Who's Minding The Tattoo Suit?

Let us get this straight. The Key West Ink tattoo parlor lawsuit against the City is going to a hearing before the Circuit Judge on Tuesday, July 31, 2007. The lawyer for Key West Ink has offered to settle and resubmitted a proposed settlement agreement to the City Attorney on Tuesday, July 24. In the settlement, the City gets the lawsuit dismissed, pays no damages, and pays no attorney's fees. The tattoo parlor gets to open and is subject to all laws the City Commission might pass, however restrictive.

However, with a deadline looming that the City has known about for months, the City, apparently, has not responded to the offer. Reportedly, the City Attorney is out of the office until Monday, July 30,2007, leaving it to the City Manager to respond to the press with some lame excuse why the City can't seem to decide if it likes the proposed settlement.

What are we going to have here, another Duck Tours case where the City now has to pay mega bucks but could have avoided doing so if it had taken the matter more seriously and made the required critical decisions in a timely manner? City officials are hired to make tough decisions, but they don't seem to be doing much of that here.

Mind you, we don't care whether there is a tattoo shop on Duval Street or not. But we do care about how the City makes decisions and how principled it is in doing so.

A decision on the tattoo parlor settlement is not rocket science, but in typical Key West fashion, the City appears to be deciding not to decide. This is just plain irresponsible.

In case the City thinks the public isn't on to this tactic of not deciding, the City is wrong. Not deciding is a decision. At least with us, the City is not going to get away with its usual mantra of, " Well, we just ran out of time. Guess we'll have to see what the judge says." The public deserves straight forward principled decision-making in its city government, and so far, in the tattoo matter at least, doesn't seem to be getting it.

A Case of Humble Pie

The lawyer we told you about a few weeks ago has taken a dose of humble pie. You will recall he was the one who told a Miami federal judge that she was "just a few french fries short of a happy meal." The judge had issued an order for the lawyer to show cause why he should not be barred from practice in the federal bankruptcy court in South Florida.

Well that wisecrack also has cost the lawyer his client, who fired him and his 1000 lawyer Chicago firm. It also cost him his position as head of his law firm's bankruptcy law practice.

Before appearing before the judge in response to the judge's order, the lawyer had decided that he would make a contribution to the Center for Ethics and Public Service at the University of Miami law school, which happens to be the judge's Alma Mater. He has agreed to do 200 hours of community service in Chicago, and his firm has said that it intends to increase its pro bono work in the Miami area.

Both the wisecracking lawyer and the head of the 1000 person firm appeared before the federal judge on June 20 and profusely apologized to the judge. The judge, after a recess and some thought, decided not to bar him from practice in her court. Instead, she ordered him to to take an online course in professionalism that is administered by the Florida Bar. The judge noted that, "There is no jurisdiction in the U.S. -- including the district where [the lawyer] regularly practices — where the expression and tone [he] used on May 7 would fall [with]in the bounds of acceptable behavior."

It's Tough In Federal Court in Florida

If you think North Carolina is tough on lawyers (having effectively removed a district attorney from office by pulling his license to practice), Florida may not be far behind in the toughness category. If you don't believe us, just ask the lawyer who told the judge in open court, that with all due respect, the judge might be just "a few french fries short of a happy meal." That Chicago-based lawyer is now in big trouble.

In trouble is a Chicago lawyer, from one of the bigger firms, who tangled with Judge Laurel Myerson Isicoff of the Federal Bankruptcy Court in Miami. She just happens to be the first woman appointed to be a bankruptcy judge in the Southern District of Florida and a veteran bankruptcy lawyer. She did not find humor the lawyer's comment. Read the transcript here.

The lawyer? Well, he'll have to get his rear end down to Miami on June 25, 2007 at 11:00 a.m.to explain to her honor why he should not be suspended from practice in her court. You can bet there will be many mea culpas in the works, especially at his hourly rate.

Get Some Shorts!

It's been hot in Washington lately, but when you lose your favorite pair of expensive pants it must just send you to the edge of Wacky City. If you're a judge that is. Now going on is the trial in the case of the Judge's Pants. Washington Administrative Law Judge Roy L. Pearson, Jr. is suing his neighborhood dry cleaners for $54 million for allegedly misplacing his pants. What can one say? And folks wonder why the justice system seems broken? Will someone tell this fellow he can wear shorts in Key West where it feels down right sane.

Talk Spoiled The Federal Lawsuit

Back in November 2006, as we recall, Tom Tukey, President of theTAMPOA Board felt there was so much animosity against the City among TAMPOA members that it would be impossible to resolve the dispute short of litigation. Tukey at that time felt that TAMPOA had to file a lawsuit, though his preference would have been to continue to talk. He felt that talk alone would not satisfy the TAMPOA membership. So the lawsuit got filed in February, 2007. However, the TAMPOA attorneys, Tukey, City Attorney Shawn Smith and Commissioner Bill Verge continued to talk. The time whiled away while the good old boy network tried to work its magic. Unfortunately the federal judge was not part of the that network.

