Legal Standards -- #ThrowbackThursdayEdition

This week, the Eleventh Circuit dusted off some old case law for the legal-standards sections of two published opinions.

In the first, the court, quoting one of its decisions from 2006, set forth the standard for grants of summary judgment:

We review de novo a grant or denial of summary judgment, viewing all facts and reasonable inferences in the light most favorable to the nonmoving party. Bridge Capital Inv’rs, II v. Susquehanna Radio Corp., 458 F.3d 1212, 1215 (11th Cir. 2006). “Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Hallmark Developers, Inc. v. Fulton Cty., Ga., 466 F.3d 1276, 1283 (11th Cir. 2006); see also Fed. R. Civ. P. 56(a).

In 2010 the drafters of the Federal Rules of Civil Procedure replaced the word “issue” with “dispute,” supposedly because it “better reflects the focus of a summary-judgment determination.” But—as seen by this decision—the word “issue” is still quite frequently used.

Regarding motions to dismiss, the Supreme Court of the United States nearly a decade ago famously wrote that that the “no set of facts” standard described in Conley v. Gibson of 1957 “ha[d] earned its retirement.” In an important securities-law decision issued yesterday by the Eleventh Circuit, however, that “no set of facts” standard came back.

Review of a district court’s decision to grant a motion to dismiss is conducted de novo. Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1187 (11th Cir. 2004). In deciding a Rule 12(b)(6) motion to dismiss, the court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff, Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007), but “[l]egal conclusions without adequate factual support are entitled to no assumption of truth,” Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted). The motion is granted only when the movant demonstrates “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46, 78 S. Ct. 99, 102 (1957); see also Flint v. ABB, Inc., 337 F.3d 1326, 1328–29 (11th Cir. 2003).

Caruso and company lead Johnson fight

I missed this DBR article last week, which details the developments with Johnson in the 11th Circuit, including the cert grant in Beckles.  Big ups to Michael Caruso, Janice Bergman, and Brenda Bryn for leading this fight.  Here's the intro:

Next term, the U.S. Supreme Court will hear a case from the Atlanta federal appellate court that could shorten prison terms for thousands of people.
Miami Federal Public Defender Michael Caruso won a coveted slot on the high court's docket for an issue that's roiling the federal circuits. In the U.S. Court of Appeals for the Eleventh Circuit, which stands alone on this matter, one judge went so far as to accuse her court of fomenting injustice through unforced errors.
The question for the U.S. Supreme Court is whether possession of a sawed-off shotgun is a crime of violence under federal sentencing guidelines for career offenders. Significant swings in mandatory sentence zones — from up to 10 years to 15 years to life — turn on the answer.
The court ruled a year ago in Johnson v. United States that a similar provision of the Armed Career Criminal Act is unconstitutionally vague. A "residual clause" in the definition of a violent felony allows enhanced sentences for any crime involving "conduct that presents a serious potential risk of physical injury to another." Prosecutors argued that the definition covered nonviolent crimes like drunken driving and attempted burglary.
In Johnson, Justice Antonin Scalia wrote for an 8-1 majority that the residual clause invites "arbitrary enforcement." The court decided the wording violates due process, being "so vague that it fails to give ordinary people fair notice of the conduct it punishes," in Scalia's words.

Arrest vs. surrender

It's a dirty little (not-so)secret in our system that cooperators are treated very differently than those who decide to fight.  Sometimes those discrepancies are justified, but many times they are not.  For example, if you cooperate and agree to plead guilty before charges are filed, you are allowed to surrender and immediately bond out.  But heaven-forbid that you want to fight the upcoming charges, you almost will certainly be arrested (at 6am in front of your family) and often-times, there will be a fight over bond.  There is simply no reason for this other than to punish people who want to fight. Unless a defendant presents a real danger or risk of flight, he should be permitted to surrender just like the cooperator.

The Opa-Locka case is a good example.  The cooperator was (rightfully) permitted to surrender.  From the Herald:

On Monday, the 51-year-old administrator surrendered in federal court in Miami on a charge of using his office to pocket thousands of dollars in bribes while shaking down local businesses seeking licenses in one of Florida’s poorest cities.
Appearing in handcuffs and leg braces, the once-popular city manager who resigned from his job last week pleaded not guilty, was granted a $50,000 bond and was released in the afternoon.

