Complex Lit Blog

Spoliation — In Criminal Cases, Bad Faith Is Essential to Support Adverse Inference Instruction Even in Circuits Not Requiring Bad Faith in Civil Cases (Dissent Questions Whether This Is True in All Cirs. — This Case Makes It True in 6th Cir.)

United States v. Brasswell, 2017 U.S. App. LEXIS 16144 (6th Cir. Aug. 21, 2017): Defendant Larry Braswell was convicted of one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and was sentenced to 235 months' imprisonment. On appeal, Defendant challenges both his conviction and his sentenc ...

Texts from Unknown Phone Authenticated by Testimony That Recipient Called Number and Recognized the Voice of the Sender

People v. Mansoori, 2017 IL App (1st) 151832, 2017 Ill. App. Unpub. LEXIS 2510 (Ill. Ct. App. Dec. 8, 2017): [*P1] Held: The defendant's conviction for harassment through electronic communications is affirmed. [*P2] The pro se defendant-appellant

People v. Mansoori, 2017 IL App (1st) 151832, 2017 Ill. App. Unpub. LEXIS 2510 (Ill. Ct. App. Dec. 8, 2017): [*P1] Held: The defendant's conviction for harassment through electronic communications is affirmed. [*P2] The pro se defendant-appellant1 Christopher Mansoori,…

Disqualification: 10th Cir. Factors—Essential Issue Is Taint of Lawsuit — Sanctions: If Attorney’s Fees Imposed on Client & Counsel, Counsel’s Objecting Just for Itself = Conflict, Resolved by Agreeing to Pay All—Meaning of Abuse of Discretion

U.S. ex rel. Tracy v. Emigration Improvement Dist., 2017 U.S. App. LEXIS 23650 (10th Cir. Nov. 22, 2017): * After examining the briefs and appellate record, this panel has determined unanimously to honor the parties' request for a decision on the briefs without oral argument. See < ...

Sanctions: Rule 41(b) Dismissal Requires Willful Disobedience of Court Order, Is a Last Resort — No Inherent Power Dismissal without Leave to Amend on Grounds Complaint Is Patently Frivolous (Circuit Split) — Rooker-Feldman Inapplicable to TROs

Smith v. HSBC Bank USA, N.A., 679 Fed.Appx. 876 (11th Cir. Feb. 13, 2017): Plaintiffs Marvin and Sharon Smith, proceeding pro se,1 appeal the district court’s denial of their motion to remand and the district court’s dismissal with prejudice of their complaint. Reversi ...

Rule 11 Sanctions — Pro Se Not Entitled to Attorney’s Fees Even If a Lawyer — Abuse of Discretion to Preclude Rule 11 Motion Based on Evaluation of Target’s Conduct under Subjective, Rather Than Objective, Standard

Rowe v. Gary, 2017 WL 3082022 (11th Cir. July 20, 2017): *1 Maria Sperando, a lawyer proceeding pro se, appeals the district court’s refusal to allow her to file a motion for sanctions against Leonard Rowe, Rowe Entertainment, Inc., Lee King, and Lee King Productions Inc. (collectively, the “plainti ...

Rowe v. Gary, 2017 WL 3082022 (11th Cir. July 20, 2017): *1 Maria Sperando, a lawyer proceeding pro se, appeals the district court’s refusal to allow her to file a motion for sanctions against Leonard Rowe, Rowe Entertainment, Inc., …

Rule 37(d) Sanctions: When Party Ignores Order after Warning Dismissal Could Result, No Abuse of Discretion to Dismiss — Failure to Attend Deposition as Ordered or Pay Prior Sanction — “Naked Claims of Destitution” Not Substantial Jusitification

Lafavors v. Thayer, 2017 U.S. App. LEXIS 12849 (11th Cir. July 18, 2017): Henry LaFavors, a state prisoner proceeding pro se, appeals the district court's dismissal, for failure to comply with a court order, of his complaint brought under 42 U.S.C. § 1983. On appeal, LaFavors argues that the district cou ...

Lafavors v. Thayer, 2017 U.S. App. LEXIS 12849 (11th Cir. July 18, 2017): Henry LaFavors, a state prisoner proceeding pro se, appeals the district court's dismissal, for failure to comply with a court order, of his complaint brought under…

Spoliation: Movant Fails to Carry Burden Where Document May Have Been Lost Before the Duty to Preserve Attached — Best Evidence: If Original of Form Contract Innocently Lost, Use of Exemplar as Duplicate OK

Bickoff v. Wells Fargo Bank, N.A., 2017 U.S. App. LEXIS 24579 (9th Cir. Dec. 5, 2017): * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Bruce Bickoff appeals the district court's grant of summary judgment in favor of Well ...

“Conclusory, Self-Serving Affidavits Are Insufficient to Withstand Motion for SJ” (Good Quote) — Dr.’s Unauthorized Disclosure to Wife of Husband’s 160-Pill Viagra Rx Followed by Divorce ≠ Negligence Claim (No Causation) But = Breach of Confi

Lee v. Park, 2017 WL 6508840 (3d Cir. Dec. 20, 2017): This case originated as a result of the alleged improper disclosure of private medical information. Sang Geoul Lee (“Mr. Lee”) sued his former physician, Won Il Park (“Dr. Park”), asserting New Jersey state law claims of negligence per se (Count I), negligence (Count II), a ...

