Judge Gold Blasts Governor Scott on Everglades Restoration!

Judge Gold unleashes both barrels and rips Governor Scott (though he's not alone) for the State's destruction degradation "restoration" efforts to save the Everglades:

There is no possibility of reversing the damage that has been done to the Everglades, and there is only the chance to preserve what remains in its current state. This is nothing new to the parties. I have set forth the extensive procedural history of this case and litigation over the Everglades, the utmost importance of the Everglades as a national treasure, and the dire need to act immediately in my prior orders. See e.g., [ECF Nos. 323, 404]. I take this opportunity now to once again reiterate and incorporate by reference the significant efforts made in those orders to emphasize just how imperative it is for the parties to focus their efforts on making real and actual steps and act on their promises and representations. In order to effectuate this Court's prior and final orders, and to avoid allowing the parties to frustrate any opportunities to do so, I have determined that a key component of this matter through the means of the permitting procedure, must now be a focus of the EPA. To not find in this manner will simply amount to sanctioning the repeated failures of non-action by the parties.

 Order here.

Oh Rick Scott, you are truly our King Midas in Reverse.

Judge King Defaults Wachovia for Blowing Deadline -- Time to Take REALLY Deep Breath.

Mere hours after Judge Gold's excellent FBA speech on mindfulness, Judge King reminded counsel -- including heavyweights at Hunton & Williams and Birmingham's Maynard Cooper & Gale, that it's probably a good idea to double or triple calendar dates to respond to an amended complaint -- even if someone else is supposed to be handling it.

Why, you might ask?

All the Judge did was sua sponte enter a default against Wachovia for failing to respond to the Amended Complaint in an auction rate securities action!

The next day, after much deep breathing exercises I am sure (ed. note -- and possibly a call to the carrier), Birmingham lawyer Carl S. Burkhalter took one for the team (he also referenced his secretary and departed associate):

Defendant has not filed a timely answer to Plaintiff’s amended complaint. The reason for that failure, as explained below and in an accompanying declaration, is that the deadline date for answering Plaintiff’s amended complaint was not entered on the calendar of Carl S. Burkhalter, the undersigned attorney and primary defense counsel in this matter. The undersigned attorney depends on an associate and his secretary to docket deadline dates, but the associate in question (Ms. Prim Formby Escalona) left the firm in January 2011, whereas the undersigned’s secretary was unaware of the deadline and, thus, failed to make a calendar entry. Having said that, it is the undersigned’s duty to meet court-imposed deadlines. He accepts complete responsibility for this failure and he is profoundly sorry for the oversight.

Note to Carl -- your secretary does not get CM/ECF emails, you do.  Did you forward it to her?

Here's what he says happened:

Ordinarily, the February 17th deadline would have been docketed on the undersigned’s calendar by either or both of two persons: the associate on the file or Ms. Laura Juarez, the undersigned’s secretary. See Burkhalter Declaration. Unfortunately, these redundant systems failed in this instance, something that has never before happened in the undersigned’s twenty-year practice of law. The associate, Ms. Prim Formby Escalona, had left the firm in early January 2011 to become Chief Deputy for the Alabama Solicitor General. Id. In the undersigned’s federal court cases, any e-mail notices he receives are usually “auto-forwarded” to Ms. Juarez, who then makes the relevant deadline notation on the undersigned’s calendar. However, for some unknown reason, the “auto-forwarding” rule did not function in this instance, meaning that Ms. Juarez did not make a deadline entry on the undersigned’s calendar.

Oh boy.

Life happens, as they say.

Let's see what the plaintiff has to say about all this:

While Mr. Burkhalter’s efforts to take responsibility for Wachovia’s failure to timely comply with the Court’s Order appear sincere, they ignore the fact that two other current Wachovia lawyers were served with the Order and Amended Complaint. Thus, the Motion sets forth no good cause for their – or Wachovia’s – failure to timely respond. Moreover, the Motion fails to provide evidence in support of its purported defenses to STLA’s claims. Meanwhile, STLA is prejudiced by the delay. For these reasons, the Motion should be denied.

The Court has not yet ruled on the motion.

Who says being a litigator ain't stressful?

Judge Gold's Mindfulness Campaign is Already Working!

DeniedasAbsurd

Last week at the FBA luncheon Judge Gold delivered a tremendous message of mindfulness in the practice of law, and we're already starting to observe concrete, positive results.

