Complex Lit Blog

Rule 16(f) and 37(b)(2)(A) Sanctions: Fifth Circuit Factors for Case-Ending Sanctions and for 37(b)(2) Sanctions Generally — Preclusion, Including Exclusion of Experts, Is Not as Drastic as Dismissal or Default — The Fact that Exclusion May Have the Legal Consequence of Dismissal (Or Any Other Consequence) Does Not Affect the Appropriateness of the Sanction

Williams v. Am. Honda Motor Co., Inc., 2023 U.S. App. LEXIS 13420 (5th Cir. May 31, 2023) (unpublished) PER CURIAM:* * This opinion is not designat ...

Williams v. Am. Honda Motor Co., Inc., 2023 U.S. App. LEXIS 13420 (5th Cir. May 31, 2023) (unpublished) PER CURIAM:* * This opinion is not designated for publication. See 5TH CIR. R. 47.5. *1 Following a car accident,…

Rule 37(c)(1) Requires Exclusion of Undisclosed, Or Untimely Disclosed, Evidence — Here, Expert Report — Unless The Target of Sanctions Moves The Court to Consider Lesser Sanctions

Cantrell v. Coloplast Corp., 2023 U.S. App. LEXIS 20785 (8th Cir. Aug. 10, 2023): Opinion *1 Coloplast Corporation and Coloplast Manufacturing US, LLC (collectively, Coloplast) manufacture and market Restorelle L, a

Cantrell v. Coloplast Corp., 2023 U.S. App. LEXIS 20785 (8th Cir. Aug. 10, 2023): Opinion *1 Coloplast Corporation and Coloplast Manufacturing US, LLC (collectively, Coloplast) manufacture and market Restorelle L, a surgical mesh device. Angela Cantrell sued Coloplast for injuries…

Sanctions — Conditional Payment of Monetary Award Prevents Mootness — Contempt Sanction — Payment into Court Escrow Account — Court Can Declare Effective Relief By Ordering That The Sum Paid Be Returned

In re Sealed Case, 2023 U.S. App. LEXIS 20733 (D.C. Cir. July 18, 2023): Pan, Circuit Judge:* The district court issued a search warrant in a criminal case, directing appellant ...

In re Sealed Case, 2023 U.S. App. LEXIS 20733 (D.C. Cir. July 18, 2023): Pan, Circuit Judge:* The district court issued a search warrant in a criminal case, directing appellant Twitter, Inc. (“Twitter”) to produce information to the government …

Fraud on the Court

Nat’l Oilwell Varco, LP v. Auto-Dril, Inc., 68 F.4th 206 (5th Cir. 2023): “To establish fraud on the court, ‘it is necessary to show an unconscionable plan or scheme which is designed to improperly influence the court in its decision.’ ”

Inherent Power Sanctions – Extrajudicial Misconduct: 1. Unilaterally obtaining $300 million arbitration award, absent an arbitration agreement or notice to adversary, is sanctionable even though it precedes commencement of bad faith attempt to confirm award in federal court. 2. District Court retained jurisdiction to rule on sanctions motion filed prior to notice of appeal of decision vacating arbitration award. 3. FRAP 38 appellate sanctions denied for failure to make separate motion.

Matios v. City of Loveland, 2023 U.S. App. LEXIS 15749 (10th Cir. June 23, 2023) (unpublished)

Matios v. City of Loveland, 2023 U.S. App. LEXIS 15749 (10th Cir. June 23, 2023) (unpublished) Eyoel-Dawit Matios, proceeding pro se, appeals from the district court’s order imposing monetary sanctions under its inherent powers. Exercising jurisdiction under 28 U.S.C. § …

