Complex Lit Blog

Facebook Account Authenticated by Testimony Witness Communicated with Defendant on It & Photo on It Was Defendant — Post Authenticated by Contents and Temporal Proximity to Post Def. Admitted He Made — Printout = 1003 Duplicate (Thus, Best Evidence)

People v. Dunn, 2016 Mich. App. LEXIS 942 (Mich. Ct. App. May 12, 2016): Defendant struck and killed Benjamin Berlin with his pick-up truck at a mobile home park on October 30, 2013. Shortly before this incident, defendant posted on Facebook, stating: "I wanna kill" and, later, "i prob wont be h ...

People v. Dunn, 2016 Mich. App. LEXIS 942 (Mich. Ct. App. May 12, 2016): Defendant struck and killed Benjamin Berlin with his pick-up truck at a mobile home park on October 30, 2013. Shortly before this incident, defendant posted on …

Supreme Court — Courts May Impose “Remedial” Inherent Power Sanctions “Like Monetary Penalties or Attorney Discipline” or Ultimate Sanction of Dismissal — Dismissal Not Mandatory for Violation of False Claims Act’s Seal Requirement

State Farm Fire & Cas. Co. v. United States ex rel. Rigsby, 2016 U.S. LEXIS 7420 (U.S. Dec. 6, 2016): This case addresses the question of the proper remedy when there is a violation of the False Claims Act (FCA) requirement that certain complaints must be sealed for a limited time period. See 31 U. S. C. §3730(b)(2). ...

State Farm Fire & Cas. Co. v. United States ex rel. Rigsby, 2016 U.S. LEXIS 7420 (U.S. Dec. 6, 2016): This case addresses the question of the proper remedy when there is a violation of the False Claims Act (FCA) …

Privilege: Disclosure of Fact of Communications, Not Using Them as Basis for a Claim or Defense, ≠ Waiver — Plaintiff Suing Defendant & Its Law Firm Lacks Standing to Seek Disqualification of Firm, Suffers No Injury Even If It Must Pay Fees

Rich v. Bank of Am., N.A., 2016 U.S. App. LEXIS 20850 (9th Cir. Nov. 21, 2016): * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Judith Rich and Vincent Vitale sued Bank of America, N.A. ("BANA") and its counsel Bryan Cave, LLP for al ...

Arbitration: Is Jurisdiction to Confirm an Award under the FAA Determined by Looking Through to the Underlying Dispute or Must It Arise from the Questions Presented by the Application to Confirm Itself? — Circuit Split

Reading Joint Apprenctice & Elec. Comm. v. Hiester, 2016 U.S. Dist. LEXIS 163328 (E.D. Pa. Nov. 28, 2016): I. Introduction Plaintiff Reading Joint Apprentice and Electrical Committee seeks to confirm an arbitration award it secured against Defendant Eric Hiester for breaching the parties' contract. Hiester ...

Reading Joint Apprenctice & Elec. Comm. v. Hiester, 2016 U.S. Dist. LEXIS 163328 (E.D. Pa. Nov. 28, 2016): I. Introduction Plaintiff Reading Joint Apprentice and Electrical Committee seeks to confirm an arbitration award it secured against Defendant Eric Hiester for…

Rule 37(c)(1) Sanctions: Treating Physicians Who Don’t File 26(a)(2)(B) Report Limited to Opinions Formed during Treatment — Punitive Damages: Single Digit Ratios Generally Constitutional, 10-1 OK If Act Egregious, Compensatories Low

Morris v. Bland, 2016 U.S. App. LEXIS 20548 (4th Cir. Nov. 16, 2016): This appeal arises from a plaintiffs' verdict in connection with the death of David Allan Woods during his incarceration at the Hill-Finklea Detention Center ("HFDC") in South Carolina. The jury awarded substantial damages based on its finding ...

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 …

Commercial Litigation and Arbitration

Facebook Account Authenticated by Testimony Witness Communicated with Defendant on It & Photo on It Was Defendant — Post Authenticated by Contents and Temporal Proximity to Post Def. Admitted He Made — Printout = 1003 Duplicate (Thus, Best Evidence)

Supreme Court — Courts May Impose “Remedial” Inherent Power Sanctions “Like Monetary Penalties or Attorney Discipline” or Ultimate Sanction of Dismissal — Dismissal Not Mandatory for Violation of False Claims Act’s Seal Requirement

Privilege: Disclosure of Fact of Communications, Not Using Them as Basis for a Claim or Defense, ≠ Waiver — Plaintiff Suing Defendant & Its Law Firm Lacks Standing to Seek Disqualification of Firm, Suffers No Injury Even If It Must Pay Fees

Arbitration: Is Jurisdiction to Confirm an Award under the FAA Determined by Looking Through to the Underlying Dispute or Must It Arise from the Questions Presented by the Application to Confirm Itself? — Circuit Split

Rule 37(c)(1) Sanctions: Treating Physicians Who Don’t File 26(a)(2)(B) Report Limited to Opinions Formed during Treatment — Punitive Damages: Single Digit Ratios Generally Constitutional, 10-1 OK If Act Egregious, Compensatories Low

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

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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