Southern District of Florida

Miccosukee Tribe and Bernardo Roman Sanctioned $1M by Federal Court in Claims against Billy Cypress, Lewis Tein LLC, and Dexter Lehtinen

Matthew L.M. Fletcher1 Comment

Here are the materials in Miccosukee Tribe v. Cypress (S.D. Fla.):

38 Defendants Notice of Filing Motion for Sanctions

380 Lewis Tein Trial Brief re Rule 11 Motion

394 Lehtinen Supp Brief

395 Lewis Tein Supp Brief

396 Miccosukee Brief

419 DCT Order

An excerpt:

For the aforementioned reasons, it is hereby ORDERED and ADJUGDED that Defendant Lewis Tein’s Motion for Rule 11 Sanctions and Defendant Dexter Lehtinen’s Motion for Rule 11 Sanctions are GRANTED in part and DENIED in part. Plaintiff Miccosukee Tribe of Indians of Florida, Counsel Bernardo Roman, Esq., and the Law Offices of Bernardo Roman III are SANCTIONED in the amount of $975,750.00 owing to Lewis Tein and in the amount of $95,640.00 owing to Dexter Lehtinen, which represent the attorney’s fees and costs incurred in this matter, including those accrued for bringing and [50]  prosecuting the sanctions motions. See Norelus v. Denny’s, Inc., 628 F.3d 1270, 1298 (11th Cir. 2010) (“[A] district court may include costs arising from the sanctions proceedings in the sanctions award.”); Mike Ousley Prods., Inc. v. WJBF-TV, 952 F.2d 380, 383-84 (11th Cir. 1992) (“This Court has clearly held that a party can collect the expense of pursuing a Rule 11 claim.”).

I recognize the monetary sanctions imposed are sizable. However, considering that upon a finding that a party filed a pleading that has no reasonable factual basis, which unreasonably and vexatiously multiplied the proceeding, an appropriate sanction may be the compensation of attorney’s fees incurred in combating the wrongful conduct. Here, the wrongful conduct is the filing of the complaints with no reasonable factual basis to support their allegations. Following a review of the Lewis Tein’s Sealed Statement of Attorney’s Fees (ECF No. 400, SEALED) and Defendant Lehtinen’s Filing of Legal Fees and Expenses Pursuant to Court Order (ECF No. 404, SEALED), it is difficult to parse out — given the sweeping nature of the Tribe’s allegations, i.e. Defendants Lewis Tein created their law firm “for the main purpose of advancing and perfecting the plundering of the Miccosukee Tribe,” Defendants Lewis Tein devised a money laundering/kickback scheme whereby Defendants [51]  Lewis Tein “would charge exorbitant fees for fictitious, unnecessary, inflated, substandard and exaggerated legal work to funnel a part thereof to Defendant Cypress,” and Defendant Lehtinen “through a pattern of criminal activity. . .maintained control of the affairs of the [Tribe] . . . resulting in a loss of millions of dollars” — which, if any, of the legal fees incurred were not warranted by the allegations.

Materials in Miccosukee’s failed effort to disqualify the judge are here.

Materials on the underlying merits of the claim are here and here.

SCOTUS Denies Cert in Seminole Tribe v. Florida

Matthew L.M. Fletcher

Here.

The cert petition is here.

SCOTUSBlog Lists Seminole Tribe v. Florida as Petition to Watch for Friday’s Conference

Matthew L.M. Fletcher

Here. And the cert stage briefs here.

I predict a decent chance for a CVSG but the Court ultimately will deny this one.

Lower court materials and my commentary here.

Opening Eleventh Circuit Brief in Seminole Tribe Rental and Gross Receipts Tax Challenge

Matthew L.M. Fletcher

Here:

Florida Opening Brief

Lower court materials here.

CashCall v. Inetianbor Cert Stage Briefs

Matthew L.M. Fletcher3 Comments

Here:

CashCall Cert Petition

Inetianbor Cert Opp Brief

Questions presented:

I. Whether there is a non-textual “integrality exception” to the mandatory requirement in the Federal Arbitration Act (“FAA”) that a substitute arbitrator “shall” be appointed by the court whenever the parties’ chosen arbitrator is unavailable for “any … reason”? 9 U.S.C. § 5.

