Complex Lit Blog

Removal: Does Filing a Voluntary Cross Claim in State Court Waive Right to Remove? — Circuit Split — Letter from Plaintiff Forwarding Unsigned, Unfiled Stip Dismissing Only Non-Diverse Defendant Triggers 30-Day Removal Period

Boggs v. Harris, 2016 U.S. Dist. LEXIS 177154 (W.D. Pa. Dec. 22, 2016): I. Introduction Pending before the court is a motion to remand filed by plaintiffs Roy Boggs and Annette Boggs ("plaintiffs"). (ECF No. 5.) On June 28, 2016, Defendants Darwin Harris ("Harris") and Gateway Tours, Inc. (& ...

Boggs v. Harris, 2016 U.S. Dist. LEXIS 177154 (W.D. Pa. Dec. 22, 2016): I. Introduction Pending before the court is a motion to remand filed by plaintiffs Roy Boggs and Annette Boggs ("plaintiffs"). (ECF No. 5.) On June 28, 2016,…

Rule 11 Sanctions—Even If Making Argument for Change in Law Is Futile Because Same Judge Has Rejected It in the Past, You Must Do So—Not Enough to Say You Plan to Appeal the Issue—No Duty to Anticipate/Respond to Affirmative Defense in Complaint

Foreman v. Wadsworth, 2016 U.S. App. LEXIS 22598 (7th Cir. Dec. 20, 2016): Anthony Foreman, who used to own a restaurant in Rockford, Illinois, brought this suit under 42 U.S.C. § 1983 and Illinois tort law. He alleged that a state prosecutor and four Rockford police officers conspired to push him out of business by bringing ...

Internet Evidence — Delaware Sup. Ct. Takes Judicial Notice Internet Searches Can Generate Reliable Info for Pleading Purposes (“As with Any Source of Information…The Internet Should Be Used with Care”) (Good Quote) — Derivative Pleading Rules

Sandys v. Pincus, 2016 Del. LEXIS 627 (Del. Sup. Ct. Dec. 5, 2016): I. This appeal in a derivative suit brought by a stockholder of Zynga, Inc. turns on whether the Court of Chancery correctly found that a majority of the Zynga board could impartially consider a demand and thus correctly dismissed the c ...

Sandys v. Pincus, 2016 Del. LEXIS 627 (Del. Sup. Ct. Dec. 5, 2016): I. This appeal in a derivative suit brought by a stockholder of Zynga, Inc. turns on whether the Court of Chancery correctly found that a majority …

Rule 16(f)/37 Sanctions — Default for Lack of Preparation for Pretrial Conference & Failure to Pay Prior 16(f) Sanction — Discretion Narrows as Severity Increases — No Testimony Needed for Default — Absent Prejudice, Due Process Violation Harmless

RDLG, LLC v. Leonard, 2016 U.S. App. LEXIS 9390 (4th Cir. May 23, 2016): RDLG, LLC ("RDLG") sued Fred M. Leonard, Jr. ("Leonard"), raising state law fraud claims. The district court1 entered default judgment in RDLG's favor as a sanction for Leonard's mis ...

RDLG, LLC v. Leonard, 2016 U.S. App. LEXIS 9390 (4th Cir. May 23, 2016): RDLG, LLC ("RDLG") sued Fred M. Leonard, Jr. ("Leonard"), raising state law fraud claims. The district court1 entered default judgment in RDLG's favor as a …

Texts Authenticated by Fact They Were Sent to / from Person with Unusual Name Very Similar to Defendant’s and by Contents — Do You Have to Be An Expert to Testify as to the Meaning of Abbreviations/Slang Used in Texts?

Jones v. State, 2016 Md. App. LEXIS 806 (Ct. Spec. App. Sept. 16, 2016): After a jury trial held in October 2014 in the Circuit Court for Kent County, Aredelle Jones ("Jones") was convicted of robbery, second-degree assault, theft, first-degree burglary, and nine counts of reckless endangerment. In addition, he was convicted ...

§ 1927 Sanctions — While A Complaint Is Not Sanctionable in Some Circuits under 1927 Because It Initiates the Proceedings, An Amended Complaint Is

R. Prasad Indus. v. Douglas, 2016 U.S. App. LEXIS 22388 (9th Cir. Dec. 16, 2016): MEMORANDUM* * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Frederic M. Douglas appeals the order of the distric ...

Does Rule 15(b)(2), Which Provides for Constructive Amendment of Complaint by Trying Issues Not Pled, Apply at Summary Judgment Stage? — Circuit Split

In re Vertis Holdings, Inc. (Riverside Acquisition Grp. LLC v. Vertis Holdings, Inc.), 2016 U.S. Dist. LEXIS 164745: 20. Riverside also invokes Fed. R. Civ. P. 15(b)(2),11 which permits constructive amendment of a complaint during and after trial when an issue not raised by ...

