Complex Lit Blog

(1) Inherent Power Must Arise From the Litigation before the Sanctioning Court — Abuse of Discretion to Use It to Sanction Other Conduct — (2) Additional [Criminal] Due Process Protections Required for Punitive Sanctions — (3) Although Movant Bears Burden Of Establishing Right To Intervene, Rule 24 Is To Be Liberally Construed

McClenny Moseley & Assocs., P.L.L.C. v. Equal Access Just. Fund, L.P., 2024 U.S. App. LEXIS 13995 (5th Cir. June 7, 2024) (unpublished):

McClenny Moseley & Assocs., P.L.L.C. v. Equal Access Just. Fund, L.P., 2024 U.S. App. LEXIS 13995 (5th Cir. June 7, 2024) (unpublished): DANA M. DOUGLAS, Circuit Judge:* * This opinion is not designated for publication. See 5TH…

Civil RICO Claim Survives Defendant’s Death (fn 24) (issue conceded) — Meaning of “Abuse of Discretion” (First Circuit) — Court Has Discretion to Decline to Substitute a New Party for a Deceased Party — Who Qualifies As A Deceased Party’s Successor or Representative — Arguments Forfeited Below Considered for Plain Error Only on Appeal — 4 Prongs of Plain Error — The 90-Day Substitution Period in Rule 25(a) Begins Upon Service of the Suggestion of Death — Default Judgment Is a Drastic Measure And Should Be Employed Only in an Extreme Situation

Universitas Education, LLC v. Granderson, 98 F.4th 357 (1st Cir. 2024): When Plaintiff Appellee Universitas Education, LLC (“Universitas”) first initiated this lawsuit against Jack E. Robinson, III (“Robinson”) in 2015, it sought damages against him for (among many other things) alleged violations of the Racketeer Influenced and Corrupt Organizations (� ...

FRAP 38 Sanctions Request In Brief Denied Because Separate Motion Required — But Denied Without Prejudice To Filing Separate Motion

Prabhjot Kaur Kang v. W. Governors Univ., 2024 U.S. App. LEXIS 13295 (9th Cir. June 3, 2024) (unpublished): MEMORANDUM* * < ...

Prabhjot Kaur Kang v. W. Governors Univ., 2024 U.S. App. LEXIS 13295 (9th Cir. June 3, 2024) (unpublished): MEMORANDUM* * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3…

(1) FRAP 38 Sanctions: “Woebegone Contests To Arbitrators’ Awards Are Sanctionable. Anything Less Makes A Mockery Of Arbitration’s Promise To Expedite And Cut The Costs Of Resolving Disputes” (Good Quote) — (2) Arbitration: New York Law and AAA Rules Allow Awards of Attorney’s Fees as Sanctions Even If the Contract Provides That Each Party Is to Bear Its Own Fees

Am. Zurich Ins. Co. v. Sun Holdings, Inc., 2024 U.S. App. LEXIS 13303 (7th Cir. June 3, 2024): Sun Holdings purchased a workers'-compensation policy from American Zurich Insurance. The policy made American Zurich responsible for paying all approv ...

Am. Zurich Ins. Co. v. Sun Holdings, Inc., 2024 U.S. App. LEXIS 13303 (7th Cir. June 3, 2024): Sun Holdings purchased a workers’-compensation policy from American Zurich Insurance. The policy made American Zurich responsible for paying all approved claims in…

(1) RICO: Causation Requires Direct Relation Between Injury and Conduct — May Properly Be Assessed at Pleading Stage — “Civil RICO Is An Unusually Potent Weapon And For That Reason Courts Strive To Flush Out Frivolous Rico Allegations At An Early Stage Of The Litigation” (Good Quote) — (2) Denial of Leave to Amend Usually Reviewed for Abuse of Discretion But De Novo Review Applies If Denial Based on a Legal Interpretation, Such as Futility

