Complex Lit Blog

Rule 11 Sanctions — Safe Harbor Must Be Honored Only Once Per Motion — If Denied without Prejudice, Motion May Be Renewed without Additional Safe Harbor — Needn’t Be 100% Identical 2d Time But Must Be Essentially the Same Motion (Case Law Split)

Merritt v. Lake Jovita Homeowners Ass’n, Inc., 2010 WL 11507746 (M.D. Fla. May 11, 2010): *1 BEFORE THE COURT is Defendants Lyons Heritage Pasco, LLC, Lyons Land Pasco, LLC, Bobby Lyons, and Morris Needles’ (the “Lyons Defendants”) Motion for Relief from Order Denying Their Motion to Tax Attor ...

Merritt v. Lake Jovita Homeowners Ass’n, Inc., 2010 WL 11507746 (M.D. Fla. May 11, 2010): *1 BEFORE THE COURT is Defendants Lyons Heritage Pasco, LLC, Lyons Land Pasco, LLC, Bobby Lyons, and Morris Needles’ (the “Lyons Defendants”) Motion for Relief…

Inherent Power Sanctions Require a High Degree of Specificity in Factual Findings of Bad Faith — Fee Award Must Be Causally Related to the Misconduct

Virginia Props., LLC v. T-Mobile NE LLC, 2017 WL 3197539 (2d Cir. July 28, 2017): *1 In April of this year—long after the district court’s imposition of sanctions in the case before us—the Supreme Court addressed “a federal court’s i ...

Virginia Props., LLC v. T-Mobile NE LLC, 2017 WL 3197539 (2d Cir. July 28, 2017): *1 In April of this year—long after the district court’s imposition of sanctions in the case before us—the Supreme Court addressed “a federal court’s inherent…

Blog Authentication Requires Testimony/Declaration Coupled with Circumstantial Indicia of Authenticity, Such as the Date & Web Address Appearing on Printout — Printouts from Commercial Websites Are Not Self-Authenticating

In re Carrsow-Franklin (Kennerty v. Carrsow-Franklin), 456 B.R. 753 (D.S.C. Bankr. Sept. 16, 2011): This matter comes before the Court on the Motion for Protective Order (“Motion”) filed by Herman John Kennerty (“Kennerty”). A hearing on the Motion was conducted on September 9, 2011. Cynthia Carrsow–Franklin (“Debtor”) s ...

Evidence from Provider That Phone Number Is Assigned to Party, and His Admission It Is His Phone, Authenticate Incoming Texts as Likely Received by Him — But the Contents Are Hearsay

People v. Harper, 2017 Ill. App. LEXIS 465 (Ill. Ct. App. July 13, 2017): In October 2014, defendant, Lafayette Harper, was convicted of first degree murder. In December 2014, the trial court sentenced him to 65 years in prison. Defendant appeals, raising the following arguments: (1) the State failed to prove his guil ...

People v. Harper, 2017 Ill. App. LEXIS 465 (Ill. Ct. App. July 13, 2017): In October 2014, defendant, Lafayette Harper, was convicted of first degree murder. In December 2014, the trial court sentenced him to 65 years in prison. Defendant…

Civil Service Reform Act Precludes Civil RICO Action by Federal Employee against Coworkers & Supervisors (Issue of First Impression in Ct. App.) — So, Too, Does Title VII — 6½ Year Delay in Deciding SJ No Reason to Reverse

González v. Vélez, 2017 WL 3124431 (1st Cir. July 24, 2017): *1 This is a federal-sector employment discrimination case, in which the plaintiffs have attempted to improve their lot by invoking extravagant theories of liability. The plaintiffs’ theories run headlong into an impenetrable barrier forged by th ...

Rule 16(f) Sanctions — Dismissal for Repeated Failures to Obey Scheduling Orders Despite Multiple Reprieves — Different Result If Deadlines Not Clearly Communicated

McKeague v. One World Techs., Inc., 2017 U.S. App. LEXIS 10240 (1st Cir. June 8, 2017): This appeal arises out of a civil case in which the plaintiff's two lawyers did nothing to prosecute the plaintiff's claims within generous deadlines, received a second chance, and then failed to oppose a pending motion for summary judgm ...

Spoliation — No Abuse of Discretion to Impose Monetary Sanctions & Not Adverse Inference Where Ex-Employee 4 Times Attempted to Delete Data from Hard Drive and Was Not Candid in Discovery (No Reference to Rule 37(e))

Integrated Direct Mktg., LLC v. May, 2017 U.S. App. LEXIS 9369 (4th Cir. May 30, 2017): PER CURIAM: Integrated Direct Marketing, LLC ("IDM") appeals the district court's grant of summary judgment to Drew May and Merkle, Inc. ("Merkle," collectively, "Defendants"), whom it accused of misappropri ...

