Complex Lit Blog

Does Federal or State Law Govern Waiver of Arbitration or Forum Selection Clause? (Uncertain) — Test for Waiver — Fed Law Governs Enforceability, State/Chosen Law Interpretation — Error to Deny Timely 1st Motion to Amend Not Shown to Be Moot

SGIC Strategic Global Inv. Capital, Inc. v. Burger King Europe GMBH, 2016 U.S. App. LEXIS 18304 (5th Cir. Oct. 10, 2016): This case arises from a series of disputes over Burger King franchises located in Germany. The district court granted Defendant-Appellee's motion to dismiss Plaintiffs-Appellants' claims on grounds of forum ...

Text/Email Evidence — Only Outgoing Messages from Party’s Phone Are Admissions — Incoming Are Hearsay [and Must Fall within an Exception or Be Offered for a Non-Hearsay Purpose]

Glispie v. State, 2016 Ga. LEXIS 736 (Ga. S.Ct. Nov. 7, 2016): In Glispie v. State, 335 Ga. App. 177 (779 SE2d 767) (2015), the Court of Appeals affirmed Jaylend Glispie's convictions for violation of the Georgia Controlled Substance Act and certain driving offenses. We granted certiorari to consider the following two que ...

Spoliation — No Adverse Inference If No Causation Because Pertinent Claims Dismissed for Reasons Adverse Inference Wouldn’t Address or Cure

Lopez v. City of West Miami, 2016 U.S. App. LEXIS 18582 (11th Cir. Oct. 17, 2016): Myrna Lopez appeals the district court's grant of summary judgment in favor of her former employer, the City of West Miami, on her claims under the Family and Medical Leave Act, 29 U.S.C. § 2611, et seq., as well as the district court' ...

Removal — Diversity Jurisdiction — In Declaratory & Injunctive Actions, the Amount in Controversy = Value of the Object of the Litigation — Is Injunctive Relief Measured from Perspective of Plaintiff or Defendant? — Circuit Split

Poplar Avalon, LLC v. Sprintcom, Inc., 2016 U.S. Dist. LEXIS 86497 (W.D. Tenn. July 5, 2016): Before the Court is Plaintiff Poplar Avalon, LLC's Motion to Remand (ECF No. 8) filed on June 14, 2016. Defendant Sprintcom, Inc. has responded in opposition. For the reasons set forth below, the Motion to Remand is DENIED

FRAP 38 and § 1927 Sanctions Should Not Be Imposed on Appellant Raising Issue of First Impression — It Is Not Multiplicitous to Raise A Single, Narrow Issue on Appeal

Suazo v. NCL (Bahamas), Ltd., 2016 U.S. App. LEXIS 8575 (11th Cir. May 10, 2016): In this appeal, we address a question of first impression in the Circuit: whether a cruise ship employee who is injured on the job, and whose employment contract contains an arbitration agreement governed by the New York Convention and Chapter 2 ...

Suazo v. NCL (Bahamas), Ltd., 2016 U.S. App. LEXIS 8575 (11th Cir. May 10, 2016): In this appeal, we address a question of first impression in the Circuit: whether a cruise ship employee who is injured on the job, and …

Judicial Notice of Internet Evidence — State Agency Administrative Directive As Appearing on Agency Website

Chambers v. Johnpierre, 2016 U.S. Dist. LEXIS 135140 (D. Conn. Sept. 30, 2016): An inmate at a Connecticut Department of Correction facility who wishes to file a grievance must follow the procedure established in Connecticut Department of Correction Administrative Directive 9.6 ("Directive"). See Administrat ...

