Lowering the Bar

Complaint in "Pull My Finger" Dispute Added to Archive

This dispute took place last year, but it seems like the complaint should be added to the archive as a public service.  Another intellectual-property dispute between two makers of iPhone flatulence-simulation apps does not seem at all unlikely (as of last year, there were maybe 75 such apps), and if one does, this will provide somebody with a template.

Link: Infomedia, Inc. v. Air-O-Matic, Inc., No. 09-CV-00302 (D. Colo. filed Feb. 13, 2009) (PDF).
Link: Lowering the Bar Pleading Archive

And Still More Comical Case Names

Batman v. Commissioner, 189 F.2d 107 (5th Cir.), cert. denied, 342 U.S. 877 (1951).

and

United States ex rel. Mayo v. Satan and His Staff (W.D. Pa. 1971).

A reader just sent me the excellent "Batman v. Commissioner," of which I wasn't aware until now.  (Yes, technically it should be Batman v. Commissioner of Internal Revenue, not Commissioner Gordon, but I'm going to let that slide because it's making me laugh as is.)  Turns out that another case by that name was decided in Iowa in November 2009, but I guess in situations like this I will cite only the earliest of the cases.  (It is important that we have rules to govern these kinds of things.)  Please feel free to send me your submissions as well.

Of course, Mayo v. Satan is already in the Case Law Hall of Fame, but it probably belongs on this list, too, which is for cases that have comical names whether or not the substance of the opinion itself is amusing.  (Again, rules.)  A case against Satan is not unlikely to end up on both lists, but it depends.

Link: The Comical Case Names Page

Court Criticizes Everybody Involved in Briefing That Totaled 5,415 Pages

A while back, I made fun of a brief that was filed on behalf of Jeffrey Skilling (of Enron fame, or infamy), not because it was bad but because it was 239 pages long.  At the time, I thought that was a lot of pages.

On October 9, the California Court of Appeal ruled in a case involving what it described as "what may well be the most oppressive motion ever presented to a superior court," an eye-catching statement given all the oppression associated with superior courts anyway.  The oppressiveness in Nazir v. United Airlines was not due to the kind of arguments made, just the sheer number of pages involved.  Counting the required separate statements and appendices and other attachments as well as the briefs themselves, the parties apparently submitted 5,415 pieces of paper to the court for just this one summary judgment motion.

The briefs themselves were not the most remarkable thing about this.  While they were all way too long -- the opening brief, opposition, and reply were 85, 57, and 76 pages respectively -- all three put together still would not equal the incomparable monster brief filed in the Skilling appeal, which as I pointed out before was half the length of Huckleberry Finn.  But because summary judgment motions involve battles about the facts, they often involve lengthy attachments of exhibits and so forth.  "Lengthy" generally means maybe a couple hundred pages, though, not well over five thousand.  Depending on what kind of paper was being used and how many tabs there were, the stack of papers related to this one motion could have approached three feet in height.

It is especially odd for the defendants (who filed the motion) to have contributed so much to this pile, since the point of filing a summary judgment motion is to show that there are no genuinely disputed issues of fact that have to go to a jury.  The fewer facts you bring up, the better, so the fewer pages, the better (always a good rule anyway).  But here, the defendants' first set of papers was 1056 pages long, and (after more than 2000 pages from the plaintiff) they filed even more in reply (1150).  It was, the court said, "a record the likes of which we have never seen."

Not surprisingly, the court reversed most of the judgment, managing to find some disputed facts in the ginormous mass of paper that had been dumped into the record.  It managed also to criticize the trial judge, though, noting that "what apparently happened is that the trial court did not read all the papers."  No kidding?

Cite: Nazir v. United Airlines, Inc., 2009 WL 3235159 (Cal. App. Oct. 9, 2009).
Link: The UCL Practitioner

UPDATE: Opinion in "Pilates Instructor" Case

The opinion in this case (linked below, previously discussed here) is worth a read.  Just to clarify a few of the details, the parties had filed cross-motions for summary judgment.  Plaintiff's claims against the credit-card company were dismissed, which appears to have eliminated all the federal claims from the case.  The court then dismissed the remaining claims for lack of jurisdiction, without prejudice to refiling them in state court, if the parties really want to do that.

We also get the full and artfully vague allegation describing the defendant's alleged services.  The complaint described her as a "service provider, providing personal, private sessions with clients for a predetermined per-session fee.  She is not a doctor, nurse or licensed medical practitioner.  She advertises herself [as] an expert at providing personal, hands-on service to individual customers in a private sessions at a set rate."  Move along, nothing to see here.

