Complex Lit Blog

Sanctions: Rule 37 Does Not Require the Vain Gesture of Imposing Ineffective Lesser Sanctions before Dismissal Where Futility and Willfulness or Bad Faith Are Clear (Good Quote) — Meaning of Abuse of Discretion in Third Circuit

Fortson v. City of Baldwin, 2017 WL 4685532 (3d Cir. Oct. 19, 2017): PER CURIAM: Major and Laura Fortson, two individuals proceeding pro se, appeal the district court’s dismissal of their

Fortson v. City of Baldwin, 2017 WL 4685532 (3d Cir. Oct. 19, 2017): PER CURIAM: Major and Laura Fortson, two individuals proceeding pro se, appeal the district court’s dismissal of their 42 U.S.C. § 1983 complaint as a sanction …

Rule 11 Sanctions — Due Process — Failure to Provide Notice and Opportunity to Be Heard Requires Reversal

Mitchell v. Warden, 2017 U.S. App. LEXIS 20211 (11th Cir. Oct. 17, 2017): In February 2016, Blair Mitchell filed a pro se civil rights suit against prison officials at Autry State Prison ("Autry"), where he was incarcerated. Mr. Mitchell alleged that the staff at Autry was deliberately indifferent to his serious medical ...

Supreme Court: Appeals — Timeliness — Filing Deadline Set by Statute Is Jurisdictional, Not If Set by Rule — Then Can Be Waived — Equitable Exceptions Also Possible (Reasoning Not Limited to Appeals)

Hamer v. Neighborhood Hous. Servs., 2017 U.S. LEXIS 6765 (U.S. Nov. 8, 2017): This case presents a question of time, specifically, time to file a notice of appeal from a district court’s judgment. In Bowles< ...

Hamer v. Neighborhood Hous. Servs., 2017 U.S. LEXIS 6765 (U.S. Nov. 8, 2017): This case presents a question of time, specifically, time to file a notice of appeal from a district court’s judgment. In Bowles v. Russell , 551 U. …

RICO: “The point of Rule 9(b) Is Precisely to Prevent Defendant-Clumping … by Requiring the Plaintiff to Allege Each Defendant’s Specific Participation in the Fraud” (Good Quote) — Use of RICO Case Statement on 12(b)(6) OK

Emess Capital, LLC v. Rothstein, 2011 WL 13214302 (S.D. Fla. Mar. 9, 2011) (R&R): *1 This matter is before the Court for a Report and Recommendations on two dispositive motions: (1) Defendant TD Bank N.A.’s motion to dismiss (Doc. 13) and (2) Plaintiff Emess Capital, LLC’s amended motion for default judgment agai ...

RICO: Injury from 1 Predicate Act Enough — Mail Fraud: Must ID a Mailing; 9(b)/Iqbal Caution — No Causation If Injury Could Occur w/o Predicate Act Or Is Not Directly Tied to Predicate Act — Only Bank Can Sue for Financial Institution Fraud

Empire Merchants, LLC v. Reliable Churchill LLLP, 2017 U.S. Dist. LEXIS 186669 (E.D.N.Y. Mar. 16, 2017): Plaintiff, Empire Merchants, LLC ("Empire"), is a liquor [*2] wholesaler operating in New York City. Empire brings this action against numerous defendants, including a liquor wholesaler operating in Mar ...

Empire Merchants, LLC v. Reliable Churchill LLLP, 2017 U.S. Dist. LEXIS 186669 (E.D.N.Y. Mar. 16, 2017): Plaintiff, Empire Merchants, LLC ("Empire"), is a liquor [*2] wholesaler operating in New York City. Empire brings this action against numerous defendants, including a…

Protective Orders: Which In-House Counsel Should Be Barred from Highly Confidential Info? — Corp. Secretary, Board Attendee, Member of Sr. Mgmt. Committee Too Senior, Interactions with Decisionmakers Too Risky — Website of Party = Admission & 803(6)

Silversun Indus. v. PPG Indus., 2017 U.S. Dist. LEXIS 183647 (N.D. Ill. Nov. 6, 2017): INTRODUCTION Defendant, PPG, is a Forbes 500, multi-billion dollar, world-wide company, in the business of supplying paints, paint coatings, optical products, and specialty materials. Defendant, PPG Kansai Automotive F ...

Silversun Indus. v. PPG Indus., 2017 U.S. Dist. LEXIS 183647 (N.D. Ill. Nov. 6, 2017): INTRODUCTION Defendant, PPG, is a Forbes 500, multi-billion dollar, world-wide company, in the business of supplying paints, paint coatings, optical products, and specialty materials. Defendant,…

Rule 41(d) Dismissal Sanction: Factors — Wasting Time, Money & Effort Pursuing Cooperation = Prejudice from Plaintiff’s Failure to Prosecute — Abuse of Discretion Standard (Sixth Circuit)

Crawford v. Beaumont, 2017 U.S. App. LEXIS 18887 (6th Cir. Sept. 12, 2017): Anitra E. Crawford, a Michigan resident proceeding pro se, appeals a district court judgment dismissing her civil ...

