Greg Joseph

Commercial Litigation and Arbitration

Rule 11 Sanctions — Even If Court Invites Sanctions Motion, Safe Harbor Must Be Complied With — If Safe Harbor Is Not Provided, Court May Not Proceed Sua Sponte without Affording the Due Process Required by Rule 11(c)(3): Issuing a Show Cause Order Why Conduct Specifically Described In The Order Has Not Violated — The Show Cause Order Need Not Be A Separate Order — Appellee’s Request That Appellate Court Consider Alternate Ground of Inherent Power Sanctions Fails Due to Lack of Notice That Inherent Power Sanctions, and Therefore Bad Faith, Were At Issue

Kennard Law P.C. v. United Airlines, Inc., 2024 U.S. App. LEXIS 19962 (5th Cir. Aug. 8, 2024) (unpublished): PER CURIAM:* *1 After granting summary judgment for the defendant employer in an employment discrimination lawsuit, the district court sanctioned the…

FRAP 38 Sanctions: An Appeal That Has “Some Arguable Basis” Either in Law or Fact—A Low Bar—Is Not Frivolous — “Simply Quibbl[ing]”/Raising Factual Disputes Insufficient to Obtain Sanctions — Sixth Circuit Usually Imposes FRAP 38 Sanctions Only If An Improper Purpose Underlies the Appeal — Simply Seeking Sanctions Below (Unsuccessfully) And On Appeal Is Not Per Se Violative of § 1927

Wershe v. City of Detroit, 2024 U.S. App. LEXIS 20145 (6th Cir. Aug. 8, 2024) (unpublished): ORDER *1 Plaintiff Richard Wershe, Jr., sued the City of Detroit and various former state and federal law enforcement officials on July 20, 2021,…

RICO: “The RICO Statute Is A Very Powerful, But Tricky, Tool” (Good Quote) — The Seven Elements of a RICO Claim, Before Even Reaching Injury and Causation — “Courts Must Flush Out Frivolous RICO Completes At An Early Stage Of The Litigation” (Good Quote) — 9(b) Obligations for Fraud-Based RICO Claims — The 3 Features of the Structure Requirement for the Enterprise Element — Factors Analyzed in Determining Whether Association-in-Fact Enterprise Pled — Hub-and-Spoke Structure ≠ Enterprise —Merely Taking Directions Insufficient for §1962(c) Liability —Operation and Management Test = Low Hurdle —Commission of Predicate Acts by Enterprise Insufficient — RICO Persons Must Commit the Acts —2-Year Minimum for Closed-End Continuity in Second Circuit — Horizontal and Vertical Relatedness: Requirements

Keyu Long v. Shunhuang Zhuang, 2024 U.S. Dist. LEXIS 141434 (E.D.N.Y. Aug. 8, 2024) REPORT AND RECOMMENDATION TARYN A. MERKL, United States Magistrate Judge: Keyu Long, named personally and derivatively on behalf of J Navi De Fund One LLC,…

Rule 11 — Appealability: Time to Appeal Runs from Entry of Order Quantifying Sanctions, Not from Subsequent Entry of Judgment Restating Same Fee Awards — No Separate Document Setting Forth Judgment Required under Rule 58 Because Rule 11 Award Falls within 58(a)(3) Exception — Fact Judgment Entered Irrelevant to Question of Timeliness of Appeal — Failure to Request a Hearing on Sanctions = Waiver of Any Right to One; FRAP 38 Sanctions Warranted When Result Is Obvious Or Appellant’s Argument Is Wholly without Merit

Upchurch v. O’Brien, 2024 U.S. App. LEXIS 19560 (7th Cir. Aug. 6, 2024): *1 For years Timothy Upchurch waged a relentless and disturbing campaign of harassment against his neighbors, Timothy and Margaret O’Brien, in a dispute over a claimed easement …

Inherent Power Sanctions: Barring Lead Counsel from Delivering Closing Argument at Trial Within Trial Court’s Discretion as Sanction for Serial Misconduct, Including Deposition Misconduct, Obstructionist Discovery Tactics; Scheduling Order Violations, Disregard of In Limine Orders and Ignoring a Sustained Objection

Rightchoice Managed Care, Inc. v. Hosp. Partners, Inc., 2024 U.S. App. LEXIS 18599 (8th Cir. July 29, 2024): *1 Beau Gertz, Mark Blake, SeroDynamics, and LabMed Services (collectively, the Sero Defendants) perpetrated a pass-through billing scheme for lab tests billed…

Sanctions: (1) Rule 11(c)(2) “Nonfrivolous Argument for Extending, Modifying, or Reversing Existing Law or For Establishing New Law”: Argument Barred by Supreme Court or Circuit Precedent “Not Per Se Sanctionable—An Attempt to Distinguish One’s Case … Is Enough” —(2) Mere Loss on Summary Judgment Doesn’t Necessarily Mean Sanctions Are Apt: Absence of Genuine Issue of Material Fact Does Not Negate Existence of Plausible Factual and Legal Contentions

Mazurek v. Metalcraft of Mayville, Inc., 2024 WL 3632732 (7th Cir. Aug. 2, 2024): Opinion Jackson-Akiwumi, Circuit Judge. *1 A group of employees sued their employer, Metalcraft of Mayville, for failing to pay them for time spent working just…

