"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:

MARINEMAX’S MOTION TO DISMISS COUNT X
OF PLAINTIFFS SECOND AMENDED COMPLAINT

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.

A Hispanic judge is nominated to the Court...

...but alas not one from Florida. Sonia Sotomayor is the pick.... No real surprise here.

I was rooting for Harvard (Elena Kagan) instead of Yale, but another spot will open up soon.

Sotomayor has more courtroom experience (she was a prosecutor and a district judge) than any of the other justices and many are calling her the liberal Sam Alito (both went to Princeton and Yale, both were prosecutors, both were Circuit judges, and both were appointed by Bush I). Sotomayor would be the only Justice who was a district judge. Still no former criminal defense lawyers on the Court...

The blogosphere is unbelievable when you want instant information, especially about legal news. Tom Goldstein at ScotusBlog has a ton of stuff, including this interesting post. Jan Crawford Greenberg has this scoop about the interview process and the 4 finalists. The right already is gearing up to fight her (using videos like this) but as Goldstein explains, she easily will be confirmed. Volokh has a bunch of posts about the nomination and How Appealing has every article written about Sotomayor. And if you are a baseball fan, Judge Sotomayor is your pick.

It's amazing to me that the interest groups are claiming that she isn't smart enough to be on the Court. What else can she do to prove herself -- she finished first in her high school class, second in her college class and was the editor of the Yale Law Journal.

Even though she is being compared to Alito, I sure hope she is more intellectually honest than he is. Today, the Supreme Court, 5-4, overruled Michigan v. Jackson -- a case on the books for 23 years. Justice Scalia wrote the opinion and Justice Alito concurred. His concurrence was remarkable because just a couple of weeks ago, he dissented in Arizona v. Gant. There, Justice Scalia again wrote the majority opinion, receding from the holding in New York v. Belton. Belton had been on the books for 28 years, and Alito's dissent focused on stare decisis. So this time around, he would dissent againt, right? And find that stare decisis required a finding that Jackson was still good law, right? Forget it -- Alito joined Justice Scalia in overturning a long-standing precedent. Why? Because this time he was ruling against the criminal defendant. Unlike Scalia who often rules for criminal defendants (and is still in my view the most pro-defendant Justice -- although that theory took a hit today), Alito has never once ruled in favor of a criminal defendant. Not once! When stare decisis helps the government, he invokes it. When it's bad for the government, what's stare decisis. Bizarro world!

Anyway, back to Sotomayor -- from what I've read about her, she seems like a solid (and safe) pick. She's obviously qualified and she will get confirmed. I think at the end of the day, she'll end up very similar to Souter, so the Court won't change that much.

Unbelievable

So dear readers, now that Helio Castroneves has won the Indy 500, Dancing with the Stars, and his federal criminal case, I have this question for you:

What was more difficult to win?
	The Indy 500
	Dancing with the Stars
	Federal Criminal Case
pollcode.com free polls

``The jury finds him not guilty, then he wins the pole position at Indy, and now the government drops the case completely..."

"...All he has to do now is win the race and climb the fence.''

That's Roy Black's reaction after the government announced today that it would drop the final charge pending against Helio Castroneves. Jay Weaver has the details here.

The government did the right thing, as I explained before:

I would be really surprised if the feds chose to retry this one count. The sense is that Helio won the trial and was vindicated, so a retrial would look petty and vindictive. Plus, there's no reason to believe that the next jury would have any more reason to find Helio guilty after the first jury rejected almost the entire case.

Plus, now I get to post another Helio/Julianne picture.

BTW, Rumpole, where is my Benjamin?

It's Friday!

Long weekend ahead! Woohoooo! But the weather......

Looks like downtown is abandoned today, doesn't it?

Just be careful driving this weekend, especially because Florida drivers rank 43rd out of the 50 states on driving knowledge. (New York is the worst.) I may be checking out early today, so go check out SFL pacer surfing or Rumpole bashing the PD's office.

