Rule 37(c) Preclusion for 26(a)(1) Non-Disclosure Requires Harm to Opponent, And Harm Doesn’t Require Preclusion — Preclusion Factors (1st Cir.) — “Substantially Justified” And “Harmless[ness]” Exceptions — Late Disclosure Can Be Harmless Even If It Follows Filing of Summary Judgment Motion
Zampierollo-Rheinfeldt v. Ingersoll-Rand De P.R., 2021 U.S. App. LEXIS 16146 (1st Cir. May 28, 2021):
Trane Puerto Rico, LLC and its parent company, Ingersoll-Rand de Puerto Rico, Inc. (collectively "Trane") terminated the employment of Giorgio Zampierollo-Rheinfeldt ("Zampierollo") after thirty-three years of service. Zampierollo filed suit a ...
Circuit Split: District Court Lacks Jurisdiction to Modify Protective Order after Rule 41(a)(1) Dismissal (11th Cir. (2-1))— Not a “Collateral Matter” over Which Jurisdiction Remains (Like Costs, Fees, Contempt Sanctions, Rule 11 Sanctions, and Motions to Confirm Arbitral Awards) — Stipulated Protective Order Is an Enforceable Contract, Subject to Post-Dismissal Lawsuit — Strong Dissenting Opinion
Absolute Activist Value Master Fund v. Devine, 2021 U.S. App. LEXIS 16110 (11th Cir. May 28, 2021):
Susan Devine, who was sued for her alleged involvement in money laundering and market manipulation schemes, appeals the District Court's denial of her motion to modify a protective order.1 To brief ...
“The purpose of a Rule 11 sanction is to punish ‘unprofessional conduct in litigation'” — Bankruptcy: Automatic Stay Does Not Preclude Imposition of Contempt Sanctions: “‘[a] litigant should not be allowed to delay the imposition of sanctions indefinitely by the expedient of declaring bankruptcy'”
Kupperstein v. Schall (In re Kupperstein), 2021 U.S. App. LEXIS 11944 (1st Cir. April 22, 2021):
BACKGROUND
The short story, sticking with only what is relevant here, is that y ...
Rule 11 Sanctions: Attorney May Not Rely on Clients When Objectively Unreasonable — Cannot Rely on Discovery to Bring Claims with No Factual Basis — Specific Identification Requirement — $10,000 Deterrent Penalty OK — Factors from Adv. Comm. Note Adopted
Goldman v. Barrett, 825 Fed. Appx. 35 (2d Cir. Sept. 10, 2020) (unpublished):
[*36] SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, ...
Rule 37 Sanctions for Impeding, Delaying, Frustrating Deposition — Intricacies of Remote Deposition Protocols and 30(b)(6) Witnesses Using Notes — No Duty to ID Which 30(b)(6) Topic a Question Relates to — When a Protective Order Is a R. 37(b) Order — Sanctions Must Be Proportional to Offense — Motion to Strike = Objection — When Inherent Power Sanctions for Deposition Misconduct Are Apt
John Doe I v. Exxon Mobil Corp., 2021 U.S. Dist. LEXIS 87596, 2021 WL 1840649 (D.D.C. May 7, 2021):
*1 At his deposition, the corporate representative of defendant Exxon Mobil Oil of Indonesia (“EMOI”) refused to answer most of the substantive questions posed to him. Instead, he repeatedly read nonresponsive statem ...
Rule 37 Sanctions: Second Circuit Factors — Exclusion of Witness Not Disclosed Per 26(a) Apt — “Interviewing a Witness Late in the Process Does Not Provide Cover for a Revised Disclosure” — Reconsideration Factors
Irish v. Tropical Emerald Llc & Rainbow United States, 2021 U.S. Dist. LEXIS 87946 (E.D.N.Y. May 6, 2021):
After a series of failed attempts to follow this Court's rules, including those on page ...
Rule 26(a)(1)(A)(iii) Mandatory Damages Disclosure Does Not Extend to Disgorgement Because It Is An Equitable, And Not A Damages, Remedy
Northern Nat. Gas Co. v. L.D. Drilling, Inc., 405 F. Supp. 3d 981 (D. Kan. 2019):
A number of the motions are before the court in the present dispute over the effects of the migration of natural gas which pl ...
Supreme Court — Personal Jurisdiction — Specific Jurisdiction Does Not Require A Causal Relationship Between The Defendant’s In-State Activity And The Litigation — “Some Relationships Will Support Jurisdiction Without A Causal Showing”
Ford Motor Co. v. Montana Eighth Judicial Dist. Ct., 2021 WL 1132515 (U.S. March 25, 2021):
*3 In each of these two cases, a state court held that it had jurisdiction over Ford Motor Company in a products-liability suit stemming from a car accident. The accident happened in the State where suit was brought. The victim was one of the State’s residents. And Ford did substantial business in the State—among other things, advertising, selling, and servicing the ...
