Complex Lit Blog

Rule 37: Court May Order Party to Produce Non-Party Witness (Here, an Expert But Also Any Other Witness under the Party’s Control) & Impose Rule 37 Sanctions for Disobedience — Rule 45 Sanctions against Subpoenaed Witness Are Not Exclusive

Sali v. Corona Reg'l Med. Ctr., 2018 U.S. App. LEXIS 6768 (9th Cir. Mar. 19, 2018): The discovery process in theory should be cooperative and largely unsupervised by the district court. But when required d ...

Rule 45: Is a Subpoena Issued to a Non-Party Government Agency Subject to Review under the Administrative Procedure Act or Rules 45 and 26? — Circuit Split

Quiles v. Union Pac. R.R. Co., 2018 U.S. Dist. LEXIS 19244 (D. Neb. Feb. 6, 2018): This matter is before the Court on the United States' Motion to Quash Subpoenas (Filing No. 104). Upon consideration, the ...

RICO Causation: Not Enough That Plaintiff’s Injury Is Intended — Must Be Direct — Subcontractor Has No RICO Claim Based on Pattern of Racketeering of Property Owner’s Insurer & Its Agents to Reduce Payment to Subcontractor

Slay’s Restoration, LLC v. Wright Nat’l Flood Ins. Co., 2018 WL 1219618 (4th Cir. Mar. 9, 2018): *1 In this appeal, we hold that a subcontractor hired by a property owner’s contractor to repair flood damage to the owner’s property was not injured in its business or property by reason of

Judicial Notice of Internet Evidence — Contents of Website of Undisputed Authenticity, Not for the Truth But for Notice: To Show That the Information Was Publicly Available

United States ex rel. Hong v. Newport Sensors, Inc., 2016 U.S. Dist. LEXIS 188295 (C.D. Cal., May 19, 2016): MEMORANDUM* Relator Juan Hong, A Law ...

United States ex rel. Hong v. Newport Sensors, Inc., 2016 U.S. Dist. LEXIS 188295 (C.D. Cal., May 19, 2016): MEMORANDUM* Relator Juan Hong, A Law Corporation ("Relator") appeals from the dismissal of his qui tam False Claims Act …

Rule 15(c)(1)(C) — Substitution of a Named Defendant for a Doe Defendant Does Not Relate Back — It Is a Change in Parties, Not a Substitution of Parties (Naming a Doe Defendant Is Not a Mistake Concerning the Proper Party’s Identity)

Reiner v. Canale, 2018 U.S. Dist. LEXIS 42301 (E.D. Mich. Mar. 15, 2018): Plaintiff TC Reiner first brought this copyright suit, alleging both infringement and wrongful removal of copyright information, against Saginaw Valley State University ("SVSU"), the Saginaw Valley State University Board of Control (&q ...

Facebook Authentication by 902(11) Certification + Contents — Issue Isn’t Whether Jury Could Find Party Wasn’t Author But Whether It Could Find S/he Was — Rap Lyric As Adoptive Admission—“Always” As Encompassing Past Conduct

United States v. Recio, 2018 U.S. App. LEXIS 5753 (4th Cir. Mar. 7, 2018): A jury found Larry Recio guilty of being a felon in possession of a firearm. At trial, over his objection, the district court admitted into evidence a post assertedly to Recio's Facebook account that quoted a rap lyric. Recio appeals. He contends th ...

United States v. Recio, 2018 U.S. App. LEXIS 5753 (4th Cir. Mar. 7, 2018): A jury found Larry Recio guilty of being a felon in possession of a firearm. At trial, over his objection, the district court admitted into evidence …

17th Marks 17th

March 17, 2018, marks the 17th Anniverary of the Firm. ...

March 17, 2018, marks the 17th Anniverary of the Firm.

Rule 37(b) Sanctions — Dismissal — Requisite “Fault” Does Not Require a Showing of Intent — Extraordinarily Poor Judgment or Gross Negligence Is Enough (Good Quote)

Williams v. Wahner, 2018 WL 1287407 (7th Cir. Mar. 13, 2018): Tyrone Williams, a former pretrial detainee at the Moultrie County Jail, appeals the dismissal of his civil rights suit against the County, the sheriff, and the jail administrator. The district court dismissed Williams’s suit under

Judicial Notice of Internet Evidence Not Permitted on Suppression Motion in Mass. — Court-Initiated JN Requires Notice to Parties & Opportunity to Be Heard (Note: Mass. Has Special Rule 201(c) Prohibiting JN of Element of Offense in Criminal Case)

Commonwealth v. Hilaire, 92 Mass. App. Ct. 784, 2018 Mass. App. LEXIS 21 (2018): At issue is whether there was reasonable suspicion to stop the defendant and search his backpack severa ...