Again, however, plaintiff did get slightly more specific when asked about this at his deposition, in which he testified "I paid her and she had sex with me and there was an understanding that it was payment for sex."  No further questions.

Link: Peoples v. Discover Financial Services, et al., No. 08-2024 (E.D. Pa. Sept. 22, 2009) (PDF).

A Sentence Rarely Found in Legal Pleadings

Link: Brant v. The Chop Shop, Inc., Civ. No. 09-3464 (E.D. Pa. filed Aug. 31, 2009) (PDF)
Link: On Point News

Appropriate-Shoe Motion Added To Lowering the Bar's Pleading Archive

It seems appropriate to add the "Motion to Compel Defense Counsel to Wear Appropriate Shoes" (PDF) to the Archive of Useful Pleadings, and so I have.

If you encounter any other pleadings (or court orders, opinions, etc.) that you think should be added to one or more of the archive pages (listed in the left sidebar), please send them to me and appropriate action will be taken at the appropriate time.

Link: Lowering the Bar's Archive of Useful Pleadings

Motion to Compel Defense Counsel To Wear Appropriate Shoes

Our lead trial counsel has a "lucky tie" that he wears every day (or at least he did during jury selection) even though it's getting a little threadbare.  This is a fairly common habit among trial attorneys, and I haven't heard of anyone ever objecting to it.

A motion filed in Florida last month, though, contended that opposing counsel was trying to gain an unfair advantage by wearing homely old shoes:

1.    This is an action alleging personal injuries . . . .

2.    Trial is set to begin on June 15, 2009.

3.    It is well known in the legal community that Michael Robb, Esquire, wears shoes with holes in the soles when he is in trial.

4.    Upon reasonable belief, Plaintiff believes that Mr. Robb wears these shoes as a ruse to impress the jury and make them believe that Mr. Robb is humble and simple without sophistication. . . .

* * *

6.    Part of this strategy is to present Mr. Robb and his client as modest individuals who are so frugal that Mr. Robb has to wear shoes with holes in the soles.  Mr. Robb is known to stand at sidebar with one foot crossed casually beside the other so that the holes in his shoes are readily apparent to the jury . . . .

7.    Then, during argument and throughout the case Mr. Robb throws out statements like "I'm just a simple lawyer" with the obvious suggestion that Plaintiff's counsel and the Plaintiff are not as sincere and down to earth as Mr. Robb.

8.    Mr. Robb should be required to wear shoes without holes in the soles at trial to avoid the unfair prejudice suggested by this conduct.

According to the Palm Beach Post, Mr. Robb's footwear -- which he admits he has worn for 12 years now -- is indeed well known to the legal community there.  Earlier this year, another plaintiff's counsel offered to buy him a new custom-made pair of shoes if he would stop wearing the ancient loafers.  (Obviously, he declined.)  Apparently, however, this is the first opponent to challenge the loafers by motion. 

Circuit Judge Donald Hafele denied the motion, after which plaintiff's counsel Bill Bone reportedly also tried the free-shoe offer.  Robb declined again.  He told the Post the shoes had nothing to do with his success.

"I've been practicing law for 21 years," he said, "and Mr. Bone thinks he's finally cracked the key to my success?"  Robb scoffed at the idea.  "Gotta be the shoes," he said.  "Like Michael Jordan."  Robb claimed that he had been planning to finally retire his "trial shoes," as he called them, but said this had changed his mind.  "[T]hey're back in play," he said.  "You ride that horse until it completely collapses."

Link: Palm Beach Post
Link: Above the Law

City Council Members Settle Legal Dispute Over Right to Parking Space

In March, two members of the Oakland (California) City Council finally resolved an epic and high-stakes legal battle after a fight that lasted three months and spawned a legal opinion by the city attorney.  The burning question: who was entitled to the parking space closest to the front door of City Hall.

Oakland, you see, has no other problems or difficulties of any kind that might require the government's attention.

Councilmembers Jean Quan and Desley Brooks both coveted the "prized parking space" that, until late last year, had been clutched firmly in the steely grip of Councilmember Henry Chang.  When Chang announced his retirement, the two women good-naturedly flipped a coin to determine who would get the space.  Of course they didn't do that.  Are you new here?

Apparently, the women were able to agree that parking rights should be determined by seniority.  Unfortunately, they were not able to agree as to who was more senior.  And so at this point, they good-naturedly flipped a coin.  No, they didn't.  It seems that instead the space was claimed each day by whoever arrived first.  That at least would have the effect of getting them to work earlier, but still it was unsatisfactory.  The sensible next step: flip a coin.  The actual next step: make the city attorney research issues related to parking-space entitlement.

