Wednesday, May 27, 2009

"Alas, once a sea cow, always a sea cow."

Check out this motion to dismiss filed by John Kallen of Badiak, Will & Kallen, counsel for MarineMax in CLEAR MARINE VENTURES, LTD., v. BRUNSWICK CORP. The case is assigned to Judge Moreno... My bet is that the Chief isn't going to find this too funny. Here's the first section of the motion:


Defendant MarineMax moves to dismiss Count X of plaintiff’s second amended complaint pursuant to Rule 12 (b)(6), Fed.R.Civ.P.

I. Nature of the Action

He first saw the model on line and in a promotional brochure (para. 13-15). [Footnote 1: The following is not intended or meant to titillate, but illuminate the unique relationship that an individual has with a vessel and the special, discriminating and demanding wants and needs of a wealthy individual, who was disappointed and dismayed with his purchase; who, in the eyes of the law. stands in the same crocs as the common consumer who was disappointed that the new Kenmore front-loader washer didn’t eliminate the grass stains on the kids’ shorts as was promised and warranted.] Her glossy exterior, sculpted body, sophistication, bloodlines, not to mention the accolades of how she could perform, intrigued him, piqued his curiosity (para. 13-15; Exs A. and B. to second amended complaint). Needless to say, he needed to know more, meet her, ride her. He was excited (para. 22).

Suitable arrangements were made. Not wanting to push her too fast, he rode her easy (para. 36, 37). With her prominent front pushed up, her rear somewhat down, her performance was somewhat hesitant and resistant. But he was told she was a maiden, that he’d be her first owner (para. 40, 47).

He knew that with the right master, the right equipment, and with promises of better things to come, her performance could only get better, would be as promised (para. 45). Michael Krieger was hooked (para. 43).

However, as others before him had learned in dealing with her identical sisters, (para. 60), he would soon come to the realization that in her family, beauty’s only skin deep. She had been born with a fatal defect (para.26).

When he realized that despite the glamourous exterior, her performance was as fleet and nimble as a manatee, his interest in her waned. Discontented and having spent a significant amount of money to buy, outfit, maintain and service her (para. 46, 113), he complained. Krieger was instructed to take her in for extensive surgery to correct her imperfections -- not once or twice, but three times (para. 53, 61, 67).

Unfortunately, these procedures, which were designed to decrease her weight and trim, and thereby enhance her performance, failed miserably. She got hot and wet, but too wet. (para. 97, 110, Ex. D to second amended complaint). Just as disturbing, what had at one time been a pleasing, cosmetically acceptable body, had now been transformed into a ghastly and unpleasing specimen.

Alas, once a sea cow, always a sea cow.

Disappointed, dismayed and downhearted (para. 112), Michael Krieger sued to get back the investment he had made in a dream that turned into a nightmare.

So dear readers, is this effective lawyering? Talk to me.

UPDATE -- AbovetheLaw has picked up on our post and has interviewed the author.


Anonymous said...

All a lawyer really has is his or her judgment. There is none on display in that pleading.

swlip said...

I'm speechless.

Anonymous said...

Judge Moreno must be on "Candid Camera" or "Punk'd" or something like that. I can't believe this is a real pleading. That is, unless Jack Thompson filed it.

South Florida Lawyers said...

All I know is that's the first time I had to put on Bolero before reading a motion to dismiss.

Anonymous said...

I LIKE IT! It reminds me of a ship I once rode....a little rolling and rocking never hurt anybody.

Anonymous said...

I echo 3:58. I like a clever line here and there, but this is just too much. Moreno, I suspect, is probably laughing behind the scenes but not for the reasons that counsel intended . . . I feel VERY SORRY for this lawyer when he appears before Moreno on this Motion. Any predictions on whether Moreno will issue an order to show cause?

Anonymous said...

The CJ will probably be more pissed about this line:

"Frankly, it is unknown how plaintiff can or will be able to reasonably allege that Vitale’s
“deceit” resulted in a “difference in market value of the [vessel] in the condition in which it was"

Frankly!!!! MEESTER ___, am I to Preesooome that you are being deeshonest with thee kourt if you dooo nooot say Frankly?

Anonymous said...

While needlessly lurid it is an attention getter. That said, Judge Moreno certainly has a sense of humor and while it wouldn't surprise me if he commented on it disapprovingly I would be surprised if he did much more. So much for reading tea leaves though. The bigger problem for the lawyer is that it shows a lack of judgment that will follow him throughout the case. He should be more worried about that.

Ron Miller said...

My vote: over the top silly with no real witty upside. Sounds like he wanted to make the joke but it really didn't fit the circumstances.

Bob Becerra said...

I found it in bad taste. I bet his client does not find it so amusing,given how much in fees were paid for the motion, nor will the Court. Given that the movant wants the Court to grant the motion, I think the way it was drafted does not inure to the client's benefit.

doesn't matter what I think said...

If I were the judge i would:

If denying the motion, play along with the joke and write the order in a similar style.

If granting the motion, ram the lawyer a new a$$hole in the opinion.

Anonymous said...

to all you anon. naysayers, loosen your bowties and stop being so full of yourselves.