Judge Carnes, Karaoke Singer?

It must get frustrating up at the 11th, constantly ruling on sentencing appeals, habeas petitions, and other important matters I instantly forgot about after booking crim pro.

That's why I totally understand Judge Carnes' saying "screw it" and just moving on to some cool old-school karaoke:

It may be true, as the song lyrics say, that “When the moon is in the Seventh House / And Jupiter aligns with Mars / Then peace will guide the planets / And love will steer the stars,” but there was no peace and love between these parties after their contractual dispute arose.

 Oh man, that's a mighty long reach-around.

But I respect the effort.

Hold on -- Karaoke Carnes is not done:

Nothing plus nothing is nothing, just as “nothing from nothing leaves nothing.”

 Billy Preston?

The Fifth Beatle??

The 14th Rolling Stone???

Ok, I gotta give him that one -- well done, Your Honor!

Your Daily Appellate Court HCR Ruling!

Gather round kids, the 11th Circuit has issued a ruling on HCR.

Let's see who wrote it -- hey, it's a joint opinion by Dubina and Hull!

How special!

And they drop a footnote to explain that this has happened at least twice before in 11th Circuit history, so don't go around thinking there's anything special about it, no siree.

And look at that -- the odd man out, the rugged individualist, Judge Marcus -- he wrote his own dissent!

So now everyone got to write everything they wanted on a matter that will be decided by the Supremes anyway.

And boy did they -- the majority duo wrote a crisp and tight 207(!) page opinion, and Judge Marcus decided to cut his dissent short at the otherwise pithy page 84.

Is everyone happy now?

For those who care about the substance, the Court found the mandate unconstitutional but upheld everything else.

On the mandate's constitutionality, the 11th is now squarely at odds with the always-liberal 6th Circuit, which earlier this summer found the whole enchilada to "hold water," as Vinny Gambino would say.

Someone remind me, what happens again when Circuit Courts split on important Constitutional issues?

FLSA RIP?

I don't do employment cases, but if I did I would be mystified at this 11th Circuit opinion constructing the statute dealing with fees to basically eliminate the role of the attorney in obtaining full relief for her client.

In a nutshell, the plaintiff -- through counsel -- filed an FLSA complaint for unpaid overtime wages.

The defendant ultimately did a full tender of the amount sought (excluding fees and costs) and then moved to dismiss on mootness grounds.

Plaintiff acknowledged the tender was correct as to the amount of overtime owed, but asked the court to retain jurisdiction to consider fees and costs.  The court did as requested but otherwise dismissed the case.

Regarding fees and costs, however, the district court held that plaintiff's counsel was not entitled to fees as a "prevailing party" because there was no "judgment" awarded to plaintiff as required by the statute.

On appeal, the 11th affirmed:

Dionne has failed to cite to any case that supports his contention that the entry of a defendant’s motion to dismiss a plaintiff’s claims as moot because the trial court no longer has subject matter jurisdiction constituted a judgment in favor of the plaintiff.

The 11th also rejected the notion that plaintiff's counsel -- through preparing the complaint and paying the filing fee and serving the defendant -- was the "catalyst" in plaintiff's recovery:

In the present case, the District Court did not approve any agreement or retain jurisdiction to enforce any settlement or order; the parties did not even reach a formal settlement agreement to present to the court.

Does this make sense?

The 11th's reasoning is contrary to my understanding of Florida's interpretation of similar statutes, and also runs counter to the public policy expressed in FLSA.

So now the defendant can bitterly contest the case for years and, on the eve of trial, tender the amount of overtime sought and walk away?

Plaintiff's counsel doesn't even get its filing fee under this logic.

What lawyer would bring such a case when the rug can be pulled out at the last minute?

Judge Huck Reversed Over "Love Boat" Jurisdictional Ruling!

Did you know Judge Huck is presiding over a case involving the "Love Boat" of 70s TV fame?

Not only that, like most relics of the 70s including possibly Lauren Tewes and Ted McGinley (the ship's photographer!), it is in "deteriorating and defective condition."

Ouch.

Thanks for spoiling another treasured childhood memory.

