Laura Loomer Must Pay CAIR and CAIR Florida Nearly $125K in Attorney Fees

Starting at Illoominate Media, Inc. v. CAIR Florida, Inc.Judges Britt Grant and Charles Wilson ruled today in favor of the petition.

The lawsuit over attorney fees and costs is based on allegations that CAIR Florida, Inc. and CAIR Foundation helped to convince Twitter to remove Loomer’s account. CAIR dismissed the original amended complaint from federal court on August 22, 2019. Loomer’s counsel and Illoominate, her corporation filed a motion for a return to the state court. CAIR submitted a statement of Nathan Bernard as a witness in its reply two weeks later. Illoominate was pranked by Bernard, who fabricated evidence to prove that CAIR Foundation had banned Illoominate’s account. CAIR in the meantime had filed a motion of dismissal in late August.

CAIR sent Illoominate a “offer for judgment” on October 2, 2019. It proposed to settle the whole case for just $1. Illoominate had thirty days to respond. CAIR Florida was expelled by the district court. On October 22, it scheduled an appearance on CAIR’s motion to dismiss. Illoominate chose to litigate over settle. On October 31—shortly before the offer of judgment deadline—Illoominate filed a response to CAIR’s motion to dismiss, where it voluntarily dismissed all its claims except Count II (for tortious interference with an advantageous business relationship). The deadline was met and the District Judge dismissed the remainder of the claims. In December 2020, this Court upheld the dismissal. CAIR sought reimbursement from Illoominate. This was pursuant to Florida law, which requires that certain parties decline to accept a judgment offer be paid reasonable costs. Fla. Stat. § 768.79(1).

Both parties were able to present the case in detail to the magistrate judge who referred it to the lower court. CAIR filed a motion to grant costs and attorney fees. However, the magistrate judge reduced their size in order to comply with state and federal laws that limit recovery. Illoominate appealed again to the 11th Circuit, which we denied because there was no final dispositive order for review.

This appeal (third) stems from an Illoominate motion filed in district court against the magistrate judges’ order. CAIR was allowed to respond in writing to Illoominate’s objections by the district judge. Accordingly, the court of district adopted in whole the orders of the magistrate, giving CAIR compensation for costs and fees incurred throughout the entire case. This included the period from October 2, 2019, (when the offer to judgment was made), through the conclusion of the first appeal. Illoominate asks for a review.

Illoominate claims first that Florida’s Cost-Shifting law is invalid because the suit it brought was both for injunctive and money damages. Fla. Stat. § 768.79(1); See also Diamond Aircraft Indus., Inc.Florida 2013 (“Courts also have held that section 768.79 does not apply when plaintiffs seek both monetary or nonmonetary relief and the parties make a general settlement offer Illoominate believed that they only had a chance of pledging, which they did.

Not quite. Illoominate asks for relief because of “damages to be proven at trial”, and, without elaboration, “preliminary or permanent injunctions to stop defendants continuing to engage in unlawful conduct.” Yet as the magistrate judge correctly pointed out, in the eight-and-a-half-month period between the filing of the amended complaint and the district court’s decision to dismiss, Illoominate “never filed a motion for a preliminary injunction or temporary restraining order” in state or federal court.

It could not have. CAIR is notified on all four counts that Illoominate suffered injury in an amount to be determined at trial. These are completely identical with the form of the damage claim’s prayer. Fourth count (a restraint on trade) does not provide specifics about the relief requested. However, the sentence is in the present tense. Illoominate & Loomer have been “harmed in their business or property due to defendants’ unlawful act.” It is not necessary to enjoin any ongoing damage. Injunctive relief is only possible in the context of count I. This is directed against only never-served defendant Twitter. Illoominate asks for “recission and reformation of Twitter Terms of Service provisions that, as a matter of Equity, could otherwise hinder or limit the Court’s ability provide just and comprehensive remedies for defendants’ unlawful conduct.” This suit can be read without Twitter as a claim against CAIR for money damages.

Florida Supreme Court approved section 768.79 for cases where there is a nonmonetary claim but which actually involve disputes over monetary damages. Diamond Aircraft. Interpretation of Florida State Courts Diamond AircraftYou can look beyond the complaint’s procedural position to determine the party seeking “true relief”, and then apply section 768.79 for damages.

This lens shows that lower courts correctly applied this statute. Illoominate only made a fleeting gesture towards injunctive relief for another defendant and completely failed to pursue the matter when the defendant wasn’t served. Instead, as the magistrate judge correctly pointed out, the language of their complaint against CAIR sounds entirely in damages…. Illoominate … cannot dodge responsibility for its own choice to continue litigation by pointing to a single throwaway line in its complaint. To hold otherwise would defeat the entire purpose of the Florida statute—any party could upend the law by inserting a single sentence into its pleadings….

Section 768.79 states that a court cannot disallow the entitlement to a fee award if it finds that the offer was made without good faith. Illoominate asserts that CAIR did not offer a judgment in good faith. This contention is incorrect for two reasons.

Illoominate first waived this argument via inaction. This fact-bound inquiry reviews the court’s determination of good faith and clear error. A district court also examines the order by the magistrate judge for clear error to determine if it’s contrary to law. However, the magistrate judge made it clear that “there was no disagreement as to whether the defendants’ offer was made with good faith.” Illoominate did not raise the good-faith issue until its objections to the magistrate judge’s order—which was too late to afford it meaningful relief, given the district court’s mandate to review record-based factual arguments for clear error. Clear error review is sufficient to allow us to also affirm the judgment.

If Illoominate’s bad-faith argument is not waived, the only question of law presented by it is whether a nominal offer of judgment—here, $1—can be made in good-faith. Yes. Nominal offers can still be valid, even if they’re not based upon any assessments of liability or damages. However, it is possible to make them valid if they have reasonable grounds at the time they made the offer to determine that they were only nominally exposed. When they offer settlement, the offerors don’t need to present any evidence to support their judgment. All that is required is “some reasonable base”

CAIR then presented sworn declarations proving its involvement in Illoominate’s claims. This was a hoax. Illoominate should have paused before pressing its claims. Illoominate accepted the offer of judgment within the stipulated 30-day period. Illoominate then voluntarily dropped three claims. CAIR Florida, Inc. was also removed from the case by the district judge. Only one of Illoominate’s five charges was left operative and that claim was also dropped within the three-week settlement window. CAIR was able to make a valid conclusion that a nominal settlement was proper in this setting. So even if the argument had been properly presented, the district court did not err in concluding that CAIR’s offer was made in good faith….

[W]e affirm the holding of the district court that Illoominate must pay the full amount of costs and fees ordered by the magistrate judge: $124,423.37….

Congratulations to Yasir Billoo (Golden & Grimes, LLP), Darren Joel Spielman (The Concept Law Group, PA), and Gadeir I. Abbas, Lena F. Masri, Justin Sadowsky & C. Danette Zaghari-Mask (CAIR), who represented defendants.