Pulled up the notice. It's at 9:30 am in Courtroom 365B. It is set for 90 minutes. That is NOT a lot of time to address all the issues here. This is in TALLAHASSEE and will be on the ACC Motion to Dismiss or Stay the Florida lawsuit.
I am trying to think through how the court will have to address these issues. The ACC has raised good technical arguments that FSU failed to properly plead jurisdiction OR venue. Those are not trivial issues. These do not mean that the court won't have jurisdiction or that venue can't be proper here, but those have to be properly alleged to have the case go forward. This is the kind of legal technicality that will drive normal people crazy because it really is just a delay.
IF this is an issue, that is the first thing I expect the judge to address. What I don't know is whether he will go further than those issues if he decides FSU has not properly pled the case. I don't think the court will just "assume" those will be fixed and move to the merits or other venue issues, but I really just don't know. It is possible the court simply agrees that FSU has not alleged jurisdiction or venue properly, it could grant the ACC motion in part and dismiss the case with leave to amend the complaint to fix those issues.
If I was representing FSU I would seriously consider filing an amended complaint that is exactly like the operative one except for fixing these issues cleanly, ASAP, to remove that potential for delay.
If the court gets past these issues, I think next is the first filed/anticipatory suit exception/choice of law/venue aspect of the case and that could very well take the rest of the hearing time. I will be honest, the first filed and anticipatory suit stuff does not come up a lot. I am not sure what happens here, as I cannot find any evidence that Florida STATE courts have adopted the anticipatory suit exception to the first filed rule. Here is a nice article from The Florida Bar Journal talking about it in the federal context (and it's a good explanation to show how it works anyway, and it's not absolute).
So I think this will be a big argument. FSU can't just cite to a FLORIDA case saying there is anything wrong with filing anticipatorily. Judge Cooper may ask a lot about why he should adopt a rule not already adopted, talk about the pros and cons of the rule (there are clearly both), and about how it would work here. They could spend 30 minutes or more just going around on this issue. I can't begin to predict what Judge Cooper does on this.
Then the issue is whether the court gets to any substantive issues. First it will have to dispose of the claim that the dec action is not ripe. I don't think this one goes real long and I suspect Judge Cooper says the issues can be addressed and if any specific ones come up that are not properly set for dec action, the parties can re-raise the issue later. I just don't think he has time to mess with this one.
Substantive Issues
First is the claim our counts based on anti trust, etc. don't state a claim for relief. The law on this is bad. If he gets to issues, I could see him spending a lot of time on this and having an issue with it. But he will want to give them a chance to show him why the cases don't apply and will allow them a lot of time (he is always a fair judge like that but will be even more so with these folks). If I were the ACC, I would put this issue later in my arguments because it's one of the easiest and they may want to use some time on other legal issues.
Next is the unenforceable penalty stuff. I could see this being as far as the court could get in a 90 minute hearing. It's not a simple one. It is one that may actually be subject to motion to dismiss under NC law. The judge will have to address that question first. Indeed, if I am Judge Cooper, I issue an order that I want both parties to brief me on the choice of law question completely so we can address the issues cleanly at the hearing. In the end I think NC law applies and it will be interesting to see how those cases get argued. I want to see an FSU response to see what they have to say about these issues.
Breach of contract issues. I can't see how court gets this far, but the issue is more technical and substantive. I can see the judge addressing the issue of how much has to be pled, but don't think he gets into the weeds on dismissing breach of contract claims this early.
Fiduciary duty claims. I don't see how they get here. Will be interesting when they do argue it. I think Judge Cooper will have a lot of hard questions for FSU about how "The ACC" is to look at one program over the others.
Frustration of purpose. I don't think court get to this, but it could rule on the papers. I don't think this count goes far, but it may be that Judge Cooper says he's not ready to dismiss it and will deal with it in context of developed facts. That would be a win for FSU.
Catchall anti GoR claims. Hard to get here. Lots to talk about. I think this kind of thing will need its own hearing.