BREAKING -- Florida's Offer of Judgment Law Still Messed Up!

Careful readers of this blog know my feelings on Florida's offer of judgment jurisprudence -- it's hopelessly screwed up, to the point where practitioners, litigants and certainly judges can't figure it out and actually make things worse even as they try to clarify or apply or argue about what should be a fairly straightforward legal doctrine.

In walks the 11th Circuit, as bewildered by the miasma surrounding the doctrine as the rest of us, but they have the ability to ask the Florida Supreme Court to "clarify" (yet again) how the hail you apply the stupid thing.

And the good news is they only have four questions(!) about the statute:

First, we ask whether an offer of judgment may be viable when it purports to settle “all claims,” even though it does not explicitly “state whether the proposal includes attorneys’ fees and whether attorneys’ fees are part of the legal claim” as required by Rule 1.442(c)(2)(F). Second, we ask whether the offer of judgment statute, which applies in “any civil action for damages” but generally does not apply to a case seeking both damages and non-monetary relief, applies to a lawsuit seeking damages or, in the alternative, specific performance. Third, we ask whether the FDUTPA’s fee-shifting provision applies to an action with the following procedural history: the plaintiff filed an action alleging a FDUTPA claim and prosecuted that claim for seven months; the district court ruled at summary judgment that he could not pursue the FDUTPA claim because Florida law did not apply, but allowed him to prosecute the action under Arizona’s unfair trade practices law instead; then he lost on the Arizona unfair trade practices claim at trial. Finally, if the FDUTPA’s fee-shifting provision does apply, we ask whether it applies only to fees incurred during the seven months before the plaintiff’s FDUTPA claim was defeated at summary judgment, or also to fees incurred during the subsequent litigation.

Thank goodness the law in this area is otherwise crystal clear!

11th Circuit Rules Against Terry Jacks!

Poor Terry Jacks, the dude always seems so unhappy, whining like a navel-gazing loser over trusted friends and birds singing in the sky and starfish on the beach and Papa and pretty girls and children and Michelle dying.

Now I can finally understand why:

We affirm the grant of summary judgment in Wells Fargo’s favor as to all claims except those based on actions that Wells Fargo may take after the Jacks’ bankruptcy case is dismissed or discharged. We determine to the extent the Jacks’ claims are based on events that may take place later, they are not ripe, and we dismiss them.

So now we can blame Wells Fargo for that train wreck of a song.

Judge Huck and the "Love Shack" (End of Headline).

As a famous unicyclist once said,

There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we know we don't know. But there are also unknown unknowns. There are things we don't know we don't know.

Here are the things we know:

1.  Judge Huck went up to the 11th Circuit to sit by designation.

2.  Georgia is in fact the home of the B-52s.

3.  Judge Huck sat on a panel that found itself in a Love Shack.

That's all I'm saying.....

(God it's slow around here -- see what I have to work with?)

Judge Cooke To Decide Important Issues of "Body Darkness Prejudice."

Folks I've been slammed today so I apologize for getting this up a little late.

Let's see, the 11th upheld certain Florida statutory caps on noneconomic damages in med/mal cases, but also certified a few issues to the Florida Supremes because -- surprise -- these issues are "unsettled":

Plaintiffs next challenge the cap under several provisions of the Florida and United States Constitutions. We first address Plaintiffs’ argument that the cap violates the United States Constitution. We then review Plaintiffs’ challenge to the cap under the Takings Clause of the Florida Constitution, Art. X, § 6, because Florida constitutional law on the matter is well settled. Florida constitutional law on the other provisions of the Florida Constitution under which Plaintiffs challenge the statutory cap, however, is unsettled. For this reason, we will certify several questions of state constitutional law to the Florida Supreme Court under its certification procedure.

(Shh, don't tell Governor Scott.)

But the more significant story, of course, is one man's quixotic fight against "body darkness prejudice" at our public parks and beaches, now undressing unfolding in Judge Cooke's courtroom.

Fight the power (and do it the way God intended)!

11th Circuit Rules Contract Has "Genuinely Salty Flavor."