*1 Upon due consideration, it is hereby ORDERED, ADJUDGED, and DECREED that the judgment of the district court is AFFIRMED. Plaintiffs Jonathan and Esther Zuhovitzky challenge the district court’s dismissal, pursuant to

*1 Upon due consideration, it is hereby ORDERED, ADJUDGED, and DECREED that the judgment of the district court is AFFIRMED. Plaintiffs Jonathan and Esther Zuhovitzky challenge the district court’s dismissal, pursuant to Federal Rule of Civil Procedure …

RICO: Basic Elements of Civil RICO Claim and Pattern Requirement

Gladney v. Consumers Credit Union, 2024 WL 2797914 (11th Cir. May 31, 2024) (unpublished): PER CURIAM: Abram Gladney, pro se, appeals the district court’s dismissal of his pro se civil complaint against Consumers Credit Union (“CCU”), with whom Gladney refinanced his car loan, for failure to state a claim. Gladney also appeals the ...

Gladney v. Consumers Credit Union, 2024 WL 2797914 (11th Cir. May 31, 2024) (unpublished): PER CURIAM: Abram Gladney, pro se, appeals the district court’s dismissal of his pro se civil complaint against Consumers Credit Union (“CCU”), with whom Gladney refinanced…

Rule 37 Sanction of Dismissal — Sixth Circuit Factors — Factors Applied More Stringently When Fault Lies with Counsel Rather Than Party — Bad Faith/Willfulness/Fault Satisfied by Delay or Contumacious Conduct — Failure to Comply with Discovery Requests or Court Order Versus Merely Dilatory Conduct — Time, Money and Effort to Obtain Legally-Required Cooperation = Prejudice — Dismissal May Be First and Only Sanction

D & R Servs., LLC v. Mesa Underwriters Specialty Ins. Co., 2024 WL 2830660 (6th Cir. June 4, 2024): *1 D & R Services, LLC and DD & KD Services, LLC1 brought this action against their insurer, Mesa Underwriters Specialty Insurance Company (“MUSIC”), after MUSIC allegedly failed to pay for wi ...

RICO Conspiracy: (1) Fourth Circuit’s 3-Part Test Requires Conspiring to Operate or Manage the Enterprise (Minority Rule Following Salinas) — (2) Conspirator Need Not Personally Commit Any Predicate Acts — Sufficient That S/he Agreed That One Member of the Conspiracy Commit At Least 2 Predicate Acts — Unnecessary to Identify Specific Racketeering Acts That The Defendant Agreed Would Be Committed — “The Object Of A Rico Conspiracy Is To Engage In Racketeering, Not To Commit Each Predicate Racketeering Act” — Necessary to Prove Only The Defendant Agreed to Pursue The Same Criminal Objective As the Enterprise — (4) Because A Racketeering Conspiracy Is Not Contingent On Specific Predicates, A Jury May Convict On A RICO Conspiracy Charge While Acquitting Defendant On Predicate Acts

United States v. Hunt, 99 F.4th 161 (4th Cir. 2024): This appeal arises from the prosecution of the “36th Street Bang Squad” (the “Bang Squad”), a gang that committed a string of murders, attempted murders, and assaults in 2015 and 2017. The United States charged seven of the gang’s members — Martin Hunt, Deshaun Richardson, Eric Nixon, Xavier Greene, Raymond Palmer, ...

Circuit Split — Derivative Actions — Third Circuit Joins Majority of Circuits in Holding That Dismissal Decisions on Grounds of Futility Are Subject to De Novo Review, Abandoning Abuse of Discretion — Relevant Factors in Deciding Whether De Novo or Deferential Review Is Appropriate

In re: Cognizant Tech. Solutions Corp. Derivative Litigation, 101 F.4th 250 (3d Cir. 2024) (en banc): We initiated en banc review of this case to consider what standard of appellate review ought to apply when a district court dismisses a shareholder derivative action for failure to plead demand futility under

