Greg Joseph

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 LEXIS 26593 (6th Cir. Aug. 20, 2020) (unpublished): Courts typically reserve the “death penalty” sanction of dismissal with prejudice for the most egregious cases—those that involve, for example, willful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…

“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…

R. 11 Sanctions: Dismissal with Prejudice and Attorney’s Fees for Pro Ses’ Persisting in Frivolous Venue and Service Arguments Despite Warnings from Court — No Protection from 41(b)

Khan v. Hemosphere Inc., 2020 U.S. App. LEXIS 25726 (Fed. Cir. Aug. 13, 2020): These appeals arise from an action for patent infringement. Drs. Nazir Khan and Iftikhar Khan accused Hemosphere Inc., CryoLife Inc., and Merit Medical Systems, Inc., along …

R. 37 & Inherent Power (IHP) Sanctions: Permissive Adverse Inference OK Not Disclosing Witness After Reliance on Wit. Required (26(a)(1), (e)) —Plain Error Rare in Civil Case — IHP: Narrow Exception to Bad Faith Requirement

Higgs v. Costa Crociere S.P.A. Co., 2020 U.S. App. LEXIS 25793 (11th Cir. Aug. 14, 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 …

Rule 37 Sanctions: Until Amount of Attorney’s Fees Is Set, No Final Order Or Appellate Jurisdiction Exists, Even If Fee Award Is Only One Part of Larger Award, Including Default Judgment and Dismissal of Counterclaims

People for the Ethical Treatment of Animals, Inc. v. Dade City's Wild Things, Inc., 2020 U.S. App. LEXIS 26042 (11th Cir. Aug. 17, 2020): BY THE COURT: The People for the Ethical Treatment of Animals, Inc.'s ("PETA") motion to dismiss…

Common Core Doctrine: Fees Awardable for Claims Involving Common Facts Or Related Legal Theories, Even If Only One Triggers Fee-Shifting — Noncompliance with Bankruptcy Court Order Sanctionable via Striking Pleading on Analogy to Rule 37(b)

Ridgeway v. Stryker Corp. (Matter of Ridgeway), 2020 WL 5226553 (5th Cir. Sept. 2, 2020): *1 For the last seven years, Christopher Martin Ridgeway and his former employer have waged scorched-earth lawfare against one another. Ridgeway has lost every battle…

R. 11 Sanctions: Due Process—Flexible Notice, Substantial Compliance — OK to Issue OSC in 1 of 15 Cases & Dismiss All — Prisoner’s Knowledge of Own Conduct = Notice — Order Must State Specific Basis of Sxs — Types of Vexatious Lit Injn

Cobble v. U.S. Government, 816 Fed.Appx. 355 (11th Cir. 2020) (unpublished): PER CURIAM: In these consolidated appeals, Petitioner/Appellant Daniel Cobble1 (“Cobble”) appeals the district court’s order dismissing with prejudice, as a sanction, his pro se actions, filed pursuant to…

Inherent Power/Rules 26, 37: Even Absent Spoliation, Evasive Discovery Action Punishable by Fee Award Calibrated Per Goodyear v. Haeger & Denial of 54(b) Costs — History, Importance of Jury Trial

Edwards v. 4JLJ, LLC, 2020 WL 5229686 (5th Cir. Sept. 2, 2020): *1 4JLJ, LLC provides oil well pump and frack services. A group of its employees sued 4JLJ under the Fair Labor Standards Act, alleging that 4JLJ violated the…

Electronic Spoliation: Inherent Power—Fraud on Court Requires Clear & Convincing Evidence — Factors — Dismissal Requires Willfulness, Consideration of Less Drastic Sanctions — [No Reference to 37(e), Which Governs]

ComLab Corp. v. Tire, 815 Fed.Appx. 597 (2d Cir. 2020) (unpublished): SUMMARY ORDER Plaintiff-Appellant ComLab, Corp. (“ComLab”) brings this consolidated appeal challenging two judgments of the United States District Court for the Southern District of New York. The first appeal…

Commercial Litigation and Arbitration

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

“Summary Judgment Is the Put Up or Shut Up Moment in a Lawsuit”

R. 11 Sanctions: Dismissal with Prejudice and Attorney’s Fees for Pro Ses’ Persisting in Frivolous Venue and Service Arguments Despite Warnings from Court — No Protection from 41(b)

R. 37 & Inherent Power (IHP) Sanctions: Permissive Adverse Inference OK Not Disclosing Witness After Reliance on Wit. Required (26(a)(1), (e)) —Plain Error Rare in Civil Case — IHP: Narrow Exception to Bad Faith Requirement

Rule 37 Sanctions: Until Amount of Attorney’s Fees Is Set, No Final Order Or Appellate Jurisdiction Exists, Even If Fee Award Is Only One Part of Larger Award, Including Default Judgment and Dismissal of Counterclaims

Common Core Doctrine: Fees Awardable for Claims Involving Common Facts Or Related Legal Theories, Even If Only One Triggers Fee-Shifting — Noncompliance with Bankruptcy Court Order Sanctionable via Striking Pleading on Analogy to Rule 37(b)

R. 11 Sanctions: Due Process—Flexible Notice, Substantial Compliance — OK to Issue OSC in 1 of 15 Cases & Dismiss All — Prisoner’s Knowledge of Own Conduct = Notice — Order Must State Specific Basis of Sxs — Types of Vexatious Lit Injn

Inherent Power/Rules 26, 37: Even Absent Spoliation, Evasive Discovery Action Punishable by Fee Award Calibrated Per Goodyear v. Haeger & Denial of 54(b) Costs — History, Importance of Jury Trial

Electronic Spoliation: Inherent Power—Fraud on Court Requires Clear & Convincing Evidence — Factors — Dismissal Requires Willfulness, Consideration of Less Drastic Sanctions — [No Reference to 37(e), Which Governs]

Recent Articles

Practice of Seeking Leave to Amend after The Case Is Dismissed Is Discouraged

RICO: Release Executed After Alleged RICO Violations Extinguishes RICO Claim — Eighth Circuit Declines to Address Enforceability of A Release “That Is An Integral Part of An Alleged RICO Scheme Or That Immunizes Future RICO Conduct

Pleading — “Civil pleadings are supposed to mark the boundaries for discovery; discovery is not supposed to substitute for definite pleading” (Good Quote) — Shotgun Pleadings (11th Circuit): Four Categories/Types

Rule 37(c)(1) Exclusion of Untimely Expert Report: Failure to Argue Harmlessness Essentially Waives Issue

Rule 37(b) Sanctions — Exclusion of Supplemental Expert Report for Advancing New Opinions — Third Circuit Exclusion Factors — “Importance of Excluded Evidence:” If, As Proponent Argues, There Is Nothing New, Then Exclusion Doesn’t Harm Proponent; If There Is, It Harms Opponent

RICO Pleading: Generic Allegations of Fraud (Failing Even to Set Forth Any False Representation) And Extortion (Failing to Describe Actual Threats) Too Conclusory to State a Claim

RICO Pleading: Statutory Directive That RICO Be Liberally Construed Does Not Extend to More Liberal Pleading Requirements

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