Complex Lit Blog

Spoliation: $2.7 Million Compensatory Award in $20,000 Case OK, Even Though Little of Value Found, Where Discovery Reasonable — Upgrading Operating System During Lit. Hold = Intentional Spoliation — Civil Rights Fee Caselaw Inapt

Klipsch Grp., Inc. v. ePRO E-Commerce Ltd., 2018 U.S. App. LEXIS 1872 (2d Cir. Jan. 25, 2018): In the course of defending against claims that it sold counterfeit products, defendant-appellant ePRO E ...

Klipsch Grp., Inc. v. ePRO E-Commerce Ltd., 2018 U.S. App. LEXIS 1872 (2d Cir. Jan. 25, 2018): In the course of defending against claims that it sold counterfeit products, defendant-appellant ePRO E-Commerce Limited ("ePRO") engaged in persistent discovery misconduct: …

All Writs Act: Does Relitigation Exception Allow Federal Courts to Enjoin State Suits Concerning Claims or Issues That Could Have Been Brought in Prior Federal Action Or Only Those Actually Litigated? Circuit Split & a Hint from the S.Ct.

Dakota Med., Inc. v. RehabCare Grp., Inc., 2018 U.S. Dist. LEXIS 15972 (E.D. Cal. Jan. 31, 2018): 6 There is a circuit split over whether the relitigation exception allows federal courts to enjoin state suits concerning any claims and issues that could have been brought in the prior federal litigation, or ...

Dakota Med., Inc. v. RehabCare Grp., Inc., 2018 U.S. Dist. LEXIS 15972 (E.D. Cal. Jan. 31, 2018): 6 There is a circuit split over whether the relitigation exception allows federal courts to enjoin state suits concerning any claims and issues …

Causation Standards under Anti-Terrorism Act Are the Same as RICO Causation Standards — Same “By Reason Of” Language

Fields v. Twitter, Inc., 2018 U.S. App. LEXIS 2445 (9th Cir. Jan. 31, 2018): After Lloyd "Carl" Fields, Jr., and James Damon Creach were killed while working as government contractors in Jordan in an attack for which ISIS claimed credit, Plaintiffs-Appellants sued Defendant-Appellee Twitter, Inc. (Twitter) pursuant to

Client Generally Bound by Acts of Her Lawyer — Presumption Is Rebuttable when Lawyer undertakes Settlement or Dismissal of Client’s Claim

Gottlieb v. SEC, 2018 U.S. App. LEXIS 1889 (2d Cir. Jan. 23, 2018): SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Appellant Phyllis Gottlieb ("Gottlieb") appeals fr ...

Gottlieb v. SEC, 2018 U.S. App. LEXIS 1889 (2d Cir. Jan. 23, 2018): SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Appellant Phyllis Gottlieb ("Gottlieb") appeals from…

Ruling on Merits Not Prerequisite to Award of § 1927 Sanctions — Presence of Some Reasonable Allegations Doesn’t Excuse Meritless Claims — 12(b)(6) Dismissal Is a Ruling on the Merits

Lefande v. Mische-Hoeges, 2018 U.S. App. LEXIS 2751 (D.C. Cir. Feb. 1, 2018): These consolidated appeals were considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. See Fed. R. App. P. 34(a)(2);

Spoliation: Failure to Preserve All Video Evidence Requested in Overly Broad Request ≠ Bad Faith — Does 37(e) Trump Flurry Factors? — Lit. Funding Firm’s Deal with Doctors Not Barred by Collateral Source Rule

ML Healthcare Servs., LLC v. Publix Super Mkts., Inc., 2018 U.S. App. LEXIS 2935 (11th Cir. Feb. 7, 2018): This is a personal injury case arising from plaintiff Robin Houston's slip and fall at a Publix Supermarket operated by Defendant. Following an eight-day trial, the jury returned a verdict in favor of Defendant. Plai ...

