Complex Lit Blog

§ 1927 and FRAP 38 Sanctions — Appeal Is Frivolous If Obviously without Merit and Vexatious If Prosecuted for Delay, Harassment or Other Improper Purpose

U.S. ex rel. Jacobs v. Lambda Research, Inc., 2015 U.S. App. LEXIS 7308 (6th Cir. May 1, 2015): A. We review the district court's grant of summary judgment de novo. Bultema v. United States, 359 F.3d 379, 382 (6th Cir. 2004). To prevail on a claim under the FCA, a plaintiff must show that the defen ...

Attorney-Client Privilege — Talks with Law Firm GC Privileged — No Current Client Exception — Privilege Intact Even If RPC Violated, Intent to Disclose Exists — Reliance on Privileged Matter Sine Qua Non of At-Issue Waiver (Good Quotes)

Stock v. Schnader Harrison Segal & Lewis LLP, 2016 N.Y. App. Div. LEXIS 5082 (1st Dept. June 30, 2016): The primary issue on this appeal is whether attorneys who have sought the advice of their law firm's in-house general counsel on their ethical obligations in representing a firm client may successfully invoke attorney-cl ...

Stock v. Schnader Harrison Segal & Lewis LLP, 2016 N.Y. App. Div. LEXIS 5082 (1st Dept. June 30, 2016): The primary issue on this appeal is whether attorneys who have sought the advice of their law firm's in-house general counsel …

Facebook Admissibility: Photos Authenticated by Witness Familiar with Page Owner’s Appearance — Posts by Fact They Emanated from Owner’s User Name and Were Obtained via Search Warrant for His Account

People v. Johnson, 2016 Mich. App. LEXIS 1256 (Mich. Ct. App. June 28, 2016): Defendant, Timothy Noel Johnson, was convicted by a jury of first-degree premeditated murder, MCL 750.316(1)(a), possession of a firearm during the commission of a felony (felony firearm), MCL 750.227b, and felon in possession of a ...

People v. Johnson, 2016 Mich. App. LEXIS 1256 (Mich. Ct. App. June 28, 2016): Defendant, Timothy Noel Johnson, was convicted by a jury of first-degree premeditated murder, MCL 750.316(1)(a), possession of a firearm during the commission of a felony (felony …

Judicial Notice of Internet Evidence: Party’s Filings with State, Local Governments — Pending Appeal, District Court Retains Jurisdiction to Modify Injunction But May Not Materially Alter the Status of the Case on Appeal or Change the Core Issues

Nat’l Grange of the Order of Patrons of Husbandry v. Calif. State Grange, 2016 U.S. Dist. LEXIS 53038 (E.D. Cal. April 20, 2016): Plaintiff National Grange of the Order of Patrons of Husbandry brought this action against defendant California State Grange for trademark infringement and unfair competition under the Lanham Act. Present ...

Facebook Messages Authenticated by Recipient: She and Sender Used a Code Known Only to Them, She Recognized “the Way He Said Things” and the Subject Matter Was Known Only to Them — Recipient’s Messages Received for Context ≠ Hearsay

Bullman v. State, 2016 Tex. App. LEXIS 3775 (Tex. Ct. App. Apr. 13, 2016): In four issues, appellant, Curtis Nathaniel Bullman, challenges his conviction for continuous sexual abuse of a young child. See Tex. Penal Code Ann. § 21.02 (West Supp. 2015). Bullman contends the trial court abused its discretion in admitti ...

LinkedIn Admissibility: Profile of Employee Is Hearsay as to Employer Concerning Whether She Was a Manager Authorized to Accept Service of Process for Employer — “Proper Service of Process Is Not Some Mindless Technicality” (Good Quote)

Genesis Diamonds, LLC v. John Hardy, Inc., 2016 U.S. Dist. LEXIS 83165 (M.D. Tenn. June 27, 2016): Before the court are multiple motions: (1) defendant John Hardy, Inc.'s Motion for Judgment on the Pleadings (Doc. No. 8); (2) a Motion to Dismiss for Lack of Personal Jurisdiction and Insufficiency of Servic ...

Genesis Diamonds, LLC v. John Hardy, Inc., 2016 U.S. Dist. LEXIS 83165 (M.D. Tenn. June 27, 2016): Before the court are multiple motions: (1) defendant John Hardy, Inc.'s Motion for Judgment on the Pleadings (Doc. No. 8); (2) a …

Rule 37(c)(1) Sanctions — Two-Page Expert Report Properly Excluded for Failure to Set forth All Opinions — Report “Sufficiently Sparse” as to Fail to Satisfy 702/Daubert

U.S. ex rel. Tennessee Valley Auth. v. 1.72 Acres of Land in Tennessee, 2016 U.S. App. LEXIS 8287 (6th Cir. May 5, 2016): This is an appeal by the landowner, Karl Thomas, from an award made by the district court in a condemnation action brought by the Tennessee Valley Authority [**2] ("TVA") under the TV ...

