March 2024

Our theory was that Mr. Schilling should not be forced to participate in the lawsuit in anyway unless the Judge found he was not immune.  We sought protective orders so that Mr. Schilling would not have to participate in the discovery process, nor spend money on legal fees associated with such participation, until such a time as the Judge had ruled on Mr. Schilling’s Motion for Statutory Immunity.  The judge granted these protective orders finding that if Mr. Schilling was immune he would not need to participate in the lawsuit in anyway.  The only discovery obligations the judge made Mr. Schilling participate in were those necessary for the Immunity Motion to be heard.

The Immunity Motion was heard and granted.  In her order Judge  Fabienne E. Fahnestock found Schilling has acted in self-defense and was immune from lawsuit.  In her written order, the Judge wrote:“Schilling stepped outside to smoke. When he was returning to his table, Balboa, who was admittedly intoxicated at that point, stumbled into Schilling. The video… shows that Balboa apologized without looking at Schilling, and Schilling acknowledged the apology while continuing to walk back to his table. For some undetermined reason, Balboa calls out to Schilling. Schilling turns around and looks at Balboa in an unaggressive stance. Schilling’s feet were shoulder width apart and his hands were at his side. Balboa makes a feinting gesture towards Schilling. Schilling, who testified that he learned to anticipate punches as part of his training, instantly responded with two quick punches. Balboa fell to the floor unconscious.”

Judge Fahnestock went on to say: “The Court further finds that Schilling used only such force necessary to neutralize the threat, and is therefore entitled to immunity pursuant to §776.032, Florida Statute…  Defendant is entitled to an award of reasonable attorneys’ fees, court costs, compensation for loss of income, and all expenses incurred by defendant in defense of this action pursuant to §776.032(3), Fla. Stat.”

Based on the Judge’s ruling, the attorney for B Squared Burgers filed a Motion to Dismiss the lawsuit against her client.  In her Motion she cited all the findings of fact from the Judge’s order granting statutory immunity to Schilling. The attorney then went on to argue, “Nothing that happened is evidence of a zone of risk to the Plaintiff.  There was no attack on the Plaintiff.  In fact, what happened is quite the contrary: Schilling reacted to the Plaintiff’s own actions.  Schilling did not instigate their interaction.  B Square Burgers had no duty to prevent this interaction as Plaintiff alleges.  Since the Court has already determined as a matter of law that Schilling’s use of force was reasonable and justified, this Court must also determine as a matter of law that Defendant B Square Burgers breached no duty to the Plaintiff.  There is no basis to find that B Square (could have or) should have prevented Schilling from punching Plaintiff in self-defense.  The Court determined that Schilling acted reasonably in doing so based on his reasonable belief that in that moment Plaintiff posed a threat of great bodily harm to himself.  To determine anything else now would be inconsistent with the Court’s prior ruling and inequitable to B Square Burgers.”

In response to the Motion for Summary Judgement, Balboa’s attorneys changed their theory of the case.  Although they did not amend the Complaint to include their new theory, Balboa’s attorneys argued that B Square Burger had a duty to protect Balboa from himself.  Their new argument was that it was foreseeable that a person as intoxicated as Balboa was a threat to themselves and that B Square had a duty to protect him from himself.  They argued that B Square Burger could have cut him off (which B Square’s Manager claims to have done) and thrown him out or sat him down and fed him so he would sober up.

In the hearing today, March 6, 2024, Judge Fahenstock ignored the new theory of liability and pointed out that a jury would only hear evidence that supported the theory of liability in the Complaint.  Judge Fahenstock ultimately decided that no reasonable jury could find for the Plaintiff, Justin Balboa, and ruled in the remaining Defendant, B Square Burgers favor.  Although no written order has yet been entered, the Judge made her ruling known on the record.  Once the written order is entered, the lawsuit will be fully and finally over.  Justin Balboa will have time to appeal the ruling, but that is unlikely.

This case should serve as a reminder that even when people have done nothing wrong, no one can keep a lawsuit from being filed.  There are plenty of Plaintiff’s attorneys out there that will file a lawsuit in hopes of a quick payout without fully analyzing the case and determining the merits prior to filing the suit.  From the beginning of this lawsuit the attorneys of Katz & Phillips, P.A. were confident in what the outcome would be.  With our experience in defending self-defense cases and our knowledge of Florida’s self-defense and immunity laws, we expected this outcome.  We are very happy that our client was dismissed from the lawsuit at the very early stage and that in the end justice has prevailed.  Justin Balboa was the sole cause of his own injuries and neither he nor his attorneys deserved to make any money off of the incident he caused.

When asked for a comment when his immunity motion was granted, Schilling said, ““I’m glad it’s finally over. For the last two years my name and character has been disparaged in the media, seem like everyone loves the narrative that a professional fighter just beat up some innocent person, which was [so] not the case. Most people told me to just settle it and pay him off as that would be easier. I don’t like [bullies] and I refuse to be bullied by anyone. The ambulance chasing crumb bum of a lawyer he hired threatened to ruin me financially and well the only person he financially ruined was his client. I just hope that all of the news outlets that were so quick to post click bait articles assassinating my character have the same energy now that the truth is out.”

In this matter the parties were represented by:

Joe Schilling – David Katz of Katz & Phillips, P.A. (The Firearm Firm)

B Square Burger Co., LLC d/b/a B Square Burgers – Allison Wasserman of The Law Office of David S. Lefton

Justin Balboa – Robert Solomon and Jaimie L. Quinn of Saban and Solomon.