II. Whether a court may void an entire arbitration clause – and force the parties to litigate in court – despite the fact that the parties included a severance provision that, if applied, would render the arbitration clause enforceable?

Lower court materials here.

District court materials here.

Cert Stage Briefs in Seminole Tribe v. Florida Dept. of Revenue

Matthew L.M. Fletcher1 Comment

Here:

Seminole Cert Petition

Florida Cert Opp

Seminole Reply Brief

Question presented:

The question presented is whether sovereign immunity bars an American Indian tribe from seeking Ex parte Young relief from the unconstitutional enforcement of a state tax scheme merely because that relief might require refunds for taxes unlawfully collected in the future.

Lower court materials and my commentary here.

Eleventh Circuit Briefs and Updated Materials in IRS Subpoena Controversy with Miccosukee

Matthew L.M. Fletcher1 Comment

Here are the appellate materials in United States v. Billie:

Miccosukee Opening Brief

US Appellee Brief

Billie Reply

District court materials:

19 Miccosukee Response to Summons

21 US Reply

26 DCT Order Enforcing Subpoena

31 Miccosukee Motion to Stay

33 US Response

34 DCT Order Denying Motion for Stay

35 US Motion for Contempt 36 DCT Order Denying Motion

38 US Second Motion for Contempt

Federal Court Materials (So Far) in Suit against Seminole Tribe’s Section 17 Corporation

Matthew L.M. Fletcher

Here are the materials in Lujen Brands LLC v. Seminole Tribe of Florida Inc. (S.D. Fla.):

14 STOFI Motion to Dismiss

15 Lujen Response

18 STOFI Reply

DCT paperless order:

ORDER DENYING WITHOUT PREJUDICE Seminole Tribe of Florida, Inc., Mike Ulizio, and Chris Osceola’s (STOFI Defendants) 14 Motion to Dismiss Complaint With Prejudice for Lack of Subject Matter Jurisdiction; DENYING WITHOUT PREJUDICE the STOFI Defendants’ 31 Motion for Scheduling Conference; and GRANTING Plaintiff’s 32 Motion to Compel Initial Disclosures. On May 2, 2014, the STOFI Defendants filed a 14 Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that they are immune from suit by virtue of the doctrine of tribal sovereign immunity. In its 15 Response, Plaintiff requested jurisdictional discovery. It is ORDERED AND ADJUDGED that Plaintiff shall have forty-five (45) days to conduct jurisdictional discovery narrowly tailored to the subject-matter jurisdiction issue implicated by the STOFI Defendants’ 14 Motion to Dismiss. Discovery may not stray to merits issues. The Parties are directed to confer and cooperate in good faith in determining the logistics of the discovery. After the forty-five (45) day jurisdictional discovery period, the STOFI Defendants may, if they choose, refile their Motion to Dismiss for Lack of Subject Matter Jurisdiction. It is further ORDERED AND ADJUDGED that all parties shall proceed to merits discovery at the conclusion of the forty-five (45) day jurisdictional discovery period. This entry constitutes the ENDORSED ORDER in its entirety. Signed by Judge Joan A. Lenard on 8/22/2014. (jn) (Entered: 08/22/2014)

38 STOFI Motion for Reconsideration

46 Lujen Response

48 STOFI Reply

DCT Order:

ORDER GRANTING Seminole Tribe of Florida, Inc. (STOFI), Mike Ulizio, and Chris Osceola’s (STOFI Defendants) 38 Motion for Reconsideration of the Court’s August 22, 2014 Paperless Order. In their Motion, the STOFI Defendants argue that the Court’s August 22, 2014 Order (D.E. 33) implies that if they were to re-file their Motion to Dismiss for Lack of Subject Matter Jurisdiction based on sovereign immunity grounds at the close of jurisdictional discovery, they would nevertheless have to participate in merits discovery before the Court issued a ruling on the issue of subject-matter jurisdiction. (See D.E. 38 at 2). The STOFI Defendants further argue that if the Court were to order them to engage in merits discovery prior to resolution of the issue of sovereign immunity, the Court would be infringing on their tribal sovereign immunity and that such an order would constitute error. (Id.). Plaintiff asserts no argument on this issue in its Response. (See D.E. 46). The Court is permitted to resolve the issue of sovereign immunity before allowing discovery. See Caraballo-Sandoval v. Honsted, 35 F.3d 521, 524 (11th Cir. 1994). Accordingly, it is ORDERED that, at the close of jurisdictional discovery, should the STOFI Defendants re-file their Motion to Dismiss for Lack of Subject Matter Jurisdiction based on sovereign immunity grounds, the Court will stay this action as to the STOFI Defendants pending the resolution of the Motion to Dismiss.

