Greg Joseph

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Williams v. Capital One Bank (USA) N.A., 2019 WL 4187363 (11th Cir. Sept. 4, 2019) (unpublished): PER CURIAM: *1 Troy Williams appeals the dismissal of his Fair Credit Reporting Act (FCRA) claims against Capital One Bank (USA), N.A., and the…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 LEXIS 6855 (2d Cir. Mar. 5, 2019) (unpublished): SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.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 …

Arbitration: Appealability — Order Compelling Arbitration Not Appealable Unless It Disposes of Entire Action — Merely Directing Arbitration Or Staying Action Pending Arbitration Requires §1292(b) Certification

Gold Coast Prop. Mgmt. v. Certain Underwriters at Lloyds, 2019 U.S. App. LEXIS 27098 (11th Cir. Sept. 6, 2019): THE COURT: This appeal is DISMISSED, sua sponte, for lack of jurisdiction. The district court's June 14, 2019 order granting the …

Attorney-Client Privilege: Crime-Fraud Applies to Commc’n Precipitating Fraud Even If Different Tack Used — RICO: Unadjudicated Civil Action = Property — No Mens Rea for Unlawful Debt But Knowledge Statutory Definition Satisfied

United States v. Neff, 2019 WL 4235218 (3d Cir. Sept. 6, 2019) (unpublished): Charles Hallinan and Wheeler Neff were convicted of conspiring to collect unlawful debts in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), federal …

Statutory Interpretation —“Even Precise & Voluminous Legislative History [LH] Can Be Off the Mark” (RICO) — Don’t Use LH If Text Clear — Noscitur a Sociis Inapt If “Or” Used — Rule of Last Antecedent (Good Quotes)

Pellegrino v. United States Transp. Sec. Admin., 2019 U.S. App. LEXIS 26392 (3d Cir. Aug. 30, 2019): The Federal Government is typically immune from suit. The Federal Tort Claims Act waives the Government's immunity for certain torts committed by its …

Commercial Litigation and Arbitration

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

Arbitration: Appealability — Order Compelling Arbitration Not Appealable Unless It Disposes of Entire Action — Merely Directing Arbitration Or Staying Action Pending Arbitration Requires §1292(b) Certification

Attorney-Client Privilege: Crime-Fraud Applies to Commc’n Precipitating Fraud Even If Different Tack Used — RICO: Unadjudicated Civil Action = Property — No Mens Rea for Unlawful Debt But Knowledge Statutory Definition Satisfied

Statutory Interpretation —“Even Precise & Voluminous Legislative History [LH] Can Be Off the Mark” (RICO) — Don’t Use LH If Text Clear — Noscitur a Sociis Inapt If “Or” Used — Rule of Last Antecedent (Good Quotes)

Recent Articles

RICO Statute of Limitations — Storm Warnings, Not Thunder and Lightning (Good Quote)

Rule 37 Discovery Sanctions: Ninth Circuit’s Five-Factor Test for Gauging Appropriateness of Dismissal — The Limited Utility of Rule 12(f) Motions to Strike

Inherent Power Sanction of Dismissal — Preponderance of the Evidence Burden of Proof, Not Clear and Convincing Evidence (7th Circuit)

§ 1927 Sanctions — Must A Lawyer Who Unreasonably and Vexatiously Multiplies Federal Court Proceedings Be Acting “As An Attorney” When Committing the Misconduct To Be Subject to Sanction under § 1927?

Rule 37 Sanctions — Unfamiliarity With Litigation Process Does Not Excuse Intentional Disregard of Court Order — Also Affirming Rule 26(g) Sanctions on Clients and Counsel for False Representations That All Responsive Documents Had Been Produced

Supreme Court: Notice of Appeal Filed After The Original Deadline But Before Reopening by The District Court Is Timely — It Relates Forward to The Date of The Order Making The Appeal Possible — Second Notice of Appeal After Reopening Unnecessary

Rule 37 Default Judgment: Second Circuit’s Four-Factor Test for Imposing Defaults and Three-Factor Test for Lifting Them

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