One Score
March 17, 2021 marks the 20th anniversary of the Firm
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Rule 37 Sanctions OK As Basis for Motion in Limine — Damages Evidence Excluded for 26(a)(1)(A)(iii) Disclosure Violation — Whether A Statement Is Puffery Or A Representation of Fact Is A Question of Law — Attorney’s Fees Award Can Be Reduced for Block Billing
Grouse River Outfitters, Ltd. v. Oracle Corp., 2021 WL 754839 (9th Cir. Feb. 26, 2021) (unpublished):MEMORANDUM**
*1 Grouse River Outfitters, Ltd. (“Grouse River”) appeals various decisions of the district court. Because the parties are familiar with the facts, we do not recount them here, except as necessary to provide context to our ruling on the specific issues addressed herein. We have ...
Party May Intentionally Breach Contract to Advance a Legitimate Economic Self-Interest And Still Rely on Contractual Limitation of Liability Provision — Provision Avoidable Only by Intentional Misconduct Unrelated to Any Legitimate Economic Self-Interest (NY Law)
Electron Trading, LLC v Morgan Stanley & Co. LLC, 157 A.D.3d 579 (1st Dept. 2018):
[*579] [**634] Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered May 24, 201 ...
Alford Plea Lacks the Probative Value of Conventional Guilty Plea — Generally Insufficient, Alone, to Support Summary Judgment in Civil Action — May Be Admissible — Section 1292(b): Circuit Split May Be Insufficient to Show Substantial Ground for Difference of Opinion Warranting Interlocutory Appeal
This matter is before the Court on Plaintiff State Farm Mutual Automobile Insurance Company's Motion for Certification for Interlocutory Appeal ("Motion"). (Dkt. 51.) The parties have consented to the jurisdiction of this Court pursuant to 28 U.S.C. § 636 and
Inherent Power & Rule 37 Sanctions: Permissive Adverse Inference Is “Among the Most Restrained in [the Court’s] Arsenal,” As It Could Order Matters Deemed Admitted – 11th Circuit Gives Overly Broad Reading of Rule 26(a)(1) in Dicta (At Odds with Advisory Committee Note)
Higgs v. Costa Crociere S.P.A. Co., 969 F.3d 1295 (11th Cir. 2020):
On Christmas Eve, 2014, Joyce Higgs tripped over a bucket in a dining area of the cruise ship Costa Luminosa and sustained serious injuries to her left shoulder. She sued the cruise company, defendant Costa Crociere ("Costa"), for negligently placing the bucket ...
Inherent Power And Rule 37 Sanctions: No Dismissal for Perjury During Discovery On Non-Pivotal Issues Exposed on Cross – While Lack of Prejudice Not Dispositive, Judge May Properly Consider Effect of Misconduct on the Litigation
Patrick v. City of Chicago, 2020 WL 5362160 (7th Cir. Sept. 8, 2020):
*1 Deon Patrick was convicted of double murder in 1995 and sentenced to life in prison. The convictions were vacated in 2014 and Patrick was released. The Cook County Circuit Court issued a certificate of innocence, see
“Claim Splitting Is The Same As Res Judicata But With A Presumption Of A Final Judgment Instead Of An Actual Final Judgment” — No Rule 11 or Section 1927 Sanctions Where Law Complex (Does Denial Of A Motion For Leave To Amend A Complaint Constitute A Final Judgment On The Merits?) And Prior Decision Allowed Suit to Proceed
Church Joint Venture, L.P. v. Blasingame, 817 Fed.Appx. 142 (6th Cir. 2020):
This appeal is the latest installment in the decade-long saga of the Blasingame family bankruptcy, which has involved two proceedings in the bankruptcy courts, two proceedings in the district court, an appeal to the Bankruptcy Appellate Panel, and two appeals to the Sixth Circuit. The Blasingames filed for bankruptcy in 2008. Church Joint Venture, a creditor in the original bankruptcy action, purchased all of ...
Rule 37: Dismissal “Is A Drastic Remedy That Should Be Imposed Only In Extreme Circumstances, Usually After Consideration Of Alternative, Less Drastic Sanctions” (2d Circuit)
Emamian v. Rockefeller Univ., 2020 U.S. App. LEXIS 26788 (2d Cir. Aug. 19, 2020) (unpublished):
SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-App ...
Mere Lack of Merit Not Enough – R. 11 Not Substitute for 12(b)(6)/56 — Court Needs Evidence Outside Complaint to Determine Factual Baselessness — Failure of Complaint to Put Defendant on Notice Not R 11 Violation — Forum Shopping/Improper Venue Not Enough for Dismissal, Just $
James v. Caterpillar, Inc., 2020 U.S. App. LEXIS 26593 (6th Cir. Aug. 20, 2020) (unpublished):
Courts typically reserve the "death penalty" sanction of dismissal with prejudice for the mo ...
R 37/Inherent Power (IHP): Decision Not to Sanction Reviewed for Abuse of Discretion — Clear and Convincing Evid for IHP — Rules 26/37 Primary Tools for Discovery Abuse, Not IHP — Fraud on Court: Judge May Leave Credibility Issue to Jury, Deny Sanction
Yukos Capital S.A.R.L. v. Feldman, 2020 U.S. App. LEXIS 31909, 2020 WL 5948910 (2d Cir. Oct. 8, 2020):*1 This is a case about a disloyal employee, Daniel Feldman, the Defendant.
“Summary Judgment Is the Put Up or Shut Up Moment in a Lawsuit”
In re Delta Phones, Inc., 2005 WL 3542667 (N.D. Ill. Dec. 23, 2005):
Summary judgment is the “put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events.”
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