R. 37 & Inherent Power (IHP) Sanctions: Permissive Adverse Inference OK Not Disclosing Witness After Reliance on Wit. Required (26(a)(1), (e)) —Plain Error Rare in Civil Case — IHP: Narrow Exception to Bad Faith Requirement
Higgs v. Costa Crociere S.P.A. Co., 2020 U.S. App. LEXIS 25793 (11th Cir. Aug. 14, 2020):
On Christmas Eve, 2014, Joyce Higgs tripped over a bucket in a dining area of the cruise ship Costa Luminosa and sustained serious injuries to her left shoulder. She sued the cruise company, defendant ...
Rule 37 Sanctions: Until Amount of Attorney’s Fees Is Set, No Final Order Or Appellate Jurisdiction Exists, Even If Fee Award Is Only One Part of Larger Award, Including Default Judgment and Dismissal of Counterclaims
People for the Ethical Treatment of Animals, Inc. v. Dade City's Wild Things, Inc., 2020 U.S. App. LEXIS 26042 (11th Cir. Aug. 17, 2020):
BY THE COURT:
The People for the Ethical Treatment of Animals, Inc.'s ("PETA") motion to dismiss this appeal for lack of jurisdiction is GRANTE ...
Common Core Doctrine: Fees Awardable for Claims Involving Common Facts Or Related Legal Theories, Even If Only One Triggers Fee-Shifting — Noncompliance with Bankruptcy Court Order Sanctionable via Striking Pleading on Analogy to Rule 37(b)
Ridgeway v. Stryker Corp. (Matter of Ridgeway), 2020 WL 5226553 (5th Cir. Sept. 2, 2020):
*1 For the last seven years, Christopher Martin Ridgeway and his former employer have waged scorched-earth lawfare against one another. Ridgeway has lost every battle and incurred millions of dollars in damages, sanctions, and attorney’s fees along the way. In this appeal, Ridgeway asks us to void one part of his li ...
R. 11 Sanctions: Due Process—Flexible Notice, Substantial Compliance — OK to Issue OSC in 1 of 15 Cases & Dismiss All — Prisoner’s Knowledge of Own Conduct = Notice — Order Must State Specific Basis of Sxs — Types of Vexatious Lit Injn
Cobble v. U.S. Government, 816 Fed.Appx. 355 (11th Cir. 2020) (unpublished):
PER CURIAM:
In these consolidated appeals, Petitioner/Appellant Daniel Cobble1 (“Cobble”) appeals the district court’s order dismissing with prejudice, as a sanction, his pro se actions, filed pursuant to
Inherent Power/Rules 26, 37: Even Absent Spoliation, Evasive Discovery Action Punishable by Fee Award Calibrated Per Goodyear v. Haeger & Denial of 54(b) Costs — History, Importance of Jury Trial
Edwards v. 4JLJ, LLC, 2020 WL 5229686 (5th Cir. Sept. 2, 2020):
*1 4JLJ, LLC provides oil well pump and frack services. A group of its employees sued 4JLJ under the Fair Labor Standards Act, alleging that 4JLJ violated the FLSA’s overtime wage mandates. 4JLJ paid the Employees two different types of bonuses—a stage bonus and a performance bonus—and the Employees argued that both ought to have been included in ...
Electronic Spoliation: Inherent Power—Fraud on Court Requires Clear & Convincing Evidence — Factors — Dismissal Requires Willfulness, Consideration of Less Drastic Sanctions — [No Reference to 37(e), Which Governs]
ComLab Corp. v. Tire, 815 Fed.Appx. 597 (2d Cir. 2020) (unpublished):
SUMMARY ORDER
Plaintiff-Appellant ComLab, Corp. (“ComLab”) brings this consolidated appeal challenging two judgments of the United States District Court for the Southern District of New York. The first appeal concerns a September 11, 2018 order of the district court (Forrest, J.) granting Defendants-Appellees Kal Tire and ...
Good Faith Reliance on Information Received from In-House Counsel, Verified After Challenge Raised, Defeats Rule 11 Sanction Sought for Misrepresenting Corporate Status
Huang v. Mediatek USA, Inc.815 Fed.Appx. 521 (Fed. Cir. 2020):
This appeal arises from an action for patent infringement. Xiaohua Huang accused MediaTek USA Inc., formerly known as Nephos Inc., of infringing certain claims of
Appeals: FRAP 38 Sanctions Apt If Appeal Is Wholly without Merit, There Is No Reasonable Expectation of Success — § 1927 Sanctions If Lawyer Reasonably Should Have Known Claim Is Frivolous
T.V.S. v. Akron City Sch. Dist. Bd. of Educ., 2020 U.S. App. LEXIS 25457 (6th Cir. Aug. 11, 2020): ¶¶
ORDER
Akron City School District Board of Education, Akron City School District, and its employees David W. James, Philomena Vincente, Ann Wild, Cheryl Arnold, Holly DeLisi, and Patricia Derita (collec ...
Rule 11 Sanctions Apt Where All Claims Barred by Statute of Limitations & Res Judicata [Even Though These Are Affirmative Defenses]
Whitted v. Jordan, 2020 U.S. App. LEXIS 24942 (9th Cir. Aug. 5, 2020) (unpublished):
MEMORANDUM*
Stephen Whitted appeals the adverse summary judgment ruling on his claims of intentional interference with a parent-child relationship, civil co ...
