The plaintiff in Zhu v. St. Francis Health Center, 2007 U.S. App. LEXIS 2417 (10th Cir. Feb. 1, 2007) (unpublished), originally sued the defendants in state court for medical malpractice arising out of her five-year treatment relationship with a doctor on the hospital staff. After the state court dismissed all claims, she filed a RICO action against the same defend ...

If a plaintiff mails a request for waiver of service pursuant to Fed.R.Civ.P. 4(m) before the statute of limitations expires, but the defendant executes the waiver after expiration, is the suit time barred? In other words, does the execution relate back to the time of plaintiff's mailing or otherwise revive the claims? In what it perceived to be a case of first im ...

Timing is everything. The plaintiff in Morgan, Lewis & Bockius LLP v. IBuyDigital.com, Inc., 2007 NY Slip Op 50149U; 2007 N.Y. Misc. LEXIS 191 (Sup. Ct. N.Y. Co. Jan. 11, 2007), moved for summary judgment on an account stated claim for unpaid legal bills but its moving papers did not contain detailed enough affidavits as to its regular practice of mailing out bill ...

Professor Georgene Vairo of Loyola L.A. is fond of dividing the Circuits, for Rule 11 purposes, into hawks and doves. She identifies as the leading hawk Circuit the Seventh. In Malec Holdings II Ltd. v. English, 2007 U.S. App. LEXIS 2349 (7th Cir. Jan. 24, 2007), the Court lived up to its billing. The plaintiff in Malec commenced a frivolous §1983 action to r ...

The Supreme Court held in Grable & Sons Metal Prods., Inc. v. Darue Engr’g & Mfg., 545 U.S. 1 (2005), that federal question jurisdiction may exist over a state law claim that entails an important, embedded federal issue. Since that decision, the lower courts have been grappling with its ramifications. Two district court opinions from last week are illustrativ ...

Last week was not a good one for securities plaintiffs in New York. On Tuesday, the Second Circuit affirmed dismissal of a securities fraud class action alleging both 10b-5 and Section 14(a) claims, in an unreported decision last week, in Leykin v. AT&T Corp., 2007 U.S. App. LEXIS 2378 (2d Cir. Jan. 30, 2007) (also affirming dismissal of state law claims pursuant t ...

The Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248 § 214 (signed into law on July 27, 2006) directed the Standing Committee on Rules of Practice and Procedure to ‛study the necessity and desirability of amending the Federal Rules of Evidence to provide that the confidential marital communications privilege and the adverse spousal privi ...

There is a split in the Circuits as to whether subjective bad faith is a prerequisite for the imposition of Rule 11 sanctions issued sua sponte. A split panel decision of the Second Circuit in In re Pennie & Edmonds LLP, 323 F.3d 86 (2d Cir. 2003), answered this question Yes. On January 31, 2007, the Fifth Circuit — correctly — held that the answer is No. ...

Lin v. United States Dept. of Justice, 2007 U.S. App. LEXIS 1875 (2d Cir. Jan. 5, 2007), a petition for review of an asylum request that was denied, presented the Court of Appeals with a conundrum. Newly available evidence strongly indicated that the petitioner would be forcibly sterilized if returned to China. While the Court agreed with the petitioner that the n ...

Professor Lonny Hoffman has an interesting article on the Class Action Fairness Act in the current issue of the UC Davis Law Review: "The 'Commencement' Problem: Lessons from a Statute's First Year," 40 U.C. Davis L. Rev. 469 (2006). ...

A three-part test is generally used to determine whether a party has waived the attorney-client privilege by placing privileged communications ‛at issue.“ An implied waiver occurs when (1) the party asserts the privilege as a result of some affirmative act, such as filing suit; (2) through this affirmative act, the asserting party puts the privileged informa ...

A follow up to the January 9, 2007 post (Protective Orders — 2000 Amendment to Rule 5(d)) and a recent publication on this subject (January 2007 Practical Litigator article): Professor Rick Marcus of Hastings College of Law — the Reporter to the Discovery Subcommittee of the Advisory Committee on the Federal Rules of Civil Procedure — has written an interesti ...

In Inline Connection Crop. v. AOL Time Warner Inc., 2007 U.S. Dist. LEXIS 4761 (D.Del. Jan. 23, 2007), a patent infringement case, the Magistrate Judge rejected a Daubert challenge to defense expert testimony concerning damages and royalty calculations. Some of the testimony was based on conversations between the expert and employees of other corporations in the fi ...

Yesterday, the Eastern District of Michigan dismissed with prejudice the securities fraud class action captioned In re United American Healthcare Corp. Secs. Litig., 2007 U.S. Dist. LEXIS 6362 (Jan. 30, 2007). First, it reasoned that there was no duty to disclose the undisclosed information. Second, it held that, even if the group pleading doctrine survived enactme ...

The Summary Judgment Subcommittee of the Advisory Committee on the Federal Rules of Civil Procedure held a mini-conference in New York yesterday (Monday, 1/29/07). No conclusions were reached, and the Subcommittee’s deliberations remain tentative. But a number of interesting proposals for amending Rule 56 discussed. The most significant issu ...

On January 24, 2007, the Second Circuit instructed the prevailing defendants/appellants in the IPO Securities Litigation (In re Initial Public Offering Sec. Litig., 2006 U.S. App. LEXIS 29859 (2d Cir. Dec. 5, 2006)) to respond to the petition for rehearing and rehearing en banc filed by the plaintiffs/appellees. Since petitions for rehearing are often denied withou ...

As amended effective December 1, 2006, Fed.R.Civ.P. 26(f) requires that, at the initial discovery conference, the parties discuss ‛any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced.“ Williams vs. Sprint/United Mgmt. Co., 2007 U.S. Dist. LEXIS 5477 (D. Kan. Jan. 23, ...

As previously noted, the Advisory Committee on the Federal Rules of Civil Procedure is holding a mini-conference in New York today (Monday, 1/29/07) to consider possible amendments to summary judgment practice under Rule 56. A summary of the discussion will appear in a posting tomorrow (Tuesday, 1/30/07). ...

One of the plaintiffs’ experts in B.H. v. Gold Fields Mining Corp., 2007 U.S. Dist. LEXIS 4612 (N.D. Okla. Jan. 22, 2007), testified at his deposition to a theory not set forth in his Rule 26(a)(2)(B) report. The District Court concluded that the new theory was not trivial but constituted ‛a significant extension of [the] generic opinion“ set forth in the exp ...

The Foreign Sovereign Immunities Act provides, in 28 U.S.C. § 1609, that "the property in the United States of a foreign state shall be immune from attachment[,] arrest and execution except as provided in section[] 1610...." Section 1610 in turn provides: "The property in the United States of a foreign state ... used for a commercial activity in the United St ...