Scott Baena Descends Into The Belly Of The Beast

Surprisingly, according to Scott, the belly of the Beast doesn't have a too many real estate developers down there:

Getting the picture? Too many lenders at the trough, dwindling property values, no cash to use, too little time under bankruptcy law, and financial retribution for filing bankruptcy. I believe that if we do see a spike in real estate bankruptcies it will be attributable to prepackaged plans, most often to facilitate bankruptcy sales of distressed real-estate assets.

But take no false sense of comfort from that as we are still bleeding red ink. Things are likely never going to be the same as before we started this descent into the belly of the beast.

This is actually an informative article. It's true you would expect more developer bankruptcies in this declining economy, but Scott (or whichever associate ghostwrote it) makes a cogent case that that is unlikely at least for the near future.

Nice work anonymous associate, I mean, Scott!

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"If He Dies, He Dies."

Hi folks. Let's talk some South Florida wins and losses this Tuesday.

First, Bilzen gladiator William K. Hill scored an impressive victory the other day, obtaining an order of dismissal in a case over the recalled Graco "Simplicity" cribs. I can't for the life of me follow the reasoning of the district judge but hey, maybe he was channeling my man, Death from Above, The Siberian Bull.

Second, one of our favorite local lawyers, former Miami City Attorney Jorge L. Fernandez, loses another one, this time involving the controversial Coconut Grove 300 Grove Bay Residences project:

The city's April 2007 approval ran afoul of state zoning laws on several fronts, the judges ruled in a 10-page opinion that was filed May 7 and began circulating Monday.

Mayor Manny Diaz had improper discussions with the developer ''away from the public earshot,'' and the project would be wildly out of character for the neighborhood, the judges found. The towers would be built on bayside property adjacent to Mercy Hospital.

The plaintiffs who filed suit to overturn the condo project included backers of Vizcaya Museum and Gardens. They argued that the condos -- slated to reach as high as 308 feet -- would spoil the museum's picturesque views.

''The court got it right,'' said Stephen Darmody, an attorney representing museum supporters. ``The city here simply did not pay adequate attention to the requirements of the law.''

The decision was a jarring setback for Related, which has emerged as one of the state's most prominent builders.

Related Group attorney Elliot Scherker said it was too soon to comment on whether the company would appeal.

''We believe that this project was properly approved,'' Scherker said. ``We respect the court's opinion, and we're considering our options at this point.''

You can read the opinion here.

Congrats to Steve and the legal team over at SHB that pulled off this win-win, one that is actually good for our community and for those who live and practice here.

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The World According to Pat Gonya

Dashing Pat Gonya in today's DBR, explaining in today's tough times that companies should be careful when they terminate employees:

But defense employment attorneys say some companies can avoid layoffs if they are careful and judicious.

“You really need to cross your T’s and dot your I’s before you start terminating employees,” said Patrick Gonya Jr., a partner in Bilzin Sumberg Baena Price & Axelrod’s Miami office.

What a business. Unfortunately, we frequently make more money when clients don't take our good advice.

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Michael Kreitzer Wants Plaintiffs To Be Diligent.

Every so often I guess I have to write something about, you know, the law or the legal profession or something boring like the rules that actually govern what we do. I know I know -- snooze city. But it's the only way dear readers in big firms can justify their 4.6 hours of daily billing on "professional matters" or "legal development" or "wasting most of the day acting like you are working on something important at your computer."

So here's a news flash on a burning issue that has consumed our profession since those randy barons tried to serve the Magna Carta Libertatum on King John, yes, it's the dreaded Last Served Defendant Rule:

Weighing in on a long-standing circuit split over when the time for removal runs in a multidefendant suit, the Eleventh Circuit in Bailey v. Janssen Pharmaceutica, Inc. [PDF] has adopted the so-called last-served defendant rule, suggesting that the U.S. Supreme Court’s decision in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc. supports that rule.

In Bailey, the plaintiff served the last of four defendants over 30 days after service on the other three defendants. The last-served defendant filed a notice of removal 30 days from the date it was served. Both the district court and the Eleventh Circuit held that the notice of removal was timely because it was filed 30 days after last defendant was served.

This holding is at odds with the Fifth Circuit’s decision in Brown v. Demco, Inc. There, the Fifth Circuit held that the time for removal expires 30 days after the first defendant is served, regardless of whether other defendants have been served. The Fifth Circuit reasoned that the first-served defendant rule was appropriate because removal requires the unanimous consent of all defendants. Once the first-served defendant decides against removal, removal is impossible.

The Fifth Circuit is in the minority on this issue. The Bailey case follows more recent decisions in the Sixth and Eighth Circuits (Brierly v. Alusuisse Flexible Packaging, Inc. and Marano Enterprises of Kansas v. Z-Teca Restaurants, LP [PDF]), which conclude that equity requires that each defendant have 30 days from the date it was served to file a notice of removal. Otherwise, later-served defendants could lose their statutory right to removal before ever receiving process.

The Eleventh Circuit based its Bailey decision in part on its view that the last-served defendant rule is supported by the U.S. Supreme Court’s decision in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc. In Murphy Brothers, the Court held that the removal period does not begin until the defendant receives formal process. The Eleventh Circuit reasoned that the Fifth Circuit’s first-served defendant rule is inconsistent with the Murphy Brothers holding because it obligates a defendant to seek removal prior to receiving formal process.

Now I know what you're thinking. It's probably the same thing I first thought when I heard about this dramatic 11th Circuit development:

What is Michael Kreitzer's reaction? For gosh sakes get me handsome Mike Kreitzer on the horn and tell me what he thinks of all this! Seriously, I need to know what Michael thinks NOW!

Thankfully, Michael was indeed available for comment:

“A plaintiff who cries foul because its case, which had been litigated in state court for some time, is surprisingly removed to federal court by a later-served defendant may only have itself to blame,” states Michael Kreitzer, Miami, cochair of the Federal Rules Revision Subcommittee of the Section’s Pretrial Practice and Discovery Committee. “The plaintiff is the master of choosing the defendants and the order in which they are served, and if the plaintiff is diligent in identifying potential defendants presuit, then the plaintiff likely would not face the late arrival of a defendant with removal rights.”

Sounds reasonable and all Michael, but that's a low blow -- everyone knows plaintiffs don't think that far ahead.

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