When it came to buckling down and doing the work necessary to produce the required Scheduling Report, well, we hear Shawn Smith let the TAMPOA counsel know he had not given the matter sufficient attention and was too busy to do so. And, the network being what it is, the TAMPOA attorneys just let him get away with that and the deadline for filing the Report went by. They were too nice; to their own detriment.

And, of course, the United States' Attorney didn't care. He, at least had filed something with the court asking for more time. Tell us the City didn't know that the judge would dismiss the case. Is the City now going to compensate TAMPOA Attorney Bill Andersen for his time in refiling the lawsuit? Bet not! No, the City will just know that it now owes him a favor within the network. The problem is that the City's pile of IOUs in the network is getting pretty large, and no one in TAMPOA seems to be collecting on them or benefiting from them.

What we don't get is why TAMPOA and its attorneys continue to get taken in by the good old boy games being played. You'd think that by now, they'd be players in the network too, and good at it. Apparently not. Political hard ball is not their style. And the players on the City side seem to have figured that out. When will TAMPOA draw a line in the sand and say never again? Many TAMPOA members thought that had happened last November, but they were wrong.

The Disingenuous Disinformation Spin

We are now getting the spin of disinformation being put on the dismissal of TAMPOA's lawsuit. One commenter who is spouting the spin says we are jumping to "negative conclusions" by our reporting and with more spin opines,

"The City Attorney and the Mayor have been avoiding accepting service. The suit was dismissed merely as an administrative item. When they are successfully served, the scheduling meeting will be held."

Sorry Anonymous, that dog won't hunt. Here is WHAT IS REAL:

Under Rule 4(j)(2) the City Attorney does not have to be served; only the Mayor. Almost everyone, including even the TAMPOA attorneys, know where the Mayor is. He has not avoided delivery of the Summons and Complaint to him. Rule 4 states:

"Service upon a state, municipal corporation, or other governmental organization subject to suit, shall be effected by delivering a copy of the summons and of the complaint to its chief executive officer or by serving the summons and complaint in the manner prescribed by the law of that state for the service of summons or other like process upon any such defendant."

Service on the United States (the only other defendant in the suit) is also a simple matter. Rule 4(i)(1) says:

"Service upon the United States shall be effected

(A) by delivering a copy of the summons and of the complaint to the United States attorney for the district in which the action is brought or to an assistant United States attorney or clerical employee designated by the United States attorney in a writing filed with the clerk of the court or by sending a copy of the summons and of the complaint by registered or certified mail addressed to the civil process clerk at the office of the United States attorney and

(B) by also sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia . . ."

In fact, Rule 4 makes service of process in Federal Court cases increadibly easy. It can even be done by mail in some instances. Obviously, our commenter is not familiar with the rule.

The Federal judge' s February 8, 2007 scheduling order DID NOT SAY that the scheduling conference OR the scheduling report COULD WAIT for the complaint to be served.

The attorneys for TAMPOA knew or should have known how to obtain service on the defendants.

The Summons in the case was signed on March 20, 2007. The Summons should have been (and ordinarily would have been) prepared back on February 6, 2007 when the Federal suit Complaint was filed; especially if there was any inkling that there would be any difficulty with service of process. According to the Federal Court record in the Clerk's Office, the Summons in the Federal case was not even received by the Federal Court Clerk to sign (using a signature stamp) until March 20, 2007. The Summons must be prepared by the plaintiff's (TAMPOA's) counsel. See Rule 4(b). The one submitted to the Federal court Clerk's Office was hand printed, not typed, suggesting it was done somewhat hastily or in person at the Clerk's office. To be sure, there is nothing technically wrong with hand printing the Summons, but as a routine matter, we would expect such documents to be typed, especially coming from a firm with the alleged reputation of the one TAMPOA has hired.

If Counsel for the defendants will not waive service of process, as was alleged to be the case here, service can be made in the manner described above. As a matter of courtesy to each other, lawyers waive service all the time, unless their clients instruct them not to do so. It is simply not credible to assert that the City or the United States or their counsel were "avoiding service." Why would they, when they know what the Federal Rules provide?

The reality here appears to be that service was NOT made until March 28, 2007 on the United States and perhaps not at all on the City. The United States has said it did not receive the Summons and Amended Complaint until March 28 in its motion for an extension of time that the federal judge denied as moot.

