Complex Lit Blog

Texts Authenticated by Fact They Reflect They Came from Sender & Bore Defendant’s Nickname & One Came with His Photo, Evidence Phone Number Was Defendant’s and by the Contents of the Messages

Reyes-Mendoza v. State, 2015 Md. App. LEXIS 388 (Ct. Spec. App. Sept. 29, 2015): On January 31, 2014, a jury in the Circuit Court for Prince George's County convicted Marvin Reyes-Mendoza of attempted first degree murder and related crimes in connection with his participation in a drive-by shooting. The court sentenced appellant t ...

Venue — Internet Acts Occur Where Effects Felt — Permissive Forum Selection Clause Doesn’t Require § 1404 Transfer — Does § 1391(b)(2)’s “Events or Omissions Giving Rise to the Claim” Refer Only to Def’s Acts (Circuit Split)

Volks USA Inc. v. A2 Hosting, Inc., 2016 U.S. Dist. LEXIS 159595 (C.D. Cal. Nov. 16, 2016): I. INTRODUCTION On June 15, 2016, Volks USA, Inc. ("Volks") filed this action against A2 Hosting Inc. ("A2"). On September 1, 2016, plaintiff filed the operative First Amended Complaint ("FAC&qu ...

Volks USA Inc. v. A2 Hosting, Inc., 2016 U.S. Dist. LEXIS 159595 (C.D. Cal. Nov. 16, 2016): I. INTRODUCTION On June 15, 2016, Volks USA, Inc. ("Volks") filed this action against A2 Hosting Inc. ("A2"). On September 1, 2016, plaintiff…

Sanctions — If Only Appellate Challenge Is to District Court’s Jurisdiction to Award Sanctions, Review Is De Novo, Not Abuse of Discretion — District Court Has Jurisdiction to Issue Post-Judgment, Inherent Power Sanctions

Haagensen v. Reed, 2016 U.S. App. LEXIS 20473 (3d Cir. Nov. 15, 2016): OPINION1 1 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent. In 2006, Janice Haagensen, as personal representative of her mother's estate, initiated a quie ...

Internet Evidence — Adversary’s Website Admissible as Party Admission and For Impeachment Purposes

San Diego Gas & Elec. Co. v. ABB, Inc., 2016 U.S. Dist. LEXIS 157346 (S.D. Cal. Nov. 14, 2016): Plaintiffs San Diego Gas & Electric Company ("SDG&E") and those certain underwriters at Lloyds of London ("Underwriters") subscribing to policy numbers DG 103412 and DG 103712 (collectively "Plaintiffs"), have ...

Judicial Notice of Internet Evidence — Materials on FDA Website, Both Those Generated by FDA and Non-FDA Studies Required to Be Submitted to FDA

Caton v. Stryker Sustainability Solutions, Inc., 2015 U.S. Dist. LEXIS 181033 (C.D. Cal. May 12, 2015): Proceedings (In Chambers): Order GRANTING IN PART and DENYING IN PART Motion to Dismiss Before the Court is Defendants Corin Group PLC and Corin USA Limited's (collectively, "Corin Defendant ...

Caton v. Stryker Sustainability Solutions, Inc., 2015 U.S. Dist. LEXIS 181033 (C.D. Cal. May 12, 2015): Proceedings (In Chambers): Order GRANTING IN PART and DENYING IN PART Motion to Dismiss Before the Court is Defendants Corin Group PLC and Corin …

Not All Inherent Power Sanctions Require Bad Faith (8th Cir.) — Sanctions Denied under Rule 11, 1927 & Inherent Power Where Some Claims Survived 12(c) and Summary Judgment Motions

Duranseau v. Portfolio Recovery Assocs., LLC, 644 F. App'x 702 (8th Cir. 2016): Harvey Duranseau sued Portfolio Recovery Associates, LLC (PRA), alleging violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692 et seq., and Minnesota law. The parties filed cross-motions for summary judgment on, amo ...

Who Bears the Burden of Proof on a Motion to Enforce a Contractual Waiver of the Right to a Jury Trial? — Circuit Split

Regions Comm'l Equip. Fin., LLC v. Performance Aviation, LLC, 2016 U.S. Dist. LEXIS 154782 (S.D. Miss. Nov. 8, 2016): "[A]s the right of jury trial is fundamental, courts indulge every reasonable presumption against waiver." Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S. Ct. 809, 81 L. Ed. 1177 ...

