Complex Lit Blog

Supreme Court: Judge May Rescind Jury Discharge Order, Re-Empanel — Inherent Power Must Be Reasonable Response to Problem & Can’t Contradict Rule or Statute — “All Judges Make Mistakes. (Even Us.)” — Good Quotes

Dietz v. Bouldin, 2016 U.S. LEXIS 3772 (U.S. June 9, 2016): In this case, a jury returned a legally impermissible verdict. The trial judge did not realize the error until shortly after he excused the jury. He brought the jury back and ordered them to deliberate again to correct the mistake. The question before us is whether a federal ...

New York — Privilege — Common Interest Exception Requires Pending or Anticipated Litigation — Common Legal Interests Arising out of Merger (Regulatory Approvals, Taxes, Benefits, Etc.) Not Enough — Federal Courts & Restatement to the Contrary

Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 2016 N.Y. LEXIS 1649, 2016 NY Slip Op 04439 (N.Y. Ct. App. June 9, 2016): This discovery dispute involves certain attorney-client communications that defendant Bank of America Corporation and defendant Countrywide Financial Corporation shared when the two entities were in the ...

Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 2016 N.Y. LEXIS 1649, 2016 NY Slip Op 04439 (N.Y. Ct. App. June 9, 2016): This discovery dispute involves certain attorney-client communications that defendant Bank of America Corporation and defendant Countrywide Financial …

Rule 37(b) Sanctions: Dismissal for Violating Court Orders — No Need to Consider Lesser Sanctions If Violation Deliberate — Repeatedly Flouting Orders = Bad Faith — Party’s Testimony Rarely Dispensable Based on Own Say-So (Good Quotes)

United States v. $11,071,188.64, 2016 U.S. App. LEXIS 10226 (8th Cir. June 6, 2016): In December 2012, the United States filed an Amended Verified Complaint seeking civil forfeiture of $11,071,188.64 held in various banking and brokerage accounts in the United States by LaOstriches & Sons, Ltd. ("LaOstriches"), on the ground ...

Sanctions — Rule 37 Dismissal Only in Extreme Situations Where Willfulness, Bad Faith or Fault Exists — Multifactor Test (Second Circuit)

Smith v. Conn. Dep’t of Correction, 2016 U.S. App. LEXIS 5375 (2d Cir. Mar. 21, 2016): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Plaintiff-appellant Sharon Smith appeals the judgment of the district court entered J ...

Smith v. Conn. Dep’t of Correction, 2016 U.S. App. LEXIS 5375 (2d Cir. Mar. 21, 2016): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Plaintiff-appellant Sharon Smith appeals…

Yelp Authentication — Appearance of Negative Reviews of Plaintiff’s Business Shortly after Plaintiff Won TRO + Evidence from ISPs That Reviews Were Posted from IP Addresses Owned by Defendant at Time or 6 Weeks Later Authenticates Reviews as Def’s

Kinda v. Carpenter, 2016 Cal. App. LEXIS 449 (Cal. Ct. App. June 6, 2016): Commercial tenants Artisan Fine Oriental Rug Care, Inc. (Artisan) and its owners Margaret L. Kinda and Aaron Kinda (plaintiffs) sought a temporary restraining order and preliminary injunction against their landlord Scott Carpenter (defendant). ...

Kinda v. Carpenter, 2016 Cal. App. LEXIS 449 (Cal. Ct. App. June 6, 2016): Commercial tenants Artisan Fine Oriental Rug Care, Inc. (Artisan) and its owners Margaret L. Kinda and Aaron Kinda (plaintiffs) sought a temporary restraining order and preliminary …

§ 1927 Sanctions — Where There Appears to Be a Genuine Question Whether § 1927 Was Violated, It Is Error for the District Court Not to Explain Its Denial of Fees — District Court Has Better Means of Knowing What Is Just re Sanctions (Good Quotes)

U.S. ex rel. Burke v. Record Press, Inc., 2016 U.S. App. LEXIS 4685 (D.C. Cir. Mar. 15, 2016): Under the False Claims Act, 31 U.S.C. §§ 3729-3733, a private person can bring an action on behalf of the government (and herself) alleging that a third party submitted a false or fraudulent claim for payment to the government. See gen ...

