Greg Joseph

Commercial Litigation and Arbitration

New York Law Firm That Advised Florida Resident for Years Subject to Personal Jurisdiction in Florida, Thus Subject to 28 U.S.C. § 1782 in Florida — Court Cannot Amend Protective Order Following Dismissal of Case Unless the Order Retains Jurisdiction Post-Dismissal — Parties Can Enforce Stipulated Protective Order Post-Dismissal Through Breach of Contract Action

In re Absolute Activist Value Master Fund Ltd., 2025 WL 764608 (11th Cir. Mar. 11, 2025) (unpublished): PER CURIAM: Background *1 This case is a consolidation of four appeals1 filed by Appellant, Susan Devine, in two separate actions.…

Rule 37(e)/Spoliation — “Intent to Deprive” Determined under the Preponderance of the Evidence Standard — Court May Make Determination Or Allow Jury to Do So — Lesser “Culpable Conduct” Standard of Residential Funding Continues to Apply in Second Circuit Outside ESI Context — Once Judge Has Definitively Ruled on the Record Denying A Requested Instruction, Counsel Is Not Required to Object to the Charge Again at Trial to Preserve Issue for Appeal

Hoffer v. Tellone, 128 F.4th 433 (2d Cir. 2025): Plaintiff–Appellant Richard Hoffer sued the City of Yonkers, the City of Yonkers Police Department, and various individual police officers under 42 U.S.C. § 1983, alleging that the officers used excessive…

Rule 11 (9011) and Inherent Power Sanctions for “Unapologetic [Refusal to Apologize] Defiance” of Court’s Rules and Orders — Advising Client to Take Steps That Same Judge Had Told Lawyer Were Improper in Prior Case — Obstinate Recidivism — Silence upon Withdrawal of Motion As Rule 11 (9011) Violation (Noted But Not Addressed on Appeal)

Sugar v. Burnett, 2025 U.S. App. LEXIS 5141 (4th Cir. Mar. 5, 2025): *1 Christine Sugar appeals from the district court’s orders affirming the bankruptcy court’s finding that Sugar’s sale of her residence, without prior court authorization, violated her confirmed…

Rule 37 Sanctions Properly Denied for Failure to Produce Documents That Were Already in the Requester’s Possession And Were Not Relevant to The Principal Issue in the Lawsuit — Experts/Daubert: Exclusion Appropriate Where Opinion Was Predicated on Erroneous Assumptions of Law

Sec’y United States DOL v. Nursing Home Care Mgmt., 128 F.4th 146 (3d Cir. 2025): Nursing Home Care Management Inc. (“Prestige”) operates a home healthcare service. It did not compensate its employees for time spent traveling between clients’ homes. …

Supreme Court: Obtaining a Preliminary Injunction Does Not Render the Plaintiff a “Prevailing Party” Entitled to Attorney’s Fees — Must Win “Enduring Relief” On The Merits From A Judicial Order — Extraneous Events, Like Legislation, That Preserve The Outcome And Moot The Lawsuit Do Not Turn The Plaintiff into A Prevailing Party (Note, However, That A Defendant Need Not Obtain A Favorable Judgment On The Merits In Order To Be A “Prevailing Party”)

Lackey v. Stinnie, 2025 U.S. LEXIS 866, 2025 WL 594737 (U.S. Feb. 25, 2025): Respondents are Virginia drivers whose licenses were suspended due to their failure to pay court fines or costs. The drivers sued the Commissioner of the …

Supreme Court: When A Plaintiff Amends The Complaint To Delete The Federal-Law Claims That Enabled Removal To Federal Court, Leaving Only State-Law Claims, The Federal Court Loses Supplemental Jurisdiction, And The Case Must Be Remanded To State Court

Royal Canin U.S.A., Inc. v. Wullschleger, 2025 U.S. LEXIS 365, 2025 WL 96212 (U.S. Jan. 15, 2025): If a complaint filed in state court asserts federal-law claims, the defendant may remove the case to federal court. See 28 U. …

Supreme Court: A Rule 41(a) Voluntary Dismissal Without Prejudice = A Final Proceeding Within Rule 60(b) — Advisory Committee Notes Are “A Reliable Source Of Insight Into The Meaning Of A Rule” — Prior to Dismissal or Entry of Judgment, A District Court May Always Rehear and Reconsider Prior Rulings

Waetzig v. Halliburton Energy Servs., Inc., 2025 U.S. LEXIS 868 (U.S. Feb. 26, 2025): Federal Rule of Civil Procedure 60(b) permits a court, “[o]n motion and just terms,” to “relieve a party … from a final judgment, order, or proceeding.”…

Rule 37(c)(1) Sanctions — Exclusion of Untimely Expert Report — Burden Is On Noncompliant Party to Prove Harmlessness — Court Need Not Hold Hearing If Noncompliant Party Fails to Argue Harmlessness, Even When Exclusion Is Tantamount to Dismissal

Key v. Qualcomm Inc, 2025 U.S. App. LEXIS 4311 (9th Cir. Feb. 25, 2025) (unpublished): Plaintiffs sued Qualcomm Inc., tracking the Federal Trade Commission’s (FTC) theories that Qualcomm’s business practices violated state and federal antitrust law. These business practices include …

RICO: (1) Continuity: 4th Circuit Factors — (2) 4th Circuit Reserves RICO Liability for Unlawful Activities That Pose A Special Threat to Social Well-Being — (3) For Purposes of Determining Closed-Ended Continuity, Even Time-Barred Conduct Considered — (4) No Open-Ended Continuity If Racketeering Activity Has Built-In Ending Point — (5) Unlike General Federal Conspiracy, RICO Conspiracy Doesn’t Require Each Defendant to Perform an Overt Act in Furtherance of the Conspiracy

FX Aviation Cap. LLC v. Guerrero, 2025 U.S. App. LEXIS 3656 (4th Cir. Feb. 18, 2025) (unpublished): This appeal stems from a long-standing dispute between Plaintiff-Appellant FX Aviation Capital, LLC (“FX”) and several former business partners——LG Aviation, Inc., Mark Liker,…

Whether Party Waived Arbitration by Litigating Is a Question for the Court, Not the Arbitrator

Al-Nahhas v. 777 Partners, LLC, 2025 WL 546908 (7th Cir. Feb. 19, 2025): *1 Illinois resident Eido Hussam Al-Nahhas took out four loans from an online lending company called Rosebud Lending LZO, doing business as ZocaLoans. Those loans charged exorbitant…

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Commercial Litigation and Arbitration

Greg Joseph

Rule 37 Sanctions Properly Denied for Failure to Produce Documents That Were Already in the Requester’s Possession And Were Not Relevant to The Principal Issue in the Lawsuit — Experts/Daubert: Exclusion Appropriate Where Opinion Was Predicated on Erroneous Assumptions of Law

Supreme Court: When A Plaintiff Amends The Complaint To Delete The Federal-Law Claims That Enabled Removal To Federal Court, Leaving Only State-Law Claims, The Federal Court Loses Supplemental Jurisdiction, And The Case Must Be Remanded To State Court

Rule 37(c)(1) Sanctions — Exclusion of Untimely Expert Report — Burden Is On Noncompliant Party to Prove Harmlessness — Court Need Not Hold Hearing If Noncompliant Party Fails to Argue Harmlessness, Even When Exclusion Is Tantamount to Dismissal

Whether Party Waived Arbitration by Litigating Is a Question for the Court, Not the Arbitrator

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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