Commonwealth v. Hilaire, 92 Mass. App. Ct. 784, 2018 Mass. App. LEXIS 21 (2018): At issue is whether there was reasonable suspicion to stop the defendant and search his backpack several [*785] hours after an armed home invasion had …

Facebook Authentication — 902(11) Certification from Facebook Custodian Plus Contents Tying Account to Party (Photos, Phone Number, Self-Identification Message Contents)

United States v. Landaverde-Giron, 2018 U.S. Dist. LEXIS 24743, 2018 WL 902168 (D. Md. Feb. 14, 2018): Raul Ernesto Landaverde-Giron has been charged with five felony counts related to ...

United States v. Landaverde-Giron, 2018 U.S. Dist. LEXIS 24743, 2018 WL 902168 (D. Md. Feb. 14, 2018): Raul Ernesto Landaverde-Giron has been charged with five felony counts related to his alleged participation in the gang known as La Mara …

Commercial Litigation and Arbitration

Rule 37: Court May Order Party to Produce Non-Party Witness (Here, an Expert But Also Any Other Witness under the Party’s Control) & Impose Rule 37 Sanctions for Disobedience — Rule 45 Sanctions against Subpoenaed Witness Are Not Exclusive

Rule 45: Is a Subpoena Issued to a Non-Party Government Agency Subject to Review under the Administrative Procedure Act or Rules 45 and 26? — Circuit Split

RICO Causation: Not Enough That Plaintiff’s Injury Is Intended — Must Be Direct — Subcontractor Has No RICO Claim Based on Pattern of Racketeering of Property Owner’s Insurer & Its Agents to Reduce Payment to Subcontractor

Judicial Notice of Internet Evidence — Contents of Website of Undisputed Authenticity, Not for the Truth But for Notice: To Show That the Information Was Publicly Available

Rule 15(c)(1)(C) — Substitution of a Named Defendant for a Doe Defendant Does Not Relate Back — It Is a Change in Parties, Not a Substitution of Parties (Naming a Doe Defendant Is Not a Mistake Concerning the Proper Party’s Identity)

Facebook Authentication by 902(11) Certification + Contents — Issue Isn’t Whether Jury Could Find Party Wasn’t Author But Whether It Could Find S/he Was — Rap Lyric As Adoptive Admission—“Always” As Encompassing Past Conduct

17th Marks 17th

Rule 37(b) Sanctions — Dismissal — Requisite “Fault” Does Not Require a Showing of Intent — Extraordinarily Poor Judgment or Gross Negligence Is Enough (Good Quote)

Judicial Notice of Internet Evidence Not Permitted on Suppression Motion in Mass. — Court-Initiated JN Requires Notice to Parties & Opportunity to Be Heard (Note: Mass. Has Special Rule 201(c) Prohibiting JN of Element of Offense in Criminal Case)

Facebook Authentication — 902(11) Certification from Facebook Custodian Plus Contents Tying Account to Party (Photos, Phone Number, Self-Identification Message Contents)

Recent Posts

RICO: Mail and Wire Fraud: Act of Emailing Transcript of Court Proceedings Containing Allegedly False Statements Made in Court ≠ Wire Fraud — Mailing (Serving on Opposing Party) Declarations Allegedly Containing False Statements ≠ Mail Fraud

FRAP 38 Sanctions — Sixth Circuit Usually Declines to Impose FRAP 38 Sanctions Unless An Improper Purpose Was Behind the Appeal

FRAP 38: Permissible for Appeals Court to Affirm Sanctions But Deny FRAP 38 Sanctions for Appeal — A Defendant’s Voluntary Cessation of Complained of Behavior Does Not Moot a Case Unless It Is Clear That The Behavior Could Not Reasonably Be Expected to Recur

Rule 11: Violation of 21 Day Safe Harbor “Overlook[ed]” As Non-Prejudicial by First Circuit — “Rule 11 Monetary Sanctions Must Be Reasonable” (Good Quote) — Rule 11(c)(4) Requires Consideration of Offender’s Ability to Pay

Temporary Restraining Order = Preliminary Injunction: 3 Supreme Court Cases (TRO=PI x 3)

Rule 37(c)(1) Sanctions — Exclusion of Untimely Expert Report — Eighth Circuit’s 4-Factor Test

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