I don't think the court deals with the issues like SOL, waiver, etc. only because there may need to be some facts developed to have a full records. I would not be surprised, though, if he waded into those issues with the parties and asked some uncomfortable questions about what claims are likely barred.
I am trying to think through how the court will have to address these issues. The ACC has raised good technical arguments that FSU failed to properly plead jurisdiction OR venue. Those are not trivial issues. These do not mean that the court won't have jurisdiction or that venue can't be proper here, but those have to be properly alleged to have the case go forward. This is the kind of legal technicality that will drive normal people crazy because it really is just a delay.
IF this is an issue, that is the first thing I expect the judge to address. What I don't know is whether he will go further than those issues if he decides FSU has not properly pled the case. I don't think the court will just "assume" those will be fixed and move to the merits or other venue issues, but I really just don't know. It is possible the court simply agrees that FSU has not alleged jurisdiction or venue properly, it could grant the ACC motion in part and dismiss the case with leave to amend the complaint to fix those issues.
If I was representing FSU I would seriously consider filing an amended complaint that is exactly like the operative one except for fixing these issues cleanly, ASAP, to remove that potential for delay.
If the court gets past these issues, I think next is the first filed/anticipatory suit exception/choice of law/venue aspect of the case and that could very well take the rest of the hearing time. I will be honest, the first filed and anticipatory suit stuff does not come up a lot. I am not sure what happens here, as I cannot find any evidence that Florida STATE courts have adopted the anticipatory suit exception to the first filed rule. Here is a nice article from The Florida Bar Journal talking about it in the federal context (and it's a good explanation to show how it works anyway, and it's not absolute).
So I think this will be a big argument. FSU can't just cite to a FLORIDA case saying there is anything wrong with filing anticipatorily. Judge Cooper may ask a lot about why he should adopt a rule not already adopted, talk about the pros and cons of the rule (there are clearly both), and about how it would work here. They could spend 30 minutes or more just going around on this issue. I can't begin to predict what Judge Cooper does on this.
Then the issue is whether the court gets to any substantive issues. First it will have to dispose of the claim that the dec action is not ripe. I don't think this one goes real long and I suspect Judge Cooper says the issues can be addressed and if any specific ones come up that are not properly set for dec action, the parties can re-raise the issue later. I just don't think he has time to mess with this one.
Substantive Issues
First is the claim our counts based on anti trust, etc. don't state a claim for relief. The law on this is bad. If he gets to issues, I could see him spending a lot of time on this and having an issue with it. But he will want to give them a chance to show him why the cases don't apply and will allow them a lot of time (he is always a fair judge like that but will be even more so with these folks). If I were the ACC, I would put this issue later in my arguments because it's one of the easiest and they may want to use some time on other legal issues.
Next is the unenforceable penalty stuff. I could see this being as far as the court could get in a 90 minute hearing. It's not a simple one. It is one that may actually be subject to motion to dismiss under NC law. The judge will have to address that question first. Indeed, if I am Judge Cooper, I issue an order that I want both parties to brief me on the choice of law question completely so we can address the issues cleanly at the hearing. In the end I think NC law applies and it will be interesting to see how those cases get argued. I want to see an FSU response to see what they have to say about these issues.
Breach of contract issues. I can't see how court gets this far, but the issue is more technical and substantive. I can see the judge addressing the issue of how much has to be pled, but don't think he gets into the weeds on dismissing breach of contract claims this early.
Fiduciary duty claims. I don't see how they get here. Will be interesting when they do argue it. I think Judge Cooper will have a lot of hard questions for FSU about how "The ACC" is to look at one program over the others.
Frustration of purpose. I don't think court get to this, but it could rule on the papers. I don't think this count goes far, but it may be that Judge Cooper says he's not ready to dismiss it and will deal with it in context of developed facts. That would be a win for FSU.
Catchall anti GoR claims. Hard to get here. Lots to talk about. I think this kind of thing will need its own hearing.
I don't think the court deals with the issues like SOL, waiver, etc. only because there may need to be some facts developed to have a full records. I would not be surprised, though, if he waded into those issues with the parties and asked some uncomfortable questions about what claims are likely barred.
