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 LEXIS 25578 (9th Cir. Aug. 10, 2020) (unpublished): MEMORANDUM*  
Eurosesmillas, S.A. v. Uttarwar, 2020 U.S. App. LEXIS 25578 (9th Cir. Aug. 10, 2020) (unpublished): MEMORANDUM*  Eurosesmillas, S.A. v. Uttarwar, 2020 U.S. App. LEXIS 25578 (9th Cir. Aug. 10, 2020) (unpublished): Mohan Uttarwar and Piyush Gupta appeal from the…
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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 C ...
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 …
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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, alth ...
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…
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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 a ...
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 …
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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 eviden ...
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…
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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 (collectiv ...
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 …
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§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 act ...
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 consulting firms ("Defendants"). The district court dismissed the complaint,…
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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 ...
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…
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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."
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." United States v. Olano, 507 U.S. 725, 734, …
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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 (col ...
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…
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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 ...
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 …
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Can You Sue A Dead Person? No. — An Estate? No. — Can You Substitute for A Wrongly-Named Dead Person? Maybe — Dead Person Has No Citizenship, No Stake in Outcome (Case Or Controversy Implications)

 LN Mgmt., LLC v. JPMorgan Chase Bank, N.A., 2020 U.S. App. LEXIS 13216 (9th Cir. April 24, 2020): There are a number of ways to accomplish litigation regarding interests once held by a dead person. ...
LN Mgmt., LLC v. JPMorgan Chase Bank, N.A., 2020 U.S. App. LEXIS 13216 (9th Cir. April 24, 2020): There are a number of ways to accomplish litigation regarding interests once held by a dead person. One can institute or join …
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Rule 11 Sanctions — Lack of Merit Not Enough — Must Be So Plainly Unmeritorious As to Warrant Sanction (Good Quote)

 Zell v. Ricci, 2020 U.S. App. LEXIS 12573 (1st Cir. April 20, 2020):    High school is not without its unique challenges, this much [*2]  we know; we also know that the same can be said for bri ...
Zell v. Ricci, 2020 U.S. App. LEXIS 12573 (1st Cir. April 20, 2020):    High school is not without its unique challenges, this much [*2]  we know; we also know that the same can be said for bringing a civil lawsuit …
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Appeals: Not Circuit’s Role to Sift Through Record to Find Uncited Evidence (44-vols., 8,410-pp.) — Motion to Seal OK to Ensure Court Records Not Used for Improper Purpose, Including Scandalizing or Libeling for the Press

 Snyder v. Acord Corp., 2020 U.S. App. LEXIS 12889 (10th ORDER AND JUDGMENT* Seventeen Colorado homeowners ("Plaintiffs") brought an act ...
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 consulting firms ("Defendants"). The district court dismissed the complaint,…
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Rule 11 Sanctions — Timeliness — Motion for Frivolous Factual Claim in Complaint Often Appropriately Filed, Decided at Summary Judgment Stage

 Estrada v. FTS United States, LLC, 2020 U.S. App. LEXIS 12543 (11th Cir. April 20, 2020) (unpublished): PER CURIAM: Jamie Zidell, Esq., and J.H. Zidell, P.A., appeal from the district cour ...
Estrada v. FTS United States, LLC, 2020 U.S. App. LEXIS 12543 (11th Cir. April 20, 2020) (unpublished): PER CURIAM: Jamie Zidell, Esq., and J.H. Zidell, P.A., appeal from the district court's orders requiring them to pay $60,000 in Rule 11…
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RICO: Federal Courts Have Never Construed RICO’s Attorney’s Fees Provision As Barring Prevailing Defendant from Recovering Fees Authorized Elsewhere — State Fees Statute Not Preempted Where Most Claims Arise under State Law