For example, after I served a purely tactical 57.105 motion on opposing counsel the other day, the lawyer called me blabbering on as usual about my "bad faith."

Rather than getting into a shouting match about professionalism I simply asked "how does my motion make you feel?" and we suddenly had a really nice dialogue about organic yogurt and green tea.

So I think David Pollack's skepticism is unwarranted.

Also, per Dennis Kainen's question, I see judges are likewise starting to jump aboard the mindfulness bandwagon.

Here's a recent order from Magistrate Judge Brown that denies a motion for clarification "AS ABSURD":

The Court finds this motion totally disingenuous. One need not be a lawyer to understand that all responses to all discovery propounded by plaintiffs as of [December 21, 2010] shall be delivered on or before Monday, January 31, 2011 (emphasis added), means all responses to all discovery propounded as of the date of said order. While defendants suggest that they "seek clarification" - no clarification is needed. Perhaps it might be worth pondering ... what part of "all" do you not understand? But - it doesn't end there.

Defendants - in an attempt to somehow confuse the obvious - suggest that because they weren't seeking an extension in the motion for document production they weren't sure if this order pertained to same. There are two problems with that absurd argument: (1) the deadline given to defendants was already an "extension" since it was more than thirty (30) days from the date of  the order - much less from the date the discovery was propounded; and (2) if the confused defendants didn't understand this, and they didn't (by their own admission) ever seek an extension for the document production - why did they wait until almost one month after that deadline to file this motion?

The deadline for completion of discovery is in May, 2011. Therefore, and the Court being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED as follows:

1. This motion for extension is GRANTED. The motion for clarification is DENIED AS ABSURD.

This seems harsh I agree, but think how much worse this Order could have been!!

11th Circuit to Judge Gold: Know Your Place.

The question of whether Judge Gold has the power to summon EPA Administrator Lisa Jackson to a Miami courtroom to talk about the lamentable state of Everglades restoration presents an interesting conflict for the folks in Atlanta.

On the one hand, the 11th is typically very deferential towards government power (and the Executive Branch in particular).

On the other hand, the 11th is also very protective of its own power, and by extension that of the district courts they oversee.

But in a split decision, Executive trumps Judicial nanny nanny boo boo:

The Agency argues that compelling a high executive official to appear in a judicial proceeding encroaches on the separation of powers and, absent exigent circumstances, the judicial branch must respect the discretion of the executive branch to designate which high-ranking official should represent the Agency in a judicial proceeding. The record establishes no special need for compelling the appearance of the Administrator; the Assistant Administrator is an adequate substitute. Because the district court abused its discretion by compelling the appearance of the Administrator, and there is no other adequate remedy available, we GRANT the petition for a writ of mandamus and direct the district court to allow the substitution

I'm having trouble with the first sentence --  "compelling a high executive official to appear in a judicial proceeding encroaches on the separation of powers....."

I think it certainly can encroach on the separation of powers, but does it always do so by definition?

Judge Martin's dissent hits the issue head on, which is that clearly the separation of powers is implicated (not encroached) but the order is appropriate given the history of the EPA's contumacious conduct toward the Court and the public -- which the majority refuses to acknowledge set the backdrop for Judge Gold's command:

[T]he EPA has unequivocally and repeatedly flouted and otherwise refused to comply with the court’s previously entered Summary Judgment order. As the April Order explained, on July 29, 2008, the district court issued a 101-page Order holding the EPA in violation of the Clean Water Act and prescribing directives to remedy those violations. Yet extraordinarily, over one year later the EPA had still not acted, and ultimately did not act until November 4, 2009, after the plaintiffs filed a motion for contempt. Furthermore, as the district court took great pains to explain, the substance of the EPA’s 2009 Determination flatly contravened the 2008 Summary Judgment Order. In the face of this inaction, the court warned that nothing short of the “effective[] repeal of [a] clearly expressed Congressional mandate” was at stake.

I also think it's a bit of cheap shot for the majority to dismiss concerns over the Everglades by noting that the EPA head also has a bunch of other really important stuff on her plate.

Finally, whatever happened to the mandamus standard of review?  That seems to have gone totally out the window here.

(I admit, I'm a standard of review junkie.)

As usual the barbed, bearded, cranky wondering Jew minstrel put it best:

"But even the president of the United States sometimes must have to stand naked ..."

Judge Gold got this right.