Complex Lit Blog

Dismissal Is Proportional Sanction under Rule 37 for Willful, Repeated Discovery Violations & under Rule 41 for Disregard of Court-Imposed (Discovery) Deadlines — While Judges Should Weigh Lesser Sanctions, They Aren’t Required to (7th Cir.)

Nelson v. Rodgers, 2017 U.S. App. LEXIS 26120 (7th Cir. Dec. 21, 2017): Per Curiam. Kenneth Nelson sued two former business partners, Bruce Schultz and Jon Rodgers, for breach of contract and several torts. During discovery Schultz and Rodgers asked Nelson to produce various bank statements and tax returns, which, the defendant ...

Emails Authenticated by Domain Names (Parties’), Identities of Purported Senders, Relevance of Time Period and Contents — Admissible as Admissions or Business Records

Progressive Waste Solutions of La., Inc., 2017 U.S. Dist. LEXIS 208192, 2017 WL 6501597 (E.D. La. Dec. 19, 2017): Before the Court is Defendant's motion to strike. R. Doc. 32. Plaintiff has filed a response in opposition. R. Doc. 33. After reviewing the parties' briefs and the applicable law, the Court now issues this Order & ...

Rule 37(d) Sanctions — No Excuse for Failing to Attend Dep That Adversary Owed Discovery or That Opposing Lawyer Didn’t Show Up after Learning Party Wouldn’t Attend — While Court Construes Pro Se Briefs Liberally, It Won’t Act as De Facto Counsel

Lewis v. Leonard, 2017 WL 5664663 (11th Cir. Nov. 27, 2017): *1 In this

Lewis v. Leonard, 2017 WL 5664663 (11th Cir. Nov. 27, 2017): *1 In this 42 U.S.C. § 1983 action, plaintiff Preston Jermain Lewis, a former student at Pensacola State College (“PSC”), appeals pro se the district court’s order granting summary…

CAFA: Resident Not Same as a Citizen for Local Controversy Purposes — Plaintiffs Must Present Evidence of Citizenship or Define Class As Limited to Citizens of Relevant State — Complaint Determines Whether Local Def Is Significant

White Knight Diner, LLC v. Arbitration Forums, Inc., 2018 U.S. Dist. LEXIS 5786 (E.D. Mo. Jan. 12, 2018): This putative class action is brought on behalf of various Missouri insureds, for damages incurred as a result of the alleged misconduct of their respective insurance companies, and the insurance companies for unnamed third-party ...

Text Evidence: Photos of Texts Don’t Violate Best Evidence, = 1001(d) Duplicate Original — Authentication by (a) Testimony of Wit. Who Texted with Def., (b) Self-ID’ing Text, (c) No. Assigned to Def.; (d) No. Linked to Def. in Wit.’s Phone

Pierce v. State, 2017 Ga. LEXIS 940 (Ga. Sup. Ct. Oct. 30, 2017): Appellant Matthew Caleb Pierce was tried before a jury and found guilty on six counts of aggravated child molestation, two counts of child molestation, two counts of sexual battery, and one count each of sexual exploitation of a child, distribution of Hydromorphone, and ...

Vexatious Litigant Injunctions Are Issued under Inherent Power as Codified by All Writs Act — Requiring Lawyer for Future Suit, Not Prescreening by Court, Saves Judicial Time—Post-Dismissal Inj’n OK—Meaning of Abuse of Discretion (11th Cir.)

Klayman v. DeLuca, 2017 WL 4791081 (11th Cir. Oct. 24, 2017): PER CURIAM: *1 Larry Klayman, an attorney proceeding pro se, appeals the district court’s injunction barring him from filing pro se lawsuits against Baker & Hostetler, LLP and attorneys Suzanne Jambe, James Rollinson, and Hewitt Shaw< ...

Inherent Power Sanctions: Referral to Disciplinary Authority for Threatening to Sue Adverse Expert If Opinion Not Withdrawn + Misrepresentation on Appeal — “The Decision to Impose Sanctions Is Not to Be Made Lightly” (Good Quote)

Gross v. Sun Life Assur. Co., 2018 U.S. App. LEXIS 1190 (1st Cir. Jan. 18, 2018): More than four years ago, we remanded this case with the instruction that appellant Sun Life Assurance Co. reconsider its rejection of Diahann Gross's claim for disability benefits based on chronic and severe pain. See

Rule 11 Safe Harbor — No Need to Serve Brief or Supporting Affidavits to Start 21-Day Period — Notice of Motion Plus Correspondence Concerning Motion Sufficient — Bad Faith Inferred from Recklessly Citing Bad Law and Cases Hurting Citer’s Position

Malkan v. Mutua, 2017 U.S. App. LEXIS 21766 (2d Cir. Oct. 30, 2017): SUMMARY ORDER ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of said District Court be and it hereby is AFFIRMED. Appellants Jeffrey Malkan and Frederic Ostrove ...