Chambers v. Johnpierre, 2016 U.S. Dist. LEXIS 135140 (D. Conn. Sept. 30, 2016): An inmate at a Connecticut Department of Correction facility who wishes to file a grievance must follow the procedure established in Connecticut Department of Correction Administrative Directive …

RICO Personal Jurisdiction — Does § 1965 Provide Nationwide Jurisdiction or Only Nationwide Service? — Circuit Split — Issue: Must Plaintiff 1st Establish Personal Jurisdiction Over 1 Defendant before Court May Exercise Jurisdiction Over Nonresiden

Domain Protection LLC v. Keating, 2016 U.S. Dist. LEXIS 135093 (N.D. Tex. Sept. 30, 2016): Before the court are Defendant Paul Keating's Renewed Motion to Dismiss (Doc. 9), filed September 2, 2015; and Plaintiff Domain Protection's Motion for Reconsideration (Doc. 23), filed April 18, 2016. After carefully considering the moti ...

Social Media Evidence — Pick Your User Name At Your Peril: Facebook User Name Admitted Over Objection That It Constituted Inadmissible Character Evidence

Commonwealth v. Clancy, 2017 Pa. Super. Unpub. LEXIS 673 (Pa. Super. Ct. Feb. 22, 2017): Appellant, Javonn Eric Clancy, appeals from the order entered in the Beaver County Court of Common Pleas, which denied his first petition brought pursuant to the Post Conviction Relief Act ("PCRA").1 We affirm. *** ...

Sanctions — Spoliation — While District Court Is Generally Required to Give Reasons for Denying Sanctions, It Need Not Belabor the Obvious (Good Quote)

Saldivar v. Austin Independent School Dist., 2016 U.S. App. LEXIS 23389 (5th Cir. Dec. 29, 2016): PER CURIAM:* * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in $W5t ...

Appeals — Circuit Won’t Consider Args. Lacking the Reasoning, Authorities Required by FRAP 28(a)(8)(A) — RICO SOL Not Based on Last Predicate Rule — Court Construes Pro Se Filings Liberally But Isn’t Their Advocate (Good Quote)

Armstrong v Wyoming Dept. of Envt’l Quality, 2017 U.S. App. LEXIS 179 (10th Cir. Jan. 5, 2017): * After examining Armstrong's brief and the appellate record, this panel has determined unanimously that oral argument wouldn't materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th ...

Commercial Litigation and Arbitration

Does Federal or State Law Govern Waiver of Arbitration or Forum Selection Clause? (Uncertain) — Test for Waiver — Fed Law Governs Enforceability, State/Chosen Law Interpretation — Error to Deny Timely 1st Motion to Amend Not Shown to Be Moot

Text/Email Evidence — Only Outgoing Messages from Party’s Phone Are Admissions — Incoming Are Hearsay [and Must Fall within an Exception or Be Offered for a Non-Hearsay Purpose]

Spoliation — No Adverse Inference If No Causation Because Pertinent Claims Dismissed for Reasons Adverse Inference Wouldn’t Address or Cure

Removal — Diversity Jurisdiction — In Declaratory & Injunctive Actions, the Amount in Controversy = Value of the Object of the Litigation — Is Injunctive Relief Measured from Perspective of Plaintiff or Defendant? — Circuit Split

FRAP 38 and § 1927 Sanctions Should Not Be Imposed on Appellant Raising Issue of First Impression — It Is Not Multiplicitous to Raise A Single, Narrow Issue on Appeal

Judicial Notice of Internet Evidence — State Agency Administrative Directive As Appearing on Agency Website

RICO Personal Jurisdiction — Does § 1965 Provide Nationwide Jurisdiction or Only Nationwide Service? — Circuit Split — Issue: Must Plaintiff 1st Establish Personal Jurisdiction Over 1 Defendant before Court May Exercise Jurisdiction Over Nonresiden

Social Media Evidence — Pick Your User Name At Your Peril: Facebook User Name Admitted Over Objection That It Constituted Inadmissible Character Evidence

Sanctions — Spoliation — While District Court Is Generally Required to Give Reasons for Denying Sanctions, It Need Not Belabor the Obvious (Good Quote)

Appeals — Circuit Won’t Consider Args. Lacking the Reasoning, Authorities Required by FRAP 28(a)(8)(A) — RICO SOL Not Based on Last Predicate Rule — Court Construes Pro Se Filings Liberally But Isn’t Their Advocate (Good Quote)

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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