The STOFI Defendants also argue in their Motion that the Court should more precisely define the boundaries of jurisdictional discovery. In its August 22, 2014 Order, the Court stated that “jurisdictional discovery [shall be] narrowly tailored to the subject-matter jurisdiction issue implicated by the STOFI Defendants’ [May 2, 2014] Motion to Dismiss. Discovery may not stray to merits issues.” (D.E. 33). STOFI argues that, because it has sovereign immunity unless it waives such immunity in its Charter or by contract, the only proper jurisdictional discovery against it concerning sovereign immunity goes to waiver, not to whether it is a subordinate economic entity of the Seminole Tribe of Florida. (See D.E. 38 at 8). The Court agrees. In accordance with binding precedent, STOFI is entitled to sovereign immunity unless and until it waives such immunity. Maryland Cas. Co. v. Citizens Nat. Bank of W. Hollywood, 361 F.2d 517, 520-22 (5th Cir. 1966); see also Inglish Interests, LLC v. Seminole Tribe of Florida, Inc., No. 2:10cv367FtM29DNF, 2011 WL 208289, at *5-6 (M.D. Fla. Jan. 21, 2011). Accordingly, it is ORDERED that jurisdictional discovery regarding STOFI is limited to the issue of whether STOFI waived sovereign immunity. Jurisdictional discovery shall not be permitted on the issue of whether STOFI is a subordinate economic entity of the Seminole Tribe of Florida, because, in the Eleventh Circuit, that issue is irrelevant with respect to whether STOFI has sovereign immunity. See Maryland Cas. Co., 361 F.2d at 520-22. Jurisdictional discovery shall be permitted on the issue of whether Ulizio and Osceola are also entitled to sovereign immunity.

It is further ORDERED that the forty-five day jurisdictional discovery period is to begin from the date of this order, as requested by the parties. Accordingly, the parties shall have until and including November 3, 2014, to complete jurisdictional discovery. This entry constitutes the ENDORSED ORDER in its entirety.

Signed by Judge Joan A. Lenard on 9/18/2014. (jn) (Entered: 09/18/2014)

Miccosukee Effort to Disqualify Judge in Billy Cypress Matter Fails

Matthew L.M. Fletcher2 Comments

Here are the materials in Miccosukee Tribe of Indians v. Cypress (S.D. Fla.):

408 Miccosukee Motion to Disqualify Judge

410 Lewis & Tein Opposition to 408

411 Lehtinen Opposition to 408

416 Miccosukee Reply in Support of 408

417 Order Denying Motion to Disqualify

A large part of the case is pending before the CA11. We posted on the lower court materials here (denial of tribe motion to reconsider), here (tribe motion to reconsider), and here (granting motion to dismiss).

Eleventh Circuit Affirms Inetianbor v. Cashcall

Matthew L.M. Fletcher2 Comments

Here is the opinion. An excerpt:

This appeal arises out of a disagreement between Abraham Inetianbor, who borrowed money at a high interest rate, and CashCall, Inc., the servicer of Mr. Inetianbor’s loan. Mr. Inetianbor filed a lawsuit against CashCall, which then sought to compel arbitration based on the loan agreement. The District Court ultimately refused to compel arbitration because the arbitration agreement in the loan document contained a forum selection clause that was integral to the agreement, and the specified forum was not available to arbitrate the dispute. CashCall appeals that decision here. After careful review, and with the benefit of oral argument, we affirm.

Briefs here:

Opening Brief

Answer Brief

Reply Brief

Lower court materials here.