For Cheapskates Only

Chile Motion

I have been asked by several readers to "liberate" from PACER the bank's motion to dismiss in the Chile/Pinochet money-laundering case I wrote about below.

So, for those of you too cheap to have your firm or the taxpayers of this great nation swallow the 35 cents necessary to see superior writing and research -- it's called professional development, people -- here you go.

Also, for those of you into embedded graphics and jpegs in pleadings, there's a nice one on page 23 of the brief.

When's The Right Time To Raise Rule 11 in A Pleading?

Chile Response

Anyone remember the RICO suits brought by the Republic of Chile against several banks over Pinochet and alleged money-laundering?

This is the one where Pedro Martinez-Fraga got conflicted out and had to hand it over to Bilzin's William Hill.

Well in a recent response to a motion to dismiss filed by one of the banks, there appears this curious paragraph:

We are dismayed that counsel for PNC would raise the earlier sending of a Rule 11 letter to predecessor counsel. That letter was directed at the initial complaint, a pleading that has long since been withdrawn (although it was withdrawn for reasons wholly unrelated to anything in the letter). No subsequent letters have been received and we would not expect to receive one, given the overwhelming evidence of wrongdoing by the bank. We understand that Rule 11 letters are confidential among counsel, and object to counsel raising it to try to gain some sort of litigation advantage here. Further, despite PNC's aggressive rhetoric, one similarly situated bank involved in the Pinochet enterprise has already settled with the Republic of Chile.1 Moreover, one other bank facing similar claims by the Republic of Chile likewise took an aggressive approach and filed a Rule 11 motion. That motion was filed at 5:30 p.m. on September 3, 2009 and denied by the court 20 minutes later, without the need for a response from the Republic of Chile. We expect that, because counsel for these banks are in close communication, the court's off-hand denial of the Rule 11 motion in the other case has counseled Riggs' counsel from making a similar motion. Nonetheless, we categorically deny making any litigation decisions in this case based on the Rule 11 letter, and ask that the Court disregard the reference in this motion.

Hmm, let's see the reference to the Rule 11 letter in the motion to dismiss:

After receiving our motion to dismiss and our strong Rule 11 letter, CDE dismissed everything except its Florida RICO counts and filed a second amended complaint. Unfortunately for CDE, even this latest amendment still cannot save this case from dismissal.

There's also this:

Despite the Local Rule’s clear command, a motion to dismiss [DE 23] and a Rule 11 letter, all squarely notifying CDE that they would be well-advised to specify some act post-March 11, 2004 -- after three long complaints and a 39-page Civil RICO Case Statement, they still have not specified one. As a result, they are time-barred.

The underlying legal issue is whether or not the injury discovery rule -- long applicable to federal RICO claims -- applies to Florida RICO claims as well.

The bank's reply is due January 4.

"If He Dies, He Dies."

Hi folks. Let's talk some South Florida wins and losses this Tuesday.

First, Bilzen gladiator William K. Hill scored an impressive victory the other day, obtaining an order of dismissal in a case over the recalled Graco "Simplicity" cribs. I can't for the life of me follow the reasoning of the district judge but hey, maybe he was channeling my man, Death from Above, The Siberian Bull.

Second, one of our favorite local lawyers, former Miami City Attorney Jorge L. Fernandez, loses another one, this time involving the controversial Coconut Grove 300 Grove Bay Residences project:

The city's April 2007 approval ran afoul of state zoning laws on several fronts, the judges ruled in a 10-page opinion that was filed May 7 and began circulating Monday.

Mayor Manny Diaz had improper discussions with the developer ''away from the public earshot,'' and the project would be wildly out of character for the neighborhood, the judges found. The towers would be built on bayside property adjacent to Mercy Hospital.

The plaintiffs who filed suit to overturn the condo project included backers of Vizcaya Museum and Gardens. They argued that the condos -- slated to reach as high as 308 feet -- would spoil the museum's picturesque views.

''The court got it right,'' said Stephen Darmody, an attorney representing museum supporters. ``The city here simply did not pay adequate attention to the requirements of the law.''

The decision was a jarring setback for Related, which has emerged as one of the state's most prominent builders.

Related Group attorney Elliot Scherker said it was too soon to comment on whether the company would appeal.

''We believe that this project was properly approved,'' Scherker said. ``We respect the court's opinion, and we're considering our options at this point.''

You can read the opinion here.

Congrats to Steve and the legal team over at SHB that pulled off this win-win, one that is actually good for our community and for those who live and practice here.