Stelor Productions, v. Silvers

Filing 98

REPLY by Stelor Productions in opposition to [96-1] motion for leave to file sur-reply to defendants reply to stelors response to motion for attorneys fees and expenses (dj, Deputy Clerk)

Stelor Productions, v. Silvers

Doc. 98

Case 9:05-cv-80393-DTKH

Document 98

Entered on FLSD Docket 12/28/2005

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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA CASE NO. 05-80393 CIV HURLEY/HOPKINS STELOR PRODUCTIONS, L.L.C., a Delaware limited liability company, f/k/a STELOR PRODUCTIONS, INC., Plaintiff, vs. STEVEN A. SILVERS, a Florida resident, Defendant. ________________________________________/ PLAINTIFF'S REPLY TO SILVERS' OPPOSITION TO MOTION FOR LEAVE TO FILE SUR-REPLY TO DEFENDANT'S REPLY TO STELOR'S RESPONSE TO MOTION FOR ATTORNEYS' FEES AND EXPENSES Plaintiff Stelor Productions, LLC, by and through undersigned counsel, hereby replies as follows to Silvers' Memorandum in Opposition to Plaintiff's Motion for Leave to File SurReply: Silvers, again, attempts to mislead this Court with respect to the directly controlling Eleventh Circuit decision in Laborers Local 938 Joint Health & Welfare Trust Fund v. B.R. Starnes Co., 827 F.2d 1454, 1458 (11th Cir. 1987). Silvers finally admits that the case denies a motion for prevailing party attorneys fees under Florida law, but Silvers then disingenuously argues the case is somehow not controlling because the Court did not analyze who was the prevailing party under the test articulated by the Florida Supreme Court in Moritz v. Hoyt Enters., Inc., 604 So. 2d 807 (Fla. 1992). That is absurd! The Laborers Court clearly and expressly held that no award of fees was appropriate under Fla. Stat. 713.29 or 57.105, "[g]iven that the federal court dismissed the case for lack of subject matter jurisdiction and the merits of

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the state claims ha ve yet to be tried." As the Court emphasized, "it would be inappropriate to award fees under either of these Florida provisions at this time." 827 F.2d at 1458. In Moritz, the Court adopted the test articulated by the United States Supreme Court for determining the prevailing party, and applied it in a case decided on the merits after a final hearing. 604 So. 2d at 809, 809-10.1 As the Laborers' decision made clear, however, that standard has no application where the merits of a case remain undecided and a case has been dismissed on jurisdictional grounds. The decision in Prosperi v. Code, Inc., 626 So. 2d 1360, 1361 (Fla. 1993), is similarly inapplicable, where the Court applied the Moritz test to determine a prevailing party after a judgment on the merits. Nor does the decision in Baratta v. Valley Oak Homeowners' Assoc., 891 So. 2d 1063, 1064 (Fla. 2d DCA 2004), support Silvers' position here. That case involved an award of prevailing party fees following a dismissal for lack of prosecution under Rule 1.420(e), Fla. R. Civ. P. As set forth in Stelor's Sur-Reply, dismissals for lack of prosecution under subsection (e) of the Rule are not subject to the express exception included for involuntary dismissals under subsection (b) of the Rule, which provides that "a dismissal for lack of jurisdiction" does NOT "operate[] as an adjudication on the merits." Stelor, thus, ignored Baratta because it is

inapplicable. Silvers, however, continues to ignore the express provisions of Rule 1.420(b), because they entirely undermine his argument. Notwithstanding the voluminous papers filed by Silvers in connection with his fee motion, he still has not cited to a single decision under Florida law awarding prevailing party fees following a dismissal for lack of jurisdiction. Yet, he again asks this Court to ignore the Clearly, the Laborers Court was aware of that federal test, based on the Supreme Court's 1983 decision in Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933 (1983). 2
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directly controlling cases ­ including the Eleventh Circuit's decision in Laborers ­ holding that a dismissal for lack of jurisdiction simply does NOT trigger any right to prevailing party fees. Additionally, Silvers cannot overcome the obvious and fatal procedural defect to his request for sanctions: he never served a motion as required by Rule 11 and by Fla. Stat. § 57.105. That mandates denial of his motion, as the Florida Court of Appeal again just reconfirmed, O'Daniel v. Board of Commissioners, 2005 WL 3300956 (Fla. 3d DCA Dec. 7, 2005). Given Stelor's own initiative in advising this Court about the jurisdictional issue,

