Greg Joseph

Court Has No Inherent Power to Compel a Specific, High-Ranking State Official (U. Pres.) to Attend Settlement Conference Or to Make It Public — Purpose of Rule 16 Settlement Conference Is to Settle, Not Provide Public Forum

In re Univ. of Mich., 2019 U.S. App. LEXIS 25304 (6th Cir. Aug. 23, 2019): This case is about power. The power of district courts to manage their cases and our power to review that process. Questions about judicial power…

Rule 37(b)(2)(A) Sanctions — Dismissal for Violation of Discovery Order Reversed Where Party Appeared for Deposition Per Order, Was Questioned for Hours, Left for Work, and Order Stated No End Time — Unasked Questions Must Be ID’ed to Show Prejudice

Akins v. So. Glazer’s Wine & Spirits of Ark. LLC, 2019 WL 4071876 (8th Cir. Aug. 29, 2019) (unpublished): PER CURIAM. *1 Henry Akins appeals after the district court dismissed with prejudice his employment discrimination complaint as a sanction for…

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Sorensen v. Polukoff, 2019 WL 3819629 (10th Cir. Aug. 15, 2019) (Unpublished): 1 Sherman Sorensen, M.D., appeals the dismissal of his claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962.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

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 LEXIS 24598 (6th Cir. Aug. 16, 2019) (unpublished): Ayanna and LaCretia McElrath, pro se Ohio litigants, appeal the district court's judgment dismissing their civil rights action pursuant to Federal Rules of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 LEXIS 22512 (2d Cir. July 30, 2019) (unpublished): SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED…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…

Commercial Litigation and Arbitration

Court Has No Inherent Power to Compel a Specific, High-Ranking State Official (U. Pres.) to Attend Settlement Conference Or to Make It Public — Purpose of Rule 16 Settlement Conference Is to Settle, Not Provide Public Forum

Rule 37(b)(2)(A) Sanctions — Dismissal for Violation of Discovery Order Reversed Where Party Appeared for Deposition Per Order, Was Questioned for Hours, Left for Work, and Order Stated No End Time — Unasked Questions Must Be ID’ed to Show Prejudice

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

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)

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”

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)

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