to Remand or Plaintiffs’ Request for Attorneys’ Fees [D.E. 30] that was filed in connection therewith.  Plaintiffs will include certifications of good faith conferences in all forthcoming motions that are subject to such certification if and as this case proceeds in this Court.

Oh boy.

(Get that -- "if and as" this case proceeds before Judge Cooke; if "and as" -- hint hint!)

Ok, so no certificate was included because it was obvious that opposing counsel would not agree to the relief requested, and because Alan's motion was essentially a responsive pleading.

Is that an exception?

Liar Liar Pants on Fire?

It's pretty rare (or should be) to see one lawyer call another lawyer an outright liar.

It's even more rare to see that kind of thing in a federal pleading.

Yet in the case of the local anonymous blogger under fire for his/her posts about R.K. Associates, the "L" word has reared its ugly head:

Defendant's motion for reconsideration and the attached Declaration of Defendant's counsel, Robert C. Kain, Jr., (the "Kain Declaration"), are infested with falsehoods and mischaracterizations of law and facts in an underhanded effort to create an issue...There is no dispute that Defendant chose not to attend the hearing (or retain counsel to do so) in the State Court on the Motion to Quash that Defendant filed and which resulted in the Order (the "Hearing").  There was no court reporter at the Hearing, and Mr. Kain never contacted Plaintiff's counsel to inquire what actually transpired at the Hearing. Incredibly, however, in the Motion for Reconsideration and the Kain Declaration (in which Mr. Kain, as an officer of the Court, swore to the truth of the matters asserted therein), Defendant and Mr. Kain argue due process concerns regarding specific matters they claim occurred or did not occur during the Hearing.  These statements are blatant lies, and were sworn to by Mr. Kain without any basis or investigation (as such would have revealed the fallacy of the statements).

The brief goes on to call the statements "material fabrications" and "willfully false assertions" -- I should add that Todd Levine's declaration is also pretty incendiary.

I have no doubt these allegations will be quickly answered.

Alan Kluger vs. Marc Randazza in Anonymous Blogger Free Speech Fight!

I've not been shy in my admiration for the clever, snarky wit and attendant legal and writing skills of internet warrior/trailblazer Marc Randazza.

(Note to Surfside city attorney Lynn "Rage Against the Bloggers" Dannheiser -- your hilarious funny confusing Marc with the Italian place Randazzo's in the Gables remains a kneeslapper -- keep 'em coming!)

As Popehat documents, it is also a fact that Marc happens to find himself in the middle of lots and lots of interesting cases.

Marc's latest finds him before Judge Cooke in an important battle to preserve the rights of citizen journalists to blog anonymously -- does that sound too high-faluting for the kind of crap that passes for content here on this humble, time waster of a blog?

Yes, it does.

(Tim Elfrink provides all the background here).

But Marc eloquently lays out the larger principles involved in his motion to dismiss:

Plaintiffs, a series of real estate holding and management companies, and their directors,
accuse DOE of publishing defamatory statements concerning their business practices and other dealings through Google's Blogger service. Blogger is a service that allows users to create their own web blogs, or "blogs," on which they can express their opinions on numerous issues. Some blogs are general interest, while others may address specific, local issues, such as problems within a community, political matters, or topics of concern to consumers. Users of Blogger who create content - themselves known as "bloggers" - have the option of publishing their writings anonymously, as DOE has done in this case. Plaintiffs sued DOE for alleged defamatory material in a blog located at www.rkassociatesusa.blogspot.com and for false advertising under the Lanham Act 15 U.S.C. 1125(a).1 Plaintiffs have subpoenaed Google for its records relating to DOE in an
effort to learn his true identity. Plaintiffs' request is improper, and implicates fundamental Constitutional protections.

Free speech is a central Constitutional value, and one of great historical significance. The Federalist Papers, for instance, were all written anonymously while being pointedly critical of the policies and leaders many people championed during America's move toward adopting a written constitution. The United States Supreme Court has further sanctified anonymous speech in an honest and open society through decisions including McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) and Talley v. California, 362 U.S. 60 (1960). See also City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994) (noting that "the identity of the speaker is an important component of many attempts to persuade").

With these principles as a backdrop, courts have grappled with the First Amendment significance of subpoenas used to unmask anonymous speakers who speak via the internet on message boards, review services and other forums. Here, Plaintiffs' Complaint demonstrates no basis upon which a defamation or false advertising action can proceed, and they have not made the required prima facie showings.

Marc's adversary is longtime fave Alan Kluger, ably assisted by Todd Levine, who warned Tim over at New Times to be very very careful -- did I mention careful? about what he writes concerning the case: 

In the meantime, Levine has strong words for anyone who would consider writing about Katz's lawsuit. "I'd ask you not to publish anything about this," he says. "Even pointing people toward that blog could constitute further defamation."

How precisely?

Or will that just lead to another interesting Randazza defense?

Alan's vigorous response to the motion to dismiss is here, in which he describes Marc's argument as "specious" and his client's blog postings as "vile and defamatory per se."

To which I simply say -- carry on gentlemen, the yacht case can't continue forever!

Tell Office Supply to Order More Post-Its -- Mr. Levine Is About To Head Home!

I have long contended that concerns about "texting while driving" are really concerns about "other people texting while driving."

I say this because every morning and evening on my way downtown I see just about everyone texting and checking their emails, deep in phone conversations, looking at websites, watching movies(!) and typing away like maniacs.

I don't personally object to this practice, assuming you are competent at performing more than one task at the same time and know when to focus more on the road at the appropriate moments.

Of course we know many people who fail at this, and who fail at driving even without any distractions whatsoever.

But not Kluger Kaplan partner Todd Levine, who is all about the driving while post-its:

It’s 7 p.m. and Todd Levine saunters out of his office, opens his car door, flips on his Bluetooth, and starts his nightly routine of sticking Post-It notes to his dashboard. As he heads north on the highway, one by one he peels off the Post-Its with phone numbers scribbled on them and makes the return calls.

 “I conduct my business and by the time I hang up, I’m in my driveway,” Levine says.

Levine, a Miami trial lawyer, has a similar routine in the morning. “By the time I get to my office, I have done at least 45 minutes to an hour of work.” 

Question for Cindy -- was Todd really "sauntering" out of his office?

Maybe he just had a lot of post-its on his fingers he needed to put on his dashboard? 

Actually, Todd's driving habits are fairly routine, nonobjectionable even, and we've all seen way way worse.

I'd like to see Todd incorporate his post-it practice into his official firm bio:

Todd uses his analytical skills and creativity to find the winning angle other lawyers might overlook. Sometimes that means honing in on that one key piece of buried evidence that will make or break a case. Other times, that means formulating the one legal argument that will give clarity to an otherwise murky dispute.  Even more other times, it just means picking the right post-it and knowing how to Bluetooth successfully without killing anybody on the way home.  This is not as easy as it sounds.

See, I really should do more law firm marketing.