Complex Lit Blog

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 ...

Inherent Power Sanctions for Filing Notice of Dismissal Instead of Agreeing to Dismiss with Prejudice — Fact Plaintiff Had to Post Bond to Sue Put Lawyer on Notice of Potential Frivolousness — Bad Faith, Improper Purpose Interchangeable in 6th Circuit

U.S. ex rel. Tingley v. PNC Fin’l Servs. Grp., 2017 WL 3098178 (6th Cir. July 21, 2017): *1 Relator William Tingley, III repeatedly filed claims alleging varying theories of liability—including liability under the False Claims Act and Michigan’s Hazardous Waste Management Act and liability for bank fraud, tax ev ...

Sanctions — Finding of Professional Misconduct Appealable Even If No Sanction Imposed — Extrajudicial Conduct Sanctionable under Inherent Power — Rule 41(a)(1) Dismissal OK for Any Reason, Including to “Flee the Jurisdiction or the Judge”

Adams v. USAA Cas. Ins. Co., 2017 U.S. App. LEXIS 13369 (8th Cir. July 25, 2017): In this consolidated appeal, the appellants, attorneys for plaintiffs2 and defendants3 in a putative class action, appeal from the district court's orders (1) finding that the appellants violated Federal Rule of Civil Procedure ...

Judicial Notice of Internet Evidence: Notice Taken on 12(b)(1) Motion of Records on Gov’t & University Websites, and Docs Obtained via FOIA, for Purpose of Showing the Info Was Publicly Available — Wayback Machine Results, Too

U.S. ex rel. Hong v. Newport Sensors, Inc., 2016 U.S. Dist. LEXIS 188295 (C.D. Cal. May 19, 2016): PROCEEDINGS: (IN CHAMBERS) ORDER GRANTING DEFENDANTS' MOTION TO DISMISS THE SECOND AMENDED COMPLAINT AND DENYING AS MOOT DEFENDANTS' MOTION TO STRIKE (Doc. 52) Before the Court is a Motion to Dismi ...

U.S. ex rel. Hong v. Newport Sensors, Inc., 2016 U.S. Dist. LEXIS 188295 (C.D. Cal. May 19, 2016): PROCEEDINGS: (IN CHAMBERS) ORDER GRANTING DEFENDANTS' MOTION TO DISMISS THE SECOND AMENDED COMPLAINT AND DENYING AS MOOT DEFENDANTS' MOTION TO STRIKE (Doc. …

§ 1927 Sanctions: Recklessness Alone Insufficient — Argument Not Frivolous If Issue Unresolved and Out-of-Circuit Precedent Supports It — Failure to Withdraw Claim & Opposing Dismissal Once Aware of Baselessness Is Sanctionable

Stone Creek, Inc. v Omnia Italian Design, Inc., 2017 U.S. App. LEXIS 12393 (9th Cir. July 11, 2017): This appeal, set in the high-stakes world of furniture sales, runs the gamut of trademark infringement issues. The facts are somewhat unusual: the alleged infringer, leather furniture manufacturer Omnia I ...

Commercial Litigation and Arbitration

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

Inherent Power Sanctions for Filing Notice of Dismissal Instead of Agreeing to Dismiss with Prejudice — Fact Plaintiff Had to Post Bond to Sue Put Lawyer on Notice of Potential Frivolousness — Bad Faith, Improper Purpose Interchangeable in 6th Circuit

Sanctions — Finding of Professional Misconduct Appealable Even If No Sanction Imposed — Extrajudicial Conduct Sanctionable under Inherent Power — Rule 41(a)(1) Dismissal OK for Any Reason, Including to “Flee the Jurisdiction or the Judge”

Judicial Notice of Internet Evidence: Notice Taken on 12(b)(1) Motion of Records on Gov’t & University Websites, and Docs Obtained via FOIA, for Purpose of Showing the Info Was Publicly Available — Wayback Machine Results, Too

§ 1927 Sanctions: Recklessness Alone Insufficient — Argument Not Frivolous If Issue Unresolved and Out-of-Circuit Precedent Supports It — Failure to Withdraw Claim & Opposing Dismissal Once Aware of Baselessness Is Sanctionable

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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