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Mediating? Bring Your Toothbrush. Joe Francis and "Girls Gone Wild"

Thanks to Michael D. Young of Judicate West and Weston Benshoof Rochefort Rubalcava & MacCuish for passing along a mediation story so improbable that you'd expect to see it appear on a mediator's bar exam.   

Young apparently reviewed the entire court file (!!) to supply the following tale of woe, ending in Joe Francis' jail sentence for mediation misconduct.  

Huh???? 

Read on, my friends, read on.

The Claimed Mediation Misconduct

In October of last year, defendant Joe (Girls Gone Wild) Francis was ordered to private mediation in a Florida civil action.  That mediation, to say the least, went badly.  

Florida's mediation confidentiality protections apparently include an exception for threats of physical violence.  It was this exception upon which Plaintiffs relied in telling the following tale out of mediation "school."      

Francis [arrived at the mediation] wearing sweat shorts, a backwards baseball cap, and was barefoot. He was playing [with an] electronic device. As [plaintiffs' counsel] began his presentation, Francis put his bare, dirty feet up on the table, facing plaintiffs' counsel.

[Plaintiffs' counsel] said four words, "Plaintiffs were minor girls,"  when Francis barked, "are the girls minors now?"  Continuing, [Plaintiffs' counsel] said, "plaintiffs are minor girls who were severely harmed by Defendant."

Francis then erupted. "Don't expect to get a fucking dime -- not one fucking dime!" This was Francis' mantra which he repeated, about fifteen times, during his tantrum that ensued. "I hold the purse strings. I will not settle this case, at all. I am only here because the court is making me be here!" 

As plaintiffs' attorneys were leaving, Francis' threats escalated. "We will bury you and your clients!" Francis threatened. As [Plaintiffs' counsel] walk[ed] out of the room, Francis got up and faced off with [him] . . . bark[ing], "I'm going to ruin you, your clients, and all of your ambulance chasing partners!"

Francis' aggressive move and threats to "bury" and "ruin" [Plaintiffs' counsel] were clearly an assault . . . intended to . . . prevent the mediation from ever beginning. As a result of Francis' assault . . . no mediation as to Francis as an individual defendant ever occurred.

Francis then made the only offer he was to make that day.  "Suck my dick," Francis shouted repeatedly, as plaintiffs' counsel left the mediation room.

Plaintiffs sought an order from the court requiring Francis to behave civilly and pay sanctions.  

The Briefing and Hearing

The Court immediately set the matter for an evidentiary hearing, ordering "Francis to appear and show cause why he should not be sanctioned."

The defense argued that Francis' threats -- "we will bury you" or "ruin you" -- could not be taken as a serious threat of violence.  

In response, Plaintiffs contended that:

Francis behaved in such an outrageous manner that he prevented the plaintiffs from mediating with him. In effect, Francis did not attend the mediation, and if he did attend, he failed to negotiate in good faith. Therefore, Francis violated this Court's order. 

The Mediator Speaks

Bravo to the mediator whose Mediation Report simply said that the mediation was held and resulted in an impasse. 

The Evidentiary Hearing

At the ordered evidentiary hearing, plaintiffs' attorney testified that when Francis confronted him at the mediation, "I thought he was going to slug me. And I -- that's what I thought, or that he was going to hit somebody behind me or -- I don't know what he was going to do."

Another attorney testified that he thought Francis "was trying to provoke a physical confrontation."

The Court's Ruling

The Court made the following post-hearing findings:

  1. Francis willfully and contumaciously violated the requirements of the [Court's] Order . . to appear and mediate. 
  2. [The] Court finds no basis that [defendant's] conduct or communication is entitled to the protection of any privilege.
  3. Francis' conduct and statements were extreme, hostile, vulgar, obscene, and they are unacceptable.
  4. there is [no] question in the record about what was said and the context in which it was said.

Based upon these findings, the Court stated that financial sanctions would not have the desired effect against Francis, "reluctantly" refused to order a default but willingly ordered Francis to jail.  

The Court ruled that "coercive incarceration" was an appropriate sanction, but that Francis could cure his contempt by properly participating in mediation at which he would be "dressed and groomed appropriately i.e. business suit and tie, business shoes and socks."  

He would be cleared of contempt "when the mediator certifies in person to the court that Mr. Francis has fully complied with this order and has participated in the mediation in good faith."

Incarceration was delayed until 4:30 to give counsel time to mediate pursuant to the following order:

Court finds Deft Joe Francis in CIVIL CONTEMPT. Deft Joe Francis is taken into custody until such time of proper participation in mediation. A compensatory fine is imposed upon Mr. Francis in the amount of the costs of his incarceration. Court to delay incarceration until 4:30 p.m. this date to determine if there has been substantial progress at mediation.

Despite a post-mediation report of "an unconditional offer and acceptance," the Plaintiffs sought an emergency hearing based upon Francis' post-settlement request that payments be made over time.  

Don't Trifle with the Court

Informed of Francis' attempt to change the deal, the Court ordered Francis to report to the Marshal by noon April 5, or a warrant would be issued for his arrest. 

Both the Court and the 11th Circuit denied defense motions to stay incarceration pending appeal.    

Doing Time

Predictably, Francis failed to turn himself in and the Judge issued a warrant for his arrest.  Francis was subsequently arrested at the Panama City international airport. 

Although the parties thereafter filed a notice of settlement and dismissal with the Court and despite the Court's dismissal of the case with prejudice, Francis was not thereupon released from jail.  

As of April 12, Francis remained "detained" pending a criminal contempt hearing.

According to the most recent docket entry, he remains in jail today.

Comments (1)

Read through and enter the discussion by using the form at the end
NG - March 29, 2013 11:46 AM

This is hilarious. Thanks for sharing.

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