Complex Lit Blog

RICO Pleading — Conclusory Allegations of Scienter Insufficient to Plead Predicate Acts under Iqbal

Black Diamond Land Mgmt. LLC v. Twin Pines Coal Inc., 2017 WL 3635178 (11th Cir. Aug. 24, 2017): Plaintiff’s Second Amended Complaint (“Complaint”) asserts that Defendants wrongly appropriated coal and timber resources from Plaintiff’s land. This appeal concerns whether the district court erred in concluding that Plaintiff’s ...

Email Isn’t Business Record unless Declarant’s Statement Qualifies as Business Record — All Elements of 803(6), Including Regularity, Must Be Satisfied — Forwarding Email May/May Not = Adoptive Admission — Double Hearsay Issues

In re: Oil Spill by the Oil Rig "Deepwater Horizon", 2012 U.S. Dist. LEXIS 3406, 87 Fed. R. Evid. Serv. (Callaghan) 492, 2012 WL 37373 (E.D. La. Jan. 11, 2012): Before the Court are letter briefs from the PSC (Rec. Doc. 4340-1, October 17, 2011; Rec. Doc. 4631, November 16, 2011; Second ltr. dated November 16, 2011; and Ltr. ...

Facebook Admissibility: Third Parties’ Comments on Witness’s Page Not Hearsay When Offered to Prove the Fact That the Subject Matter Was Being Discussed and Not for the Truth of the Comments

State v. Krause, 2017 Ohio App. LEXIS 4281 (Ohio Ct. App. Sept. 29, 2017): [*P1] Appellant, Richard A. Krause, appeals from the June 9, 2016 sentencing entry of the Willoughby Municipal Court. For the following reasons, the judgment of the trial court is affirmed. Procedural History< ...

State v. Krause, 2017 Ohio App. LEXIS 4281 (Ohio Ct. App. Sept. 29, 2017): [*P1] Appellant, Richard A. Krause, appeals from the June 9, 2016 sentencing entry of the Willoughby Municipal Court. For the following reasons, the judgment of the…

Rule 37(c)(1) Sanctions: Exclusion of Damages Evidence for Willful Failure to Include Computation in 26(a)(1) Disclosure OK Where Lesser Sanctions No Longer Available — Appeals: Failure to Brief Issue ID’ed in Brief as Presented for Review Waives It

Silver State Broad., LLC v. Bergner, 2017 WL 6047537 (9th Cir. Dec. 7, 2017): *1 Plaintiffs Silver State Broadcasting, LLC, Royce International Broadcasting Corporation, and Golden State Broadcasting, LLC (collectively, “the Broadcasters”) appeal from the district court’s order granting summary judgment to defen ...

Electronic Hearsay: Fact Business Keeps and Receives Emails Doesn’t Make Them Business Records (Good Quote) — 803(6) Elements Must Be Satisfied — Business Records Exception Is Predicated on Accuracy & Reliability; Email Is Typically More Casual

United States v. Cone, 714 F.3d 197 (4th Cir. 2013): Donald Cone and Chun-Yu Zhao were convicted of various charges under an indictment arising out of a scheme to import and resell counterfeit pieces of computer networking equipment, some of which bore the trademark of Cisco Systems, Inc. ("Cisco"). On appea ...

United States v. Cone, 714 F.3d 197 (4th Cir. 2013): Donald Cone and Chun-Yu Zhao were convicted of various charges under an indictment arising out of a scheme to import and resell counterfeit pieces of computer networking equipment, some of …

Rule 37 & 41 Sanctions — Reversible Error to Dismiss without Considering Lesser Sanctions — 6th Circuit Leaves Open Possibility Dismissal Might Be OK for Discovery Delay Absent Violation of Court Order in Extreme Circumstances

Dominguez v. Crosby Tugs, LLC, 2017 WL 3271117 (5th Cir. Aug. 1, 2017): Jorge Dominguez, Jr., a Jones Act seaman employed by Crosby Tugs (“Crosby”), was allegedly injured when he was directed to manually move a marine fire extinguisher. Dominguez brought a personal injury suit against Crosby.

