Complex Lit Blog

Judicial Notice — Federal Court May Take Judicial Notice of Papers Filed in State Court

Wilson v. Cnty. of Contra Costa, 2015 U.S. Dist. LEXIS 108246 (N.D. Cal. Aug. 14, 2015): As to the Due Process Claims, Defendants challenge these claims on the merits but also ask the Court, as an alternative to dismissal of these claims, to stay proceedings under the Colorado River doctrine pending the resolution of ...

Wilson v. Cnty. of Contra Costa, 2015 U.S. Dist. LEXIS 108246 (N.D. Cal. Aug. 14, 2015): As to the Due Process Claims, Defendants challenge these claims on the merits but also ask the Court, as an alternative to dismissal of …

Appealability — Denial of Summary Judgment Is Generally Interlocutory, Subsumed by Verdict, Unappealable — But a “Controversial Exception” Exists for “Purely Legal Issues” (Circuit Split)

Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 2016 U.S. App. LEXIS 14057 (7th Cir. Aug. 2, 2016): A. Facilitating a RICO Enterprise The racetracks did not properly preserve for appeal their argument that the evidence did not support a finding that the racetracks agreed to facilitate the Blagojevich rackete ...

Rule 11 Sanctions Inapt Where Losing Claims “Not So Obviously Foreclosed by Precedent” As to Doom Them — Courts Should Be Cautious to Avoid Chilling Enthusiasm & Creativity of Counsel — Acts Before Administrative Agency Sanctionable Only by Agency

Snow Ingredients, Inc. v. Snowizard, Inc., 2016 U.S. App. LEXIS 14977 (5th Cir. Aug. 15, 2016): As the seasons turn from spring to summer in New Orleans, locals know to expect familiar changes. The days get longer. The temperature rises. And in the humid warmth of summer, long lines grow outside the most popular sno-ball shops. The pa ...

Injunctions Must Be Written So That an Ordinary Person Can Understand Exactly What Is Proscribed — Omissions or Ambiguities Are Resolved in Favor of the Enjoined Party

U.S. ex rel. Yelverton v. Fed. Ins. Co., 2016 U.S. App. LEXIS 14378 (D.C. Cir. Aug. 5, 2016): These consolidated appeals are the latest chapter in a long line of litigation over a bankruptcy settlement agreed to by the trustee whom the United States Trustee appointed to represent the bankruptcy estate. The debtor's numerou ...

U.S. ex rel. Yelverton v. Fed. Ins. Co., 2016 U.S. App. LEXIS 14378 (D.C. Cir. Aug. 5, 2016): These consolidated appeals are the latest chapter in a long line of litigation over a bankruptcy settlement agreed to by the trustee …

Spoliation — Three Purposes Underlying Adverse Inference Sanction — Lesser Sanctions OK Where No Intent to Spoliate, Lost Info Was Tangential, and Movant Was Not Diligent in Exploring Alternate Sources

Mazzei v. Money Store, 2016 U.S. App. LEXIS 12973 (2d Cir. July 15, 2016): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED. Joseph Mazzei appeals from the judgment of the United States District Court for the Southern Distric ...

Mazzei v. Money Store, 2016 U.S. App. LEXIS 12973 (2d Cir. July 15, 2016): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED. Joseph Mazzei appeals from the judgment…

Does § 1927 Extend to Pre-Removal Conduct in State Court? — Case Law Split — Inherent Power Extends to Conduct Occurring before Other Tribunals

Boyer v. BNSF Rwy. Co., 2016 U.S. App. LEXIS 14913 (7th Cir. Aug. 9, 2016) (Note: The original panel opinion is excerpted in our post of June 16, 2016): On Petition for Rehearing and Rehearing En Banc In his petition for rehearing, attorney Christopher D. Stombaugh argues for [*2] the first time t ...

Boyer v. BNSF Rwy. Co., 2016 U.S. App. LEXIS 14913 (7th Cir. Aug. 9, 2016) (Note: The original panel opinion is excerpted in our post of June 16, 2016): On Petition for Rehearing and Rehearing En Banc In his petition …

Arbitration: Federal Court Has Jurisdiction under FAA to Review Award If Court Would’ve Had Jurisdiction Over Dispute But For Arb. Agreement (Look-Through Approach)—Arbitrators’ Failure to Follow Rules—Statutory Interpretation Quotes

Doscher v. Sea Port Grp. Secs., LLC, 2016 U.S. App. LEXIS 14767 (2d Cir. Aug. 11, 2016): This case arises from the dismissal of a petition to vacate an arbitral award pursuant to section 10 of the Federal Arbitration Act (the "FAA" or the "Act"), 9 U.S.C. § 10. It requires us to reconside ...

