Complex Lit Blog

Standing: An “Identifiable Trifle” Suffices — PSLRA/Rule 11: District Court Must Make Findings As to Compliance with Rule 11 Whether or Not Asked — Filing Securities Lawsuit to Obtain Immaterial Disclosures Presumptively Violative of Rule 11

Alcarez v. Akorn, Inc., 99 F.4th 368 (7th Cir. 2024):* *Circuit Judge Kanne, a member of the panel, died after the appeals were argued. They are being decided by a quorum.

Alcarez v. Akorn, Inc., 99 F.4th 368 (7th Cir. 2024):* *Circuit Judge Kanne, a member of the panel, died after the appeals were argued. They are being decided by a quorum. 28 U.S.C. § 46(d) Six suits, filed under the…

FRAP 38 Sanctions for Frivolous Claims of Judicial Bias, Citing Non-Existent Cases/Sources, Inventing Quotes from Real Ones, And Exhibiting Inflammatory and Antagonistic Tone — Recusal: “Adverse Rulings Are Not Evidence of Bias” (Good Quote) — Critical Judicial Remarks Ordinarily Do Not Support A Claim of Bias — Circuit-Wide Filing Bar Until $5,000 Fine Paid

Froemming v. City of W. Allis, 2024 U.S. App. LEXIS 1817 (7th Cir. Jan. 24, 2024) (unpublished): ORDER William Froemming sued the City of West Allis, Wisconsin, its police chief, and three police officers raising several c ...

Froemming v. City of W. Allis, 2024 U.S. App. LEXIS 1817 (7th Cir. Jan. 24, 2024) (unpublished): ORDER William Froemming sued the City of West Allis, Wisconsin, its police chief, and three police officers raising several constitutional claims under 42 …

Court’s Inherent Power to Police the Conduct of Litigants and Attorneys Extends to Persons Engaged in the Unauthorized Practice of Law Before Them

In re Rudder, 2024 U.S. App. LEXIS 10484 (5th Cir. April 30, 2024) (per curiam): Per Curiam: Pro se Appellant Levi Rudder challenges the district court's imposition of sanctions on him for engaging in the unauthorized practice of law in a ...

In re Rudder, 2024 U.S. App. LEXIS 10484 (5th Cir. April 30, 2024) (per curiam): Per Curiam: Pro se Appellant Levi Rudder challenges the district court’s imposition of sanctions on him for engaging in the unauthorized practice of law in…

(1) Inherent Power Sanctions — Duty to Correct or Withdraw — Strategic Silence As Bad Faith — Failure to Advise Court of Absence of Diversity Jurisdiction for 15 Months for Strategic Reasons, Only “Pull[ing] Out The Diversity-Destroying Card” After Losing = “A Textbook Example of Bad Faith” — (2) Under Goodyear, The Court’s Fundamental Job Is to Decide Whether Fees Would Have Been Incurred Absent the Sanctioned Conduct — (3) Appellate Review: While Sanctions Orders Are Reviewed for Abuse of Discretion, A Finding of Bad Faith Is Reviewed for Clear Error — (4) When There Are Two Permissible Views of The Evidence, The Factfinder’s Choice Between Them Cannot Be Clearly Erroneous — (5) “A District Court Is Not Required To Consider Irrelevant Evidence” — (Good Quotes)

J.C. Penney Corp., Inc. v. Oxford Mall, LLC, 2024 U.S. App. LEXIS 10637 (11th Cir. May 1, 2024): A limited liability company named Oxford Mall fought J.C. Penney in federal court for over two years. Just when it was poised to lose the cas ...

J.C. Penney Corp., Inc. v. Oxford Mall, LLC, 2024 U.S. App. LEXIS 10637 (11th Cir. May 1, 2024): A limited liability company named Oxford Mall fought J.C. Penney in federal court for over two years. Just when it was poised …

Criminal Spoliation Can Be A Due Process Violation — Defendant Must Show That (1) The Evidence Had Exculpatory Value Before It Was Destroyed, (2) Defendant Is Unable to Obtain Comparable Evidence by Reasonable Means, and (3) Bad Faith Failure to Preserve

United States v. Perry, 92 F.4th 500 (4th Cir. 2024): Adonis Perry was arrested in 2017 for possessing a firearm as a felon and for possessing marijuana after he was found with both during a traffic stop. While awaiting t ...