Dominguez v. Crosby Tugs, LLC, 2017 WL 3271117 (5th Cir. Aug. 1, 2017): Jorge Dominguez, Jr., a Jones Act seaman employed by Crosby Tugs (“Crosby”), was allegedly injured when he was directed to manually move a marine fire extinguisher. Dominguez …

Texts – Admissibility: Recipient May Testify As to Contents of Lost Text Per Rule 1004 Consistently with Best Evidence Rule — “We Will Not Reverse the Trial Court When It Reached the Right Result Albeit for the Wrong Reason” (Good Quote)

People v Washington, 2017 Mich. App. LEXIS 1774 (Mich. Ct. App. Nov. 9, 2017): A jury convicted defendant of two counts of first-degree criminal sexual conduct (victim under 13/defendant 17 or older) (CSC-I),

§ 1927 Sanctions Do Not Require a Finding of Subjective Bad Faith in Seventh Circuit

Pintea v. Gurvey, 2017 U.S. App. LEXIS 12444 (7th Cir. July 12, 2017): Adrian and Marinela Pintea are first-generation immigrants of Romanian origin who owned their primary residence in Chicago and a smaller rental property nearby. At some point they defaulted on their mortgage and both properties fell into foreclosure. As is the case ...

RICO: 171 Pp. of Vague Allegations, Each Count Adopting Prior ¶¶=Shotgun Pleading, Violates Rule 8—Abstention: Younger Applies to Civil Case Only If St. Court’s Ability to Perform Judicial Fxs Involved—Colorado River Very Rare

Barone v. Wells Fargo Bank, N.A., 2017 U.S. App. LEXIS 18396 (11th Cir. Sept. 21, 2017): John M. Barone, proceeding pro se, appeals the district court's dismissal of his complaint alleging various wrongful acts by Wells Fargo Bank, N.A. ("Wells Fargo"), after it acquired Barone's mortgage in 2008. Th ...

Barone v. Wells Fargo Bank, N.A., 2017 U.S. App. LEXIS 18396 (11th Cir. Sept. 21, 2017): John M. Barone, proceeding pro se, appeals the district court's dismissal of his complaint alleging various wrongful acts by Wells Fargo Bank, N.A. ("Wells …

Rule 16: What Constitutes “Good Cause” to Amend Scheduling Order to Allow Late Designation of Expert — Five Factors (6th Cir.), Diligence Key — Appeals: Waiver of Argument by Not Raising It Below — Plain-Miscarriage-of-Justice Exception

Gatza v. DCC Litig. Facility, Inc., 2017 U.S. App. LEXIS 21861 (6th Cir. Oct. 31, 2017): Plaintiffs-Appellants Kathy Gatza and Pamela Sutherland (together, "Plaintiffs") appeal the district court's denial of their motions to amend the scheduling orders in their cases. Before the expert-disclosure deadlines passed ...

Commercial Litigation and Arbitration

RICO Pleading — Conclusory Allegations of Scienter Insufficient to Plead Predicate Acts under Iqbal

Email Isn’t Business Record unless Declarant’s Statement Qualifies as Business Record — All Elements of 803(6), Including Regularity, Must Be Satisfied — Forwarding Email May/May Not = Adoptive Admission — Double Hearsay Issues

Facebook Admissibility: Third Parties’ Comments on Witness’s Page Not Hearsay When Offered to Prove the Fact That the Subject Matter Was Being Discussed and Not for the Truth of the Comments

Rule 37(c)(1) Sanctions: Exclusion of Damages Evidence for Willful Failure to Include Computation in 26(a)(1) Disclosure OK Where Lesser Sanctions No Longer Available — Appeals: Failure to Brief Issue ID’ed in Brief as Presented for Review Waives It

Electronic Hearsay: Fact Business Keeps and Receives Emails Doesn’t Make Them Business Records (Good Quote) — 803(6) Elements Must Be Satisfied — Business Records Exception Is Predicated on Accuracy & Reliability; Email Is Typically More Casual

Rule 37 & 41 Sanctions — Reversible Error to Dismiss without Considering Lesser Sanctions — 6th Circuit Leaves Open Possibility Dismissal Might Be OK for Discovery Delay Absent Violation of Court Order in Extreme Circumstances

Texts – Admissibility: Recipient May Testify As to Contents of Lost Text Per Rule 1004 Consistently with Best Evidence Rule — “We Will Not Reverse the Trial Court When It Reached the Right Result Albeit for the Wrong Reason” (Good Quote)

§ 1927 Sanctions Do Not Require a Finding of Subjective Bad Faith in Seventh Circuit

RICO: 171 Pp. of Vague Allegations, Each Count Adopting Prior ¶¶=Shotgun Pleading, Violates Rule 8—Abstention: Younger Applies to Civil Case Only If St. Court’s Ability to Perform Judicial Fxs Involved—Colorado River Very Rare

Rule 16: What Constitutes “Good Cause” to Amend Scheduling Order to Allow Late Designation of Expert — Five Factors (6th Cir.), Diligence Key — Appeals: Waiver of Argument by Not Raising It Below — Plain-Miscarriage-of-Justice Exception

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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