Complex Lit Blog

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 ...

Rule 36 Admissions — Judge “Implicitly” Allowed Withdrawal by Admitting Contrary Testimony: “To Order a New Trial on the Basis of a Technical Error Would Be to Arrogate Form over Substance, Wasting Everybody’s Time to No Purpose” (Good Quote)

The plaintiff, which for simplicity we'll call just Tate, sells ingredients used in the food and beverage industry. The defendant, Glatt, a member of a substantial German conglomerate called the Glatt group, sells processing equipment to the food industry. In 2008 Tate and Glatt made a contract whereby Glatt would for $7,042,022 design and build a three-story ...

Equivocal Texts ≠ Statements against Penal Interest — Mere Possibility Witness Might Invoke Fifth ≠ Unavailability — Authentication of Texts by Evidence of Phone Ownership & Contents OK, But Double Hearsay, Cloudy Circumstances Insufficient

Cottmeyer v. State, 2017 Md. App. LEXIS 725 (Md. Ct. Spec. App. July 17, 2017): Appellant, Matthew Everett Cottmeyer, was charged in the Circuit Court for Somerset County, Maryland, with first degree burglary, conspiracy to commit first degree burglary, theft between $1,000 and $10,000, and related offenses. Appellant was acquitted by ...

Attorney-Client Privilege & Work Product: Mere Allegations, Bare Assertions Insufficient to Invoke Crime-Fraud Exception — What Is a Prima Facie Showing? — Client’s Current Law Firm May Appeal via Perlman

In re Grand Jury Subpoena, 2017 U.S. App. LEXIS 10690 (3d Cir. June 16, 2017): * This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent. This case involves the application of the crime-fraud exception to the attorney-client and work-product privileges in the con ...

Commercial Litigation and Arbitration

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

Rule 36 Admissions — Judge “Implicitly” Allowed Withdrawal by Admitting Contrary Testimony: “To Order a New Trial on the Basis of a Technical Error Would Be to Arrogate Form over Substance, Wasting Everybody’s Time to No Purpose” (Good Quote)

Equivocal Texts ≠ Statements against Penal Interest — Mere Possibility Witness Might Invoke Fifth ≠ Unavailability — Authentication of Texts by Evidence of Phone Ownership & Contents OK, But Double Hearsay, Cloudy Circumstances Insufficient

Attorney-Client Privilege & Work Product: Mere Allegations, Bare Assertions Insufficient to Invoke Crime-Fraud Exception — What Is a Prima Facie Showing? — Client’s Current Law Firm May Appeal via Perlman

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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