⚖️ Legal Update XII

December 29, 2020

In our last “Legal Update” in our December 12, 2020 newsletter, we reported on what appeared to be the status of the two remaining active lawsuits involving the Club. There have been some developments in both cases that can perhaps be best described as “case administration activity,” but since they could end up being consequential developments, we wanted to get this information out before the New Year.

Borers vs. Pompano Senior Squadron Flying Club, Inc.

We previously mentioned, back on December 7, 2020, the Borers filed a Motion to Amend their complaint to reduce the number of parties and correct the Club’s legal name in a lawsuit seeking to recover the $1,700 Membership Fee paid when joining the Club in 2018. That Motion to Amend still remains open without any apparent action taken by the Court. On December 23, 2020, three new entries were added to the docket. One entry had a document included, a Motion to Produce at Trial and another was a note that the Court had issued a subpoena that the Plaintiffs Borer apparently intend to serve upon former Club Treasurer Carl Kennedy.

The Motion to Produce at Trial document added to the docket on December 23, 2020 was filed by the Plaintiff, Steven Borer. This motion asks the Court to direct the Club to produce – at trial – three document categories of Club records from recent years:

• Club meeting minutes, including minutes setting the membership fee (2018-2019).
   
• Club bank records, including instances of refunding any membership fees (2018-2019).
   
• Club financial records furnished at monthly meetings 2018-2020.

This Motion does not provide a rationale for what is being sought or why the Borers seek this information at trial rather than in advance of the trial. Still, it seems reasonable to infer that the Borers are seeking records from the Club showing that other members who resigned from the Club around the same time they did (in 2018) ended up having their $1,700 membership fee properly refunded, even if delayed.

Two other “text only” entries were added to the docket on December 23, 2020, one saying only “Comment: sent motion via email to JA…..” and the other stating “Subpoena Issued to pltf -Michael Borer.”:

• The first indicated that the Borer’s Motion to Produce at Trial had been sent to the Judge’s assistant the day it was filed. However, this entry disappeared on December 28, 2020 for reasons unknown.
   
• The second entry indicates that Plaintiff Micheal Borer requested the Court issue him a subpoena to summon former Club Treasurer Carl Kennedy.

NOTE: The docket entry “Comment: sent motion via email to JA…..” was dated the same day as Plaintiffs’ Motion to Produce at Trial. There was no content associated with this docket entry. We believe this docket entry intended to mean that the Clerk of the Court was documenting that they were proactively forwarding Plaintiffs’ Motion to Produce at Trial to the Judge’s Judicial Assistant (hence the “JA”). For reasons unknown, this docket entry has been recently removed from the Clerk’s docket record. Normally we mirror the Clerk’s docket entry record on our web site, but in this instance, we are not going to remove this entry from our web site in order to maintain an exact record of this case history.

Upcoming Deadlines and Public Trial: Although the authority of the Notice filed by the Club on December 4, 2020, purporting to establish a trial schedule and rules, remains unclear, the Notice recites a deadline to file all documents/exhibits for trial by Monday, January 4, 2021. The Notice also says the trial will occur a week later, on Monday, January 11, 2021 at 10:00am. Assuming this schedule holds up, we will add a link with details on our web site, plus an electronic calendar file.

Pompano Senior Squadron Flying Club, Inc. vs. Carl L. Kennedy, II

There have been a number of filings by both sides in this case following our last Legal Update on December 12, 2020. This seems to be following a pattern of counterproductive motions and hearings of the sort Judge Haimes foresaw back on November 17, 2020. With a sarcastic tone, the Judge then told the parties, seemingly directed primarily to the Club’s officers present, that instead of rolling up their sleeves and talking to one another, the parties should perhaps not talk to each other to resolve the case, keep spending money on lawyer costs, and get ready for the next round of motions in 30 days. Since our last Legal Update on December 12, 2020, a total of 10 new documents were added to the docket, although two of them appear to be duplicates:

• On December 13, 2020, Carl Kennedy informed the Club and Court that he would be unavailable from December 23, 2020 to January 4, 2021.
   
• The next day, December 14, 2020, the Club filed their 4-page Reply to Defendant’s Second Amended Affirmative Defenses.
   
• The day after that, December 15, 2020, the Court filed a Notice of Hearing set for January 5, 2020 attaching an email from Mr. Kennedy requesting a hearing on the Motion for Contempt that Kennedy had filed against the Club on December 11, 2020.
   
• The following day, December 16, 2020, Mr. Kennedy filed a Notice of Hearing, with apparent intent to change the hearing from January 5, 2020 to January 12, 2020 to hear two of his motions: (1) December 11, 2020 Motion for Contempt and (2) October 12, 2010 Motion to Compel Better Responses.
   
• Two days later, December 18, 2020, the Club filed their Response to Defendant’s Second Request for Production, purporting to deliver documents to Mr. Kennedy pursuant to his October 25, 2020 Second Request for Production. However, the Club was over a week late. The Court had previously extended, to December 10, 2020, the Club’s court-ordered deadline for filing their Response to Defendant’s Second Request for Production. The Club’s failure to meet that deadline was the basis for Mr. Kennedy’s December 11, 2020 Motion for Contempt that he filed the day after the Club’s deadline was not met.
   
• On December 21, 2020, three days after the Club’s filing of their Response to Defendant’s Second Request for Production, Mr. Kennedy filed a Notice of Plaintiff’s False Certification and Failure to Provide Documents Responsive to Second Request for Documents in which he alleged that the Club had not provided the documents as they claimed on December 18, 2020 (which still was over a week late). Mr. Kennedy attached emails to his Notice that indicated the Club had sent Mr. Kennedy an email containing a “Google Drive” link where Mr. Kennedy could supposedly retrieve the documents due him. Within hours, Mr. Kennedy complained that he was unable to access whatever was there, and remained unable despite several attempts including directly communicating with Counsel for the Plaintiffs.
   
• The Club filed their Plaintiff’s Response within three hours of Kennedy’s Notice, essentially claiming it was a “glitch” and that, even though Mr. Kennedy had been sent, received, and tried to use the link sent to his primary email address on file, Mr. Kennedy had tried to access the files using an “alternate email,” was unable to do so, and was therefore intending to delay and harass the Club.

We do not know if there is an agreement between the parties about how to “provide” each other with discovery materials. We do note that there is a difference between “make available,” which requires action on the recipient’s part to receive documents or materials owed, and “deliver,” “provide,” or “produce,” all of which require no action by the recipient other than opening their email or front door to receive what is owed. However, if there is such an agreement for electronic exchange of discovery, it obviously needs an instruction manual to go with it. By the looks of these filings, neither party seemed to understand what had happened, serving as perhaps the best reason why these “make available” systems are not suitable for “delivery” of required evidence. That said, we find sad irony in the Club’s claim that Mr. Kennedy was trying to delay and harass the Club when all indications are that the Club is transparently trying to draw attention away from their own failures in performance of their discovery obligations on this one matter alone.

Next Public Hearing: Tuesday, January 12, 2021 at 8:30 am via Zoom. We have a link with details on our web site, but you can download an electronic calendar file that has all the details. We have a hard time believing that Judge Haimes will not drop an anvil on the head of any Club officer who appears and attempts justify the Club’s performance, persistent failure in meeting discovery deadlines, and playing shell games with discovery documents in the process. It seems like this could be an expensive day for the Club and has all the makings of an informative, if not entertaining, morning.

We will continue to update the litigation pages on this web site as we learn more, but please continue to let us hear from you at newsletter-feedback@pompanobeachflyingclub.info.