Complex Lit Blog

Rule 37 Dismissal Sanction Requires Wilfulness, Bad Faith, Fault — 4 Factors — 2 Years’ Noncompliance = Inference of Wilfulness — Order May Inc. Doc. Requests — Boilerplate Clam of Search Doesn’t Demonstrate Adequacy or Explain Missing Docs

Bhagwanani v. Brown, 2016 U.S. App. LEXIS 19892 (2d Cir. Nov. 4, 2016): SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the August 28, 2015 judgment of the district court is AFFIRMED. Plaintiffs appeal from the dismissal of their complaint for failure to comply with ...

Bhagwanani v. Brown, 2016 U.S. App. LEXIS 19892 (2d Cir. Nov. 4, 2016): SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the August 28, 2015 judgment of the district court is AFFIRMED. Plaintiffs appeal from…

Email Admissibility: The Mere Fact That an Email Was Created within a Business Entity Does Not Make It a Business Record — All Prongs of 803(6) Must Be Satisfied

In re Lyondell Chem. Co. (Weisfelner v. Blavatnick), 2016 WL 6108526 (Bankr. S.D.N.Y. Oct. 19, 2016): Before the Court are two letter briefs regarding 210 emails and other documents (the “Exhibits”) offered as trial exhibits by Edward S. Weisfelner, as Trustee of the LB Litigation Trust (the “Trustee”).

In re Lyondell Chem. Co. (Weisfelner v. Blavatnick), 2016 WL 6108526 (Bankr. S.D.N.Y. Oct. 19, 2016): Before the Court are two letter briefs regarding 210 emails and other documents (the “Exhibits”) offered as trial exhibits by Edward S. Weisfelner, as …

Rule 11 Sanctions Imposed on Client Largely for Defects in Legal Theories Reversed in Entirety Because “Error So Infused District Court’s Reasoning” — Remanded for Consideration Whether Some Should Be Imposed on Plaintiff’s Counsel

Tacoronte v. Greenspoon Marder P.A., 2016 U.S. App. LEXIS 11416 (11th Cir. 2016): The district court imposed Rule 11 sanctions against Plaintiff Danielle Tacoronte and ordered her to pay reasonable attorney's fees and costs to Defendants Greenspoon Marder and Marc Cohen. Plaintiff appeals the district court's order im ...

Hearsay Emails May Be Considered on Summary Judgment under Rule 56(c)(2) If the Authors Could Testify to the Contents at Trial

Griffith v. Nicholas Financial, Inc, 2016 U.S. Dist. LEXIS 135524 (N.D. Ala. Sept. 30, 2016): Plaintiff Krysti Griffith is a former employee of defendant Nicholas Financial, Inc. Ms. Griffith has systematic lupus erythematosus, an autoimmune disease commonly called lupus. Ms. Griffith worked for Nicholas Financial as a customer servic ...

Attorney-Client Privilege — Inadvertent Production of Privileged/Work Product Documents Doesn’t Necessarily Preclude Application of Perlman, But Disclosure of Documents to Grand Jury Does (2-1 3d Circuit Decision)

In re Grand Jury Matter 3, 2016 U.S. App. LEXIS 19454 (3d Cir. Oct. 28, 2016): Company A, John Doe 1, John Doe 1's lawyer, and John Doe 2 are the subjects of an ongoing grand jury investigation into an allegedly fraudulent business scheme.2 John Doe 1 brought this appeal after the government obtained access to an email ...

Removal — Does §1447(c) Allow Dismissal If Remand Is Futile? (Circuit Split) — Class Counsel Are Federal Officers in Sending Class Notice, May Remove State Class Rep’s Attempt to Enjoin It — Case Dismissed on Merits Though No Subj. Matter Jurisd.

Devazier v. Seeco, Inc., 2016 U.S. Dist. LEXIS 92231 (E.D. Ark. July 15, 2016): AMENDED OPINION AND ORDER1 1 The Court enters this Amended [*2] Order amending only the conclusion of the Court's July 13, 2016, Opinion and Order to ...

Devazier v. Seeco, Inc., 2016 U.S. Dist. LEXIS 92231 (E.D. Ark. July 15, 2016): AMENDED OPINION AND ORDER1 1 The Court enters this Amended [*2] Order amending only the conclusion of the Court's July 13, 2016, Opinion and Order…

Appeals — Denial of Leave to Amend Reviewed De Novo If on Futility Grounds, Otherwise for Abuse of Discretion

HansaWorld USA, Inc. v. Carpenter, 2016 U.S. App. LEXIS 18950 (5th Cir. Oct. 20, 2016): II. STANDARD OF REVIEW This court ordinarily reviews [*4] a district court's denial of a motion for leave to amend a complaint for an abuse of discretion. City of Clinton v. Pilgrim's Pride ...

