KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
You can read all of our articles on our website. Having trouble getting our emails? Change your spam controls and whitelist ken@kirschenbaumesq.com
**********************
Why are legal fees so damn high; at least one reason
December 20, 2023
**********************
Why are legal fees so damn high; at least one reason
***********************
How many cases do I report on where the court reached the right decision, dismissed a Complaint, only to back-step and permit an amendment to hopefully salvage the meritless case? Too many. It’s a waste of time, and litigant’s money.
In Flenaugh v Block the Plaintiff, a resident of California, sued Block in Federal Court in Washington. She sought and obtained permission to proceed in forma pauperis, which means as a poor person so she didn’t have to pay filing fees. She also prosecuted the case “pro se”, which means on her own without a lawyer. The defendant, Block, which owned or operated an App Cash company, had neither option; it wasn’t poor and required a lawyer to defend the case.
Plaintiff claimed that she tried to access her App Cash account and was unable to withdraw $110, which was admittedly the entire balance in the account. She claimed damages, including emotional damage, of $800,000.00, later upping the claim to $18,000,000.00. Defendant moved to dismiss the case.
“This case arose out of Ms. Flenaugh's inability to recover funds from her Cash App account, operated by Block. Ms. Flenaugh asserts that on October 11, 2019, her cousin transferred funds into her Cash App account. She states that she was then incarcerated between November 19, 2019 and October 7, 2021, and upon release was unable to access the funds despite her efforts between October 2021 and most recently on April 11, 2023. Ms. Flenaugh's complaint does not specify the value of the funds or provide documentation of the amount claimed. Although Ms. Flenaugh's complaint does not identify the specific legal basis for her claims, liberally construed, Ms. Flenaugh alleges that Block has refused to return or help Ms. Flenaugh access money that belongs to her and in doing so “has scammed [Ms. Flenaugh] out of [her] money.”
“Block has stated via sworn declaration that on October 11, 2019, Ms. Flenaugh received a payment of $110 to her Cash App account. Block asserts in its motion to dismiss that these $110 are the funds Ms. Flenaugh has attempted to access since October 2019 and is the amount in dispute-not the $18,000,000 claimed by Ms. Flenaugh. Ms. Flenaugh does not dispute in her response that the funds in her Cash App account totaled $110 but rather argues this is not the amount in controversy for jurisdictional purposes because she also suffered emotional damage.”
The Federal District Court Judge determined that the amount in controversy did not appear to be over $75,000.00, which is required for federal court jurisdiction when diversity [as in parties in different states] is the basis for federal jurisdiction [as opposed to a controversy involving a federal law or the Constitution].
The Judge also found, correctly so:
“… Ms. Flenaugh's opposition argues that “as a result of Cash App's inability to efficiently assist in the recovery of Plaintiffs [sic] account she has suffered from depression and anxiety,” but neither her opposition nor her complaint, even liberally construed, contains any legal claim under which she could recover emotional distress damages. See, e.g., Repin v. State, (“In general, parties cannot recover noneconomic, emotional disturbance damages for breach of contract.”); Washington State Physicians Ins. Exchange & Ass'n v. Fisons Corp., (damages for pain and suffering are not compensable under Washington's Consumer Protection Act);.” [footnote 1]
The Judge inserted a footnote, which brought this case to my attention, and now your attention:
“The Court declines to address Block's argument that the limitation of liability contained within its Cash App Terms of Service limits Ms. Flenaugh's potential recovery such that it is a legal certainty that the amount in controversy requirement cannot be met. This argument presumes the validity of the limitation of liability clause under the applicable state law, a question Block has not sufficiently briefed.” [Emphasis added]
So I have to wonder, is there any reason the judge or his minion of court clerks couldn’t research the law regarding the limitation of liability provision? He could have called me and saved a lot of people a lot of time, and Block a lot of money for legal fees to defend this obviously frivolous case. Instead he held:
““[B]efore dismissing a pro se complaint the district court must provide the litigant with notice of the deficiencies in his complaint in order to ensure that the litigant uses the opportunity to amend effectively.” Akhtar v. Mesa, “A district court should not dismiss a pro se complaint without leave to amend unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” (internal quotation marks and citation omitted). This order is the first notice to Ms. Flenaugh from the Court of the jurisdictional deficiencies in her complaint. Although it appears unlikely, it is not “absolutely clear” to the Court that Ms. Flenaugh could not amend her complaint to add additional facts or legal theories that could establish a basis for the Court's subject matter jurisdiction. The Court will therefore allow Ms. Flenaugh 14 days to file a second amended complaint. If Ms. Flenaugh amends her complaint but fails to allege sufficient facts or causes of action to invoke the Court's subject matter jurisdiction, Block can renew its motion. If Ms. Flenaugh does not amend her complaint within 14 days, the Court will dismiss this case without prejudice for lack of subject matter jurisdiction, and Ms. Flenaugh can instead refile her claims in state court if she so chooses.”
I supposed its sometimes difficult to see something is frivolous, nonsense, completely lacking in merit, bordering on insane; but not all the time. This case should have been put to rest, permanently.
***********************
STANDARD FORM AGREEMENTS: To order up to date Standard Form Alarm / Security / Fire and related Agreements click here: www.alarmcontracts.com
***************************
CONCIERGE LAWYER SERVICE PROGRAM FOR THE ALARM INDUSTRY - You can check out the program and sign up here: https://www.kirschenbaumesq.com/page/concierge or contact our Program Coordinator Stacy Spector, Esq at 516 747 6700 x 304.
***********************
WEBINARS: https://www.kirschenbaumesq.com/page/alarm-webinars
***********************
ALARM ARTICLES: You can always read our Articles on our website at www.kirschenbaumesq.com/page/alarm-articles updated daily *************************
THE ALARM EXCHANGE - the alarm industries leading classified and business exchange - updated daily.
https://www.kirschenbaumesq.com/page/alarm-exchange
*************************
Wondering how much your alarm company is worth?
Click here: https://www.kirschenbaumesq.com/page/what-is-my-alarm-company-worth
******************************
Getting on our email list / Articles archived:
Many of you are forwarding these emails to friends or asking that others be added to the list. Sign up for our daily newsletter here: Sign Up.
**************************
Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com
|