You know what, you guys all have dirty minds.

That was absolutely not what I was thinking.

All I was doing is accurately transmitting this ruling from the 11th that a noted researcher can properly bring suit against a shipwreck treasure-hunting outfit because the claims are cognizable in admiralty:

In relevant part, the district court concluded that Bray failed to set out a claim cognizable in admiralty jurisdiction because, “[a]lthough both Bray’s research and Odyssey’s obligation to pay pertain to the location of a ship, neither the research agreement nor the purported oral agreement amount to a maritime contract.” This was so, the court reasoned, “because neither contract involves maritime commerce.” We cannot agree.

Rather, we conclude “that ‘the [contracts] here ha[ve] a more genuinely salty flavor.’”

Yep, and some people like it that way!

You can learn more about the Merchant Royal here, and about Odyssey's fascinating treasurequests here.

11th Circuit Affirms Guts of YoPlus Class Cert Decision.

Judge Huck's Yoplus class certification decision was closely watched, and no doubt gave some indigestion.

Insert groan here.

Yet the 11th, via Judge Fay, has affirmed its reasoning and Judge Huck's "scholarly" analysis, though it was kicked back to remove any reliance element from the class definition:

The district court’s analysis in its Order on Motion for Class Certification is sound and in accord with federal and state law. The reasoning reflected therein is well within the parameters of Rule 23’s requirements for certification of a class. And, if the definition of the class had been in accord with the legal analysis, we would have readily affirmed.1 However, at the end of the district court’s Order, it defined the class in a manner which seems to conflict with its earlier sound analysis. In its analysis, the district court repeatedly stated that a plaintiff need not prove reliance on the allegedly false statement to recover damages under FDUTPA, but rather a plaintiff must simply prove that an objective reasonable person would have been deceived. And, this is correct. Notwithstanding this analysis, the district court went on to define the class as “all persons who purchased Yo-Plus in the State of Florida to obtain its claimed digestive health benefit.” Order at 21 (emphasis added). The class definition limits the class to those who purchased YoPlus “to obtain its claimed digestive health benefit,” which takes into account individual reliance on the digestive health claims. Had the district court defined the class in a manner which did not take individual reliance into account, such would be consistent with the district court’s earlier analysis. Thus, we vacate the Order certifying the class and remand to the district court for further consideration.

Seriously, what kind of maroon believes that "magic yogurt" somehow improves your digestive health?

(Wait a second, people are taking Donald Trump's run for the Presidency seriously.  On second thought, don't answer that.)

Now There Are Two Vacancies on the 11th Circuit As Well.

As David noted yesterday, it's been 741 (now 742) days since Judge Hurley took senior status and Kathleen Williams is still waiting to be confirmed as a federal judge.

Now I see that Judge Susan Black of the Eleventh Circuit announced that she would be stepping down from the bench, creating a second vacancy in addition to Judge Birch (who stepped down last August).

The nomination and confirmation process continues to be bogged down or dysfunctional, respectively, but at least there is a possible candidate to replace Judge Birch -- Mercer University Law Professor and former Dean Daisy Floyd:

The White House has begun vetting Daisy Floyd, who served as dean of Mercer University's law school in Macon from 2004 to 2010, as a possible nominee to take Birch's seat, according to lawyers familiar with the  nominating process. Floyd, who did not return phone calls seeking comment, continues to teach at Mercer as a law professor. A White House spokeswoman on Monday declined to comment.

So we can expect her nomination in 2013 and her confirmation possibly a few years after that.

Facts are simple and facts are straight
Facts are lazy and facts are late
Facts all come with points of view
Facts don't do what I want them to
Facts just twist the truth around
Facts are living turned inside out
Facts are getting the best of them
I'm still waiting, I'm still waiting, I'm still waiting, I'm still waiting
I'm still waiting, I'm still waiting, I'm still waiting, I'm still waiting
I'm still waiting, I'm still waiting, I'm still waiting, I'm still waiting
I'm still waiting, I'm still waiting, (Thank you) I'm still waiting, I'm still waiting

It's Citibank Arbitration Day in the SD FL!

