Attorney seeks parental leave in lawsuit. Other side agrees. This Miami judge said no

After years of trying to conceive a child, efforts that have included two rounds of in vitro fertilization and a miscarriage, Miami attorney Alexander Fumagali and his wife finally have good news. Doctors say a healthy baby girl will be born in mid-October.

But Fumagali feared he might not be around as much to help care for the newborn during those first formative weeks.

The reason: A Miami-Dade judge had refused to allow the postponement of a civil trial, even though all of the attorneys involved are OK with Fumagali taking parental leave. The decision by Miami-Dade Circuit Judge David Miller appeared to go against a recently enacted Florida Supreme Court rule that requires judges to grant postponements of cases for lead attorneys for the birth of a child.

Fumagali, 36, says he wants to be at home with his wife to bond with the baby, whom they plan to name Amelia. “I would like to focus on the blessing, if possible,” Fumagali, of the law firm Lewis Brisbois Bisgaard & Smith, told the Herald.

But on Tuesday afternoon — hours after the Miami Herald published this story online — the judge backtracked, granting the continuance because of the lawyer’s “need for parental leave,” according to an order.

Fumagali is representing Hard Rock Stadium in a lawsuit filed by a tailgater who said she was struck by a county cop riding a golf cart at a Dolphins game in September 2018. The plaintiff is Lillian Welborn, and she’s suing Miami-Dade County and South Florida Stadium LLC, which owns and operates the stadium.

This is the first time the case has been set for trial, which had been scheduled to begin Oct. 17.

In his brief original order released Friday, Miller wrote that someone else from the firm would have to handle the case “if the baby is born at the time this case is tried.” Miller also wrote that the case is “past the time” the “Florida Supreme Curt [sic] has determined to be reasonable for the conclusion of the case.”

Miller also threatened “sanctions” against Fumagali if he asked again, according to the order.

A judge since 2000, Miller is known around court for his brusque personality. In 2020, the Florida Supreme Court reprimanded him for getting off the bench during a trial and yelling at lawyers who had loudly gathered for the investiture of another judge. Back in 2008, Miller was also involved in a scuffle with another judge over a broken fax machine. It became so heated, a court employee pushed a panic button. No charges were filed, but Miller’s office was moved to another floor.

Miller could not be reached for comment. A court spokeswoman on Tuesday said judges cannot comment to the press about pending cases.

In the legal community, parental leave at firms remains a hot-button issue — last year, a survey found that major law firms don’t do nearly enough to offer leave for men and non-traditional families, according to Bloomberg. (Fumagali’s firm is giving him all the time off he needs.)

And Florida courts haven’t always been accommodating either, with judges having to weigh family time against the rights of defendants who have the rights to speedy trials in criminal court, and in other divisions with tight timetables such as juvenile and dependency.

In Miami criminal court, County Judge Fred Seraphin in 2015 famously refused to allow a new mother to take a break during a trial to pump breast milk. He later apologized.

One civil attorney, in 2018, told the Florida Supreme Court that she’d been been ordered to submit a filing within days of a pre-planned Caesarean section following a difficult pregnancy. Other women lawyers told the Supreme Court, as it weighed a change to the rules, that opposing attorneys took advantage of pregnancies, trying to get them booted off the cases or setting a slew of depositions.

“Continuances are routinely granted without opposition for weddings, planned surgical procedures, football games, and Broadway shows,” the Florida Association for Women Lawyers wrote to the Supreme Court at the time, according to The Florida Bar News. “Yet, when months of advance notice of a need for continuance is presented by parents who are also trial lawyers, there seems to be a pattern of opposition and doubt as to the legitimacy of the request.”

In response, the Florida Supreme Court in 2019 unanimously adopted a rule allowing lead attorneys to take a three-month parental leave from a court case for the birth or adoption of a child, as long as enough notice is given in advance and the opposing side isn’t being prejudiced. The rule did not apply to cases in criminal court, juvenile and dependency.

Fumagali, a Miami native who has been married to his wife for six years, believes his case fits the rule.

He and his wife, Mary Charlotte Fumagali, 34, have been trying for years to conceive. Finally, in 2021, she underwent IVF and got pregnant — but suffered a miscarriage at the end of her first trimester, according to a court filing.

In January 2022, she underwent a second IVF, and was successful. Because of their earlier challenges in conceiving, Fumagali and his wife “were highly cautious in reaching a definitive conclusion that the pregnancy was stable and would result in the timely birth of a healthy child,” according to the filing.

They finally told family and friends, who showered them with baby clothes and gifts. The nursery for Amelia is decorated and ready. “Very girly. Very pink,” Fumagali said in an interview. “Bows are the theme.”

To the court, he wrote that only after doctors assured the couple the baby would indeed be born healthy that he “began the process” of seeking a continuance. All the attorneys involved in the case, in August, agreed to a continuance for multiple reasons, including the pregnancy — a move Miller immediately denied.

Fumagali then filed an amended motion, and asked for a hearing. Again, the judge denied the order, not allowing a hearing.

Finally this month, Fumagali filed a motion detailing the complications he and his wife have had over the years. “If the trial in this matter remains scheduled for October 2022, [Fumagali] will likely miss the birth of his first child and the initial parent-child bonding time that is supposed to be provided,” the motion read.

This story was originally published September 6, 2022 at 12:01 PM with the headline "Attorney seeks parental leave in lawsuit. Other side agrees. This Miami judge said no."