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/miami-gardens/article94388857.html#storylink=cpy

According to the Miami Herald, a "sweeping" indictment is coming out soon.  Will those defendants be given the same courtesy?  Why shouldn't those individuals also be permitted to surrender and post bond as well?  Is it a good use of resources to send the SWAT team in full riot gear to a white-collar defendant's home at 6am to arrest a defendant in front of his kids?  

RIP Julie Kay.

How sad. She was such a nice woman and a great, crafty reporter. She really loved scooping everyone on law stories. Here's the DBR obit.  Rest in peace Julie.

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Julie Kay

J. Albert Diaz

Daily Business Review reporter Julie Kay so loved her job that when the opportunity arose to join a group of attorneys going to Cuba, she refused to let her battle with cancer get in the way.

Two days after receiving chemotherapy treatment, she boarded a plane with the international law section of the Florida Bar last year. She didn't tell anyone about the treatment because she was afraid she wouldn't be allowed to go. 

Kay, 54, died Sunday in Pompano Beach after a 10-year battle with ovarian cancer that included multiple surgeries, chemotherapy and a four-month clinical trial in Houston.

Kay was ferociously private about her health issues to the end, and friends said she saw it as a victory that so many people didn't know she was so ill. 

"She never complained about her illness and despised pity," said Sallie James, Kay's friend for more than 30 years. "She was a warrior with the kind of courage that is seldom seen anywhere. Julie loved being a reporter more than anything and always focused her energy on her work instead of her health."

For Kay, journalism was a kind of medicine for the soul. She reveled in finding "juicy" story ideas as business of law reporter at the Daily Business Review for more than six years. Her life revolved around reporting, her friends, and her nieces and nephews.

The Missouri Public Defender just appointed the Governor to represent an indigent defendant

The letter is here.

Wow.

H/T A.B.

Procedural Happenings

Last week, both David and South Florida Lawyers discussed the Eleventh Circuit’s trademark-infringement decision FIU v. FNU. The decision ought to be required reading for civil lawyers practicing in the Eleventh Circuit. It highlights an important consideration when filing and presenting cross motions for summary judgment in cases scheduled for a bench trial: How you go about it may affect whether the Eleventh Circuit reviews any appeal of a summary judgment de novo or only for clear error.

After the close of discovery, the parties filed cross motions for summary judgment. At a status conference, the lawyers largely agreed that the record was clear, and one lawyer suggested that the court “would not ‘learn anything new at trial that it had not already seen from both sides.’” Following these suggestions, the court scheduled a follow-up hearing on “cross motions for summary judgment slash bench trial,” where it heard further argument and “said that it understood the parties’ views of the record and did not see any ‘need for live testimony unless either party felt that it would like to add to or continue this proceeding.’” Three months later, the Court granted FNU’s motion for summary judgment and denied FIU’s motion for summary judgment.

In lengthy detail, the Eleventh Circuit analyzed whether it was reviewing “a summary judgment order or a final judgment entered after a bench trial.” The answer is important, because it determines whether review was de novo or for clear error, whereby any factfinding is given great deference, and obtaining reversal is next to impossible. “In the unique circumstances of this case,” the Eleventh Circuit concluded, “we think the district court’s decision is better understood as a judgment entered after a bench trial.” Affirmed.

(Of course, the Eleventh Circuit may have affirmed regardless of the standard of review it used. As summed up by South Florida Lawyers, "Did FIU seriously think there would be confusion?")

***

In other quasi-procedural news, the prior-panel-precedent rule remains as strong as ever.

Yesterday, relying squarely on the holding of one of its decisions from 2004, the Eleventh Circuit affirmed the dismissal of a challenge by an adult bookstore and a woman with multiple sclerosis to the constitutionality of a municipal ordinance prohibiting the sale, rental, or lease of obscene material. Though “sympathetic” to the argument that the ordinance violated appellants’ due-process rights under the Fourteenth Amendment, the panel felt “constrained by [its] prior precedent” and “obligated to follow it even though convinced it is wrong.” In an unusual step, the panel informed the appellants that they “are free to petition the court to reconsider our decision en banc, and we encourage them to do so.”