 Snyder v. Acord Corp., 2020 U.S. App. LEXIS 12889 (10th ORDER AND JUDGMENT* Seventeen Colorado homeowners ("Plaintiffs") brought an act ...
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 consulting firms ("Defendants"). The district court dismissed the complaint,…
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Inherent Power Sanctions — Negligence for Missing Court Date OK — Court Should Hear from Before Sanctioning — Lack of Due Process If Rule Provides Only That Sanction “May” Be Imposed But No Criteria Are Given Or Known

 Pimentel-Soto, 2020 U.S. App. LEXIS 13101 (1st Cir. April 23, 2020) (Kayatta, J.): Attorney Kendys Pimentel-Soto appeals from the district court's order sanctioning her for failing to appear at a status ...
Pimentel-Soto, 2020 U.S. App. LEXIS 13101 (1st Cir. April 23, 2020) (Kayatta, J.): Attorney Kendys Pimentel-Soto appeals from the district court's order sanctioning her for failing to appear at a status conference. For the reasons that follow, we reverse the…
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Splitting Cause of Action: Entire Controversy Doctrine (NJ Factors) — Equitable Exception for Claims Unknown, Unaccrued Or Unable to Be Brought — State Law Res Judicata / Collateral Estoppel Rules Apply in Diversity Cases

 Casser v. Twp. of Knowlton, 2020 U.S. App. LEXIS 6675 (3d Cir. Mar. 3, 2020) (unpublished): Pro se Plaintiff Claudia Casser appeals from the order of the United States District Court for the District of New ...
Casser v. Twp. of Knowlton, 2020 U.S. App. LEXIS 6675 (3d Cir. Mar. 3, 2020) (unpublished): Pro se Plaintiff Claudia Casser appeals from the order of the United States District Court for the District of New Jersey granting the motion…
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Diversity Jurisdiction: Trustee of Deed of Trust May Be Nominal Def., Citizenship Ignored — Res Judicata, Aff’ve Def., OK on 12(b)(6) If Clear from Complaint, Judicially Noticed Facts — Sanctions: FRAP 38/IHP OSC for Twice-Sanctioned Pro Se

 Anderson v. Wells Fargo Bank, N.A., 2020 U.S. App. LEXIS 7865 (5th Cir. Mar. 12, 2020): Pro se plaintiff-appellant Eva Anderson has sued various combinations of the present ...
Anderson v. Wells Fargo Bank, N.A., 2020 U.S. App. LEXIS 7865 (5th Cir. Mar. 12, 2020): Pro se plaintiff-appellant Eva Anderson has sued various combinations of the present defendant-appellees and their predecessors-in-interest no fewer than six times, alleging first that …
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FRAP 38, Inherent Power, § 1927 Sanctions Denied to Victorious Appellees (Defendants): “‘Unpersuasive Arguments’ Are Not Synonymous with ‘Bad Faith’” (Good Quote)

Vielma v. Gruler, 2020 WL 1672778 (11th Cir. April 6, 2020) (unpublished): PER CURIAM: *1 On June 12, 2016, a lone shooter, Omar Mateen, entered the Pulse nightclub in Orlando, Florida, armed with a semi-automatic rifle and a semi-automatic pistol. He ultimately shot numerous patrons in the club, killing forty-nine people and injuring f ...
Vielma v. Gruler, 2020 WL 1672778 (11th Cir. April 6, 2020) (unpublished): PER CURIAM: *1 On June 12, 2016, a lone shooter, Omar Mateen, entered the Pulse nightclub in Orlando, Florida, armed with a semi-automatic rifle and a semi-automatic pistol.…
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Recent Posts

§ 1447(c) Sanctions: No Bad Faith Required; Abuse of Discretion Review — Evidence on Sanctions Motions: Rule 408 Does Not Bar Consideration of Settlement Discussions to Prove Bad Faith in Connection with a Sanctions Proceeding (Here, Relevant to Size of Sanctions Award) — Adequate Opportunity to Be Heard Afforded by Allowing Supplemental Briefing

Interlocutory Orders (Here, Compelling Arbitration) Do Not Merge Into A Final Judgment Of Dismissal Under Rule 41(b)

