Complex Lit Blog

New York State Spoliation Law — Adverse Inference OK for Negligence — Lack of Lit. Hold ≠ Gross Negligence Per Se — Ct. App. Not Bound by App. Div.’s Characterization in Certification Order

Pegasus Aviation I, Inc., v. Varg Logistica S.A., 26 N.Y.3d 543, 46 N.E.3d 601, 26 N.Y.S.3d 218 (2015): A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a ...

Pegasus Aviation I, Inc., v. Varg Logistica S.A., 26 N.Y.3d 543, 46 N.E.3d 601, 26 N.Y.S.3d 218 (2015): A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation …

Experts — 26(e) ≠ Extension of Deadline to “Deliver Lion’s Share of Expert Info” or Right to Submit “New Rather Than Supplementary” Opinions — 4 Factors to Judge Whether Exclusion OK — Continuance Usually Preferable — Good Quotes

Matter of the Complaint of C.F. Bean LLC (C.F. Bean LLC v. Suzuki Motor Corp.), 2016 U.S. App. LEXIS 19997 (5th Cir. Nov. 4, 2016): This appeal involves a third-party complaint alleging maritime products liability. In 2012, Mark Barhanovich was killed in coastal waters south of Biloxi, Mississippi, when the Suzuki outboard engine on h ...

Rule 11 Safe Harbor — Filing Rule 11 Motion after Magistrate Judge’s R&R & before District Judge’s Adoption Is Timely — Plaintiff Retains Right to Withdraw Challenged Claim until Adoption

Margetis v. Furgeson, 2016 U.S. App. LEXIS 20293 (5th Cir. Nov. 10, 2016): PER CURIAM:* * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

Rule 37(c)(1) Sanctions: Barring Plaintiff Who Failed to Disclose Damages Computation Per 26(a)(1) from Contesting Defendant’s Computation of Profits — 7th Am. Guarantees Right to Jury Trial But Not to Bench Trial, Even If Claim Is Equitable

Anhing Corp. v. Viet Phu, Inc., 2016 U.S. App. LEXIS 19967 (9th Cir. Nov. 4, 2016): * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. In No. 14-56664, plaintiff Anhing Corporation appeals from the district court's judgment, after a jury trial, in it ...

Expert Reports — Failure to Prepare & Attach Exhibits Renders Report Incomplete (Moral: Get a Stip)

Honey-Love v. United States, 2016 U.S. App. LEXIS 18829 (5th Cir. Oct. 19, 2016): Jewel Honey-Love appeals from the district court's orders excluding the testimony of her expert witness and granting Defendants' motion for summary judgment as to Honey-Love's medical negligence claim. Because the exclusion o ...

Honey-Love v. United States, 2016 U.S. App. LEXIS 18829 (5th Cir. Oct. 19, 2016): Jewel Honey-Love appeals from the district court's orders excluding the testimony of her expert witness and granting Defendants' motion for summary judgment as to Honey-Love's medical …

Text [Email] Evidence — Messages Admitted to Show Tone (Flirtatious, Conversational) and Nature of Relationship Are Not Received for the Truth of Their Contents, Thus Not Hearsay

Hankins v. Commonwealth, 2016 Va. App. LEXIS 249 (Va. Ct. App. Sept. 27, 2016): * Pursuant to Code § 17.1-413, this opinion is not designated for publication. Gary Stephen Hankins ("appellant") appeals his felony convictions of six counts of taking indecent liberties with a child by one in a custodial or ...

Hankins v. Commonwealth, 2016 Va. App. LEXIS 249 (Va. Ct. App. Sept. 27, 2016): * Pursuant to Code § 17.1-413, this opinion is not designated for publication. Gary Stephen Hankins ("appellant") appeals his felony convictions of six counts of taking …

Jury Trial Waiver — Who Bears the Burden of Proving Knowing & Voluntary Waiver? — Circuit Split — Factors Determining Enforceability

Goodbye Vanilla, LLC, v. Aimia Proprietary Loyalty U.S., Inc., 2016 U.S. Dist. LEXIS 152775 (D. Minn. Sept. 8, 2016): This matter comes before the Court on Defendant Aimia Proprietary Loyalty U.S. Inc.'s ("Aimia") Motion to Strike Plaintiff's Jury Demand ("Motion to Strike") [Doc. No. 50]. This matter was r ...