Crawford v. Beaumont, 2017 U.S. App. LEXIS 18887 (6th Cir. Sept. 12, 2017): Anitra E. Crawford, a Michigan resident proceeding pro se, appeals a district court judgment dismissing her civil rights case filed pursuant to 42 U.S.C. § 1983.…

Rule 37(c)(1) Sanctions: Failure to Disclose Witness Bars Use of Declaration on SJ—Alternatively, Must Document Where Wit.’s Name Came Up in Discovery—Abuse of Discretion Standard (7th Cir.)—Exclusion OK Where No Alternative Proposed

King v. Ford Motor Co., 2017 U.S. App. LEXIS 19013 (7th Cir. Oct. 2, 2017): LaWanda King worked for many years as an assembler in Ford Motor Company's vehicle assembly plants. After transferring to its Chicago plant in 2010, though, she claims that she was sexually harassed by a supervisor, after which she began getting reassigned ...

RICO: Innocuous Wire Transactions Used to Build Trust = Wire Fraud — Intrabank Transfer May Be Bookkeeping Entry, Not Sufficiently Plead —Analysis in Unappealed Order Granting Prior Dismissal Disregarded — Denial of Leave to Amend Strictly Reviewed

Bui v. Ton Phi, 2017 U.S. App. LEXIS 20304 (9th Cir. Oct. 17, 2017): Mai Ngoc Bui appeals the district court's grant of Defendants' motion to dismiss with prejudice the Racketeer Influenced and Corrupt Organizations [*2] (RICO) claim from her Second Amended Complaint (SAC). We have jurisdiction under 28 U.S.C. § 1291.

Experts: CEO Opinion Based on CEO Experience=701 But If Tech’l Knowl. Used = 702 — 37(c)(1) Sanction for No Expert Rep’t: 4 Factors — Still Prejudiced If You Know the Unreported Opinion — Waiver by Not Defending All Claims Attacked

Dynamic Concepts, Inc. v. Tri-State Surgical Supply & Equipment Ltd., 2017 U.S. App. LEXIS 22348 (2d Cir. Nov. 8, 2017): SUMMARY ORDER UPON DUE CONSIDERATION WHEREOF it is hereby ORDERED, ADJUDGED, AND DECREED that the judgments and orders of the District Court are AFFI ...

Dynamic Concepts, Inc. v. Tri-State Surgical Supply & Equipment Ltd., 2017 U.S. App. LEXIS 22348 (2d Cir. Nov. 8, 2017): SUMMARY ORDER UPON DUE CONSIDERATION WHEREOF it is hereby ORDERED, ADJUDGED, AND DECREED that the judgments and orders of the…

Commercial Litigation and Arbitration

Sanctions: Rule 37 Does Not Require the Vain Gesture of Imposing Ineffective Lesser Sanctions before Dismissal Where Futility and Willfulness or Bad Faith Are Clear (Good Quote) — Meaning of Abuse of Discretion in Third Circuit

Rule 11 Sanctions — Due Process — Failure to Provide Notice and Opportunity to Be Heard Requires Reversal

Supreme Court: Appeals — Timeliness — Filing Deadline Set by Statute Is Jurisdictional, Not If Set by Rule — Then Can Be Waived — Equitable Exceptions Also Possible (Reasoning Not Limited to Appeals)

RICO: “The point of Rule 9(b) Is Precisely to Prevent Defendant-Clumping … by Requiring the Plaintiff to Allege Each Defendant’s Specific Participation in the Fraud” (Good Quote) — Use of RICO Case Statement on 12(b)(6) OK

RICO: Injury from 1 Predicate Act Enough — Mail Fraud: Must ID a Mailing; 9(b)/Iqbal Caution — No Causation If Injury Could Occur w/o Predicate Act Or Is Not Directly Tied to Predicate Act — Only Bank Can Sue for Financial Institution Fraud

Protective Orders: Which In-House Counsel Should Be Barred from Highly Confidential Info? — Corp. Secretary, Board Attendee, Member of Sr. Mgmt. Committee Too Senior, Interactions with Decisionmakers Too Risky — Website of Party = Admission & 803(6)

Rule 41(d) Dismissal Sanction: Factors — Wasting Time, Money & Effort Pursuing Cooperation = Prejudice from Plaintiff’s Failure to Prosecute — Abuse of Discretion Standard (Sixth Circuit)

Rule 37(c)(1) Sanctions: Failure to Disclose Witness Bars Use of Declaration on SJ—Alternatively, Must Document Where Wit.’s Name Came Up in Discovery—Abuse of Discretion Standard (7th Cir.)—Exclusion OK Where No Alternative Proposed

RICO: Innocuous Wire Transactions Used to Build Trust = Wire Fraud — Intrabank Transfer May Be Bookkeeping Entry, Not Sufficiently Plead —Analysis in Unappealed Order Granting Prior Dismissal Disregarded — Denial of Leave to Amend Strictly Reviewed

Experts: CEO Opinion Based on CEO Experience=701 But If Tech’l Knowl. Used = 702 — 37(c)(1) Sanction for No Expert Rep’t: 4 Factors — Still Prejudiced If You Know the Unreported Opinion — Waiver by Not Defending All Claims Attacked

Recent Posts

RICO: Indirect Injury Unrecoverable — Indirect Purchaser Rule Imported from Antitrust

RICO: No Causation Where Harm Flowed Several Steps After the Fraudulent Acts — RICO Causation Same As Antitrust Causation

Sanctions vs. Automatic Stay: Imposition of Sanctions (Here, Inherent Power Sanctions) Is Subject to the Police Power Exception to the Automatic Stay in Bankruptcy

The Word “Include” May Be A Word of Limitation As Opposed to a Word of Enlargement, Depending on the Context

Spoliation/Sanctions: “A Party Does Not Spoliate Evidence When, Without Notice Of The Evidence’s Potential Relevance, It Destroys The Evidence According To Its Policy Or In The Normal Course Of Its Business” (Good Quote)

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