Bonanno crew busted

Curt Anderson covers the infiltration of the South Florida crew here. The intro:

An FBI agent posing as a crooked businessman with ties to shady bankers was key to the indictment announced Thursday of 11 people on charges they ran a South Florida racket for New York's Bonanno organized crime family.
The unidentified agent was able to gain the trust of the crew and its leader, Thomas Fiore, by seeming to provide them with access to foreign bank accounts to launder criminal cash as well as help with drug trafficking and sale of stolen goods, according to the indictment.
All the while, the undercover agent wore a hidden recording device that captured their conversations. The FBI also recorded numerous telephone conversations between Fiore, other members of the crew and senior Bonanno bosses.

"I've sentenced boys younger than you to the gas chamber. Didn't want to do it. I felt I owed it to them."

I don't know who Magistrate Wallace Dixon is (apparently he's from the Middle District of North Carolina) but I he's jumped up my favorite judge list. Apparently Rudy Giuiani's son, Andrew Giuliana, got kicked off the Duke golf team and sued in federal court for breach of contract. The team countered that he got dropped because he assaulted a teammate, defied coaches, and violated "both the rules and the spirit of the game of golf." He lost, of course, but Judge Dixon had a lot of fun writing the R&R -- even citing Caddyshack*:

Plaintiff's promissory estoppel claim... brings to mind Carl Spackler's analysis from the movie Caddyshack (Orion Pictures 1980): "He's on his final hole. He's about 455 yards away, he's gonna hit about a 2 iron, I think."

*And for those non-Caddyshack people out there, the title is another great line from the movie.

The Sun-Sentinel *sucks*

I had a lot to post about tonight -- from Paris to dumb associates to heavy Cuban accents -- but instead I'm going to tell you how stupid the Sun-Sentinel is. That paper, which has always given the Herald a run for its money, had one of the young star reporters in South Florida: Vanessa Blum. And it fired her today.

Why?

Well, the Sun-Sentinel let Vanessa go today because it has partnered up with the Herald and decided that it could simply buy the Herald federal court coverage for its paper. The Herald will use some Sun-Sentinel coverage of local school board stuff for its paper. And on and on. Rumpole made the point about the dying newspaper business here when he was covering the Herald's firing of Susannah Nesmith:

Here's the point with the BBC stuff- if these trends keep up, local news will soon be gone. No one to report on County Commissioners doubling dipping into their expense accounts; no one to wander the hallways of the courthouse at 2PM and write about all the Judges missing; no one to write about the cops accused of misconduct and no one to write about the injustice of trying defendants over and over until the government gets a conviction.

We can function without Susannah Nesmith. We cannot function without the Susannah Nesmith's of the world. It's a scary thought that the free press is fading away not with an assault against the first amendment, but because the morons who made the business decisions for newspapers didn't see five years ago Craigslist was about to cripple their classified ad income.

President Obama recently referred to a quote from the nation's third president, Thomas Jefferson: "If he had the choice between government with newspapers or newspapers without government, he'd choose the latter." (Rumpole, I just cited to you, Obama, and Jefferson to make a point. What's wrong with that picture?)

Now, this is no knock on Jay Weaver and Curt Anderson, who are also friends of the blog, but they can't cover the entire District by themselves. And of course we have the DBR, which is committed to covering the federal courts. But while they are covering a big case in Miami, who will be tending the store in Lauderdale? What about Palm Beach and Ft. Pierce? And Vanessa broke her share of Miami stories as well -- the latest being the sealing issues in the Mutual Benefits case, which everyone is now looking in to.

I understand budgets and the crisis facing the newspaper industry. But what's the point of having a paper if you are giving up your local coverage? The whole reason people buy the Sun-Sentinel is because of reporters like Vanessa. Without that local coverage, why do we need a Ft. Lauderdale paper?

Vanessa will land on her feet -- she's smart, personable and a great reporter. I wonder where the Sun-Sentinel will land if it keeps this up.

UPDATE -- Bob Norman has a list of the others who have been laid off.