RICO Standing Is Not Jurisdictional, Thus Is Judged under 12(b)(6), Not 12(b)(1) — Plaintiff Asserting Derivative Claim Cannot Show Proximate Cause under RICO

Saia v. Flying J. Inc., 2017 WL 6398013 (6th Cir. July 11, 2017): *1 Louis Saia, a Tennessee resident proceeding pro se, appeals the district court’s judgment dismissing his action for lack of standing. This case has been referred to a panel of the court that, upon examination, unanimously agrees that oral argument ...

RICO: Non-Fraud Predicates Require Specific Factual Allegations; Hard Bargaining vs. Extortion — Rule 11 Sanctions: Complaint a “Quagmire of Wordy & Repetitious Verbiage” (Good Quote) — Court Must State Basis for Attorney’s Fees Award

Cervantes Orchards & Vineyards, LLC v. Deere & Co., 2017 U.S. App. LEXIS 25413 (9th Cir. Dec. 15, 2017): Cervantes Orchards and Vineyards, along with Cervantes Nurseries, Cervantes Packing & Storage, Manchego Real, Jose G. Cervantes, and Cynthia C. Cervantes, (collectively "Cervantes"),

Commercial Litigation and Arbitration

Spoliation — In Criminal Cases, Bad Faith Is Essential to Support Adverse Inference Instruction Even in Circuits Not Requiring Bad Faith in Civil Cases (Dissent Questions Whether This Is True in All Cirs. — This Case Makes It True in 6th Cir.)

Texts from Unknown Phone Authenticated by Testimony That Recipient Called Number and Recognized the Voice of the Sender

Disqualification: 10th Cir. Factors—Essential Issue Is Taint of Lawsuit — Sanctions: If Attorney’s Fees Imposed on Client & Counsel, Counsel’s Objecting Just for Itself = Conflict, Resolved by Agreeing to Pay All—Meaning of Abuse of Discretion

Sanctions: Rule 41(b) Dismissal Requires Willful Disobedience of Court Order, Is a Last Resort — No Inherent Power Dismissal without Leave to Amend on Grounds Complaint Is Patently Frivolous (Circuit Split) — Rooker-Feldman Inapplicable to TROs

Rule 11 Sanctions — Pro Se Not Entitled to Attorney’s Fees Even If a Lawyer — Abuse of Discretion to Preclude Rule 11 Motion Based on Evaluation of Target’s Conduct under Subjective, Rather Than Objective, Standard

Rule 37(d) Sanctions: When Party Ignores Order after Warning Dismissal Could Result, No Abuse of Discretion to Dismiss — Failure to Attend Deposition as Ordered or Pay Prior Sanction — “Naked Claims of Destitution” Not Substantial Jusitification

Spoliation: Movant Fails to Carry Burden Where Document May Have Been Lost Before the Duty to Preserve Attached — Best Evidence: If Original of Form Contract Innocently Lost, Use of Exemplar as Duplicate OK

“Conclusory, Self-Serving Affidavits Are Insufficient to Withstand Motion for SJ” (Good Quote) — Dr.’s Unauthorized Disclosure to Wife of Husband’s 160-Pill Viagra Rx Followed by Divorce ≠ Negligence Claim (No Causation) But = Breach of Confi

RICO Standing Is Not Jurisdictional, Thus Is Judged under 12(b)(6), Not 12(b)(1) — Plaintiff Asserting Derivative Claim Cannot Show Proximate Cause under RICO

RICO: Non-Fraud Predicates Require Specific Factual Allegations; Hard Bargaining vs. Extortion — Rule 11 Sanctions: Complaint a “Quagmire of Wordy & Repetitious Verbiage” (Good Quote) — Court Must State Basis for Attorney’s Fees Award

Recent Posts

Rule 37 Sanctions — Unfamiliarity With Litigation Process Does Not Excuse Intentional Disregard of Court Order — Also Affirming Rule 26(g) Sanctions on Clients and Counsel for False Representations That All Responsive Documents Had Been Produced

Supreme Court: Notice of Appeal Filed After The Original Deadline But Before Reopening by The District Court Is Timely — It Relates Forward to The Date of The Order Making The Appeal Possible — Second Notice of Appeal After Reopening Unnecessary

Rule 37 Default Judgment: Second Circuit’s Four-Factor Test for Imposing Defaults and Three-Factor Test for Lifting Them

RICO: Cover-Up Within Limitations Period of Untimely RICO Violation “Was Merely A Continuation” Of The Original Injury And Could Not Be Used “As A ‘Bootstrap’ To Salvage [The] Time-Barred Claims–Declining to Apply Pinkerton Doctrine to Civil RICO Claims

Inherent Power — Circumstantial Evidence — Fact That Bad Faith May Be Shown by Establishing That Conduct Was So Egregious It Was Necessarily Committed in Bad Faith Does Not Mean That Bad Faith Must Be The Sole Explanation for The Bad Conduct

RICO Causation: Testing Labs’ Misstatements As to Alcohol Tests’ Efficacy Not Communicated to Plaintiffs’ Employers Did Not Cause Plaintiffs’ Professional Harm

Rule 37(d) Sanctions — For Failure to Serve Answers, Objections, Or Written Response to Discovery Requests — Are Not Limited to Intentional Misconduct; Even Innocent Mistakes May Be Covered

Sanctions: (1) Rule 11 Does Not Apply to Litigation Papers Initially Filed in State Court — Only Reaffirmance in Federal Court Post-Removal Is Subject to Sanction — (2) “The Fact That A Legal Theory Is A Long-Shot Does Not Necessarily Mean It Is Sanctionable” (Good Quote)

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