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.

Bragging on my partner Margot Moss

She has the cover story in NACDL's The Champion this month. It's a primer on restitution, titled "Restitution in Federal White Collar Cases."

This reminded me of Judge Palermo and his pocket Constitution

Rosenbaum/Jill Pryor: we're trying to be nice here but our colleagues are really really wrong

That's the message in this -- yet another Johnson -- concurrence (which Jordan did not join).  From the intro and then the conclusion:

To err is human; to forgive, divine; but to correct? Well ... after In re
Baptiste, No. 16-13959, _ F.3d _, 2016 WL 3752118 (I Ith Cir. July 13, 2016),
that's not something we do in this Circuit, when it comes to wrongly denied
inmates' requests for authorization to file a second or successive habeas petition.
So some inmates with sentences unconstitutionally enhanced under the Armed
Career Criminal Act may sit in prison for years beyond their constitutionally
authorized sentences. Though we deeply respect our colleagues, we think this is
just wrong.
***
Arnold Bennett said that "[a]ll wrong doing is done in the sincere belief that
it is the best thing to do." We do not doubt our colleagues' intentions in issuing
Baptiste. But their good intentions do not make their conclusions in that case, in
our view, any less wrong.

News & Notes

1.  FNU is not the same as FIU.  That was easy.  But it took the 11th Circuit 50 pages.  KMW affirmed.

2.  Bar complaints were filed in the Miccosukee case against Bernardo Roman and Jose "Pepe" Herrera. From the DBR:

The Florida Bar filed formal complaints against two Miami lawyers who represented the Miccosukee tribe, alleging they knowingly made false and frivolous claims against former counsel for the tribe.
The complaints against Bernardo Roman III ( read the Roman complaint here) and Jose "Pepe" Herrera ( read the Herrera complaint here) ask the Florida Supreme Court to consider disciplining the attorneys for pursuing meritless claims, withholding evidence and even making a false 911 call during litigation against Miami lawyers Guy Lewis and Michael Tein and their firm, Lewis Tein.
The Thursday filings are the latest development in a nasty saga that led to the tribe agreeing in May to pay $4 million to cover Lewis and Tein's attorney fees in three racketeering and malpractice lawsuits Roman pursued. The tribe cut ties with Roman last year.
"Each court that has examined this issue has determined that Roman's actions resulted from the bad blood, or personal animosity, held by Roman and the new tribal leadership against the former tribal administration and its associates, including Lewis and Tein," states one of the complaints filed by Florida Bar lawyer Jennifer Falcone in Miami.

3.  Bitcoin is not money.  From the MH:

But Miami-Dade Circuit Judge Teresa Mary Pooler ruled that Bitcoin was not backed by any government or bank, and was not “tangible wealth” and “cannot be hidden under a mattress like cash and gold bars.”
“The court is not an expert in economics; however, it is very clear, even to someone with limited knowledge in the area, the Bitcoin has a long way to go before it the equivalent of money,” Pooler wrote in an eight-page order.
The judge also wrote that Florida law — which says someone can be charged with money laundering if they engage in a financial transaction that will “promote” illegal activity — is way too vague to apply to Bitcoin.
“This court is unwilling to punish a man for selling his property to another, when his actions fall under a statute that is so vaguely written that even legal professionals have difficulty finding a singular meaning,” she wrote.

Read more here: http://www.miamiherald.com/news/local/crime/article91682102.html#storylink=cpy

HRC's VP nominee Tim Kaine clerked on the 11th Circuit

Back in 1983-84, Tim Kaine clerked for Judge Lanier Anderson.  Here's a portion of the wiki entry for now Senior Judge Anderson, who assuredly had an impact on Kaine:

On April 18, 1979, President Jimmy Carter nominated Anderson to a newly created seat on the United States Court of Appeals for the Fifth Circuit. The United States Senate confirmed Anderson on July 12, 1979, and he received his commission on July 13, 1979.^[1]
On October 1, 1981, the federal government created the United States Court of Appeals for the Eleventh Circuit, and Anderson was one of a group of judges reassigned to the new circuit.
In 1986, Anderson became the subject of an impeachment drive after a three-judge panel on which he sat ordered retrials for several convicted murderers because, they ruled, pretrial publicity had unfairly tainted their trials.^[4]
In 1999, Anderson penned a noted ruling in favor of the estate of Martin Luther King, Jr. in a copyright fight with CBS over King's famous "I Have a Dream" speech.^[4]
Anderson became a chief judge of the Eleventh Circuit on May 17, 1999, serving in that capacity until May 31, 2002.^[5][6]
In July 2008, Anderson told President George W. Bush of his intention to take senior status effective January 31, 2009. However, word did not become public of his decision until November 2008.^[4] Anderson told a local newspaper that he still planned to work "almost full-time" but that he hoped to take more vacation time—probably four to six weeks a year—to visit grandchildren in New York and Connecticut. And while Anderson could have taken senior status in November 2001, he chose not to do so, he told the paper, because "I was having so much fun, I didn't want to."^[4]
In 2008, Anderson described himself as a judicial "moderate," and added that he "would like to be thought of as a judge who had no particular agenda and who took each case on the facts and applied the law that the Supreme Court laid down," regardless of his own personal view on it. "And I think that’s what I attempt to do, and I think every judge on our court does."