Arbitration — FAA Requirement That Motion to Vacate Be Served within 3 Months of Award Is Subject to Equitable Tolling (Circuit Split) — Award Vacated Because Panel Chair Lied About Credentials

Move, Inc. v. Citigroup Global Mkts., Inc., 2016 U.S. App. LEXIS 19930 (9th Cir. Nov. 4, 2016): Move, Inc. (Move) appeals the district court's order dismissing its action and denying its motion to vacate an arbitration award pursuant to the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq. We have jurisdiction pursuant ...

While Expert May Not Testify As to the Credibility of Other Witnesses, Expert May Summarize Their Testimony As a Basis for His or Her Own Opinion

Percelle v. Pearson, 2016 U.S. Dist. LEXIS 150629 (N.D. Cal. Oct. 31, 2016): Defendants next argue that Subia should be precluded from summarizing the testimony of other witnesses and from offering his opinion on the credibility of those witnesses. The credibility of witnesses is a matter to be decided by the jury and is thus ...

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…

Commercial Litigation and Arbitration

New York State Spoliation Law — Adverse Inference OK for Negligence — Lack of Lit. Hold ≠ Gross Negligence Per Se — Ct. App. Not Bound by App. Div.’s Characterization in Certification Order

Experts — 26(e) ≠ Extension of Deadline to “Deliver Lion’s Share of Expert Info” or Right to Submit “New Rather Than Supplementary” Opinions — 4 Factors to Judge Whether Exclusion OK — Continuance Usually Preferable — Good Quotes

Rule 11 Safe Harbor — Filing Rule 11 Motion after Magistrate Judge’s R&R & before District Judge’s Adoption Is Timely — Plaintiff Retains Right to Withdraw Challenged Claim until Adoption

Rule 37(c)(1) Sanctions: Barring Plaintiff Who Failed to Disclose Damages Computation Per 26(a)(1) from Contesting Defendant’s Computation of Profits — 7th Am. Guarantees Right to Jury Trial But Not to Bench Trial, Even If Claim Is Equitable

Expert Reports — Failure to Prepare & Attach Exhibits Renders Report Incomplete (Moral: Get a Stip)

Text [Email] Evidence — Messages Admitted to Show Tone (Flirtatious, Conversational) and Nature of Relationship Are Not Received for the Truth of Their Contents, Thus Not Hearsay

Jury Trial Waiver — Who Bears the Burden of Proving Knowing & Voluntary Waiver? — Circuit Split — Factors Determining Enforceability

Arbitration — FAA Requirement That Motion to Vacate Be Served within 3 Months of Award Is Subject to Equitable Tolling (Circuit Split) — Award Vacated Because Panel Chair Lied About Credentials

While Expert May Not Testify As to the Credibility of Other Witnesses, Expert May Summarize Their Testimony As a Basis for His or Her Own Opinion

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

Recent Posts

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

Rule 11: Violation of 21 Day Safe Harbor “Overlook[ed]” As Non-Prejudicial by First Circuit — “Rule 11 Monetary Sanctions Must Be Reasonable” (Good Quote) — Rule 11(c)(4) Requires Consideration of Offender’s Ability to Pay

Temporary Restraining Order = Preliminary Injunction: 3 Supreme Court Cases (TRO=PI x 3)

Rule 37(c)(1) Sanctions — Exclusion of Untimely Expert Report — Eighth Circuit’s 4-Factor Test

RICO: So Insubstantial A Claim As to Fail to Confer Subject Matter Jurisdiction

RICO: Distinctiveness Issues Most Likely to Appear When The Enterprise Is An Entity Capable of Being Sued, Like A Corporation

FRAP 38 Sanctions: Eleventh Circuit Generally Declines to Impose FRAP 38 Sanctions on Pro Se Appellants Absent a History of Frivolous Litigation or an Explicit Warning

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