June 2024

RICO — Pattern — (1) Relatedness Established Where Three HJ factors satisfied— “H.J. Inc.’s List of Relatedness Factors Is Disjunctive, Non-Exhaustive, And Requires Only Sameness Or Similarity Of Any Factor”— “Even Separately-Performed, Functionally Diverse, And Directly Unrelated Predicate Acts Will Form A Pattern under RICO If They Have Been Undertaken in Furtherance of a Qualifying Enterprise” (Good Quotes)

Russo v. Lamancusa, 2024 WL 1433637 (3d Cir. April 3, 2024) (unpublished): *1 Anna Russo and Torry Argiro appeal the dismissal of their civil Racketeer Influenced and Corrupt Organizations Act (“RICO”) claim against Joshua Lamancusa, the Lawrence County District Attorney, and Richard Ryhal, an officer in the ...

Russo v. Lamancusa, 2024 WL 1433637 (3d Cir. April 3, 2024) (unpublished): *1 Anna Russo and Torry Argiro appeal the dismissal of their civil Racketeer Influenced and Corrupt Organizations Act (“RICO”) claim against Joshua Lamancusa, the Lawrence County…

RICO and FRAP 38 Sanctions: (1) Four key elements of § 1962(c)-(d) claim; (2) Standing Alone, Neither A Breach of Fiduciary Duty Nor A Breach of Contract Constitutes Mail Fraud; (3) Falsity, Alone, Does Not Demonstrate Fraudulent Intent; (4) Common Law Fraud Not Implicating Mail or Wires ≠ Racketeering Activity; (5) FRAP 38 Sanctions Inapt for Weak But Not Frivolous Arguments; (6) Recidivism: Prior Sanctions, Alone, Insufficient to Convert Merely Weak into Sanctionable Claims

Efron v. UBS Fin. Servs. Inc. of P.R., 96 F.4th 430 (1st Cir. 2024): APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon.

Efron v. UBS Fin. Servs. Inc. of P.R., 96 F.4th 430 (1st Cir. 2024): APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. William G. Young,* U.S. District Judge] Opinion Plaintiff-appellant David …

Inherent Power Sanctions—Goodyear v. Haeger—Arbitration Confirmation: Where Respondent Advanced Many Meritless Arguments, But Some with Merit, Court May Award Entire Cost of Litigating As “Rough Justice” But High Degree of Specificity in Findings Required — Presenting an Issue of First Impression in an Unsettled Area, Even If Position Rejected, Is Not Without Justification

Trustees. of the N.Y. State Nurses Ass'n Pension Plan v. White Oak Glob. Advisors, LLC, 2024 U.S. App. LE ...

Trustees. of the N.Y. State Nurses Ass’n Pension Plan v. White Oak Glob. Advisors, LLC, 2024 U.S. App. LEXIS 12152, 102 F.4th 572 (2d Cir. 2024): Respondent-Appellant White Oak Global Advisors, LLC (“White Oak”) appeals from a judgment of …

Sanctions: Rule 11 Does Not Create an Independent Cause of Action

Kaetz v. United States of Am., 2024 U.S. App. LEXIS 14146 (3d Cir. June 11, 2024) (unpublished): OPINION* * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute bin ...

“RICO Is a Judge’s Nightmare” — “The Requisite RICO Pleading Standards Are Far from Explicit, And The RICO Jurisprudence Offers Courts (And Plaintiffs) Little Guidance” (Good Quotes) — Common Elements of § 1962(a), (c) and (d)-Based Claims — Closed-End Continuity: Duration > 1 Year = Substantial Period of Time (E.g., 2 or 4) — Continuity: Courts Skeptical If Number of Victims and Schemes Is Limited — Untargeted Persons Who Suffer Derivative Injury from Injury to Immediate RICO Victim Do Not Add to the Number of Victims Considered for Continuity Purposes — Open Ended Continuity Can Be Established by Showing Defendant Commits Predicate Acts As “Regular Way of Doing Business” — Citing the Existence of Other Lawsuits Alleging Similar Predicates ≠ Pleading Facts Demonstrating Defendant’s Commission of Similar Predicates Against Others

D&T Partners, L.L.C. v. Baymark Partners Mgmt., LLC, 94 F.4th 198 (5th Cir. 2024): A group of individuals allegedly sought to steal the assets and trade secrets of an e-commerce company. They did so with shell entities, corrupt lending practices, and a fraudulent bankruptcy. The question in this case is whether the scheme, as alleged, violates the Racketeer Influenced and Co ...

RICO: Personal Injury (Depression, Loss of Love and Affection) ≠ Injury to Business or Property — While Inability to Fulfill Employment Contract or Pursue Valuable Employment Opportunities as a Result of a RICO Violation Constitute Injury to Business or Property, Inability to Work Due to Emotional Trauma from RICO Violation Perpetrated on Another Is an Inactionable, Derivative Injury Too Remote from the RICO Violation — Statute of Limitations/Injury Discovery Rule — SOL Accrues When Plaintiff Knows Or Should Know of His or Her Injury, Regardless of Whether Plaintiff Knows the Injury Is Part of a Pattern of Racketeering — Separate Accrual Rule: New Cause of Action Accrues for Each New, Independent Injury, Even If RICO Violation Occurred > 4 Years Earlier — Private Citizens Cannot Compel a Criminal Prosecution Because They Lack a Cognizable Interest in the Prosecution of Another

Douglas v. Kalanta, 2024 U.S. App. LEXIS 10054, 2024 WL 1795160 (9th Cir. April 25, 2024) (unpublished) MEMORANDUM* *1 Plaintiffs Richard William Douglas, Jr. ...

