Complex Lit Blog

Arbitrability — Challenge to Validity of Arbitration Clause Is for Court to Decide — Challenge to the Contract As a Whole Is for Arbitrator to Decide

S. Jersey Sanitation Co. v. Applied Underwriters Captive Risk Assur. Co., 2016 U.S. App. LEXIS 19245 (3d Cir. Oct. 25, 2016): I. INTRODUCTION Applied Underwriters Captive Risk Assurance Company, Inc. ("Applied Underwriters"), a Berkshire Hathaway Company, appeals from the District Court's deni ...

S. Jersey Sanitation Co. v. Applied Underwriters Captive Risk Assur. Co., 2016 U.S. App. LEXIS 19245 (3d Cir. Oct. 25, 2016): I. INTRODUCTION Applied Underwriters Captive Risk Assurance Company, Inc. ("Applied Underwriters"), a Berkshire Hathaway Company, appeals from the District…

Wayback Machine on 12(b)(6) Motion to Dismiss: Complaint’s Cite to Wayback Link to Historical Version of Website Affords Defendants Ability to Respond, Defeats 9(b) — Arbitration: Dispute Unrelated to Contract Outside of Broad Arbitration Clause

Dickson v. Gospel for Asia, Inc., 2017 U.S. Dist. LEXIS 6473 (W.D. Ark. Jan. 18, 2017): Before the Court is Defendants' motion (Doc. 23) to compel arbitration and brief in support (Doc. 24). Plaintiffs filed a response (Doc. 31), and Defendants filed a reply (Doc. 36) with leave of Court. Defendants argue that contractual arbitrat ...

Spoliation of Tangible Evidence — Bad Faith Still Required for Adverse Inference Instruction in Tenth Circuit

Rife v Okla. Dep’t of Public Safety, 2017 U.S. App. LEXIS 1117 (10th Cir. Jan. 23, 2017) (NOTE: This opinion was amended and is re-excerpted in our posting of June 19, 2017): This case began with the plaintiff, Mr. Clyde Rife, sitting on a motorcycle next to a road, unable to recall the date, the time, or even what he had been doi ...

Facebook Posts of Murder Victim, Offered by Defendant on Issue of Who Was the Aggressor under 803(3), Rejected for Lack of Foundation Tying Content of Posts to Defendant

State v Hall, 2016 Ida. LEXIS 356 (Ida. Nov. 15, 2016): This is an appeal out of Ada County from a judgment of conviction for the crime of murder in the second degree. The primary issue on appeal is whether the district court properly instructed the jury on the issue of self-defense. We hold that the district court did and affirm the ...

District Courts Have a Duty of Inquiry to Determine Whether There Is Verifiable Evidence of the Incompetence of a Pro Se Litigant

Fields v. Venable, 2016 U.S. App. LEXIS 23285 (3d Cir. Dec. 27, 2016): On October 6, 2006, Fields was sentenced by the Honorable Sheila Venable in the Superior Court of New Jersey to a term of confinement of nine years. On January 9, 2011, he was released to a mandatory five-year period of supervision. During that time, Fields repeate ...

Digital Evidence — Preservation and Authentication — Mirror Imaging Hard Drives, Risks, Data Degradation — The Deceptive Notion of Data “Files” — The Near Future: Impossible to Recover Deleted Data (2d Cir. En Banc)

United States v. Ganias, 2016 U.S. App. LEXIS 9706 (2d Cir. May 27, 2016) (en banc): OPINION BY: DEBRA ANN LIVINGSTON; GERARD E. LYNCH OPINION Debra Ann Livingston and Gerard E. Lynch, Circuit Judges: Defendant-Appellant Stavros Ganias appeals from a judgment of the United

United States v. Ganias, 2016 U.S. App. LEXIS 9706 (2d Cir. May 27, 2016) (en banc): OPINION BY: DEBRA ANN LIVINGSTON; GERARD E. LYNCH OPINION Debra Ann Livingston and Gerard E. Lynch, Circuit Judges: Defendant-Appellant Stavros Ganias appeals from a…

Attorney-Client Privilege Inapplicable to Records Generated or Received by Bank from Lawyer/Customer — Privilege Applies Only If Disclosure Would Reveal Attorney-Communications Or = Last Link Likely to Lead to Client Indictment

Zelen v. United States, 2016 U.S. App. LEXIS 17096 (9th Cir. Sept. 13, 2016): Garrett J. Zelen, an attorney, appeals pro se from the district court's order dismissing Zelen's petition to quash an IRS summons for Zelen's bank records. We have jurisdiction under 28 U.S.C. § 1291. We review for clear error t ...

