Complex Lit Blog

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 …

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 < ...

Commercial Litigation and Arbitration

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

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)

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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