Citibank Arbitration Clause

Are you arbitration-ed out?

Waiting with bated breath for the Supremes to rule in Concepion already?

Well we have two significant arbitration updates to report on this evening.

First, Judge King invalidated Citibank's standard no-class action/arbitration clause in its credit card agreements, finding the clause to be substantively unconscionable under South Dakota law.

The opinion, which could potentially have wide application, has been Scribified above.

Second, my friends at Aventura law firm Stok Folk + Kon have scored big, with the Supremes taking cert in an arbitration clause waiver case also involving Citibank.

You can read the 11th Circuit's opinion here, which I humbly believe was wrongly decided.

Come on, the bank filed an answer(!), did not raise arbitration therein, and allowed the firm to serve an offer of judgment, reply to the answer, and discovery before suddenly realizing they have an applicable arbitration clause argument?

It's also picayune for the 11th to focus on the lack of record evidence of the time and money spent litigating in state court before the arbitration clause was invoked.  The mere existence of the offer of judgment, reply to the answer and discovery requests should be sufficient to establish these facts for purposes of evaluating the prejudice to the law firm of Citibank sandbagging them a month later with the arbitration clause.

Seriously, should they have done a notice of filing of their time runs to prove this point?

(Whether or not these actions constitute sufficient prejudice is a different issue, and whether prejudice should be required at all after a waiver is presumably what the Court will be looking at).

Now, the last time a Florida native went all the way up to DC to argue a big-time case before the Supremes, there was a little issue with names.

Let's get it right this time, fellas!

11th Circuit Conducts Erie Analysis of Bremen Analysis of Krenkel Factors.

I'm sick of the law this afternoon.

Law, law, law.

I could note the 11th Circuit's surprise enforcement of a forum selection clause that sends Alabama customers to Cook County, IL -- where the Court is laying off employees left and right, so I'm sure they'll be real happy to see a new case where they have to apply Alabama law to an Alabama contract dispute.

I could point out Marc Ben-Ezra laying off 236 employees, and it's all his (former) client's fault:

Ben-Ezra & Katz, in a memo released by a company spokesman, said the firm was "forced to take this action after Fannie Mae surprisingly terminated its relationship with the firm." In a notice sent five days ago, Fannie Mae officials said all exisiting foreclosures, mediations and bankruptcies needed to be transferred to other loan servicers by Tuesday, citing "document execution" issues.

It's ok Marc, I've had "document execution" issues too, but I usually blame the Gin Gibsons and try to make it right in the morning.

Oh hail, let's talk George Shearing.

George was born both blind and British -- two massive limitations that he somehow managed to overcome.

I loved George's unique phrasing -- what he called "locked hands," which created a harmonic block chord effect that was mesmerizing and fascinating to watch.  His quintet pretty much played everything, and made everything their own.

I vividly recall seeing George at the original Sunrise Musical Theater sometime in the mid to late 70s, where he did a solo gig that was just out of this world.

In fact, one of his best albums was titled "Out of This World," a 1970 effort where Shearing tried to "get hip" by covering some modern tunes, including "Hey Jude" and "Here, There and Everywhere."

It didn't matter -- he could have played selections from the NYC Yellow Pages for two hours and it would have sounded just as good.

RIP Old Man.

11th Circuit to Florida Supreme Court: Oy with this Whole Offer of Judgment Business!

Regular readers will know my hate-hate relationship with the bewildering state of Florida offer of judgment law -- a mishmash of old and changing statutes, inconsistent and contradictory opinions, mucked up revisions to the Florida Rules of Civil of Procedure, and a general feeling of dread and creeping doom whenever one is confronted with, or God forbid, perhaps considering tendering such an offer in any piece of complex commercial litigation.

That's why I found this 11th Circuit opinion dealing with these issues such a hoot (h/t meatballer):

 In this offer of judgment case, we certify three questions to the Florida Supreme Court, seeking guidance as to the application of Florida’s offer of judgment statute, Fla. Stat. § 768.79, and Florida Rule of Civil Procedure 1.442.

