Complex Lit Blog

Rule 37 Sanctions: Broad Judicial Discretion, Multifactor Test (2d Cir.) — May Plaintiff Proceed to Trial Anonymously: Discretionary, Multifactor Test — Waiver of Privilege Reviewed for Abuse of Discretion

Doe v. Delta Airlines Inc., 2016 U.S. App. LEXIS 21270 (2d Cir. Nov. 29, 2016): UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the orders of the District Court be and hereby are AFFIRMED. Plaintiff-Appellant Jane Doe appeals from nine orders of the District C ...

Doe v. Delta Airlines Inc., 2016 U.S. App. LEXIS 21270 (2d Cir. Nov. 29, 2016): UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the orders of the District Court be and hereby are AFFIRMED. Plaintiff-Appellant…

Inherent Power Sanctions — $100,000 in Fees for Frivolous Bankruptcy (Ch. 7) Filing — Bad Faith Need Not Be Shown by Clear and Convincing Evidence — Bad Faith Finding Reviewed for Clear Error

In re Little Rest Twelve, Inc. (Zeltser v. Little Rest Twelve, Inc.), 2016 U.S. App. LEXIS 21803 (11th Cir. Dec. 8, 2016): Emanuel Zeltser appeals a bankruptcy court's orders sanctioning him for filing a bankruptcy petition in bad faith and awarding Little Rest Twelve, Inc. the amount of legal fees incurred as a result of that pet ...

Adverse Inference against Client Based on His Lawyer’s Invocation of Fifth Amendment — No Claim in NY for Harm to C Based on A’s Deception of B and B’s Action in Reliance, But C Has Claim If B Conveyed the Misstatement & C Relied on It Directly

Amusement Indus., Inc. v. Stern, 2016 U.S. Dist. LEXIS 163036 (S.D.N.Y. Nov. 10, 2016): Plaintiff Amusement Industry, Inc. ("Amusement") moves for summary judgment as against defendant Moses Stern. In a report and recommendation dated August 10, 2016 [DI 862] (the "R&R"), familiarity with which is assumed, Magi ...

Pending Spoliation Motion Waived by Litigating Summary Judgment and Failing to Alert Court That the Spoliation Motion Could Affect SJ Outcome

Helget v. City of Hays, 2017 U.S. App. LEXIS 140 (10th Cir. Jan. 4, 2017): Firma Helget worked for the City of Hays, Kansas, as the administrative secretary for the Hays Police Department. In 2012, the City terminated Helget, and she initiated this 42 U.S.C. § 1983 action against the City, City Manager Toby Dougherty, and Police Chie ...

RICO — Failure to Identify Each Defendant’s Racketeering Activity, Treating All Defendants As a Single Entity, Fails to Satisfy 9(b) — Conclusory Allegations of Non-Fraud Predicates May Render Complaint Unintelligible

Transatlantic, LLC v. Humana, Inc., 2016 U.S. App. LEXIS 20264 (11th Cir. Nov. 10, 2016): PER CURIAM: Transatlantic, LLC, appeals the dismissal of its third amended complaint against Humana, Inc., Humana Insurance Company, Humana Health Insurance Company of Florida, Inc., Humana Medical Plan, Inc., and PCA Family Health Plans o ...

Judicial Notice of Internet Evidence on 12(b)(6) Motion — Defendant’s Website — Current and Older Versions as Displayed on Wayback Machine Based on Complaint’s Reference to Website

Galanis v. Starbucks Corp., 2016 U.S. Dist. LEXIS 142380 (N.D. Ill. Oct. 14, 2016): Memorandum Opinion and Order Steven Galanis alleges that Starbucks deceives its customers by misrepresenting the volume of its cold drinks because much of the volume is taken up by ice. Galanis alleges that this ...

Galanis v. Starbucks Corp., 2016 U.S. Dist. LEXIS 142380 (N.D. Ill. Oct. 14, 2016): Memorandum Opinion and Order Steven Galanis alleges that Starbucks deceives its customers by misrepresenting the volume of its cold drinks because much of the volume is …

No Rule 11/Inherent Power Sanctions Where Law Unsettled, Lower Courts Agreed — No Attorney’s Fees for Pro Se — Mere Misstatement ≠ Bad Faith — Court Always Has Jurisdiction over Bond — Failing to Object ≠ Invited Error

City of Riviera Beach v. That Certain Unnamed Gray, Two-Story Vessel Approximately Fifty-Seven Feet in Length, 2016 U.S. App. LEXIS 21310 (11th Cir. Nov. 29, 2016): Fane Lozman, proceeding pro se, appeals the district court's judgment and several orders in a case brought in admiralty against his floating home by the City of Rivier ...