Hearsay: Letter from 3d Party’s Counsel Isn’t Business Record of 3d Party or of Recipient (Good Quotes) — Spoliation: No Adverse Inference Absent Proof Records Existed or Were Lost after Notice; Tangible vs. ESI Standards (6th Cir.)

Applebaum v. Target Corp., 2016 U.S. App. LEXIS 14049 (6th Cir. Aug. 2, 2016): Cycling and gravity have an uneasy relationship, as anyone who rides eventually learns. There are many ways, too many ways, to fall. A slick surface, an effort to avoid a hazard, a suddenly appearing animal, and a suddenly decelerating rider all come to min ...

Class Actions—After Trial, Pre-Judgment, Court May Decertify, Must Defer to Jury Findings Unless Clearly Wrong—No 7th Amendment Problem: Absent Class Members Rights Preserved—Appeals Court Has Discretion to Consider Waived Arguments

Mazzei v. Money Store, 2016 U.S. App. LEXIS 12994 (2d Cir. July 15, 2016): Plaintiff-appellant Joseph Mazzei initiated a class action against The Money Store et al., alleging, inter alia, overcharge of late fees on mortgages, and prevailed in a jury trial. The United States District Court for the Southern District of New York (Koeltl, ...

Rule 37(b) Sanctions — Striking Personal Jurisdiction Defense for Failure to Provide Jurisdictional Discovery in Violation of Court Orders — Seeking Foreign Court Order Barring Discovery = Evidence of Bad Faith

Chevron Corp. v. Donziger, 2016 U.S. App. LEXIS 14552 (2d Cir. Aug. 8, 2016): Defendants-appellants Steven Donziger, Donziger & Associates, PLLC, and the Law Offices of Steven R. Donziger (collectively the "Donziger Firm" or "Firm"), and defendants-appellants Hugo Gerardo Camacho Naranjo ("Camacho") and J ...

Commercial Litigation and Arbitration

Judicial Notice — Federal Court May Take Judicial Notice of Papers Filed in State Court

Appealability — Denial of Summary Judgment Is Generally Interlocutory, Subsumed by Verdict, Unappealable — But a “Controversial Exception” Exists for “Purely Legal Issues” (Circuit Split)

Rule 11 Sanctions Inapt Where Losing Claims “Not So Obviously Foreclosed by Precedent” As to Doom Them — Courts Should Be Cautious to Avoid Chilling Enthusiasm & Creativity of Counsel — Acts Before Administrative Agency Sanctionable Only by Agency

Injunctions Must Be Written So That an Ordinary Person Can Understand Exactly What Is Proscribed — Omissions or Ambiguities Are Resolved in Favor of the Enjoined Party

Spoliation — Three Purposes Underlying Adverse Inference Sanction — Lesser Sanctions OK Where No Intent to Spoliate, Lost Info Was Tangential, and Movant Was Not Diligent in Exploring Alternate Sources

Does § 1927 Extend to Pre-Removal Conduct in State Court? — Case Law Split — Inherent Power Extends to Conduct Occurring before Other Tribunals

Arbitration: Federal Court Has Jurisdiction under FAA to Review Award If Court Would’ve Had Jurisdiction Over Dispute But For Arb. Agreement (Look-Through Approach)—Arbitrators’ Failure to Follow Rules—Statutory Interpretation Quotes

Hearsay: Letter from 3d Party’s Counsel Isn’t Business Record of 3d Party or of Recipient (Good Quotes) — Spoliation: No Adverse Inference Absent Proof Records Existed or Were Lost after Notice; Tangible vs. ESI Standards (6th Cir.)

Class Actions—After Trial, Pre-Judgment, Court May Decertify, Must Defer to Jury Findings Unless Clearly Wrong—No 7th Amendment Problem: Absent Class Members Rights Preserved—Appeals Court Has Discretion to Consider Waived Arguments

Rule 37(b) Sanctions — Striking Personal Jurisdiction Defense for Failure to Provide Jurisdictional Discovery in Violation of Court Orders — Seeking Foreign Court Order Barring Discovery = Evidence of Bad Faith

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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