Forced to address the issue of which of two adult women would get dibs on a parking space in order to avoid walking a few extra feet each day, City Attorney John Russo generated a five-page legal memo, dated February 17, 2009.  The question presented: "Is seniority based on the date a Councilmember is elected or the date the Councilmember is sworn into office?"

Carefully noting that he took no position as to "whether the Council has used or should use seniority to assign parking spaces" -- these were "policy questions that the Council is free to decide" -- Russo diligently analyzed the issue.  His ultimate conclusion: it was a tie.  The two women had been elected at the same time and sworn in at the same time, and so neither one had seniority.  The Council, Russo concluded, "is free to base its parking assignments on any criteria that it chooses . . . that do not violate applicable laws."  I assume he was concerned about (1) bribery or (2) trial by combat, although I'm not sure if that last one is illegal in Oakland.

The stalemate continued for another month, until reporter Phil Matier learned about the dispute and wrote about it in the San Francisco Chronicle.  Guess what -- the matter was settled the very next day, with the tossing of the coin that should have been tossed three months before.

The truly sad thing about this story is that one of these two people actually had to win.  As it turned out, it was Brooks.

Link: KPIX-TV (Mar. 10, 2009)

Case Law Hall of Fame Addition: Denny v. Radar Industries

Here's one that's pretty darn concise:

J.H. GILLIS, Judge.

The appellant has attempted to distinguish the factual situation in this case from that in Renfroe v. Higgins Rack Coating and Manufacturing Co., Inc. (1969), 17 Mich.App. 259, 169 N.W.2d 326.  He didn't.  We couldn't.

Affirmed.

Clear enough.

Link: Denny v. Radar Industries, Inc., 184 N.W.2d 289, 290 (Mich. App. 1971)

The Tale of Blackie the Talking Cat: Miles v. City Council (1982)

Here's another one for the Case Law Hall of Fame.

The question in this case was whether the city of Augusta, Georgia, could impose an "occupation tax" on the plaintiffs under the circumstances.  The circumstances were that plaintiffs owned a talking cat.

Allegedly, they had trained the cat, "Blackie," to speak English, and made a living by charging people to hear the cat talk.  "It is undisputed," the court wrote, "that plaintiffs would ask for, and lived off, the contributions received for Blackie's orations."  That being the case, the Court had no trouble finding that the tax was legal.

It also rejected plaintiffs' claims that the law involved was unconstitutional because, among other things, it did not specifically mention talking cats.  "[T]he ordinance is not arbitrary and without rational foundation," the court held, and "the fact that the ordinance does not specifically mention a 'talking cat,' but instead contains a catch-all clause does not, under the circumstances, [constitute] an equal protection violation."

But what I really think is remarkable about this case is a lengthy (and wholly irrelevant) footnote in which the judge related a chance encounter that he personally had with a (probably the) talking cat:

In ruling on the motions for summary judgment, the Court has considered only the evidence in the file. However, it should be disclosed that I have seen and heard a demonstration of Blackie's abilities.

The point in time of the Court's view was late summer, 1982, well after the events contended in this lawsuit. One afternoon when crossing Greene Street in an automobile, I spotted in the median a man accompanied by a cat and a woman. The black cat was draped over his left shoulder. Knowing the matter to be in litigation, and suspecting that the cat was Blackie, I thought twice before stopping. Observing, however, that counsel for neither side was present and that any citizen on the street could have happened by chance upon this scene, I spoke, and the man with the cat eagerly responded to my greeting. I asked him if his cat could talk. He said he could, and if I would pull over on the side street he would show me. I did, and he did.

The cat was wearing a collar, two harnesses and a leash. Held and stroked by the man, Blackie said "I love you" and "I want my Mama."  The man then explained that the cat was the sole source of income for him and his wife and requested a donation which was provided. I felt that my dollar was well spent. The cat was entertaining as was its owner. Some questions occurred to me about the necessity for the multiple means of restraint and the way in which the man held the cat's paw when the cat was asked to talk. However, these are not matters before the Court and are beyond the purview of a federal judge.

I do not know if the man whom I saw with the cat was the plaintiff Mr. Miles. This sequence has not been considered as evidence or as an uncontroverted fact in the case. It is simply stated for the purpose of a disclosure to the parties of the chance contact.

Such are the vagaries of life.

Link:  Miles v. City Council of Augusta, 551 F. Supp. 349 (S.D. Ga. 1982)