Emails between Prospective Partners Not Business Records Where No One Was Responsible for Keeping Them, It Was Unclear Which Were Required or Who Was Custodian — Use of “Indentured Servitude” on Summation OK

Queen v. Schultz, 2016 U.S. App. LEXIS 23479 (D.C. Cir. Dec. 9, 2016): This appeal was considered on the record from the United States District Court for the District of Columbia, and briefed and argued by counsel. The Court has accorded the issues full consideration and has determined that they do not warrant a published opinion.

Texts Sent=Admissions, Received=Context — Facebook Posts Authenticated by Nickname, DOB, Residence, Email Addresses, Photos (Which Also Appear on Owner’s Phone), FB Application and Contents — Corroborative vs. Cumulative Evidence

United States v. Lewisbey, 843 F.3d 653 (7th Cir. Dec. 9, 2016): David Lewisbey was a Chicago-based gunrunner who used a fake Indiana I.D. to buy guns at Indiana gun shows and bring them back to Illinois to sell. He came to the attention of law enforcement when he bragged about his gunrunning exploits on Facebook. Fed ...

Docs [Emails] Created by Adversary & Produced=Admissions, Even If Not Business Records — Sham Affidavit Rule: Inconsistency Going to Credibility Not Necly Sham — Summary Judgment: Conclusory Affidavits Ignored; More Leeway Given to SJ Opponent

Daniels v. Tex. Dept. of Transp., 2016 U.S. Dist. LEXIS 171017 (E.D. Tex. Dec. 10, 2016): MEMORANDUM OPINION AND ORDER Pending before the Court are Defendants Texas Department of Transportation's ("TxDOT") and Executive Director James M. Bass's, in his official capacity, ("Bass&quo ...

Daniels v. Tex. Dept. of Transp., 2016 U.S. Dist. LEXIS 171017 (E.D. Tex. Dec. 10, 2016): MEMORANDUM OPINION AND ORDER Pending before the Court are Defendants Texas Department of Transportation's ("TxDOT") and Executive Director James M. Bass's, in his official…

Commercial Litigation and Arbitration

Rule 37 Sanctions: Broad Judicial Discretion, Multifactor Test (2d Cir.) — May Plaintiff Proceed to Trial Anonymously: Discretionary, Multifactor Test — Waiver of Privilege Reviewed for Abuse of Discretion

Inherent Power Sanctions — $100,000 in Fees for Frivolous Bankruptcy (Ch. 7) Filing — Bad Faith Need Not Be Shown by Clear and Convincing Evidence — Bad Faith Finding Reviewed for Clear Error

Adverse Inference against Client Based on His Lawyer’s Invocation of Fifth Amendment — No Claim in NY for Harm to C Based on A’s Deception of B and B’s Action in Reliance, But C Has Claim If B Conveyed the Misstatement & C Relied on It Directly

Pending Spoliation Motion Waived by Litigating Summary Judgment and Failing to Alert Court That the Spoliation Motion Could Affect SJ Outcome

RICO — Failure to Identify Each Defendant’s Racketeering Activity, Treating All Defendants As a Single Entity, Fails to Satisfy 9(b) — Conclusory Allegations of Non-Fraud Predicates May Render Complaint Unintelligible

Judicial Notice of Internet Evidence on 12(b)(6) Motion — Defendant’s Website — Current and Older Versions as Displayed on Wayback Machine Based on Complaint’s Reference to Website

No Rule 11/Inherent Power Sanctions Where Law Unsettled, Lower Courts Agreed — No Attorney’s Fees for Pro Se — Mere Misstatement ≠ Bad Faith — Court Always Has Jurisdiction over Bond — Failing to Object ≠ Invited Error

Emails between Prospective Partners Not Business Records Where No One Was Responsible for Keeping Them, It Was Unclear Which Were Required or Who Was Custodian — Use of “Indentured Servitude” on Summation OK

Texts Sent=Admissions, Received=Context — Facebook Posts Authenticated by Nickname, DOB, Residence, Email Addresses, Photos (Which Also Appear on Owner’s Phone), FB Application and Contents — Corroborative vs. Cumulative Evidence

Docs [Emails] Created by Adversary & Produced=Admissions, Even If Not Business Records — Sham Affidavit Rule: Inconsistency Going to Credibility Not Necly Sham — Summary Judgment: Conclusory Affidavits Ignored; More Leeway Given to SJ Opponent

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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