“Sanctions Should Not Be Used Lightly, And Should Be Used As A Lethal Weapon Only Under Extreme Circumstances” (Good Quote) — Inherent Power to Dismiss for Violation of Court Order Or Rule of Procedure Should Be Confined to Instances of Bad Faith — Meaning of “Excusable Neglect” — Factors under Rule 60(b) (Relief from Final Judgment) — Involuntary Dismissals “Should Be Confined To Instances Of ‘Bad Faith — Dismissal Disfavored When Sanctionable Conduct Attributable to Counsel, Not Client

Purposes of Rule 37 Sanctions – Necessity District Court Set Forth Reasons – If Granted, Fees Are “Generally Mandatory” – Three Exceptions – 4 Ways An Appellant Can Abandon A Claim – Rule 69 Doesn’t Limite Post-Judgment Discovery to Federal, As Opposed to State, Discovery Mechanisms – Dismissal Without Prejudice After Statute Of Limitations Has Run Is Reviewed As If It Were With Prejudice

Rule 37 Sanctions — Default Judgment — Three Purposes of Rule 37 Sanctions — Oral Order Sufficient under Rule 37(b)(2)(A) — Consideration of Lesser Sanctions Need Not Explicit, Particularly If Misconduct Is Egregious — Recidivism Appropriately Considered

Rule 37 Sanctions — Default Judgment — Death Penalty Sanctions: 4 Factors: (1) Willfulness, Bad Faith Or Fault (e.g., Flouting Court Order), (2) Client, Not Counsel, Responsible, (3) Substantial Prejudice, (4) Lesser Sanctions Insufficient — For Non-Death Penalty Sanctions, Sanction Merely Need Be Just And Related to The Particular Claim at Issue — List of Sanctions in Rule 37 Is Not Exhaustive

Rule 11 Sanctions — Appealability: Mere Criticism in Order Separately Imposing Sanctions Is Unappealable — Due Process Satisfied by Order Giving Clear Notice of Specific Conduct to Be Considered for Sanctions Even If Words “Show Cause” (Rule 11(c)(3)) Missing — Firm Appearing on Signature Page “Present[s]” Brief to Court (Unless Merely “Secondary” Counsel) — When Counsel Appears Unopposed, A Stricter Standard of Candor Applies — Mischaracterization of Submitted Document Sanctionable — Good Quotes: “Rule 11 Is Not A Strict Liability Provision” / “The Argument Is Like The Thirteenth Chime of A Clock: You Not Only Know It’s Wrong, But It Causes You to Wonder About Everything You Heard Before” / “Pursuit of Sanctions by a Court Can Alter Its More Customary Relationship with Counsel and Its Role As Neutral Decisionmaker”

Rule 37(c)(1) Sanctions — Exclusion of Critical Evidence Generally Requires Willful Deception or Flagrant Disregard of Court Order — Disclosure of Undisclosed Rule 26(a)(1)(A)(i) During Discovery Precludes Claim of Surprise or Prejudice (and Satisfies Rule 26(e)(1)(A))

Inherent Power Sanctions — Notice of Contemplated Sanctions against Client (in Motion and Show Cause Order) Did Not Provide Notice of Potential Sanctions against Counsel — Finding of Bad Faith Required for Inherent Power Sanctions

Spoliation Sanctions: (1) Meaning of “Relevance” for Preservation vs. for Adverse Inference Purposes; (2) Only “Very Slight Showing” of Latter Required; (3) Adverse Inference Instruction OK for Negligent Spoliation of Tangible Evidence in D.C. Cir.; (4) Preponderance of Evidence for Adverse Inference Instruction vs. Clear & Convincing for Attorney’s Fees; (5) Wide Range of Inherent Power Sanctions Available; (6) Two Sets of Factors for Adverse Inference Instruction (D.C. Cir.) — Prerequisites and Propriety in the Circumstances; (7) Ordinary vs. Gross Negligence; (8) Cite

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