resulting in dismissal of the action, moreover, this case does not justify issuance of an order to show cause regarding sanctions on the Court's initiative. 2 Indeed, Silvers' suggestion that he had no "personal knowledge of Stelor's members" is simply unbelievable, given the independent research that Silvers and his counsel have apparently done regarding those members. Silvers and his counsel have long-since known the identity of many of Stelor's members, including Mr. Epstein. In fact, counsel for Silvers had requested during the pendency of the action that Mr. Epstein be made available for deposition. Silvers is playing a game of cat-and- mouse. Rather than disclose information it appears to have had for some time; Silvers chose to try and set Stelor up, disclosing selective information in its reply memo (and now in its opposition to Stelor's sur-reply). Silvers' tactic should not now be

rewarded; his request for sanctions should be denied, for failure to comply with the express procedural requirements. Stelor contends that the same standards and procedures applicable before a court may issue sanctions on its own initiative pursuant to Rule 11 also sho uld apply to court-initiated sanctions under Fla. Stat. § 57.105. Although Stelor's research has disclosed no Florida cases addressing the requirements under that statute, the Florida cases have consistently "construe[d] it as its prototype has been construed in federal courts," Mullins v. Kennelly, 847 So. 2d 1151, 154 (Fla. 5t h DCA 2003). 3
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Finally, Silvers attaches as Exhibit A to his Opposition a spreadsheet, purportedly "created by Stelor" with "embedded properties" showing "that it was authored by Esrig himself in 2004, and has been maintained by Julie Depue, a current employee of Stelor." Opposition at 5. Silvers, however, provides no substantiation whatsoever for this. He offers no explanation of how he obtained what he himself describes as a proprietary Stelor document, and gives no indication of the source of that purported document. Clearly, that document has not been

authenticated, and Stelor cannot check its validity or test its accuracy. It is simply not evidence! As Stelor has advised, it has had problems with certain personnel, including one who stole information and disappeared earlier this year. Supplemental Declaration of Steven A. Esrig In Opposition to Defendant's Motion for Fees, ¶ 11. A true and correct copy of a February 16, 2005 police report relating to the incident is attached hereto as Exhibit "A". Incredibly, Silvers' counsel, Gail McQuilkin, herself had called this employee at Stelor's offices shortly before those events. Esrig Decl. ¶ 11. With each new paper Silvers files, unfortunately, it appears more likely that Silvers and his counsel are in possession of improperly obtained information. Rather than requesting the Court to sanction Stelor, Silvers should be ordered immediately to return all improperly obtained information to Stelor, and should be excluded from using such material in any way in connection with these proceedings. WHEREFORE, Stelor respectfully requests entry of an order (1) denying Silvers' Motion for Fees and Expenses, (2) requiring Silvers and his counsel immediately to return all improperly obtained information to Stelor, and (3) excluding all such information from use in connection with these proceedings. RESPECTFULLY SUBMITTED, 4

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BURLINGTON, WEIL, SCHWIEP, KAPLAN & BLONSKY, P.A. Attorneys for Plaintiff Office in the Grove, Penthouse A 2699 South Bayshore Drive Miami, Florida 33133 Tel: [phone] Fax: [phone] By: /s/ Kevin C. Kaplan Kevin C. Kaplan, Esq. Florida Bar No. 933848 David J. Zack, Esq. Florida Bar No. 641685 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing was served via electronic mail and U.S. mail on this 27t h day of December 2005 upon the following: Adam T. Rabin, Esq. DIMOND, KAPLAN & ROTHSTEIN, P.A. Trump Plaza 525 S. Flagler Drive, Suite 200 West Palm Beach, Florida 33401 Kenneth R. Hartmann, Esq. Gail M. McQuilkin, Esq. KOZYAK TROPIN & THROCKMORTON, P.A. 2525 Ponce de Leon Blvd., 9t h Floor Coral Gables, Florida 33134 /s/ Kevin C. Kaplan Kevin C. Kaplan

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