Complex Lit Blog

Emails Produced by Entity and Bearing Its Bates Numbers Are Authentic When Offered by Opponent — Emails That Could Be Rendered Admissible at Trial OK on Summary Judgment Per Rule 56(c)(2) — Emails as Admissions of Party Opponent, Business Records

Musket Corp. v. Suncor Energy (USA) Mktg., Inc., 2016 U.S. Dist. LEXIS 157664 (S.D. Tex. Nov. 15, 2016): Pending before the court are (1) plaintiff Musket Corporation's ("Musket") objections to and motion to strike defendant Suncor Energy (U.S.A.) Marketing, Inc.'s ("Suncor") summary judgment evidence (Dkt. ...

Is Prudential Standing Jurisdictional and Immune from Waiver? — Circuit Split — Can Prudential Standing Be Divorced from Constitutional Standing & Assessed As a Non-Jurisdictional Issue Under Rule 12(b)(6)? (Raised but Undecided)

Martinez v. Bank of Am., N.A., 2016 U.S. App. LEXIS 20219 (3d Cir. Nov. 9, 2016): Appellant Gelver Martinez appeals from orders of the District Court dismissing his complaint and denying his motion for reconsideration. We will affirm. I. This case concerns [*2] a mortgage on real property in Passaic, N ...

Inherent Power — Bankruptcy Court Has Inherent Power to Sanction Litigation Abuse & Broad Equitable Powers under § 105 But Cannot Deny a Statutory Exemption Based on Debtor’s Bad Faith Conduct

Clabaugh v. Grant (In re Grant), 2016 U.S. App. LEXIS 17139 (10th Cir. Sept. 20, 2016): * After examining the briefs and appellate record, this panel has determined unanimously to honor the parties' request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th C ...

Grable Jurisdiction: Reliance on FAA Regs in Negligent Aircrash Case Insufficient — Removal: Only Complete Preemption Is a Ground for Removal, Not Ordinary Preemption — 3 Types of Ordinary Preemption

Bagley v. Teirstein, 2016 U.S. Dist. LEXIS 138601 (S.D. Cal. Oct. 5, 2016): The matter before the Court is t ...

Bagley v. Teirstein, 2016 U.S. Dist. LEXIS 138601 (S.D. Cal. Oct. 5, 2016): The matter before the Court is the motion to remand (ECF No. 18) filed by Plaintiff James Bagley. I. Background On September 15, 2015, Plaintiff James Bagley …

Voicemail Authentication — Recipient Recorded VMs on Cassette Tape Recorder & Testifies They Were Not Altered Before Recording Made & Content Is Same As He Heard When Listening to VMs Originally — Multipart 3d Cir. Authentication Test (Criminal Cases)

United States v. Credico, 2016 U.S. Dist. LEXIS 157640 (E.D. Pa. Nov. 14, 2016): Defendant Justin Michael Credico is charged with making threats to law enforcement officers and their families in violation of 18 U.S.C. §§ 115(a)(1)(A) and (B). On October 26, 2016, at Defendant's request, the Court reopened a hearing pursuant to < ...

Arbitration — Excess Insurer/Reinsurer with Follow-Form Policy May Not Participate in Arbitration under Primary Policy (No Agreement to Arbitrate with It) — Whether Arbitration Clause Is Valid or Applicable Is Question for Court, Nor Arbitrators

State of Wis. Local Govt. Prop. Ins. Fund v. Lexington Ins. Co., 2016 U.S. App. LEXIS 18980 (7th Cir. Oct. 21, 2016): This dispute arises from the 2013 fire at the Milwaukee County Courthouse (the "Courthouse"). Milwaukee County (the "County") maintained its primary insurance policy covering the Courthouse with the ...

New York State Spoliation Law — Adverse Inference OK for Negligence — Lack of Lit. Hold ≠ Gross Negligence Per Se — Ct. App. Not Bound by App. Div.’s Characterization in Certification Order

Pegasus Aviation I, Inc., v. Varg Logistica S.A., 26 N.Y.3d 543, 46 N.E.3d 601, 26 N.Y.S.3d 218 (2015): A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a ...

