Better Watch Those Dismissals Without Prejudice!

This is a fascinating opinion from Judge Cooke and a cautionary tale regarding what can happen when a client decides to no longer pursue a case after a dismissal without prejudice.

First American may be entitled to attorneys’ fees and costs only if it is recognized as the prevailing party. In Florida, a party is the “prevailing party” where it has been awarded relief on the merits of the claims at issue or where there is a judicial imprimatur on the change in the legal relationship between the parties. Smalbein v. City of Daytona Beach, 353 F.3d 901, 905 (11th Cir. 2003). Simply stated, there must be an adjudication on the merits. Pursuant to Federal Rule of Civil Procedure 41(b), an involuntary dismissal “operates as an adjudication on the merits" unless a dismissal order states otherwise. Fed. R. Civ. P. 41(b). In this case, both the Omnibus Order Granting Defendants’ Motions to Dismiss and the Final Order of Dismissal “state otherwise” in that they expressly state that the claims against First American are dismissed without prejudice. The Eleventh Circuit has recognized, however, that a dismissal without prejudice will “become a dismissal with prejudice when no timely amendment [is] filed and no request for an extension [is] submitted.” Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126, 1128 n. 3 (11th Cir. 1994). Dependable Component failed to file a timely amendment and made not request for an extension of time to do so. Consistent with the Federal Rules of Civil Procedure and the law in this Circuit, and to clarify any confusion from prior orders, the Final Order of Dismissal is a dismissal with prejudice as to Dependable Component’s claims for wrongful dishonor of letter of credit, fraud and goods sold, and is indeed an adjudication on the merits.

And, because there was a UCC claim, the defendants filed a motion for attorney fees seeking over $200,000!

Judge Cooke, however, discounted the hourly rate and fee request by 65%; here is what she said about that (disagreeing with defendants' fee expert and my pal Big Ed Moss):

However, despite the fact that the parties did not engage in discovery and First American did not take a single deposition, First American’s lawyers billed at total of 570.85 hours. Assuming First American has provided an accurate total, and assuming each lawyer billed an average of eight hours per day, the billed total accounts for 71.35 days of work. That, in turn, means that it took seven lawyers approximately 1.6 days to review documents and research case law for each page submitted to the Court in a run-of-the-mill wrongful dishonor of letter of credit action that requires no specialized knowledge or training. After a review of the submitted time sheets, I find the requested billable hours excessive.

In other words, a typical billing day at BigLaw!

Yes, Virginia, Parties Can Plead in the Alternative.

You would think after forty-seven thousand gazillion years of jurisprudence, litigators would be savvy enough to not argue the same redundant or pointless things over and over again.

Yet, like the sunshine of a new day, they come back again bright and fresh in a spankin' new motion, as if there's no context, or history, or....caselaw....

Case in point:  pleading in the alternative.

Here's Judge Altonaga having to -- once again -- explain how this whole pleading thing works:

Under the Federal Rules of Civil Procedure, a Plaintiff may plead claims in the alternative. See FED. R. CIV. P. 8(d);3 United Techs. Corp. v. Mazer, 556 F.3d 1260, 1273 (11th Cir. 2009) (“Rule 8(d) of the Federal Rules of Civil Procedure expressly permits the pleading of both alternative and inconsistent claims.”). A party need not use any special words to properly plead in the alternative; it only must be “‘reasonably inferred that this is what [it was] doing.’” G-I Holdings, Inc. v. Baron & Budd, 238 F. Supp. 2d 521, 536 (S.D.N.Y. 2002) (alteration in original) (quoting Holman v. Indiana, 211 F.3d 399, 407 (7th Cir. 2000)). Breach-of-contract and declaratory-relief claims may be pleaded alternatively. See Great Am. Ins. Co. v. Sch. Bd. of Broward Cnty., Fla., No. 09-61636-CIV, 2010 WL 4366865, at *24 (S.D. Fla. July 30, 2010); In re Andrew Velez Const., Inc., 373 B.R. 262, 275 (Bankr. S.D.N.Y. 2007). If any inconsistencies exist, they can be dealt with at summary judgment or through jury instructions. See Formula LLC v. RSUI Indem. Co., No. 09-60592-CIV, 2009 WL 2342455, at *3 (S.D. Fla. July 28, 2009).

 Seriously?  

Somebody made her write this one more time?

Like Droz says to Gutter in PCU, "don't be that guy."

Don't be that guy.

Should You Include Reasons in Your Motion to Dismiss?

Judge Altonaga tackles a hot-button issue that is all the rage among us civil litigators -- when you prepare a motion to dismiss, should you include reasons why the action should be dismissed as to your client?

My own feeling is as follows:

I'm an artist.  You wouldn't ask John Coltrane to explain one of his mind-blowing sax solos, nor would you ask Chagall to explain one of his paintings or James Joyce to explain Finnegans Wake.

Likewise, my 12(b)(6) motion stands on its own, inviting -- nay, challenging -- the reader to find his or her own meaning in my random collection of important-sounding legal words, and arrive at the correct conclusion in spite of (and most definitely not because of) my brillant if maddeningly obscure wordcraft.

Isn't that the very definition of transcendent art?

Alas, Judge A has a different view:

As a general observation, the Court notes that, in their Individual Motion, Barillas and Chaveco address the 12 counts of the Complaint in a cursory fashion. They argue, without citation to any authority or analysis, that the Complaint fails to allege with specificity what it is they did to be liable in all 12 counts. In their Reply [ECF No. 36], Defendants attempt to make concrete arguments relating to some of the counts, for instance by pointing out that the Complaint does not allege what actions they took to make them personally liable under the FDUTPA or for unfair competition. Nonetheless, they cite to no law and do not provide any legal argument addressing the sufficiency of the non-Lanham Act claims. As the court noted in Rux v. Republic of Sudan, “a moving paper makes a specific request for relief of some sort . . . [a] memorandum of law in support, on the other hand, supplies the reasons why the moving party is entitled to that relief.” No. Civ.A. 2:04CV428, 2005 WL 2086202, at * 14 (E.D. Va. Aug. 26, 2005) (emphasis in original). In the absence of any meaningful legal analysis regarding the sufficiency of the remaining claims stated against these Defendants, the Individual Motion fails to persuade.

 Ok, perhaps she has a point, but how bourgeois is that?