First, we inquire whether an offer of judgment may be viable when filed under the following circumstances: the offer was filed by a defendant after a jury verdict for the defendant had been set aside by the district court’s grant of a new trial, and after the new trial date had been scheduled, but more than 45 days before the scheduled retrial; and the defendant ultimately prevailed because the appellate court reversed the grant of a new trial and reinstated the initial verdict. Second, we ask whether the term “joint proposal” in Rule 1.442(c)(3) applies to cases where acceptance of the offer is conditioned upon dismissal with prejudice of an offeree’s claims against an offeror and a third party. Finally, we seek a determination of whether the Florida offer of judgment statute applies to actions filed in Florida, in which there exists a contractually agreed upon choice-of-law clause providing for the application of the substantive law of another state. We certify these questions because we are unable to find definitive answers in clearly established Florida law, either case law or statutory.

 You and me both, you and me both.

Forget Health Care. Important Question -- Are Underage Teenagers Suing "Girls Gone Wild" Entitled to Anonymity?

Sure people are discussing the implications of the recent health care ruling, but the 11th weighs in to address a truly burning question:  Can underage teenagers suing the makers of "Girls Gone Wild" maintain their anonymity throughout trial?

You gotta love the recitation of the record by Chief Judge Dubina -- sorry folks, I'm not even comfortable block quoting it.

I did find the producers' alleged business model somewhat surprising:

In March of 2003, sixteen-year-old Plaintiff V, who lived in the Panama City area, went along with some friends down Front Beach Road in Panama City Beach. The Girls Gone Wild crew was there again, encouraging women to flash their breasts for the camera in exchange for beads, shirts, and similar trinkets.

That's it?

Beads, shirts, and trinkets?

No iPods, cell phones, or even concert tickets maybe?

Are we talking about a sleazy film crew in Panama City circa 2003 or Captain Cook in Hawaii circa 1779?

11th Circuit Rules Against "Peek-a-Boo" Lounge!

The 11th Circuit, with Judge Cooke sitting by designation, has ruled against a Bradenton strip club, the "Peek-a-Boo" lounge, which had challenged a ridiculous ordinance designed to take all the fun out of life:

The ordinance allows employees of sexually oriented businesses to appear “semi-nude,” id. § 2-2.5-18(b), defined as “a condition in which a person is not nude, but is showing a majority of the female breast below a horizontal line across the top of the areola and extending across the width of the breast at that point, or is showing the majority of the male or female buttocks,” id. § 2-2.5-2. Employees appearing semi-nude, however, must “remain[] at least six (6) feet from any patron or customer and on a stage that is at least eighteen (18) inches from the floor and in a room of at least one thousand (1,000) square feet.””

Seriously?

That would mean at least half the parents at any South Florida children's birthday party held near a body of water would be in violation of this ordinance.

Now that you mention it, I am in violation of this ordinance right now.

But the First Amendment was not designed to protect a majority of the female breast below a horizontal line across the top of the areola and extending across the width of the breast at that point, according to Judge Marcus, mostly because of the "secondary effects" (no, not that kind).

The district court took extensive evidence and, indeed, the County spared no expense, sending in a top investigator, Tom McCarron, to find out exactly what goes on in these clubs:

At Pandora’s Box, Mr. McCarren was able to pay a dancer for a private dance, during which the dancer removed the tape over one of her nipples and allowed Mr. McCarren to touch her breast, buttocks, and genital area. At Paper Moon, Mr. McCarren was able to pay a dancer to go into a back room with him, where she removed all clothing except her G-string and allowed Mr. McCarren to touch her breasts.

Mr. McCarren, you sir deserve a medal for your fierce and relentless pursuit of the facts.

(Or at least a nice massage -- oh wait, that's your next case!)

But in the end, it was Mr. McCarren's dedicated muckraking that made all the difference:

The bottom line (ed. note -- ha ha) is that the County has presented a substantial body of evidence to support its rationale for adopting the ordinance. Peek-a-Boo has failed even to address much of that evidence at all, and it has failed to show that the County’s rationale or this body of evidence was unreasonable.