Rule 11 and Inherent Power Sanctions for (1) Filing Brief Generated by AI (ChatGPT) Filled with Fake and Nonsensical Cases, (2) Failing to Confirm the Authenticity of the Cases, (3) Failing to Make Any Inquiry to Determine If the Assertions of Law Were Correct, (4) Advocating for The Fake Cases After Being Informed by Adversary That the Cases Could Not Be Found, (5) Lying to the Court About Why Continuance Needed and Role of AI in Research — Conscious Avoidance Sufficient to Prove Knowledge —$5,000 Non-Compensatory Penalty Assessed — Offenders Must Notify Client and Judges Wrongly Named in the Fake Cases—“Nothing Inherently Improper About Using a Reliable Artificial Intelligence Tool for Assistance”

Mata v. Avianca, Inc., 2023 U.S. Dist. LEXIS 108263 (S.D.N.Y. June 22, 2023) Rule 11 and Inherent Power Sanctions for (1) Filing Brief Generated by AI (ChatGPT) Filled with Fake and Nonsensical Cases, (2) Failing ...

Mata v. Avianca, Inc., 2023 U.S. Dist. LEXIS 108263 (S.D.N.Y. June 22, 2023) Rule 11 and Inherent Power Sanctions for (1) Filing Brief Generated by AI (ChatGPT) Filled with Fake and Nonsensical Cases, (2) Failing to Confirm the Authenticity of …

Inherent Power Sanctions — Clear-and-Convincing-Evidence Required (10th Circuit) — Evidence Rules Do Not Govern Sanctions Proceedings — Civil Rules Do Not Recognize a “Motion to Reconsider” As Opposed to Rule 59(e) Motion to Alter or Amend a Judgment, Which Requires “Manifest Error” or New Evidence — Abuse of Discretion Review (But Invocation of Inherent Power Is Reviewed De Novo (See Dissent)) — For Reversal, Appellate Court Must Be “Firmly Convinced … the District Court Erred in Finding … It Was Highly Probable That the [Offender] Acted in Bad Faith“ — Extrajudicial Misconduct: Witness Intimidation by Commencing Multimillion Dollar Arbitration Against Witness — Inherent Power Sanction Within District Court’s Jurisdiction When Acting Pursuant to a Strictly Limited Remand (Dissent Disagrees) — Sanctions for Arbitration Conduct Permissible Where Arbitration Threatened Court’s Proceedings — Permissible for Court to Evaluate Frivolousness of Claims in the Arbitration — Frivolousness, Alone, May Not Be Enough — Due Process Satisfied by Show-Cause Order — Monetary Award Was Civil Because It Was Limited to Fees Incurred in Federal Court Seeking Sanctions, Not Conduct in Arbitration— Fact Witness Intimidation Fails Does Not Negate Causation of Costs Incurred in Pursuing Sanctions — Failure to Reduce Requested Fees Does Not Mean Court Failed to Exercise Discretion

Becker v. Ute Indian Tribe, 2023 U.S. App. LEXIS 20430 (10th Cir. Aug. 8, 2023) ORDER AND JUDGMENT* *1 Lynn Becker and the Ute Indian Tribe have been mired in litigation for nearly two decades. Mr. Becker’s relationship with the Tribe began in 2004, when the Tribe hired him to help ...

Rule 37 Sanction of Dismissal for Repeatedly Obstructing 30(b)(6) Deposition, Flouting Court Orders: “[A] Splash of Proper Conduct Amidst an Expansive Sea of Impropriety Is Insufficient to Save [a Party] from Sanctions” — CFPB Enforcement Action Dismissed

Consumer Fin’l Prot. Bur. v. Brown, 69 F.4th 1321 (11th Cir. 2023); The Consumer Financial Protection Bureau (“CFPB”) is not exempt from the rules of discovery. Nonetheless, the CFPB tried to bring a wide-ranging civil lawsuit against 18 defendants without ever being deposed. When the district court ordered the CFPB to sit for Rule 30(b)(6) depositions, the CFPB doubled do ...

Rule 37(c)(1) Sanctions — Award of Excess Expenses Incurred in Deposing Late-Disclosed Expert Witness on Eve of Trial — Argument That Late Disclosure = Harmless Error Because Same Expenses Would Have Been Incurred Earlier Rejected — Late Disclosure “Made The Matter Much More Urgent, Time Consuming And Expensive As Trial Loomed Less Than A Month Away”

McDowell v. Livonia Hotel Bus., Inc., 2023 U.S. App. LEXIS 17819 (6th Cir. July 11, 2023): This civil suit arises out of an armed robbery that took place at a motel in Livonia, Michigan. Plaintiffs, Raymond McDowel ...