The judge's February 8 order was crystal clear and contained a clear warning about non-compliance:"[f]ailure of counsel to file a joint scheduling report within the deadlines set forth [in the February 8, 2007 order] may result in dismissal, default, and the imposition of other sanctions including attorney's fees and costs." The scheduling order required that a joint scheduling conference be held by April 7, 2007 and that a report be filed by April 20, 2007. Service had been made before April 7. The judge was not provided any valid excuse for missing the April deadlines. They were either forgotten or ignored.

The failure of TAMPOA's attorneys to abide by the deadlines in the Federal judge's Scheduling Order of February 8, 2007 that resulted in dismissal of the Federal suit can't be excused by the alleged, but unsubstantiated claim that the defendants avoided accepting service. Regardless of whether the defendants were avoiding service, it was still the respondibility of the plaintiff's attorneys to abide by the scheduling order. If that meant having to get the defendants served back in February, (instead of sometime after March 20) then that's what the lawyers should have done. The plain truth is they did not. In fact none of the lawyers in the case even asked the judge to change the deadlines or to give the parties additional of time to comply with the Scheduling Order. One can't blame the judge for letting the parties know he wasn't kidding about the deadlines he set.

The Anonymous commenter, without any evidence or knowledge of Federal Court procedure (or Federal law), states, "The suit was dismissed merely as an administrative item. When they are successfully served, the scheduling meeting will be held." This statement alone shows the disinformation spin being put on the facts by those who will buy any silly excuse to believe that TAMPOA and its attorneys can make no mistakes. What the Anonymous commenter does not get is that the Federal suit HAS BEEN DISMISSED AND THE CASE FILE CLOSED by the Federal Court. It now does not matter now that the defendants "are [or were] successfully served." The federal lawsuit filed in February is over and will have to be refiled. In essence, TAMPOA must start over.

It is also bogus to say, as our ignorant Anonymous commter does, that "The suit was dismissed merely as an administrative item." The commenter wants you to believe that the dismissal was a trivial thing, but it is not. The truth is the suit is done for unless and until it is refiled. All the time between February and now to get the litigation well underway has now been lost and effectively wasted.

And, what about the money spent? Who exactly in TAMPOA will mind the billings from the lawyers to see (if one can) whether TAMPOA gets charged for whatever work that now needs to be re-done? Will that be the TAMPOA Board? Likely not. More important, even if the TAMPOA attorneys absorb the cost of re-filing, it is impossible to absorb or recoup the opportunity costs that have been lost as a result of the case being dismissed. That time is lost, and is time which has value to TAMPOA members -- almost three months more that, despite any speed in resolution, members must wait for answers sought by the lawsuit. Moreover, all the time and energy the TAMPOA Board members and others have invested in supporting the lawsuit has been largely wasted by this result. Sadly, all that time and energy must now be reinvested again.

The Rules Rule

"The condo association argued . . . that it has no problem with mezuzot generally, but that condo owners must seek permission before putting them up." A rule, like TAMPOA's, forbidding residents from making additions or changes to the exterior of their property without prior written consent is what got a swanky "Premier Community" in Fort Lauderdale in big trouble with the Federal Government, the U.S. Attorney, and the Florida Attorney General.

This association thought it could play fast and loose with enforcing its rules. Now the association is going to pay the piper, probably big time. In addition the association has been made to look stupid. (Does this remind you of any association you know?) What is worse, its residents likely will no doubt be "assessed" to pay what are sure to be the enormous lawyers' fees resulting from this lapse of good judgment.

It will be interesting to see how TAMPOA handles its rules in the future. Here's another bundle of TAMPOA cash likely coming to a Key West law firm near you.

Building a "Premier Community" has its rewards, doesn't it?

With An Idea And Some Good Clients

"But I live in Naples, Florida, in a gated community. I don't feel real threatened down here." So says the architect of the lawsuit that did away with the District of Columbia gun-control law. The lawyer who conceived the attack on the gun control law is not some radical militia man. He does not even own a gun, but thinks he might want one if he were living in Washington, D.C. on Capitol Hill. Nor is he a member of, as he has put it, "one of those pro-gun groups." No, he's a guy who says his only interest is "in vindicating the the Constitution."

Once a D.C. native, he now is a constitutional fellow with the Cato Institute, a libertarian Washington think tank, and works out of his expensive Naples condo. His successful suit against the D.C. gun law was the result of carefully selecting the plaintiffs in the suit and carefully crafting their desired outcome.

He is one of three lawyers involved with the case, which is probably headed to the U.S. Supreme Court, since the District of Columbia says it will appeal. You would think that would be expensive. Yes, it is. "To take something like this all the way through the Supreme Court, you're talking about several hundred thousand dollars," he has said. Because, however, his counsel are charging a reduced rate, "it hasn't been nearly that much."

Hum . . . , where was this guy when TAMPOA needed him?