Zelen v. United States, 2016 U.S. App. LEXIS 17096 (9th Cir. Sept. 13, 2016): Garrett J. Zelen, an attorney, appeals pro se from the district court's order dismissing Zelen's petition to quash an IRS summons for Zelen's bank records.…

RICO: Causation Lacking Where Injury Caused by Former (Withdrawn) Member of Alleged Enterprise — Respondeat Superior Claim Fails with Collapse of Claim against Employee

Ogden v Wells Fargo Bank, N.A., 2017 U.S. App. LEXIS 33 (9th Cir. Jan. 3, 2017): * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Millie Ogden appeals from the district court's dismissal with prejudice of her Racketeer Influenced and Corrup ...

Rule 11 Sanctions — Invoking Rule 11 in Opposition Papers Insufficient — Separate Motion Must Be Filed, in Accordance with Rule 11(c)(2)

Pineda v. JTCH Apartments, LLC, 2016 U.S. App. LEXIS 22569 (5th Cir. Dec. 19, 2016): Defendants appeal the district court's award of attorney's fees to Pineda. They do not, however, contest the accuracy of the time entries or the reasonableness of that time in light of the factors listed in Johnson v. Georgia Highway Expre ...

Interlocutory Appeals: Monetary Sanctions Don’t Satisfy Collateral Order Doctrine (Whether Severity Is Apt Is Judged in Light of Merits) — Breadth of Cunningham — Does Practical Finality Doctrine Survive Cunningham?

LaTele Television, C.A. v. Telemundo Commc’ns Grp., LLC, 2016 U.S. App. LEXIS 20345 (11th Cir. May 26, 2016): Plaintiff LaTele Television appeals the district court's pre-trial order awarding Defendant Telemundo Communications $513,750.15 in attorney's fees as a sanction for Plaintiff's numerous discovery violati ...

LaTele Television, C.A. v. Telemundo Commc’ns Grp., LLC, 2016 U.S. App. LEXIS 20345 (11th Cir. May 26, 2016): Plaintiff LaTele Television appeals the district court's pre-trial order awarding Defendant Telemundo Communications $513,750.15 in attorney's fees as a sanction for Plaintiff's …

Commercial Litigation and Arbitration

Arbitrability — Challenge to Validity of Arbitration Clause Is for Court to Decide — Challenge to the Contract As a Whole Is for Arbitrator to Decide

Wayback Machine on 12(b)(6) Motion to Dismiss: Complaint’s Cite to Wayback Link to Historical Version of Website Affords Defendants Ability to Respond, Defeats 9(b) — Arbitration: Dispute Unrelated to Contract Outside of Broad Arbitration Clause

Spoliation of Tangible Evidence — Bad Faith Still Required for Adverse Inference Instruction in Tenth Circuit

Facebook Posts of Murder Victim, Offered by Defendant on Issue of Who Was the Aggressor under 803(3), Rejected for Lack of Foundation Tying Content of Posts to Defendant

District Courts Have a Duty of Inquiry to Determine Whether There Is Verifiable Evidence of the Incompetence of a Pro Se Litigant

Digital Evidence — Preservation and Authentication — Mirror Imaging Hard Drives, Risks, Data Degradation — The Deceptive Notion of Data “Files” — The Near Future: Impossible to Recover Deleted Data (2d Cir. En Banc)

Attorney-Client Privilege Inapplicable to Records Generated or Received by Bank from Lawyer/Customer — Privilege Applies Only If Disclosure Would Reveal Attorney-Communications Or = Last Link Likely to Lead to Client Indictment

RICO: Causation Lacking Where Injury Caused by Former (Withdrawn) Member of Alleged Enterprise — Respondeat Superior Claim Fails with Collapse of Claim against Employee

Rule 11 Sanctions — Invoking Rule 11 in Opposition Papers Insufficient — Separate Motion Must Be Filed, in Accordance with Rule 11(c)(2)

Interlocutory Appeals: Monetary Sanctions Don’t Satisfy Collateral Order Doctrine (Whether Severity Is Apt Is Judged in Light of Merits) — Breadth of Cunningham — Does Practical Finality Doctrine Survive Cunningham?

Recent Posts

Statements in Briefs As Judicial Admissions

Supreme Court: TRO As Appealable Order — And District Court Inaction As Tantamount to Refusing An Injunction And Thus Appealable

“Slow-Playing Discovery” in Response to Court Order, Prejudicing Opponent, Violates Rule 37(b)(2)(A)

RICO: Mail and Wire Fraud: Act of Emailing Transcript of Court Proceedings Containing Allegedly False Statements Made in Court ≠ Wire Fraud — Mailing (Serving on Opposing Party) Declarations Allegedly Containing False Statements ≠ Mail Fraud

FRAP 38 Sanctions — Sixth Circuit Usually Declines to Impose FRAP 38 Sanctions Unless An Improper Purpose Was Behind the Appeal

FRAP 38: Permissible for Appeals Court to Affirm Sanctions But Deny FRAP 38 Sanctions for Appeal — A Defendant’s Voluntary Cessation of Complained of Behavior Does Not Moot a Case Unless It Is Clear That The Behavior Could Not Reasonably Be Expected to Recur

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