McDowell v. Livonia Hotel Bus., Inc., 2023 U.S. App. LEXIS 17819 (6th Cir. July 11, 2023): This civil suit arises out of an armed robbery that took place at a motel in Livonia, Michigan. Plaintiffs, Raymond McDowell and Taj Dorsey,…

Rule 37 and Inherent Power Sanctions – While Sanctions Are Reviewed for Abuse of Discretion, District Court’s Invocation of Its Inherent Power Is Reviewed De Novo — Due Process Violated by Failure to Apprise Individuals that They Were Personally at Risk of Monetary Sanctions—That Sanctions Motion Sought Sanctions Against Corporation “Or Others” Insufficient — Post-Sanctions Opportunity to Be Heard Insufficient — Rule 37 Sanctions Must Be Both “Just” and “Related to the Particular ‘Claim’” — Factors Governing Litigation-Ending Sanctions (5th Circuit) — 6. What Is a “Litigation-Ending” Sanction Is A “Practical” Determination and Broader Than Dismissal with Prejudice and Default Judgment —6. What Is a “Litigation-Ending” Sanction Is A “Practical” Determination and Broader Than Dismissal with Prejudice and Default Judgment — What Is a “Litigation-Ending” Sanction Is A “Practical” Determination and Broader Than Dismissal with Prejudice and Default Judgment — Recklessness Insufficient for Case-Ending Sanction (Bad Faith Required) — Rule 37 Authorizes Joint-and-Several Liability on a Party and Its Agents —Attorney’s Fee Award Must be Calculated Using the Lodestar Process

CEATS, Inc. v. TicketNetwork, Inc., 71 F.4th 413 (5th Cir. 2023): Opinion This consolidated appeal concerns the injunctive and monetary sanctions that the district court imposed after a company and three individuals violated the court’s protective order. The company and the individuals challenge the s ...

CEATS, Inc. v. TicketNetwork, Inc., 71 F.4th 413 (5th Cir. 2023): Opinion This consolidated appeal concerns the injunctive and monetary sanctions that the district court imposed after a company and three individuals violated the court’s protective order. The company and…

Commercial Litigation and Arbitration

Rule 37(c)(1) Requires Exclusion of Undisclosed, Or Untimely Disclosed, Evidence — Here, Expert Report — Unless The Target of Sanctions Moves The Court to Consider Lesser Sanctions

Sanctions — Conditional Payment of Monetary Award Prevents Mootness — Contempt Sanction — Payment into Court Escrow Account — Court Can Declare Effective Relief By Ordering That The Sum Paid Be Returned

Fraud on the Court

Rule 37 Sanction of Dismissal for Repeatedly Obstructing 30(b)(6) Deposition, Flouting Court Orders: “[A] Splash of Proper Conduct Amidst an Expansive Sea of Impropriety Is Insufficient to Save [a Party] from Sanctions” — CFPB Enforcement Action Dismissed

Recent Posts

RICO: Enterprise Not Sufficiently Distinct from Defendant Where Enterprise Allegedly Consisted of the Defendant Corporation, Corporate Employees, Their Counsel and “Friends”

FRAP 38 Sanctions Should Not Lightly Be Awarded on the Ground That an Incorrect Argument Was Frivolous — “An Appeal Can Be Weak, Indeed Almost Hopeless, Without Being Frivolous” (Good Quote) — There Must Be “No Legitimate Basis for Pursuing the Appeal” (Good Quote)

RICO — Neither Filing a Complaint Nor Issuing a Press Release Constitutes Wire Fraud — Litigation Privilege Is Absolute and Bars All Tort Claims Other Than Malicious Prosecution — Abuse of Process Claim Barred (California Law)

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