Malkan v. Mutua, 2017 U.S. App. LEXIS 21766 (2d Cir. Oct. 30, 2017): SUMMARY ORDER ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of said District Court be and it hereby is AFFIRMED. Appellants…

Rule 403 Not for Detrimental or Monotonous Evid., Must Arouse Horror — Flight Always Evid. of Guilt — Can’t Force Adversary to Accept Stip—Text Authentication via Cellebrite—Surveillance Video Auth’n—Must Get Ruling on Objection to Preserve It

Taylor v. Commonwealth, 2017 Ky. Unpub. LEXIS 63 (Ky. Sup. Ct. Nov. 2, 2017): On June 15, 2016, a Fayette County jury convicted Robert Markham Taylor of Murder, Kidnapping, and Tampering with Physical Evidence. The jury recommended sentences of twenty-two years each for the Murder and Kidnapping charges and five years for Tamp ...

Rule 37(b) and Inherent Power Sanctions — Dismissal for Disobeying Court Order Requiring Production of Computer for Examination and for Perjury in Testimony at Sanctions Hearing

Lambert v. Worldwide Mktg. Techs. Corp., 2017 WL 3833027 (11th Cir. Sept. 1, 2017): Angela Lambert appeals pro se the dismissal of her complaint against her former employer, Worldwide Marketing Technologies Corporation, and its owners, Claudina Pennell, and Daniel Pennell. The district court dismissed Lambert’s comp ...

Commercial Litigation and Arbitration

Dismissal Is Proportional Sanction under Rule 37 for Willful, Repeated Discovery Violations & under Rule 41 for Disregard of Court-Imposed (Discovery) Deadlines — While Judges Should Weigh Lesser Sanctions, They Aren’t Required to (7th Cir.)

Emails Authenticated by Domain Names (Parties’), Identities of Purported Senders, Relevance of Time Period and Contents — Admissible as Admissions or Business Records

Rule 37(d) Sanctions — No Excuse for Failing to Attend Dep That Adversary Owed Discovery or That Opposing Lawyer Didn’t Show Up after Learning Party Wouldn’t Attend — While Court Construes Pro Se Briefs Liberally, It Won’t Act as De Facto Counsel

CAFA: Resident Not Same as a Citizen for Local Controversy Purposes — Plaintiffs Must Present Evidence of Citizenship or Define Class As Limited to Citizens of Relevant State — Complaint Determines Whether Local Def Is Significant

Text Evidence: Photos of Texts Don’t Violate Best Evidence, = 1001(d) Duplicate Original — Authentication by (a) Testimony of Wit. Who Texted with Def., (b) Self-ID’ing Text, (c) No. Assigned to Def.; (d) No. Linked to Def. in Wit.’s Phone

Vexatious Litigant Injunctions Are Issued under Inherent Power as Codified by All Writs Act — Requiring Lawyer for Future Suit, Not Prescreening by Court, Saves Judicial Time—Post-Dismissal Inj’n OK—Meaning of Abuse of Discretion (11th Cir.)

Inherent Power Sanctions: Referral to Disciplinary Authority for Threatening to Sue Adverse Expert If Opinion Not Withdrawn + Misrepresentation on Appeal — “The Decision to Impose Sanctions Is Not to Be Made Lightly” (Good Quote)

Rule 11 Safe Harbor — No Need to Serve Brief or Supporting Affidavits to Start 21-Day Period — Notice of Motion Plus Correspondence Concerning Motion Sufficient — Bad Faith Inferred from Recklessly Citing Bad Law and Cases Hurting Citer’s Position

Rule 403 Not for Detrimental or Monotonous Evid., Must Arouse Horror — Flight Always Evid. of Guilt — Can’t Force Adversary to Accept Stip—Text Authentication via Cellebrite—Surveillance Video Auth’n—Must Get Ruling on Objection to Preserve It

Rule 37(b) and Inherent Power Sanctions — Dismissal for Disobeying Court Order Requiring Production of Computer for Examination and for Perjury in Testimony at Sanctions Hearing

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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