Circumstantial Text Authentication: Texts on Phone in Def’s Possession; He Admitted to Phone No. Only 1 Digit Off No. of Phone; Email Address Tied to Phone = His Surname + Birthday; Incoming Text Uses His First Name; Phone Used to Send a Selfie of Him

State v. Brownlee, 2017 Wisc. App. LEXIS 949 (Wis. Ct. App. Nov. 21, 2017): Willie Brownlee Jr. appeals from a judgment of conviction, entered upon a jury's verdict, for one count of possession of cocaine, fifteen to forty grams, with intent to deliver, contrary to

State v. Brownlee, 2017 Wisc. App. LEXIS 949 (Wis. Ct. App. Nov. 21, 2017): Willie Brownlee Jr. appeals from a judgment of conviction, entered upon a jury's verdict, for one count of possession of cocaine, fifteen to forty grams, with …

Rule 37(c)(1) Sanctions — Summary Judgment Declarations from Witnesses Not Disclosed Per 26(a)(1) Properly Stricken — Mentioning Them in Interrogatory Answers Insufficient

Benjamin v. B & H Education, Inc., 2017 WL 6460087 (9th Cir. Dec. 19, 2017): Plaintiffs are students of cosmetology and hair design at schools in California and Nevada operated by defendant B&H Education, Inc., under the name of Marinello Schools of Beauty. Plaintiffs claim that they are employees within the meaning of the Fair Labor ...

Rule 16(f) & Inherent Power Sanctions for Failure to Participate in Settlement Conference in Good Faith — Failure to Communicate in Advance a Fixed Position (Here, No Interest in Negotiating) Sanctionable — Led to Conference Being Held for No Reason

Arneault v. O’Toole, 2017 WL 5989024 (3d Cir. Dec. 4, 2017): *1 This appeal, set against a backdrop of the litigants’ personal and professional rancor, pertains to two awards of attorneys’ fees and costs to the appellees. Plaintiffs Edson R. Arneault and Gregory J. Rubino brought several claims against defendant ...

Sanctions: “Without a Finding of Fraud or Bad Faith Whereby the Very Temple of Justice Has Been Defiled, a Court Enjoys No Discretion to Employ Inherent Powers to Impose Sanctions” (Good Quote)

Level 3 Commc’ns, LLC v. United States, 2018 U.S. App. LEXIS 2536 (Fed. Cir. Jan. 30, 2018): Defendant the United States ("the government") and Department of Justice attorney Robert C. Bigler appeal the March 16, 2017 order of the United States Court of Federal Claims. In that order, the court, rel ...

Commercial Litigation and Arbitration

Spoliation: $2.7 Million Compensatory Award in $20,000 Case OK, Even Though Little of Value Found, Where Discovery Reasonable — Upgrading Operating System During Lit. Hold = Intentional Spoliation — Civil Rights Fee Caselaw Inapt

All Writs Act: Does Relitigation Exception Allow Federal Courts to Enjoin State Suits Concerning Claims or Issues That Could Have Been Brought in Prior Federal Action Or Only Those Actually Litigated? Circuit Split & a Hint from the S.Ct.

Causation Standards under Anti-Terrorism Act Are the Same as RICO Causation Standards — Same “By Reason Of” Language

Client Generally Bound by Acts of Her Lawyer — Presumption Is Rebuttable when Lawyer undertakes Settlement or Dismissal of Client’s Claim

Ruling on Merits Not Prerequisite to Award of § 1927 Sanctions — Presence of Some Reasonable Allegations Doesn’t Excuse Meritless Claims — 12(b)(6) Dismissal Is a Ruling on the Merits

Spoliation: Failure to Preserve All Video Evidence Requested in Overly Broad Request ≠ Bad Faith — Does 37(e) Trump Flurry Factors? — Lit. Funding Firm’s Deal with Doctors Not Barred by Collateral Source Rule

Circumstantial Text Authentication: Texts on Phone in Def’s Possession; He Admitted to Phone No. Only 1 Digit Off No. of Phone; Email Address Tied to Phone = His Surname + Birthday; Incoming Text Uses His First Name; Phone Used to Send a Selfie of Him

Rule 37(c)(1) Sanctions — Summary Judgment Declarations from Witnesses Not Disclosed Per 26(a)(1) Properly Stricken — Mentioning Them in Interrogatory Answers Insufficient

Rule 16(f) & Inherent Power Sanctions for Failure to Participate in Settlement Conference in Good Faith — Failure to Communicate in Advance a Fixed Position (Here, No Interest in Negotiating) Sanctionable — Led to Conference Being Held for No Reason

Sanctions: “Without a Finding of Fraud or Bad Faith Whereby the Very Temple of Justice Has Been Defiled, a Court Enjoys No Discretion to Employ Inherent Powers to Impose Sanctions” (Good Quote)

Recent Posts

Statements in Briefs As Judicial Admissions

Supreme Court: TRO As Appealable Order — And District Court Inaction As Tantamount to Refusing An Injunction And Thus Appealable

“Slow-Playing Discovery” in Response to Court Order, Prejudicing Opponent, Violates Rule 37(b)(2)(A)

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

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