Douglas v. Kalanta, 2024 U.S. App. LEXIS 10054, 2024 WL 1795160 (9th Cir. April 25, 2024) (unpublished) MEMORANDUM* *1 Plaintiffs Richard William Douglas, Jr., and Christine Anne Hurtt filed a complaint on October 18, 2021, alleging that defendants …

Rule 11 Sanctions — Within District Court’s Discretion to Deny on Grounds That Imposing Sanctions Would Lead to a Continuation of Litigation Instead of Its Termination and That The Prospect of Recovering Significant Monetary Sanctions Was “Theoretical, Ephemeral and Perhaps Futile” — Neither Adverse Rulings Nor “Unsupported, Irrational, Or Highly Tenuous Speculation” Form a Basis for Recusal (Good Quotes)

Zia Shaikh v. Germadnig, 2024 U.S. App. LEXIS 13738 (3d Cir. June 6, 2024) (unpublished): OPIN ...

Zia Shaikh v. Germadnig, 2024 U.S. App. LEXIS 13738 (3d Cir. June 6, 2024) (unpublished): OPINION* PER CURIAM *1 In July 2013, Zia Shaikh filed for divorce from his wife. In many lawsuits since, he has sued numerous person…

Younger Abstention: If Case Involves Equitable Relief, the District Court May Stay or Dismiss, But If The Case Seeks Damages, the District Court May Only Stay and Not Dismiss

Vyas v. Morris, 2024 WL 2874284 (4th Cir. June 7, 2024): PER CURIAM: Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit. Tarun Kumar Vyas appeals the district court’s orders dismissing without prejudice his

(1) Inherent Power Must Arise From the Litigation before the Sanctioning Court — Abuse of Discretion to Use It to Sanction Other Conduct — (2) Additional [Criminal] Due Process Protections Required for Punitive Sanctions — (3) Although Movant Bears Burden Of Establishing Right To Intervene, Rule 24 Is To Be Liberally Construed

McClenny Moseley & Assocs., P.L.L.C. v. Equal Access Just. Fund, L.P., 2024 U.S. App. LEXIS 13995 (5th Cir. June 7, 2024) (unpublished):

McClenny Moseley & Assocs., P.L.L.C. v. Equal Access Just. Fund, L.P., 2024 U.S. App. LEXIS 13995 (5th Cir. June 7, 2024) (unpublished): DANA M. DOUGLAS, Circuit Judge:* * This opinion is not designated for publication. See 5TH…

Civil RICO Claim Survives Defendant’s Death (fn 24) (issue conceded) — Meaning of “Abuse of Discretion” (First Circuit) — Court Has Discretion to Decline to Substitute a New Party for a Deceased Party — Who Qualifies As A Deceased Party’s Successor or Representative — Arguments Forfeited Below Considered for Plain Error Only on Appeal — 4 Prongs of Plain Error — The 90-Day Substitution Period in Rule 25(a) Begins Upon Service of the Suggestion of Death — Default Judgment Is a Drastic Measure And Should Be Employed Only in an Extreme Situation

Universitas Education, LLC v. Granderson, 98 F.4th 357 (1st Cir. 2024): When Plaintiff Appellee Universitas Education, LLC (“Universitas”) first initiated this lawsuit against Jack E. Robinson, III (“Robinson”) in 2015, it sought damages against him for (among many other things) alleged violations of the Racketeer Influenced and Corrupt Organizations (� ...

Commercial Litigation and Arbitration

Sanctions: Rule 11 Does Not Create an Independent Cause of Action

Younger Abstention: If Case Involves Equitable Relief, the District Court May Stay or Dismiss, But If The Case Seeks Damages, the District Court May Only Stay and Not Dismiss

Recent Articles

Rule 37(d) Sanctions — For Failure to Serve Answers, Objections, Or Written Response to Discovery Requests — Are Not Limited to Intentional Misconduct; Even Innocent Mistakes May Be Covered

Sanctions: (1) Rule 11 Does Not Apply to Litigation Papers Initially Filed in State Court — Only Reaffirmance in Federal Court Post-Removal Is Subject to Sanction — (2) “The Fact That A Legal Theory Is A Long-Shot Does Not Necessarily Mean It Is Sanctionable” (Good Quote)

Supreme Court: Relief under Rule 60(b)(6) Requires Extraordinary Circumstances Even If It Is Invoked to Allow Amendment of The Complaint–Rule 15’s Liberal Approach to Amendment Does Not Change That (Reversing Second Circuit)

FRAP 38 Sanctions — Eleventh Circuit Generally Does Not Impose FRAP 38 Sanctions on Pro Se Litigants, But May Do So If They Have Persisted Despite Judicial Warnings of Frivolousness

Inherent Power Sanctions: No Dismissal with Prejudice If Lesser Sanctions Will Suffice — The Liberal Pleading Standard of Swierkiewicz “Is Still Good Law”

Statements in Briefs As Judicial Admissions

Supreme Court: TRO As Appealable Order — And District Court Inaction As Tantamount to Refusing An Injunction And Thus Appealable

“Slow-Playing Discovery” in Response to Court Order, Prejudicing Opponent, Violates Rule 37(b)(2)(A)

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