In re: Cognizant Tech. Solutions Corp. Derivative Litigation, 101 F.4th 250 (3d Cir. 2024) (en banc): We initiated en banc review of this case to consider what standard of appellate review ought to apply when a district court dismisses a …

RICO: No Domestic Injury Where Investors In Ghana Placed Funds With Ghanaian Investment Firm And Those Funds Were Stolen In Ghana By A Ghanaian Family Domiciled In The US — Irrelevant That Funds Were Transmitted To US entity Owned By Ghanaian-American Defendants — Domestic Injury May Properly Be Decided On Motion To Dismiss — Rejecting A Conduct-Plus-Property Rule: That A RICO Injury Arises In The Place Where A Plaintiff’s Property Is Located At The Time Of The Racketeering Conduct

Percival Partners Ltd. v. Nduom Groupe Nduom USA, LLC, 2024 U.S. App. LEXIS 10431, 99 F.4th 696 (4th Cir. 2024): This case began when investors in Ghana placed their funds with a Ghanaian private investment firm, hoping to recoup a profit. Instead, a Ghanaian family domiciled in Virginia allegedly used a web of shell companies across Ghana and the United States to illici ...

Percival Partners Ltd. v. Nduom Groupe Nduom USA, LLC, 2024 U.S. App. LEXIS 10431, 99 F.4th 696 (4th Cir. 2024): This case began when investors in Ghana placed their funds with a Ghanaian private investment firm, hoping to recoup a …

Commercial Litigation and Arbitration

FRAP 38 Sanctions Request In Brief Denied Because Separate Motion Required — But Denied Without Prejudice To Filing Separate Motion

RICO: Basic Elements of Civil RICO Claim and Pattern Requirement

Circuit Split — Derivative Actions — Third Circuit Joins Majority of Circuits in Holding That Dismissal Decisions on Grounds of Futility Are Subject to De Novo Review, Abandoning Abuse of Discretion — Relevant Factors in Deciding Whether De Novo or Deferential Review Is Appropriate

Recent Posts

RICO: Cover-Up Within Limitations Period of Untimely RICO Violation “Was Merely A Continuation” Of The Original Injury And Could Not Be Used “As A ‘Bootstrap’ To Salvage [The] Time-Barred Claims–Declining to Apply Pinkerton Doctrine to Civil RICO Claims

Inherent Power — Circumstantial Evidence — Fact That Bad Faith May Be Shown by Establishing That Conduct Was So Egregious It Was Necessarily Committed in Bad Faith Does Not Mean That Bad Faith Must Be The Sole Explanation for The Bad Conduct

RICO Causation: Testing Labs’ Misstatements As to Alcohol Tests’ Efficacy Not Communicated to Plaintiffs’ Employers Did Not Cause Plaintiffs’ Professional Harm

Rule 37(d) Sanctions — For Failure to Serve Answers, Objections, Or Written Response to Discovery Requests — Are Not Limited to Intentional Misconduct; Even Innocent Mistakes May Be Covered

Sanctions: (1) Rule 11 Does Not Apply to Litigation Papers Initially Filed in State Court — Only Reaffirmance in Federal Court Post-Removal Is Subject to Sanction — (2) “The Fact That A Legal Theory Is A Long-Shot Does Not Necessarily Mean It Is Sanctionable” (Good Quote)

Supreme Court: Relief under Rule 60(b)(6) Requires Extraordinary Circumstances Even If It Is Invoked to Allow Amendment of The Complaint–Rule 15’s Liberal Approach to Amendment Does Not Change That (Reversing Second Circuit)

FRAP 38 Sanctions — Eleventh Circuit Generally Does Not Impose FRAP 38 Sanctions on Pro Se Litigants, But May Do So If They Have Persisted Despite Judicial Warnings of Frivolousness

Inherent Power Sanctions: No Dismissal with Prejudice If Lesser Sanctions Will Suffice — The Liberal Pleading Standard of Swierkiewicz “Is Still Good Law”

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