Greg Joseph

Attorney-Client Privilege: Call from Prisoner to Sister Relaying Message for Attorney Not Privileged Where Prisoner on Notice Calls Were Monitored and Sister Not Essential to Effective Communication with Lawyer — Communication Not in Confidence

United States v. Mejia, 655 F.3d 126 (2d Cir. 2011): Defendant-Appellant Joel Rodriguez ("Rodriguez") appeals from a judgment of conviction entered on June 30, 2010, by Judge Denise Cote of the United States District Court for the Southern District of…

Exceptional Case Fees Per 28 U.S.C. §285 Require Winning — Even If District Court Found Litigation Misconduct, Fees Can’t Be Sustained on Appeal as Sanctions If Not Awarded as Sxs — Hiring Judge’s Ex-Partner to Disqualify = Litigation Misconduct

UCP Int’l Co. v. Balsam Brands Inc., 2019 WL 4509162 (Fed. Cir. Sept. 19, 2019): *1 The instant appeal is the companion to concurrently issuing Appeal No. 18-1256 (“the Merits Appeal”), where we determined that the U.S. District Court for…

Inherent Power: in Exceptional Case, Bad Faith Conduct at Issue in Case May Be Sanctioned — Unless Appeal Is Sanctionable, Fact It Arises Out of Such Conduct Irrelevant — 28 U.S.C. §2412 Codifies Inherent Power, Waives Sovereign U.S.’s Immunity

Luther v. United States, 2019 WL 1645983 (5th Cir. Apr. 17, 2019): *1 The Equal Access to Justice Act, 28 U.S.C. § 2412(b), waives the government’s sovereign immunity for the imposition of attorneys’ fees “to the same extent that…

RICO: Plaintiff Must Plead Specifics as to Each Defendant, No “Lumping” (Good Quote) — Conclusory Allegations of Enterprise Insufficient — No Threat of Continuing Criminal Activity when Everything Occurs in Connection with a Trial

Walker v. Beaumont Independent Sch. Dist., 2019 WL 4458378 (5th Cir. Sept. 18, 2019): *1 With this appeal, we review the district court’s dismissal of the entirety of Appellants’ claims pursuant to the Texas Citizens’ Participation Act, (“TCPA”), TEX. CIV. …

Even After All Parties Have Consented to Plenary Jurisdiction of Magistrate Judge, Only District Judge May Rule on Motion to Withdraw Consent to Jurisdiction of Magistrate Judge — Circuit Split

Branch v. Umphenour, 2019 U.S. App. LEXIS 26784 (9th Cir. Sept. 5, 2019): Appellant Louis Branch, a prisoner in the California state prison system, brought this pro se suit alleging civil rights violations by various prison officials. After the conclusion …

Inherent Power Sanctions—While Court May Sanction for Noncompliance with Order, It Is Not Required to (Good Quote) — Rooker-Feldman Inapplicable to Independent Claim, Even If It Denies State Court Legal Conclusion in Case to Which Plaintiff Was Party

Williams v. Capital One Bank (USA) N.A., 2019 WL 4187363 (11th Cir. Sept. 4, 2019) (unpublished): PER CURIAM: *1 Troy Williams appeals the dismissal of his Fair Credit Reporting Act (FCRA) claims against Capital One Bank (USA), N.A., and the…

Expert Testimony: Whether Judge Applied Proper Legal Framework Reviewed De Novo — If So, Abuse of Discretion for Decision — While Daubert Doesn’t Bar Generalist from Specialized Opinions, S/he Must Be Qualified for Each One

United States v. Truitt, 2019 U.S. App. LEXIS 27497 (7th Cir. Sept. 12, 2019): In late 2009 Cathy Truitt filed seven nearly identical tax returns, each falsely claiming that she was entitled to a $300,000 refund. The IRS identified six …

Evolution of Magistrate Judge Power

Brown v. United States, 748 F.3d 1045 (11th Cir. 2014): The Federal Magistrate Act of 1979, Pub. L. No. 96-82, 93 Stat. 643, authorizes a magistrate judge, with the consent of the parties, to "conduct any or all proceedings …

Spoliation of Video Reviewed under Tangible Spoliation Standard, Not Rule 37(e) (Isn’t a Video Electronically Stored?) — 2d Cir. Factors — No Abuse of Discretion to Deny Adverse Inference Where Destruction Per 90-Day Policy & Issue Argued to Jury

Johnson v. Perry, 2019 U.S. App. LEXIS 6855 (2d Cir. Mar. 5, 2019) (unpublished): SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Plaintiff-appellant Glenn Johnson, appearing …

Authentication of Social Media Evid. Evaluated on Case-by-Case Basis — Proponent Must Corroborate ID of Author (Good Quotes) — Contextual Clues Inadequate Where No IP Address Obtained & 11 Other Pages Have Same Name

Commonwealth v. Gardner, 2019 Pa. Super. Unpub. LEXIS 3055 (Pa. Super. Ct. Aug. 13, 2019): Appellant, Leo A. Gardner, appeals from the Judgment of Sentence entered in the Monroe County Court of Common Pleas on August 16, 2018, following his …

Commercial Litigation and Arbitration

Attorney-Client Privilege: Call from Prisoner to Sister Relaying Message for Attorney Not Privileged Where Prisoner on Notice Calls Were Monitored and Sister Not Essential to Effective Communication with Lawyer — Communication Not in Confidence

Exceptional Case Fees Per 28 U.S.C. §285 Require Winning — Even If District Court Found Litigation Misconduct, Fees Can’t Be Sustained on Appeal as Sanctions If Not Awarded as Sxs — Hiring Judge’s Ex-Partner to Disqualify = Litigation Misconduct

Inherent Power: in Exceptional Case, Bad Faith Conduct at Issue in Case May Be Sanctioned — Unless Appeal Is Sanctionable, Fact It Arises Out of Such Conduct Irrelevant — 28 U.S.C. §2412 Codifies Inherent Power, Waives Sovereign U.S.’s Immunity

RICO: Plaintiff Must Plead Specifics as to Each Defendant, No “Lumping” (Good Quote) — Conclusory Allegations of Enterprise Insufficient — No Threat of Continuing Criminal Activity when Everything Occurs in Connection with a Trial

Even After All Parties Have Consented to Plenary Jurisdiction of Magistrate Judge, Only District Judge May Rule on Motion to Withdraw Consent to Jurisdiction of Magistrate Judge — Circuit Split

Inherent Power Sanctions—While Court May Sanction for Noncompliance with Order, It Is Not Required to (Good Quote) — Rooker-Feldman Inapplicable to Independent Claim, Even If It Denies State Court Legal Conclusion in Case to Which Plaintiff Was Party

Expert Testimony: Whether Judge Applied Proper Legal Framework Reviewed De Novo — If So, Abuse of Discretion for Decision — While Daubert Doesn’t Bar Generalist from Specialized Opinions, S/he Must Be Qualified for Each One

Evolution of Magistrate Judge Power

Spoliation of Video Reviewed under Tangible Spoliation Standard, Not Rule 37(e) (Isn’t a Video Electronically Stored?) — 2d Cir. Factors — No Abuse of Discretion to Deny Adverse Inference Where Destruction Per 90-Day Policy & Issue Argued to Jury

Authentication of Social Media Evid. Evaluated on Case-by-Case Basis — Proponent Must Corroborate ID of Author (Good Quotes) — Contextual Clues Inadequate Where No IP Address Obtained & 11 Other Pages Have Same Name

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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