Arbitration — Does the FAA, Which Explicitly Provides Causes of Action to Compel & Confirm, Confer Subject Matter Jurisdiction over a Cause of Action to Vacate? — Circuit Split — If So, What Is the Statute of Limitations?

Cvoro v. Carnival Corp., 2016 U.S. Dist. LEXIS 164423 (S.D. Fla. Nov. 28, 2016): REPORT AND RECOMMENDATION THIS CAUSE comes before the Court on the Defendant's Motion to Dismiss Plaintiff's Complaint (DE# 8, 6/10/16). This matter was referred to the undersigned by the Honorable Federico A. Moreno ...

Cvoro v. Carnival Corp., 2016 U.S. Dist. LEXIS 164423 (S.D. Fla. Nov. 28, 2016): REPORT AND RECOMMENDATION THIS CAUSE comes before the Court on the Defendant's Motion to Dismiss Plaintiff's Complaint (DE# 8, 6/10/16). This matter was referred to the…

Spoliation — Negligence Is Generally Insufficient to Justify an Inference of Spoliation in the First Circuit — Some Indication of Bad Faith Is Usually Required

United States v. Montoya, 2016 U.S. App. LEXIS 22503 (1st Cir. Dec. 19, 2016) (Context: Entrapment defense. Issue: Is spoliation a “plus factor?” From the opinion: “To lay the groundwork for a finding that the government did more than create an opportunity for the commission of a crime, a defendant may identify ‘plus’ factors — fact ...

Inherent Power Sanctions — Extrajudicial Misconduct: Prelitigation Accessing Adversary’s Privileged Materials, Then Lying About It — Dismissal: 4 Factors (Sixth Circuit) — What Is “Contumacious”? —Lying vs. Inconsistent Statements

Bradley J. Delp Revocable Trust v. MSJMR 2008 Irrevocable Trust, 2016 U.S. App. LEXIS 22430 (6th Cir. Dec. 16, 2016): Plaintiffs Bradley J. Delp Revocable Trust, dated January 8, 1992, as amended ("Delp Trust"), and Bradley J. Delp, individually and as trustee of the Delp [*2] Trust ("Bradley") ( ...

Commercial Litigation and Arbitration

Removal: Does Filing a Voluntary Cross Claim in State Court Waive Right to Remove? — Circuit Split — Letter from Plaintiff Forwarding Unsigned, Unfiled Stip Dismissing Only Non-Diverse Defendant Triggers 30-Day Removal Period

Rule 11 Sanctions—Even If Making Argument for Change in Law Is Futile Because Same Judge Has Rejected It in the Past, You Must Do So—Not Enough to Say You Plan to Appeal the Issue—No Duty to Anticipate/Respond to Affirmative Defense in Complaint

Internet Evidence — Delaware Sup. Ct. Takes Judicial Notice Internet Searches Can Generate Reliable Info for Pleading Purposes (“As with Any Source of Information…The Internet Should Be Used with Care”) (Good Quote) — Derivative Pleading Rules

Rule 16(f)/37 Sanctions — Default for Lack of Preparation for Pretrial Conference & Failure to Pay Prior 16(f) Sanction — Discretion Narrows as Severity Increases — No Testimony Needed for Default — Absent Prejudice, Due Process Violation Harmless

Texts Authenticated by Fact They Were Sent to / from Person with Unusual Name Very Similar to Defendant’s and by Contents — Do You Have to Be An Expert to Testify as to the Meaning of Abbreviations/Slang Used in Texts?

§ 1927 Sanctions — While A Complaint Is Not Sanctionable in Some Circuits under 1927 Because It Initiates the Proceedings, An Amended Complaint Is

Does Rule 15(b)(2), Which Provides for Constructive Amendment of Complaint by Trying Issues Not Pled, Apply at Summary Judgment Stage? — Circuit Split

Arbitration — Does the FAA, Which Explicitly Provides Causes of Action to Compel & Confirm, Confer Subject Matter Jurisdiction over a Cause of Action to Vacate? — Circuit Split — If So, What Is the Statute of Limitations?

Spoliation — Negligence Is Generally Insufficient to Justify an Inference of Spoliation in the First Circuit — Some Indication of Bad Faith Is Usually Required

Inherent Power Sanctions — Extrajudicial Misconduct: Prelitigation Accessing Adversary’s Privileged Materials, Then Lying About It — Dismissal: 4 Factors (Sixth Circuit) — What Is “Contumacious”? —Lying vs. Inconsistent Statements

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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