"DEET should be the new perfume in Wynwood"

Oof, what a disaster. Zika in Wynwood. The Herald has the details:

With a dozen local cases of Zika now confirmed in a single neighborhood, Miami-Dade County officials are ramping up efforts to combat the urban mosquito blamed for spreading the virus.

A team of 12 inspectors will be increased to 32 on Tuesday. They will patrol for breeding hotspots and hit those areas with back-pack foggers or other mosquito-killing treatments. More personnel will be added if needed, said public works and waste management spokeswoman Gayle Love.

Outreach efforts that began in February after Gov. Rick Scott declared a state of emergency are also being increased. Over the weekend, the school district used its robo-call system to warn the families of some 355,000 school children to be on guard. The calls follow increased outreach that began with the start of the mosquito season in June, when the county sent mailers to every county resident about “a drain and cover” program which Love said is considered “the first line of defense” against mosquitoes.

Now where will Miami lawyers go to lunch?

An example why state court is fun, via David Ovalle:

True to the social media age, Genesis Davila only learned she had been stripped of her crown as Miss Florida USA when she saw a Facebook post featuring the runner-up accepting the title.

Now, she’s hoping social media will be her salvation.

The key evidence: an Instagram post cited by pageant management that purportedly showed Davila getting professional hair and makeup help, a supposed no-no under contest rules. But at a press conference Monday, her lawyer held up a blown-up photo of the post, pointing out the pic was dated more than a week before July’s Miss Florida contest.

Pageant boss Grant Gravitt Jr. cropped out the date on the Instagram post to falsely smear Davila, lawyer Richard Wolfe said in announcing a defamation lawsuit seeking $15 million — and a return of her crown.

Shouldn't the government let you move on with your life after an acquittal?

You would think so.

But not so much with Mike Pizzi, who the government tried to set up again (this time it was the State). There won't be an indictment or trial in this case, and Pizzi made it clear on tapes that he was clean. Dave Ovalle from The Herald has the scoop:

The allegations against Pizzi surfaced at an Aug. 6, 2015, meeting when Flores, again secretly recording the exchange, asked if Pinder was still getting a monthly $3,000 kickback from Pizzi for getting him the job. Pinder sounded baffled.

“Mike don’t give me sh-t,” Pinder said angrily.

“He owes you three grand a month. ... He’s f---ing you,” said Flores, who claimed Pizzi was also supposed to give him $1,000 a month.

With Flores at his side, a testy Pinder called Pizzi on speakerphone. “Are you f---ing me, Mike? ” Pinder told him. “He says you’re f---ing me.”

“What are you talking about,” Pizzi replied.

The conversation quickly turned to joking around and plans for dinner. “You saw how he changed the conversation?” Flores said after they hung up, adding: “He’s taking you to the cleaners.”

The three never got together for dinner. But Flores did meet with Pizzi on Oct. 13 at Lakes Seafood. He did not confront Pizzi, according to the secret tapes, asking only that Pinder “thought I was getting money from you.”

Pizzi replied that he paid nobody, then floated a plan to ask Pinder to get the city to hire him for “special litigation” at $150 an hour. “Just to get back in the door,” Pizzi said on the recording. “All he gets is great services at a great cost.”

Pizzi told the Miami Herald that Flores called him later, pressing him to get involved in a corruption scheme in Opa-locka. He said he sent Flores a text that he wasn’t for sale: “Jose. Thanks. my friend. But I’m not interested in Opa Locka. DON’T DO BUSINESS THAT WAY. SEE YOU SOON. THEY CAN FIND ANOTHER LAWYER.”

The two did not speak again until December, when Pizzi said Flores called to meet for a drink at the Havana Group Cigar Club in Miami Lakes. As football blared on the TV in the background, Pizzi urged Flores to stay away from Opa-locka and leave him out of city business.

“Do me a favor, never mention my name,” Pizzi said.