United States v. Perry, 92 F.4th 500 (4th Cir. 2024): Adonis Perry was arrested in 2017 for possessing a firearm as a felon and for possessing marijuana after he was found with both during a traffic stop. While awaiting trial,…

1) Rule 11 Sanctions: “No First Amendment Exception to a Rule 11 Violation” — “[T]he First Amendment Covers Novel, Nonfrivolous Arguments, But Many Frivolous Arguments Are Also Novel” (Good Quotes) — Frivolous To Continue To Make Rejected Novel Arguments; (2) FRAP 38 Sanctions: District Court In Best Position to Set Sanctions, Attorney’s Fees and Costs

Cordova v. Univ. Hosp. & Clinics, Inc., 92 F.4th 266 (5th Cir. 2024): This is the third appeal from a sanctions order entered under

Cordova v. Univ. Hosp. & Clinics, Inc., 92 F.4th 266 (5th Cir. 2024): This is the third appeal from a sanctions order entered under Federal Rule of Civil Procedure 11(b). The Appellant for this appeal is the Plaintiff’s attorney. …

3 Prerequisites for Inherent Power and § 1927 Sanctions in Second Circuit: (1) Bad Faith, (2) Conduct That Is Entirely Without Color [Thus, An Ill-Motivated Colorable Position Appears to Be Protected in the Second Circuit], and (3) Improper Purpose— “To Gain A Strategic Advantage” Is An Improper Purpose — Due Process Satisfied by Opponent’s Motion and Multiple Court Conferences, After Which Target Was Allowed to Submit Additional Letters

Derek Smith L. Grp., PLLC v. E. Side Club, LLC, 2024 U.S. App. LEXIS 9908 (2d Cir. Apr. 24, 2024): *1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

Inherent Power Sanctions — Untimeliness as Laches — Laches Properly Applied to Deny Sanctions Motion — Note Waived Defenses to Laches

Murtagh v. Cohen (In re Baker), 2024 U.S. App. LEXIS 9922 (9th Cir. Apr. 24, 2024) (unpublished): MEMORANDUM*

Murtagh v. Cohen (In re Baker), 2024 U.S. App. LEXIS 9922 (9th Cir. Apr. 24, 2024) (unpublished): MEMORANDUM* * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3…

Rule 37(c)(1) Sanctions: Substantial Justification or Harmless Error (Ninth Circuit Factors) — Erie: When State Supreme Court Has Not Squarely Addressed an Issue, Circuit Must Predict How It Would Rule, Using Intermediate Appellate Decisions, Decisions from Other Jurisdictions, Statutes, Treatises And Restatements for Guidance

Bowden v. Genie Indus. A Terex Brand Inc., 2024 U.S. App. LEXIS 9924 (9th Cir. April 24, 2024) (unpublished): Genie Industries, Inc., (Genie) appeals from the district court's judgment, following a jury trial, in favor of Mark Bowden in this prod ...

Bowden v. Genie Indus. A Terex Brand Inc., 2024 U.S. App. LEXIS 9924 (9th Cir. April 24, 2024) (unpublished): Genie Industries, Inc., (Genie) appeals from the district court’s judgment, following a jury trial, in favor of Mark Bowden in this…