Regions Comm'l Equip. Fin., LLC v. Performance Aviation, LLC, 2016 U.S. Dist. LEXIS 154782 (S.D. Miss. Nov. 8, 2016): "[A]s the right of jury trial is fundamental, courts indulge every reasonable presumption against waiver." Aetna Ins. Co. v. Kennedy, 301…

Is a Venue Transfer Pursuant to 28 U.S.C. § 1631 Permitted for Lack of Personal Jurisdiction or Only for Lack of Subject Matter Jurisdiction? — Circuit Split — Factors Governing Transfer under § 1631

Companion Prop. & Cas. Ins. Co. v. U.S. Bank N.A., 2016 U.S. Dist. LEXIS 158389 (D.S.C. Nov. 16, 2016): 17 In response to the motion to dismiss his fourth-party complaint, Burns requests, in the event the court concludes that it lacks personal jurisdiction over USBT, that the court transfer the action to the U.S. District Court fo ...

Rule 37(b) Sanctions Not Imposable in Absence of Court Order That Was Violated

Williams v. Alabama Dept. of Corrections, 2016 U.S. App. LEXIS 9070 (11th Cir. May 18, 2016): Orlando Williams, proceeding pro se, appeals the district court's grant of summary judgment and judgment as a matter of law in favor of the defendants in his employment discrimination and retaliation suit. In his second a ...

Williams v. Alabama Dept. of Corrections, 2016 U.S. App. LEXIS 9070 (11th Cir. May 18, 2016): Orlando Williams, proceeding pro se, appeals the district court's grant of summary judgment and judgment as a matter of law in favor of the …

RICO: § 1964(c), Like Most Statutes, Doesn’t Create Private Contractual Right against Government (It’s Not an “Offer” a Plaintiff Can “Accept” by Filing Suit, Such That Dismissal = Breach) — Dismissal of RICO Claim ≠ Taking

Julian v. United States, 2016 U.S. App. LEXIS 14233 (Fed. Cir. Aug. 4, 2016): Plaintiffs Christopher B. Julian and Renee G. Julian filed suit in the United States Court of Federal Claims alleging that the government breached an implied contract and/or violated the Fifth Amendment's Takings Clause when the United States Dis ...

Julian v. United States, 2016 U.S. App. LEXIS 14233 (Fed. Cir. Aug. 4, 2016): Plaintiffs Christopher B. Julian and Renee G. Julian filed suit in the United States Court of Federal Claims alleging that the government breached an implied contract …

Commercial Litigation and Arbitration

Texts Authenticated by Fact They Reflect They Came from Sender & Bore Defendant’s Nickname & One Came with His Photo, Evidence Phone Number Was Defendant’s and by the Contents of the Messages

Venue — Internet Acts Occur Where Effects Felt — Permissive Forum Selection Clause Doesn’t Require § 1404 Transfer — Does § 1391(b)(2)’s “Events or Omissions Giving Rise to the Claim” Refer Only to Def’s Acts (Circuit Split)

Sanctions — If Only Appellate Challenge Is to District Court’s Jurisdiction to Award Sanctions, Review Is De Novo, Not Abuse of Discretion — District Court Has Jurisdiction to Issue Post-Judgment, Inherent Power Sanctions

Internet Evidence — Adversary’s Website Admissible as Party Admission and For Impeachment Purposes

Judicial Notice of Internet Evidence — Materials on FDA Website, Both Those Generated by FDA and Non-FDA Studies Required to Be Submitted to FDA

Not All Inherent Power Sanctions Require Bad Faith (8th Cir.) — Sanctions Denied under Rule 11, 1927 & Inherent Power Where Some Claims Survived 12(c) and Summary Judgment Motions

Who Bears the Burden of Proof on a Motion to Enforce a Contractual Waiver of the Right to a Jury Trial? — Circuit Split

Is a Venue Transfer Pursuant to 28 U.S.C. § 1631 Permitted for Lack of Personal Jurisdiction or Only for Lack of Subject Matter Jurisdiction? — Circuit Split — Factors Governing Transfer under § 1631

Rule 37(b) Sanctions Not Imposable in Absence of Court Order That Was Violated

RICO: § 1964(c), Like Most Statutes, Doesn’t Create Private Contractual Right against Government (It’s Not an “Offer” a Plaintiff Can “Accept” by Filing Suit, Such That Dismissal = Breach) — Dismissal of RICO Claim ≠ Taking

Recent Posts

RICO: Indirect Purchasers (Car Buyers/Renters) Lack Standing to Sue Manufacturers for RICO Violations Even Though Intermediaries (Auto Dealer Direct Purchasers) Lack Any Damages

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

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