Fee-Splitting Agreement Unenforceable for Lack of Client Consent Per Model Rule 1.5(e)(2) (Case law Split), But Quantum Meruit OK — “Defendants … Develop An Argument Grounded in Their Regret Rather Than on Terms of the … Agreement” (Good Quote)

Parker Waichman LLP v. Salas L/C, 2017 U.S. Dist. LEXIS 108823 (D.P.R. July 13, 2017): Before the Court is defendants John F. Nevares and Associates, P.S.C. ("Nevares")'s, Salas LC ("Salas")'s, and Eric J. Quetglas-Jordan d/b/a Quetglas Law Firm ("Quetglas")'s motion to dismiss plaintiff Parker Waichman ...

FRAP 39’s “Costs” Don’t Include Attorney’s Fees (F.R.Civ.P. 68 Distinguished) — Denial of “Costs” in Appellate Mandate Doesn’t Bar Award of Fees for Success on Appeal under Fee-Shifting Statute Defining Fees as “Costs”

Hines v. City of Albany, 2017 U.S. App. LEXIS 12042 (2d Cir. July 6, 2017): Constance and Marshay Hines appeal from an order of the United States District Court for the Northern District of New York (Suddaby, C.J.) denying their motion for attorneys' fees and costs pursuant to 42 U.S.C. § 1988. This is the third t ...

Blogs, Like Newspaper Articles, Are Hearsay When Offered for the Truth

Welch v. City of Albuquerque, 2016 WL 8809479 (D. N.M. May 13, 2016): *1 THIS MATTER comes before the Court upon Defendants Raymond Schultz, William Roseman, Cecil Knox, David Hubbard, Robert Smith, J.R. Potter, and Kevin Gagne’s (Defendants) Second Motion to Strike Plaintiff’s Response to Defendants’ Motion for ...

Commercial Litigation and Arbitration

Rule 11 Sanctions — Safe Harbor Must Be Honored Only Once Per Motion — If Denied without Prejudice, Motion May Be Renewed without Additional Safe Harbor — Needn’t Be 100% Identical 2d Time But Must Be Essentially the Same Motion (Case Law Split)

Inherent Power Sanctions Require a High Degree of Specificity in Factual Findings of Bad Faith — Fee Award Must Be Causally Related to the Misconduct

Blog Authentication Requires Testimony/Declaration Coupled with Circumstantial Indicia of Authenticity, Such as the Date & Web Address Appearing on Printout — Printouts from Commercial Websites Are Not Self-Authenticating

Evidence from Provider That Phone Number Is Assigned to Party, and His Admission It Is His Phone, Authenticate Incoming Texts as Likely Received by Him — But the Contents Are Hearsay

Civil Service Reform Act Precludes Civil RICO Action by Federal Employee against Coworkers & Supervisors (Issue of First Impression in Ct. App.) — So, Too, Does Title VII — 6½ Year Delay in Deciding SJ No Reason to Reverse

Rule 16(f) Sanctions — Dismissal for Repeated Failures to Obey Scheduling Orders Despite Multiple Reprieves — Different Result If Deadlines Not Clearly Communicated

Spoliation — No Abuse of Discretion to Impose Monetary Sanctions & Not Adverse Inference Where Ex-Employee 4 Times Attempted to Delete Data from Hard Drive and Was Not Candid in Discovery (No Reference to Rule 37(e))

Fee-Splitting Agreement Unenforceable for Lack of Client Consent Per Model Rule 1.5(e)(2) (Case law Split), But Quantum Meruit OK — “Defendants … Develop An Argument Grounded in Their Regret Rather Than on Terms of the … Agreement” (Good Quote)

FRAP 39’s “Costs” Don’t Include Attorney’s Fees (F.R.Civ.P. 68 Distinguished) — Denial of “Costs” in Appellate Mandate Doesn’t Bar Award of Fees for Success on Appeal under Fee-Shifting Statute Defining Fees as “Costs”

Blogs, Like Newspaper Articles, Are Hearsay When Offered for the Truth

Recent Posts

RICO: Statutory Requirement that RICO Be Liberally Construed Does Not Establish a More Liberal Pleading Standard for RICO Claims — “To Be Sure, Adequately Pleading a RICO Claim Can Be Challenging” (Good Quote) — Court May Dismiss Action Pursuant to Rule 41(b) Absent A Motion

For An Appeal to Be Timely, A Motion for Reconsideration in The District Court (A Rule 59(e) Motion) Must Be Filed, And Not Just Served within 30 Days of The Decision, to Toll The 30-Day Period for Filing An Appeal

There Is No Good-Faith Defense For Issuing An Overly Burdensome Subpoena

Purposes of Rule 37 and Section 1927 Sanctions

While Rule 11 Doesn’t Apply to Appellate Proceedings (Unless It Has Been Incorporated in Local Appellate Rules), Rule 11 Caselaw Is Looked to for Guidance in Interpreting Applicable Sanctions Powers on Appeal

Rule 11 Sanctions & Appellate Review: Abuse of Discretion Standard Applies Unless Sanctions Are Based Solely (Not Just in Part) on Legal Issues, in Which Case Review Is De Novo

Spoliation: Fed. R. Civ. P. 37(e) Imposes a Higher Standard — Intent — Than Fourth Circuit Law Previously Applied to Spoliation of Electronically-Stored Information (And Still Does As to Non-ESI) — Willfulness vs. Intent

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