(1) Appellate Review of Inherent Power Sanctions (7th Circuit): Factual Findings Reviewed for Clear Error, Choice of Sanction for Abuse of Discretion — 4-Element Test for Reversal; (2) Sanctions and Class Actions: Monetary Sanctions Properly Imposed on Defendants for Improper Communications with Class Members (Represented Parties) — “[I]f The Class And The Class Opponent Are Involved In An Ongoing Business Relationship, Communications From The Class Opponent To The Class May Be Coercive” (Good Quote); (3) Monetary Sanctions under Goodyear v. Haeger: If Same Fact-Gathering Would Have Been Conducted Absent The Misconduct, No But-For Causation — But Only “Rough Justice” Required, “Not Accountant-Like Precision” (Good Quote) — Once Misconduct Is Clear, Time Spent Ferreting It Out Compensable under Goodyear; (4) Goodyear Did Not Overrule Long-Standing Rule That Courts May Impose Modest Civil Monetary Sanctions to Curb Litigation Abuse; (5) Appellate Jurisdiction Lacking Where Sanctioned Attorney Fails to File Notice of Appeal and Lawyer’s Intent to Appeal Not Apparent from Client’s Notice; (5) Rule 11 Improper Purpose — Party May Have Many Purposes for Pursuing Claim — As Long As Claim Is Supported by Good Faith Belief in the Merits, “A Parallel Reason Does Not Violate Rule 11” — To Deny A Motion for Sanctions, The District Court Need Not Address Every Argument: “Arguments Clearly Without Merit Can, And For The Sake Of Judicial Economy Should, Be Passed Over In Silence” (Good Quote); Non-Monetary Sanction on Counsel: Complete Twice The Required Amount Of Professional Responsibility Hours For Her Next Continuing Legal Education Cycle Imposed By The State Bar

Mullen v. Butler, 91 F.4th 1243 (7th Cir. Feb. 5, 2024): Laura Mullen’s daughters played for a youth volleyball club. She filed a class action suit against the club, GLV, Inc., and its owners, Ricky and Cheryl Butler (collectively “th ...

Mullen v. Butler, 91 F.4th 1243 (7th Cir. Feb. 5, 2024): Laura Mullen’s daughters played for a youth volleyball club. She filed a class action suit against the club, GLV, Inc., and its owners, Ricky and Cheryl Butler (collectively “the …

Commercial Litigation and Arbitration

Standing: An “Identifiable Trifle” Suffices — PSLRA/Rule 11: District Court Must Make Findings As to Compliance with Rule 11 Whether or Not Asked — Filing Securities Lawsuit to Obtain Immaterial Disclosures Presumptively Violative of Rule 11

Court’s Inherent Power to Police the Conduct of Litigants and Attorneys Extends to Persons Engaged in the Unauthorized Practice of Law Before Them

Criminal Spoliation Can Be A Due Process Violation — Defendant Must Show That (1) The Evidence Had Exculpatory Value Before It Was Destroyed, (2) Defendant Is Unable to Obtain Comparable Evidence by Reasonable Means, and (3) Bad Faith Failure to Preserve

Inherent Power Sanctions — Untimeliness as Laches — Laches Properly Applied to Deny Sanctions Motion — Note Waived Defenses to Laches

Recent Posts

Practice of Seeking Leave to Amend after The Case Is Dismissed Is Discouraged

RICO: Release Executed After Alleged RICO Violations Extinguishes RICO Claim — Eighth Circuit Declines to Address Enforceability of A Release “That Is An Integral Part of An Alleged RICO Scheme Or That Immunizes Future RICO Conduct

Pleading — “Civil pleadings are supposed to mark the boundaries for discovery; discovery is not supposed to substitute for definite pleading” (Good Quote) — Shotgun Pleadings (11th Circuit): Four Categories/Types

Rule 37(c)(1) Exclusion of Untimely Expert Report: Failure to Argue Harmlessness Essentially Waives Issue

Rule 37(b) Sanctions — Exclusion of Supplemental Expert Report for Advancing New Opinions — Third Circuit Exclusion Factors — “Importance of Excluded Evidence:” If, As Proponent Argues, There Is Nothing New, Then Exclusion Doesn’t Harm Proponent; If There Is, It Harms Opponent

RICO Pleading: Generic Allegations of Fraud (Failing Even to Set Forth Any False Representation) And Extortion (Failing to Describe Actual Threats) Too Conclusory to State a Claim

RICO Pleading: Statutory Directive That RICO Be Liberally Construed Does Not Extend to More Liberal Pleading Requirements

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