Greg Joseph

Commercial Litigation and Arbitration

Rule 11 Sanctions: Error to Award Attorney’s Fees Sua Sponte Or to Issue Any Sanction on Withdrawn Claim — Can’t Seek Leave to Amend after Judgment Entered without Also Moving to Set Aside Judgment

Wolfington v. Reconstructive Ortho. Assocs. II PC, 2019 US App Lexis 24770 (3d Cir. Aug. 20, 2019): This is an appeal from the District Court's entry of judgment on the pleadings against appellant-plaintiff Andrew Wolfington on his claim under the …

RICO Statute of Limitations Not Tolled by Defendants’ Refusal to Concede (& Allegedly Lying about) Misconduct — No Equitable Tolling If Plaintiff in Fact Aware of Misconduct

Bernegger v. Dep't of Revenue, 2019 U.S. App. LEXIS 26395 (5th Cir. Aug. 30, 2019) (unpublished): PER CURIAM:* Peter Bernegger challenges the dismissal of his claims against two Mississippi Department of Revenue employees in their individual capacities. Because…

Specific Personal Jurisdiction Is Claim-Specific — First-to-File Rule (Factors) and Anticipatory Declaratory Judgment Exception — DJ Actions (Factors As to Appropriateness)

J.M. Smucker Co. v. Promotion in Motion, Inc., 2019 U.S. Dist. LEXIS 193896 (N.D. Ohio Nov. 7, 2019): Currently pending is Defendant Promotion in Motion's Motion to Dismiss Amended Complaint. (Doc. No. 14.) Plaintiff J.M. Smucker Company filed a Brief…

R. 11 Sanctions for Disqualification Motion—DQ Apt Only If Lesser Remedies Unavailable — Factors for Advocate Witness DQ — Type, # of Violations Guide Sanction — Papers “More About Vitriol … Than Fact Or Legal Principle” (Good Quotes)

Finley Grp., Liquidating Agent For RedF Mktg., LLC v. Roselli (In re RedF Mktg., LLC), 2019 Bankr. LEXIS 3311 (W.D.N.C. Bankr. Oct. 21, 2019): ORDER DENYING MOTION TO DISQUALIFY AND GRANTING MOTION FOR SANCTIONS This matter is before the Court…

Removal: Is Denial of Request for Admission That Claim Doesn’t Exceed $75,000 Sufficient to Establish Amount in Controversy? — Case Law Split — Settlement Offer Over $75K Can Be “Other Paper” Supporting Removal

Streicher v. Sam's East, Inc., 2019 U.S. Dist. LEXIS 34052 (S.D. Ga. Mar. 4, 2019): Before the Court is Plaintiffs' Motion to Remand to State Court. (Doc. 4.) For the following reasons, the Court concludes that Defendant's removal was timely…

Appeals: Party with Prejudgment Certification to Appeal Must File Petition in 10 Days — District Court Can’t Reenter or Recertify to Restart Clock — 10-Day Period Is Set in Statute, Is Jurisdictional, Not Claims-Processing

Groves v. United States, 2019 U.S. App. LEXIS 31974 ((7th Cir. Oct. 25, 2019): When a district court certifies an order for review before final judgment, parties have only ten days to petition us to hear the interlocutory appeal. Decades …

FRAP 38 Sanctions for Not Substantively Addressing District Court’s Reasoning — Vexatious Litigant Injunction on Appeal Per Inherent Power & All Writs Act — Good Quote on Pro Se Status Not Insulating Party from Clogging Courts with Meritless Case

Henneberger v. Ticom Geomatics, Inc., 2019 WL 5688237 (5th Cir. Nov. 1, 2019) (unpublished):*1 Pending before the court is a motion to dismiss this appeal as frivolous, award the moving defendants-appellees1 costs in the amount of their attorney …

Disqualification of Experts (2-Part Test) vs. Lawyers (2 Scenarios) — Courts Presume That Lawyers, But Not Experts, Received Confidential Information — Judicial Docs Presumptively Public Even If Not Relied on

Homeward Residential, Inc., Solely in Its Capacity As Master Servicer for the Option One Mortg. Loan Trust 2006-2 ex rel. Tr. & the Holders of Option One Mortg. Loan Trust 2006-2 Certificates, 2019 U.S. Dist. LEXIS 189285 (S.D.N.Y. Oct. 31,…