Spoliation of Tangible Evid. — Adverse Inference Instruction Requires Intentionality & Prejudice (8th Cir.) — Court Must Make Findings on the Record — Plain Error If No Objection to Instructions — Failure to Appeal Again after R. 59 Motion Denied

Lincoln Composites, Inc. v. Firetrace USA, LLC, 2016 U.S. App. LEXIS 10346 (8th Cir .June 8, 2016): Firetrace USA, LLC (Firetrace) appeals the district court's1 denial of its Federal Rule of Civil Procedure 59 motion for new trial or remittitur, following a jury verdict in favor of Lincoln Composites, Inc. (Lincoln). Fi ...

Arbitration: A Reasoned Award Is A Simple Result; Need Not Delve Into Every Argument — A Claim Arbitrators Exceeded Their Authority Is Judged Under the “Barely Colorable Justification” Standard

Leeward Constr. Co. v. American Univ. of Antigua – College of Medicine, 2016 U.S. App. LEXIS 11570 (2d Cir. June 24, 2016): American University of Antigua-College of Medicine ("AUA") appeals from the March 26, 2013 memorandum opinion and the March 28, 2013 judgment of the United States District Court for the Southern Distr ...

Arbitration — Manifest Disregard Lives, Is Doctrine of Last Resort, Limited to Exceedingly Rare Instances of Egregious Impropriety — Three Elements — Dissent, Alone, Not Enough

American Univ. of Antigua-College of Medicine v. Leeward Constr. Co., 2016 U.S. App. LEXIS 11548 (2d Cir. June 24, 2016): Leeward Construction Company appeals from the May 1, 2015 opinion and order of the United States District Court for the Southern District of New York (Cote, J.) confirming an international arbitral award w ...

Commercial Litigation and Arbitration

§ 1927 and FRAP 38 Sanctions — Appeal Is Frivolous If Obviously without Merit and Vexatious If Prosecuted for Delay, Harassment or Other Improper Purpose

Attorney-Client Privilege — Talks with Law Firm GC Privileged — No Current Client Exception — Privilege Intact Even If RPC Violated, Intent to Disclose Exists — Reliance on Privileged Matter Sine Qua Non of At-Issue Waiver (Good Quotes)

Facebook Admissibility: Photos Authenticated by Witness Familiar with Page Owner’s Appearance — Posts by Fact They Emanated from Owner’s User Name and Were Obtained via Search Warrant for His Account

Judicial Notice of Internet Evidence: Party’s Filings with State, Local Governments — Pending Appeal, District Court Retains Jurisdiction to Modify Injunction But May Not Materially Alter the Status of the Case on Appeal or Change the Core Issues

Facebook Messages Authenticated by Recipient: She and Sender Used a Code Known Only to Them, She Recognized “the Way He Said Things” and the Subject Matter Was Known Only to Them — Recipient’s Messages Received for Context ≠ Hearsay

LinkedIn Admissibility: Profile of Employee Is Hearsay as to Employer Concerning Whether She Was a Manager Authorized to Accept Service of Process for Employer — “Proper Service of Process Is Not Some Mindless Technicality” (Good Quote)

Rule 37(c)(1) Sanctions — Two-Page Expert Report Properly Excluded for Failure to Set forth All Opinions — Report “Sufficiently Sparse” as to Fail to Satisfy 702/Daubert

Spoliation of Tangible Evid. — Adverse Inference Instruction Requires Intentionality & Prejudice (8th Cir.) — Court Must Make Findings on the Record — Plain Error If No Objection to Instructions — Failure to Appeal Again after R. 59 Motion Denied

Arbitration: A Reasoned Award Is A Simple Result; Need Not Delve Into Every Argument — A Claim Arbitrators Exceeded Their Authority Is Judged Under the “Barely Colorable Justification” Standard

Arbitration — Manifest Disregard Lives, Is Doctrine of Last Resort, Limited to Exceedingly Rare Instances of Egregious Impropriety — Three Elements — Dissent, Alone, Not Enough

Recent Posts

RICO: Indirect Purchasers (Car Buyers/Renters) Lack Standing to Sue Manufacturers for RICO Violations Even Though Intermediaries (Auto Dealer Direct Purchasers) Lack Any Damages

RICO: Statutory Requirement that RICO Be Liberally Construed Does Not Establish a More Liberal Pleading Standard for RICO Claims — “To Be Sure, Adequately Pleading a RICO Claim Can Be Challenging” (Good Quote) — Court May Dismiss Action Pursuant to Rule 41(b) Absent A Motion

For An Appeal to Be Timely, A Motion for Reconsideration in The District Court (A Rule 59(e) Motion) Must Be Filed, And Not Just Served within 30 Days of The Decision, to Toll The 30-Day Period for Filing An Appeal

There Is No Good-Faith Defense For Issuing An Overly Burdensome Subpoena

Purposes of Rule 37 and Section 1927 Sanctions

While Rule 11 Doesn’t Apply to Appellate Proceedings (Unless It Has Been Incorporated in Local Appellate Rules), Rule 11 Caselaw Is Looked to for Guidance in Interpreting Applicable Sanctions Powers on Appeal

Rule 11 Sanctions & Appellate Review: Abuse of Discretion Standard Applies Unless Sanctions Are Based Solely (Not Just in Part) on Legal Issues, in Which Case Review Is De Novo

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