Greg Joseph

One Score

March 17, 2021 marks the 20th anniversary of the Firm

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 v. Oracle Corp., 2021 WL 754839 (9th Cir. Feb. 26, 2021) (unpublished):MEMORANDUM** *1 Grouse River Outfitters, Ltd.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…

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, 2017, which, insofar as appealed from as limited by the briefs,…

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

State Farm Mut. Auto. Ins. Co. v. Havemeier, 2021 U.S. Dist. LEXIS 41175 (D. Minn. Mar. 5, 2021): This matter is before the Court on Plaintiff State Farm Mutual Automobile Insurance Company’s Motion for Certification for Interlocutory Appeal (“Motion”). (Dkt.…

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. …

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 …

“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…

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-Appellant-Cross-Appellee Dr. Effat …

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 most egregious cases—those that involve, for example, willful misconduct, bad faith, fraud, …

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.1 After trial, a jury found that Feldman…

Commercial Litigation and Arbitration

One Score

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

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)

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)

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

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)

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 $

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

Recent Articles

RICO: Indirect Injury Unrecoverable — Indirect Purchaser Rule Imported from Antitrust

RICO: No Causation Where Harm Flowed Several Steps After the Fraudulent Acts — RICO Causation Same As Antitrust Causation

Sanctions vs. Automatic Stay: Imposition of Sanctions (Here, Inherent Power Sanctions) Is Subject to the Police Power Exception to the Automatic Stay in Bankruptcy

The Word “Include” May Be A Word of Limitation As Opposed to a Word of Enlargement, Depending on the Context

Spoliation/Sanctions: “A Party Does Not Spoliate Evidence When, Without Notice Of The Evidence’s Potential Relevance, It Destroys The Evidence According To Its Policy Or In The Normal Course Of Its Business” (Good Quote)

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