Bankruptcy Courts Have Power to Issue at Least Relatively Minor, Non-Compensatory Inherent Power Sanctions — Power Derived Not from Art. III But from Nature of Federal Judicial Institutions — Appeals Court Must Assess Jurisdiction of Lower Courts

Rosellini v. United States Bankr. Ct. (In re Sanchez), 2019 U.S. App. LEXIS 32462 (2d Cir. Oct. 30, 2019): Per Curiam. In September 2013, Appellant Kenneth Rosellini filed a Chapter 7 petition in the United States Bankruptcy Court for the…

Inherent Power Sanctions May Be Imposed on Lawyer for Violation of Court Order (Failure to Appear, Prosecute) Or Other Misconduct Not Undertaken for the Client’s Benefit without a Showing of Bad Faith (2d Cir.)

In re Sanchez (Rosellini v. U.S. Bankruptcy Court), 2019 WL 5596472 (2d Cir. Oct. 30, 2019) (unpublished): *1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the orders of the district court dated May 19, 2017, and…

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Recent Articles

Rule 37(d) Sanctions — For Failure to Serve Answers, Objections, Or Written Response to Discovery Requests — Are Not Limited to Intentional Misconduct; Even Innocent Mistakes May Be Covered

Sanctions: (1) Rule 11 Does Not Apply to Litigation Papers Initially Filed in State Court — Only Reaffirmance in Federal Court Post-Removal Is Subject to Sanction — (2) “The Fact That A Legal Theory Is A Long-Shot Does Not Necessarily Mean It Is Sanctionable” (Good Quote)

Supreme Court: Relief under Rule 60(b)(6) Requires Extraordinary Circumstances Even If It Is Invoked to Allow Amendment of The Complaint–Rule 15’s Liberal Approach to Amendment Does Not Change That (Reversing Second Circuit)

FRAP 38 Sanctions — Eleventh Circuit Generally Does Not Impose FRAP 38 Sanctions on Pro Se Litigants, But May Do So If They Have Persisted Despite Judicial Warnings of Frivolousness

Inherent Power Sanctions: No Dismissal with Prejudice If Lesser Sanctions Will Suffice — The Liberal Pleading Standard of Swierkiewicz “Is Still Good Law”

Supreme Court: (1) Fraudulent Inducement Theory of Mail Fraud: Statute Violated If Victim Is Tricked into Parting with Money Or Property, Even If Victim Suffers No Pecuniary Loss — (2) “A Fraud Is Complete When The Defendant Has Induced The Deprivation Of Money Or Property Under Materially False Pretenses” — (3) The Old Soil Principle of Statutory Construction Applies Only to the Extent That a Common-Law Term Has Accumulated a Settled Meaning — (4) Rescission for Fraud Does Not Require Economic Loss; Sufficient If Property of A Different Character Or Condition Provided — i.e, If Victim Tricked into A Bargain Materially Different from The One Promised — (5) “At The Right Level Of Specificity, Anything Can Be Described As ‘Unique’ Or ‘Different From’ Something Else” (Good Quote) — (6) “Materiality Look[s] To The Effect On The Likely Or Actual Behavior Of The Recipient Of The Alleged Misrepresentation” (Good Quote)

Statements in Briefs As Judicial Admissions

Supreme Court: TRO As Appealable Order — And District Court Inaction As Tantamount to Refusing An Injunction And Thus Appealable

“Slow-Playing Discovery” in Response to Court Order, Prejudicing Opponent, Violates Rule 37(b)(2)(A)

RICO Pattern: No Closed-Ended Continuity If Racketeering Activity Lasted Less Than One Year (11th Circuit) — Conspiracy Allegations Governed by Rule 8(a), Not 9(b) — Two Paths to Establishing A RICO Conspiracy: Agreement to Objective Or to Commit 2 Predicate Acts — Plaintiff Need Not Show Reliance When The Predicate Acts Are Wire Fraud — In Dicta, 11th Circuit Intimates That Even If The Primary RICO Violation Allegations Fail, The RICO Conspiracy Allegations Might Survive, But Is Probably Talking About A Conspiracy to Commit The Predicate Acts