In other words, "Peek-a-Boo" has bottomed out.

This Time Judge Carnes Cites An Old Opera!

Listen, anyone who reads this thing knows I'm all for historical references, pop cultural references, musical references, literary references, you name it.

And so is Judge Carnes!

But I think at this point Judge Carnes is just playing with us.

Get a load of this opening in an interesting opinion dealing with the Florida Bar's certification process:

This case reminds us of the observation of the Grand Inquisitor in Gilbert and Sullivan’s The Gondoliers. Upon finding that all ranks of commoners and servants have been promoted to the nobility, he protests that there is a need for distinction, explaining that: “When everyone is somebody, then no one’s anybody.” 1 The same is true of a state bar’s certification process. If every attorney who practices in an area is certified in it, then no one is anybody in that field. The easier it is to be certified, the less that certification means.

Ok, that's a long way to go (all the way back to 1889 in fact) to make the point that you dilute the exclusivity of an honor when you expand the critieria for membership.

Didn't Groucho say something similar, only funnier?

Anyway, then the Judge goes on to affirm the district court's holding that an attorney, who was once certified in family law but was denied recertification based on negative confidential peer reviews, has no "entitlement" or constitutionally protected property interest in same, and no "right" to confront her peers.

Maybe the Grand Inquisitor reference has a deeper meaning?

BREAKING -- Certain Rule 12 Defenses Can Be Waived if Not Raised in Initial Motion!

You know, you wake up in this business and everyday you can learn something new.

For example, according to this opinion by the 11th Circuit, you can apparently waive certain Rule 12 defenses if you don't raise them in your motion to dismiss:

Federal Rule of Civil Procedure 12(h)(1) states that some Rule 12 defenses are waived by failing to raise them in the initial Rule 12 motion, including improper venue: “a party waives any defenses listed in Rule 12(b)(2)–(5) by . . . omitting it from a motion in the circumstances described in Rule 12(g)(2).” This circuit has long recognized that “venue is a personal privilege to be raised by motion and the privilege may be waived.” Harris Corp. v. Nat’l Iranian Radio & Television, 691 F.2d 1344, 1349 (11th Cir. 1982). We have further recognized that for strategic reasons, and otherwise, defendants often waive their defense of improper venue. See Booth v. Carnival Corp., 522 F.3d 1148, 1153 (11th Cir. 2008)(“defendants can, and often do, waive their defenses of improper venue”). Our circuit has never recognized extraordinary circumstances as grounds for overlooking a defendant’s waiver of venue and we decline to do so here.

Wait a minute -- an "extraordinary circumstances exception" for not raising venue?

How did Magistrate Judge Bandstra and Judge King buy that one?

I gotta go back to see what Lyle Shapiro wrote to convince these esteemed jurists to accept that argument.

Ok, Lyle argued that the the allegations against his client are so intertwined with other defendants who have properly raised a forum selection clause defense that all the defendants and the case as whole should go to Mexico.

Aha, the Mexico exception -- pretty much the exact same gambit Clara and Myrtle executed upon hapless Aunt Bea in order to finagle a free trip to Mexico (Andy Griffith Show, Season 8, "A Trip to Mexico").

See Ma, I knew all those years of watching mindless sitcoms would finally pay off!

11th Circuit Thinks Bill Amlong Should Have Used X-Ray Glasses!

The meatball man does a nice job covering it, but I want to add a few points about this extraordinary 11th Circuit opinion sanctioning Bill and Karen Amlong.

Preliminary question for Judge Carnes -- why do you note on page two that the plaintiff is an "illegal immigrant"?

Regardless, the good Judge, in a 74-page opinion(!) pulls no punches:

The Amlongs’ attempt to alter their client’s deposition testimony in 868 ways was of a piece with their conduct throughout the litigation. As the magistrate judge found, they had nothing to base Norelus’ claims on other than her “own changing testimony . . . which was totally or nearly totally discredited by plaintiff’s numerous lapses of memory, outright lies, and outlandish comments made during her deposition.” As the litigation unfolded, all of the witnesses  who should have seen or heard something if the claims had any basis in fact not only failed to support her incredible story but actually gave deposition testimony contradicting it.

