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16th Anniversary of Firm

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March 17, 2017 marks the 16th anniversary of the Firm.

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The Answer to a Question of First Impression Is Rarely “Plain”

Administrative Closure of A Case Is A Tool of Docket Management Outside the Federal Rule of Civil Procedure Used to Shelve A Pending But Dormant Matter —District Court Order Administratively Closing A Case Is Not An Appealable Final Order, But An Order Denying A Motion to Reopen Is — “A Case Is Deemed To Be Final When A District Court Disassociates Itself From A Case” (Good Quote) — Fed. R. Civ. P. 6(b)(1)(B) Does Not Confer Authority to Dismiss A Case; Other Power Must Be Invoked — Rule 41(b) Dismissal: Sixth Circuit Factors

§ 1927 Sanctions Available for Needlessly Prolonging Deposition Through Irrelevant Questions Even If Movant Did Not Move for A Protective Order under Rule 30 — No § 1927 Sanctions Imposable on Law Firms (Majority Rule – Circuit Split) — “Whether A Defendant Offers To Settle A Case Is Of Questionable Value In Determining Whether The Plaintiff’s Claims Are Frivolous” (Good Quote)

Spoliation of Tangible Evidence: Sixth Circuit Standards – Harsh Sanctions Typically Imposed Only for Culpability Greater Than Negligence – Sanction of Summary Judgment Properly Denied for Negligent Spoliation by Hospital’s Document Storage Company Years Before Plaintiff Ever Requested His Medical Records

Sanctions: Vexatious Litigant Injunctions in District Court (5th Circuit Standards) — Vexatious Litigant Injunctions in Court of Appeals: Inherent Power and Statutory (All Writs Act) Authority — FRAP 38 Monetary Sanctions: Frivolousness Need Not Be Intentional, Can Be Inadvertent — RICO: Plaintiff Cannot Plead Actual Reliance on Assertion He Knew at The Time Was False; Actual Reliance Unjustifiable as A Matter of Law; Common-Law Fraud Not A Predicate Act

Supplemental vs. New Expert Report: If Report Asserts New Analysis Or Conclusions [Based on Information Available at Time of Original Report], It Is Not Supplemental within Rule 26(e)(2) — Rule 37(c)(1) and Rule 16(f) Exclusion: Four Factors (5th Circuit Test) — Sham Affidavit Doctrine Applies Only to Summary Judgment Affidavit That Contradicts Prior Deposition Testimony — Note: Court Fails to Address Rule 26(e)(1)(A) (Here, The New Opinion Was “Otherwise … Made Known to The Other Parties During The Discovery Process” Because It Was Inquired About At Deposition — See The Temptation to Depose Every Expert, 40 Litigation, No. 2 at 35 (Winter 2014)

Recklessness Sufficient for § 1927 Sanctions in 9th Circuit (Circuit Split) — Mere Delay of 19 Days in Producing Prior Settlement Agreement Among the Parties “Unreasonably Lengthened the Proceedings” — Sound Dissent

While Lower Court Must Execute Mandate of Higher Court – Including Questions Expressly Or Impliedly Decided – Invalidity of Prospective Waiver of Statutory Remedies for Public Policy Reasons It May Reopen a Seemingly Foreclosed Issue Based on New Evidence, A Dramatic Change in Law or a Blatant Error in the Prior Decision That Will Result in a Serious Injustice (Here, Previously Undetected Fraud on The Court Preceding Appeal) – “Affiliated Entity” May Refer to an Individual – Does Contractual Phrase “Tribal Law” Incorporate Federal Law? – District Court’s Credibility Determinations Deserve The Highest Degree of Appellate Deference

During Pendency of Appeal, District Court Retains Jurisdiction to Enforce — But Not Alter — Unstayed Orders (Here, Imposing Financial Sanction for Contempt for Discovery Misconduct)

Can FRAP 28(j) Be Used to Inform Court of Appeals of Pertinent Factual Developments Arising During the Appeal?

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