Rule 11 Sanctions Are Generally Reserved for Rare and Exceptional Cases (Good Quote)
Eurosesmillas, S.A. v. Uttarwar, 2020 U.S. App. LEXIS 25578 (9th Cir. Aug. 10, 2020) (unpublished):
MEMORANDUM*
Bankruptcy: Presumptive Sanction for Breach of § 329(a) (Fee Agreements) Is Loss of All Fees —Not Least Severe Sanction — Rule 11 Inapt — Mitigating Circumstances Must Be Compelling
SE Prop. Holdings, LLC v. Stewart (In re Stewart), 2020 U.S. App. LEXIS 25882 (10th Cir. Aug. 14, 2020):
Attorney Ruston Welch received $348,404.41 in fees for representing David and Terry Stewart in their Chapter 7 bankruptcy proceedings. This appeal arises out of his failure to disclose his fee a ...
Inherent Power Sanctions for Ethical Rule Violations: Insulting Counsel, Mediator, Court Rptr; Physical Threat — Reprimand As Serious SX — Bad Faith Needed Only for Fees — Due Process: Notice of Type, Severity of Possible SX Critical
Golden v. Clear Advantage Mktg., 2020 U.S. Dist. LEXIS 88130,2020 WL 2516671 (S.D. Iowa Mar. 30, 2020):
*1 The issues now before the court present a pure credibility dispute, although not concerning the merits of the underlying copyright and trade secrets claims, which have sett ...
Spoliation Sanctions: Preclusion for Failing to Preserve Most Data-Filled Form of ESI — Alt’ve Not Reasonably Usable — Preclusion ¹ Dispositive (MJ) If Other Evid. Exists — 2d Cir. Disc’y Sxs Factors (Pro, Con)—Client Sx’d for Atty Error
Joint Stock Co. "Channel One Russ. Worldwide" v. Infomir LLC, 2020 U.S. Dist. LEXIS 63099 (S.D.N.Y. Mar. 26, 2020):
Plaintiffs, a group of Russian television broadcasters, commenced this action on February 19, 2016 against various Defendants, [*3] including Infomir LLC ("Infomir& ...
Facebook Authentication: FB Certification of Identity of Page Owner + Circumstantial Evidence Explaining Why S/he’d Defriend 2nd ID’ed FB Subscriber Authenticatse Defriending — Rule 901(a) Test: Could Reasonable Juror Could Find Auth. by Preponderance
State v. Sample, 2020 WL 2316709 (Md. Ct. App. May 11, 2020):
*1 It is axiomatic that for a trial court to admit evidence, there must be sufficient indicia that the evidence is authentic—i.e., that the evidence “is what its proponent claims.” Md. R. 5-901(a). A party can sufficiently authenticate evidence through “[c]ircumstantial evidence, such as appearance, contents, substance, internal patterns, ...
Supreme Court: Party May Assert Defense in 2nd Action, Even If It Could Have Been Asserted in 1st Action, Unless It Would Violate Traditional Res Judicata Principles — Issue Or Claim Preclusion (Merger Or Bar)
Lucky Brand Dungarees v. Marcel Fashions Group, 2020 U.S. LEXIS 2642 (U.S. May 14, 2020):
This case arises from protracted litigation between petitioners Lucky Brand Dungarees, Inc., and others (collectively Lucky Brand) and respondent Marcel Fashions Group, Inc. (Marcel). In the latest lawsuit ...
§1927 Liability Can Be Joint/Several with Client Who Is Otherwise Sanctioned for Same Acts — Colorable Claims Can Be Pursued Vexatiously — Bad Faith Not Required in 10th Cir. — Reckless Indifference to Duties to Court Enough
Snyder v. Acord Corp., 2020 U.S. App. LEXIS 12889 (10th ORDER AND JUDGMENT*
Seventeen Colorado homeowners ("Plaintiffs") brought an action raising federal-and state-law claims against insurance companies, trade associations, and consul ...
Court Rarely Finds Plain Error on Matters of First Impression
United States v. Cooper, 2020 U.S. App. LEXIS 13873 (7th Cir. April 30, 2020):
***
On appeal, Cooper argues for the first time that he was entitled to a full, plenary resentencing hearing and that he was entitled to be physically present at the hearing. Because he did not raise these concerns in th ...
Circuit Split Elsewhere Precludes Finding of Plain Error, As Does A Lack of Binding Precedent in the Circuit
United States v. Abrams, 2020 U.S. App. LEXIS 14090 (6th Cir. May 1, 2020):
***
We cannot declare an error to be "plain" "unless the error is clear under current law."
Attorney-Client Privilege: Crime-Fraud Exception Applies Even If Crime Or Fraud Is Only Counsel’s (Circuit Split) — Rule 11 Sanctions: Successor Counsel Not Liable for Predecessor’s Misconduct — Noerr Pennington No Defense to Discovery
Navient Sols., LLC v. Law Offices of Jeffrey Lohman, 2020 U.S. Dist. LEXIS 69846 (E.D. Va. April 20, 2020):
Before the Court is defendants The Law Offices of Jeffrey Lohman's and Jeffrey Lohman's (collectively, "LOJL") Objection to the Magistrate Judge's Order Dated Ma ...
Rule 11: Court Can’t Compel Party to Make Settlement Offer — Any Settlement Void — Denial of SJ Motion = Not Frivolous — Failure to Settle Not Sanctionable — Generally No Improper Purpose Sanction If Position Grounded in Fact, Law
Tejero v. Portfolio Recovery Assocs., L.L.C., 2020 U.S. App. LEXIS 10711Luis Tejero sued Portfolio Recovery Associates, L.L.C. under the federal Fair Debt Collection Practices Act and a parallel state law. The parties eventually reached a settlement that forgave Tejero's debt and awarded him $1,000 in damages. As ...