HansaWorld USA, Inc. v. Carpenter, 2016 U.S. App. LEXIS 18950 (5th Cir. Oct. 20, 2016): II. STANDARD OF REVIEW This court ordinarily reviews [*4] a district court's denial of a motion for leave to amend a complaint for an abuse …

Claim-Splitting Barred by Res Judicata — Denial of Leave to Amend, Even on Timeliness Grounds = Adjudication on the Merits of the Claim Sought to Be Brought — Federal Court May Stay or Dismiss Duplicative Suit, But Doesn’t Have to

Elmhurst Lincoln-Mercury, Inc., Employees’ 401(k) Profit Sharing Plan & Trust v. Mears, 2016 U.S. Dist. LEXIS 115295 (N.D. Ill. Aug. 29, 2016): On February 18, 2016, Elmhurst Lincoln-Mercury, Inc. Employees 401(k) Profit Sharing Plan and Trust ("the Plan"), by its acting trustee, Thomas Potts, Jr., filed this ERISA and neg ...

RICO Claim Survives Death (Caselaw Split) — Failure of Evidence at Trial (Continuity) Can’t Be Cured by Looking at Summary Judgment Proceedings — Only Trial Evidence Matters — Good Quote on Modern Litigation in Which SJ, Not Trial, Is Focus

Malvino v. Delluniversita, 2016 U.S. App. LEXIS 18952 (5th Cir. Oct. 20, 2016): As she approached retirement, Bonnie Pereida spent hundreds of thousands of dollars on rare coins. She thought the coins would be a good hedge against inflation. After she passed away, an appraisal revealed that her coin collection included a counterfeit c ...

§ 1927 & Inherent Power Sanctions Require Conduct (1) Entirely without Color (2) Motivated by Improper Purpose — $180,000 in Attorney’s Fees for Amended Complaint Containing Uncorrected, Unsupported Allegations and Concealing Evidence

Rabin v. Dow Jones & Co., 2016 U.S. App. LEXIS 19227 (2d Cir. Oct. 25, 2016): SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be AFFIRMED. Plaintiff I. Stephen Rabin, a lawyer, and Raymond A ...

Rabin v. Dow Jones & Co., 2016 U.S. App. LEXIS 19227 (2d Cir. Oct. 25, 2016): SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be AFFIRMED. Plaintiff I.…

Commercial Litigation and Arbitration

Rule 37 Dismissal Sanction Requires Wilfulness, Bad Faith, Fault — 4 Factors — 2 Years’ Noncompliance = Inference of Wilfulness — Order May Inc. Doc. Requests — Boilerplate Clam of Search Doesn’t Demonstrate Adequacy or Explain Missing Docs

Email Admissibility: The Mere Fact That an Email Was Created within a Business Entity Does Not Make It a Business Record — All Prongs of 803(6) Must Be Satisfied

Rule 11 Sanctions Imposed on Client Largely for Defects in Legal Theories Reversed in Entirety Because “Error So Infused District Court’s Reasoning” — Remanded for Consideration Whether Some Should Be Imposed on Plaintiff’s Counsel

Hearsay Emails May Be Considered on Summary Judgment under Rule 56(c)(2) If the Authors Could Testify to the Contents at Trial

Attorney-Client Privilege — Inadvertent Production of Privileged/Work Product Documents Doesn’t Necessarily Preclude Application of Perlman, But Disclosure of Documents to Grand Jury Does (2-1 3d Circuit Decision)

Removal — Does §1447(c) Allow Dismissal If Remand Is Futile? (Circuit Split) — Class Counsel Are Federal Officers in Sending Class Notice, May Remove State Class Rep’s Attempt to Enjoin It — Case Dismissed on Merits Though No Subj. Matter Jurisd.

Appeals — Denial of Leave to Amend Reviewed De Novo If on Futility Grounds, Otherwise for Abuse of Discretion

Claim-Splitting Barred by Res Judicata — Denial of Leave to Amend, Even on Timeliness Grounds = Adjudication on the Merits of the Claim Sought to Be Brought — Federal Court May Stay or Dismiss Duplicative Suit, But Doesn’t Have to

RICO Claim Survives Death (Caselaw Split) — Failure of Evidence at Trial (Continuity) Can’t Be Cured by Looking at Summary Judgment Proceedings — Only Trial Evidence Matters — Good Quote on Modern Litigation in Which SJ, Not Trial, Is Focus

§ 1927 & Inherent Power Sanctions Require Conduct (1) Entirely without Color (2) Motivated by Improper Purpose — $180,000 in Attorney’s Fees for Amended Complaint Containing Uncorrected, Unsupported Allegations and Concealing Evidence

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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