RICO Pleading: Racketeering Activity Consists Exclusively of Crimes Listed in § 1961(1); Conclusory References to Crimes in Complaint Inadequate; Generic References To “Fraud” without Specifying Type of Frauds Listed In § 1961 That Each Defendant Allegedly Committed Is Inadequate; Fiduciary Duty Breach, Breach of Contract, Negligence, Defamation Are Not Predicate Acts

Lopez v. COMPA Indus., Inc., 2024 U.S. App. LEXIS 18176 (10th Cir. July 24, 2024) (unpublished): *1 Samuel Lopez, proceeding pro se,1 appeals the district court’s order dismissing his various claims against Compa Industries, Inc., several of Compa’s officers…

RICO: (1) Victim vs. Perpetrator Enterprises — (2) § 1962(b): Elements of a Violation — (3) Meaning of “Interest” and “Control” in § 1962(b) — (4) The Defendant in a § 1962(b) Action Need Not Be an Enterprise; The Victim Must Be An Enterprise — (5) Acquisition/Maintenance Injury Required (6) Aiding and Abetting Liability under RICO

Laurel Gardens LLC v. McKenna, 2024 U.S. App. LEXIS 1594, 2024 WL 3220401 (3d Cir. June 28, 2024) (unpublished): OPINION** JORDAN, Circuit Judge *1 In this civil RICO case, plaintiffs Laurel Gardens, LLC, American Winter Services, LLC,…

Rule 11 Sanctions: Request for Bill of Particulars re Sanctions Proceeding Reviewed for Abuse of Discretion — Court’s Discretion Narrows As Severity of Sanction Increases OR When It Initiates the Sanction Proceeding Itself — Particularly Strict Abuse of Discretion Standard Applied — “Rule 11 Does Not License a District Court to Sanction Any Action by an Attorney or Party That It Disapproves of” (Good Quote) — Failure to Identify Specific Pleading and Detail Specific, Objectionable Conduct within that Pleading Violates Due Process — Failure to Provide Notice That Most Severe Sanction May Be Imposed Violates Due Process — Failure to Provide Notice That “Scarlett Letter Sanction” (Mandatory Circulation of Sanctions Order) Or Other Sanction That Could Leave Indelible Imprint on Career Might Be Imposed Violates Due Process — Notice That Law Firm Might Be Sanctioned Insufficient to Afford Notice to Firm Lawyer and Managing Partner That He Might Be Sanctioned — Refusal to Impose Additional Sanction Until Impact of Other Imposed Penalties (Not Sanctions) Ascertained to See Whether Sanction Needed

In re Sanford Law Firm, 2024 U.S. App. LEXIS 15747, 2024 WL 3217609 (8th Cir. June 28, 2024): Judges: Before SMITH, Chief Judge,1 COLLOTON2 and BENTON, Circuit Judges. Sanford Law Firm (SLF) and Josh Sanford (Sanford) appeal …

Rule 37(c)(1) Sanctions: (1) Exclusion of Expert Testimony Reviewed for Abuse of Discretion Even When It Results in Summary Judgment — (2) Whether Physicians Must File 26(a)(2)(B) Report Depends on Whether They Formed Their Opinions for Litigation Or in the Course of Medical Treatment — (3) Party Seeking to Avoid Exclusion of Its Expert for Noncompliance with Rule 26 Bears Burden of Showing Harmlessness or Substantial Justification — (4) Expert Report Subject to Exclusion If It Is Conclusory and Does Not Meet the Level of Rigor Required by Rule 26(a)(2)(B)

Adkins v. Marathon Petro. Co., LP, 2024 U.S. App. LEXIS 15240 6th Cir. June 24, 2024): [**1] Brent Adkins worked as a crew member on one of Marathon Petroleum Company’s inland river barges. He brought claims against Marathon under the…

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Commercial Litigation and Arbitration

Greg Joseph

Recent Articles

RICO: Mail and Wire Fraud: Act of Emailing Transcript of Court Proceedings Containing Allegedly False Statements Made in Court ≠ Wire Fraud — Mailing (Serving on Opposing Party) Declarations Allegedly Containing False Statements ≠ Mail Fraud

FRAP 38 Sanctions — Sixth Circuit Usually Declines to Impose FRAP 38 Sanctions Unless An Improper Purpose Was Behind the Appeal

FRAP 38: Permissible for Appeals Court to Affirm Sanctions But Deny FRAP 38 Sanctions for Appeal — A Defendant’s Voluntary Cessation of Complained of Behavior Does Not Moot a Case Unless It Is Clear That The Behavior Could Not Reasonably Be Expected to Recur

Rule 11: Violation of 21 Day Safe Harbor “Overlook[ed]” As Non-Prejudicial by First Circuit — “Rule 11 Monetary Sanctions Must Be Reasonable” (Good Quote) — Rule 11(c)(4) Requires Consideration of Offender’s Ability to Pay

Temporary Restraining Order = Preliminary Injunction: 3 Supreme Court Cases (TRO=PI x 3)

Rule 37(c)(1) Sanctions — Exclusion of Untimely Expert Report — Eighth Circuit’s 4-Factor Test

RICO: So Insubstantial A Claim As to Fail to Confer Subject Matter Jurisdiction

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