Greg Joseph

Rule 37/41 Dismissal — 6th Cir.’s 4-Factor Test — Reckless Disregard Sufficient Mental State — While Lesser Sanctions Should Be Considered, Court Has Power to Dismiss As “First & Only Sanction”

McElrath v. City of Cleveland, 2019 U.S. App. LEXIS 24598 (6th Cir. Aug. 16, 2019) (unpublished): Ayanna and LaCretia McElrath, pro se Ohio litigants, appeal the district court's judgment dismissing their civil rights action pursuant to Federal Rules of Civil …

Experts — Daubert Review: Abuse-of-Discretion Standard Applies as Much to the Trial Court’s Decisions about How to Determine Reliability as to Its Ultimate Conclusion

Water Pollution Control Auth. v. Flowserve US, Inc., 2019 U.S. App. LEXIS 22512 (2d Cir. July 30, 2019) (unpublished): SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED…

Texts — Hearsay: Adoptive Admission by Silence — Three Factors — “Because of The Inherently Equivocal Nature of Silence, Such Evidence Must Be Received with Caution” (Good Quote)

Andre Vargas was convicted of four counts of third degree child rape for raping his daughter during the summer before her ninth grade year when she was 14. At trial, the State presented testimony from the victim, people she had…

Discovery Sanction: Evasive or Incomplete Interrogatory Answer = No Answer — While Striking Claim Is Extreme, More Demanding Standard Applied in Civil Forfeiture Actions to Special Interrogatories on Standing

United States v. 284,950.00 in United States Currency, 2019 U.S. App. LEXIS 23947 (8th Cir. Aug. 12, 2019): Nikkolas Thompson appeals the district court's1 judgment in favor of the United States in this civil forfeiture action. We affirm. In …

Spoliation: Adverse Inference Requires Actual Suppression or Withholding — Inapt If Evidence “Lost or Accidentally Destroyed” or Failure “Is Otherwise Properly Accounted for” (Good Quotes)

Layden v. Target Corp, 768 Fed. Appx. 152 (3d Cir. April 17, 2019): Donna Layden slipped and fell in Target and filed suit for negligence. The District Court granted summary judgment to Target after discovery, concluding that Layden failed to…

Facebook/Social Media Authentication Has 2 Parts: Proponent Must Supply Evidence as to Both (i) Who Owns the Page, and (ii) Who Took the Action Sufficient to Allow Jury to Find Both

Sample v. State, 2019 Md. App. LEXIS 642, 2019 WL 3451812 (Md. Ct. Spec. App. July 31, 2019): Appellant Hayes Sample was convicted by a jury in the Circuit Court for Baltimore County of attempted armed robbery, first degree …

Inherent Power Sanctions: Dismissal for Disregard of Order Not Abuse of Discretion Where Litigant Forewarned — Nor Is Dismissal without Prejudice — Meaning of Abuse of Discretion (11th Circuit)

Frank v. Schulson, 2019 WL 3545891 (11th Cir. Aug. 5, 2019) (unpublished): *1 Kenneth Frank, a Florida state pretrial detainee proceeding pro se, appeals the district court’s order dismissing without prejudice his civil rights complaint, in which he alleged claims…

Offensive (Nonmutual) Collateral Estoppel: 4 Factors — Identicality = Same Issues, Not Claims — Necessity Met If Finding Essential to Remedy, Even If Not Jmt — Legal Issues Reviewed De Novo, Fairness for Abuse of Discretion

Bifolck v. Philip Morris United States, 2019 U.S. App. LEXIS 25023 (2d Cir. Aug. 22, 2019): Vincent Bifolck, individually and as executor of the estate of his deceased wife Jeanette Bifolck, appeals from a judgment of the United States District…

RICO: Whether a Pattern Exists (Predicates + Relationship + Threat of Continuing Activity) Is a Jury Question — Mailing Need Only Be Incident to Fraud, Not Fraudulent — Limited Scope of 9(b) Particularity

Sorensen v. Polukoff, 2019 WL 3819629 (10th Cir. Aug. 15, 2019) (Unpublished): 1 Sherman Sorensen, M.D., appeals the dismissal of his claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962. The district …

Appeals: In Bankruptcy Appeal, Circuit Sits As Second Court of Review & Independently Examines Factual & Legal Determinations of Bankruptcy Court, Using Same Standards As District Court

In re Crawford, 2019 U.S. App. LEXIS 24570 (11th Cir. Aug. 19, 2019) (unpublished): PER CURIAM: Brett Elam appeals portions of the bankruptcy court's order sanctioning him for misconduct in the Chapter 11 proceeding below. As debtor's counsel, Elam sought …

Commercial Litigation and Arbitration

Rule 37/41 Dismissal — 6th Cir.’s 4-Factor Test — Reckless Disregard Sufficient Mental State — While Lesser Sanctions Should Be Considered, Court Has Power to Dismiss As “First & Only Sanction”

Experts — Daubert Review: Abuse-of-Discretion Standard Applies as Much to the Trial Court’s Decisions about How to Determine Reliability as to Its Ultimate Conclusion

Texts — Hearsay: Adoptive Admission by Silence — Three Factors — “Because of The Inherently Equivocal Nature of Silence, Such Evidence Must Be Received with Caution” (Good Quote)

Discovery Sanction: Evasive or Incomplete Interrogatory Answer = No Answer — While Striking Claim Is Extreme, More Demanding Standard Applied in Civil Forfeiture Actions to Special Interrogatories on Standing

Spoliation: Adverse Inference Requires Actual Suppression or Withholding — Inapt If Evidence “Lost or Accidentally Destroyed” or Failure “Is Otherwise Properly Accounted for” (Good Quotes)

Facebook/Social Media Authentication Has 2 Parts: Proponent Must Supply Evidence as to Both (i) Who Owns the Page, and (ii) Who Took the Action Sufficient to Allow Jury to Find Both

Inherent Power Sanctions: Dismissal for Disregard of Order Not Abuse of Discretion Where Litigant Forewarned — Nor Is Dismissal without Prejudice — Meaning of Abuse of Discretion (11th Circuit)

Offensive (Nonmutual) Collateral Estoppel: 4 Factors — Identicality = Same Issues, Not Claims — Necessity Met If Finding Essential to Remedy, Even If Not Jmt — Legal Issues Reviewed De Novo, Fairness for Abuse of Discretion

RICO: Whether a Pattern Exists (Predicates + Relationship + Threat of Continuing Activity) Is a Jury Question — Mailing Need Only Be Incident to Fraud, Not Fraudulent — Limited Scope of 9(b) Particularity

Appeals: In Bankruptcy Appeal, Circuit Sits As Second Court of Review & Independently Examines Factual & Legal Determinations of Bankruptcy Court, Using Same Standards As District Court

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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