Still, like Ahab hunting the whale, the Amlongs relentlessly pursued the claims. All the while they blinded themselves to as much of the contradictory evidence as they could. They deliberately did not obtain the deposition testimony of any of Norelus’ co-workers who would have seen or heard something had anything improper occurred. They did not concern themselves with that testimony, according to Karen Amlong, because they assumed all of the witnesses, except for their client, were either lying or simply could not remember witnessing the gross sexual harassment inflicted on her.

When the truth was thrust in the Amlongs’ faces, they stubbornly ignored it and kept on litigating.

It goes on from there, though the Judge does end with a thoughtful "Season's Greetings"!

Thankfully I choose not to do this work, but is there an argument to be made that the co-workers are worried about their jobs and thus did not corroborate the plaintiff's testimony?  Also, that the plaintiff speaks Creole and the deposition required an interpreter?  Also that the Amlongs submitted the client to two polygraph examinations that she apparently passed?  Finally, that the Amlongs are being sanctioned for trying to fix mistakes in the deposition testimony and informing opposing counsel, as opposed to letting it slide?

I admit this case presents a close call, on difficult facts.  But the apparent glee with which Judge Carnes targets the Amlongs seems to me somewhat over the top.

And the prolix opinion, which exceeds the evil errata sheet by 11 pages, will create lots of uncertainty below when imposing  § 1927 sanctions on attorneys, as well as generally mess up the previously settled law dealing with errata sheets and their proper function in depositions.

Judge Tjoflat, in a blistering dissent beginning on page 76, seems to agree.

In fact, he doesn't even think what Karen Amlong submitted to defense counsel was an errata sheet:

The Amlongs did prepare the sixty-three page document, which they labeled “errata sheet” (“‘errata sheet’” or “errata document”), but they did not present it to the court reporter, as Rule 30(e) of the Federal Rules of Civil Procedure requires, so it could be attached to the certificate the reporter affixed to Norelus’s deposition in accordance with Rule 30(f). In short, the sixty-three page errata document was not an errata sheet as contemplated by the Federal Rules of Civil Procedure. Rather, it constituted nothing but a written communication, a letter, from Karen Amlong to defense counsel, in which Karen Amlong informed defense counsel—in keeping with her obligations under the Florida Rules of Professional Responsibility—that her client had testified falsely on deposition and provided the statements she believed her client should have made when deposed. As a consequence, the communication, instead of multiplying the proceedings, informed defense counsel that Norelus had made statements to her attorneys which,when compared to what she had said on deposition, cast substantial doubt on her credibility.

Had defense counsel explained all of this to the district court, the court would have disregarded the “errata sheet” and declared that the Norelus deposition transcript certified by the court reporter constituted Norelus’s deposition; Denny’s, Meos, and Jawaid would not have incurred $387,738 in subsequent attorneys’ fees and costs; and the court would not have sanctioned the Amlongs under 28 U.S.C. § 1927 in that amount.

See kids?

Bad facts make bad law.

11th Circuit Reverses Magistrate Judge Torres and Uses Exclamation Point!

We've already been through the use of exclamation points in blog posts, in orders, and much delight has been had along the way.

Now, suddenly, out of nowhere, the 11th Circuit has decided to weigh in on the exclamation point debate in a big big way -- oh hail, I'll let the 11th explain it:

Jaguar failed to plead the administrative exemption as an affirmative defense in its Answer. In the fourteen months between the filing of its Answer and the commencement of trial, Jaguar never moved to amend its Answer to include the administrative exemption. Jaguar also did not raise the issue of the administrative exemption during discovery. The only time Jaguar raised the issue prior to trial was by inserting it in one line of the Joint Pretrial Stipulation and in the proposed Joint Jury Instructions, to which Diaz objected. Jaguar did not raise the issue during the pretrial conference and the district court did not include the issue in its Omnibus Order Following Pretrial Conference. If ever there were a classic case of waiver, this is it!

You don't say!!

(You can check out the docket below here).