Pegasus Aviation I, Inc., v. Varg Logistica S.A., 26 N.Y.3d 543, 46 N.E.3d 601, 26 N.Y.S.3d 218 (2015): A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation …

Experts — 26(e) ≠ Extension of Deadline to “Deliver Lion’s Share of Expert Info” or Right to Submit “New Rather Than Supplementary” Opinions — 4 Factors to Judge Whether Exclusion OK — Continuance Usually Preferable — Good Quotes

Matter of the Complaint of C.F. Bean LLC (C.F. Bean LLC v. Suzuki Motor Corp.), 2016 U.S. App. LEXIS 19997 (5th Cir. Nov. 4, 2016): This appeal involves a third-party complaint alleging maritime products liability. In 2012, Mark Barhanovich was killed in coastal waters south of Biloxi, Mississippi, when the Suzuki outboard engine on h ...

Rule 11 Safe Harbor — Filing Rule 11 Motion after Magistrate Judge’s R&R & before District Judge’s Adoption Is Timely — Plaintiff Retains Right to Withdraw Challenged Claim until Adoption

Margetis v. Furgeson, 2016 U.S. App. LEXIS 20293 (5th Cir. Nov. 10, 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 5th Cir. R. 47.5.4.

Rule 37(c)(1) Sanctions: Barring Plaintiff Who Failed to Disclose Damages Computation Per 26(a)(1) from Contesting Defendant’s Computation of Profits — 7th Am. Guarantees Right to Jury Trial But Not to Bench Trial, Even If Claim Is Equitable

Anhing Corp. v. Viet Phu, Inc., 2016 U.S. App. LEXIS 19967 (9th Cir. Nov. 4, 2016): * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. In No. 14-56664, plaintiff Anhing Corporation appeals from the district court's judgment, after a jury trial, in it ...

Commercial Litigation and Arbitration

Emails Produced by Entity and Bearing Its Bates Numbers Are Authentic When Offered by Opponent — Emails That Could Be Rendered Admissible at Trial OK on Summary Judgment Per Rule 56(c)(2) — Emails as Admissions of Party Opponent, Business Records

Is Prudential Standing Jurisdictional and Immune from Waiver? — Circuit Split — Can Prudential Standing Be Divorced from Constitutional Standing & Assessed As a Non-Jurisdictional Issue Under Rule 12(b)(6)? (Raised but Undecided)

Inherent Power — Bankruptcy Court Has Inherent Power to Sanction Litigation Abuse & Broad Equitable Powers under § 105 But Cannot Deny a Statutory Exemption Based on Debtor’s Bad Faith Conduct

Grable Jurisdiction: Reliance on FAA Regs in Negligent Aircrash Case Insufficient — Removal: Only Complete Preemption Is a Ground for Removal, Not Ordinary Preemption — 3 Types of Ordinary Preemption

Voicemail Authentication — Recipient Recorded VMs on Cassette Tape Recorder & Testifies They Were Not Altered Before Recording Made & Content Is Same As He Heard When Listening to VMs Originally — Multipart 3d Cir. Authentication Test (Criminal Cases)

Arbitration — Excess Insurer/Reinsurer with Follow-Form Policy May Not Participate in Arbitration under Primary Policy (No Agreement to Arbitrate with It) — Whether Arbitration Clause Is Valid or Applicable Is Question for Court, Nor Arbitrators

New York State Spoliation Law — Adverse Inference OK for Negligence — Lack of Lit. Hold ≠ Gross Negligence Per Se — Ct. App. Not Bound by App. Div.’s Characterization in Certification Order

Experts — 26(e) ≠ Extension of Deadline to “Deliver Lion’s Share of Expert Info” or Right to Submit “New Rather Than Supplementary” Opinions — 4 Factors to Judge Whether Exclusion OK — Continuance Usually Preferable — Good Quotes

Rule 11 Safe Harbor — Filing Rule 11 Motion after Magistrate Judge’s R&R & before District Judge’s Adoption Is Timely — Plaintiff Retains Right to Withdraw Challenged Claim until Adoption

Rule 37(c)(1) Sanctions: Barring Plaintiff Who Failed to Disclose Damages Computation Per 26(a)(1) from Contesting Defendant’s Computation of Profits — 7th Am. Guarantees Right to Jury Trial But Not to Bench Trial, Even If Claim Is Equitable

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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