American Pipe Tolling Does Not Benefit Absent Class Members Who File Suit Before Class Certification Decided (Circuit Split) and Does Not Apply to Statutes of Repose (Another Circuit Split)

Stein v. Regions Morgan Keegan Select High Income Fund, Inc., 2016 U.S. App. LEXIS 9142 (6th Cir. May 19, 2016): [**7] A. Overview of statutes of limitation and statutes of repose Defendants provide two alternative arguments that Plaintiffs' claims are untimely: both the applicable statutes ...

Stein v. Regions Morgan Keegan Select High Income Fund, Inc., 2016 U.S. App. LEXIS 9142 (6th Cir. May 19, 2016): [**7] A. Overview of statutes of limitation and statutes of repose Defendants provide two alternative arguments that Plaintiffs' claims are…

Judicial Notice of Internet Evidence — Governmentally-Chartered Corporation’s Articles of Incorporation As Posted on Its Website

Widad v. Brooklyn Public Library, 2015 U.S. Dist. LEXIS 154087 (E.D.N.Y. Nov. 13, 2015): On July 22, 2015, Laila Widad, proceeding pro se, commenced this action against the Brooklyn Public Library ("BPL") and Jane Doe, an unnamed BPL employee, for damages arising from a physical altercation involving Plaintiff and J ...

FRAP 38, § 1927, § 1912 Sanctions — Bad Faith Not Required under Rule 38, But Sanctions Generally Imposed Only If Improper Purpose — Not Sanctionable to Urge, in a Complex Field, a Novel Argument Lost in Some District Courts But Never on Appeal

Hogan v. Jacobson, 2016 U.S. App. LEXIS 9373 (6th Cir. May 23, 2016): In 2011, Violet Hogan sued the Life Insurance Company of North America for violating the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq., by denying her claim for benefits under a disability-insurance policy. After losing that cas ...

Facebook Admissibility — Victim’s Facebook Post 2 Hours Before His Death in Gunfight That He Was Resuming Gang Life, Including Murder, Properly Excluded from Trial on Issue of Who Fired First — Rule 403 Analysis (Cal. Evid. Code352)

People v. Cornejo, 2016 Cal. App. LEXIS 424 (Cal. Ct. App. May 25, 2016): Deandre Ellison was shot to death as he drove into his driveway in the Del Paso Heights neighborhood of Sacramento. Four other men, including Latrele Neal, were also in Ellison's car. Before the car came to a stop in the driveway, an SUV driven by Je ...

People v. Cornejo, 2016 Cal. App. LEXIS 424 (Cal. Ct. App. May 25, 2016): Deandre Ellison was shot to death as he drove into his driveway in the Del Paso Heights neighborhood of Sacramento. Four other men, including Latrele Neal, …

Commercial Litigation and Arbitration

Supreme Court: Judge May Rescind Jury Discharge Order, Re-Empanel — Inherent Power Must Be Reasonable Response to Problem & Can’t Contradict Rule or Statute — “All Judges Make Mistakes. (Even Us.)” — Good Quotes

New York — Privilege — Common Interest Exception Requires Pending or Anticipated Litigation — Common Legal Interests Arising out of Merger (Regulatory Approvals, Taxes, Benefits, Etc.) Not Enough — Federal Courts & Restatement to the Contrary

Rule 37(b) Sanctions: Dismissal for Violating Court Orders — No Need to Consider Lesser Sanctions If Violation Deliberate — Repeatedly Flouting Orders = Bad Faith — Party’s Testimony Rarely Dispensable Based on Own Say-So (Good Quotes)

Sanctions — Rule 37 Dismissal Only in Extreme Situations Where Willfulness, Bad Faith or Fault Exists — Multifactor Test (Second Circuit)

Yelp Authentication — Appearance of Negative Reviews of Plaintiff’s Business Shortly after Plaintiff Won TRO + Evidence from ISPs That Reviews Were Posted from IP Addresses Owned by Defendant at Time or 6 Weeks Later Authenticates Reviews as Def’s

§ 1927 Sanctions — Where There Appears to Be a Genuine Question Whether § 1927 Was Violated, It Is Error for the District Court Not to Explain Its Denial of Fees — District Court Has Better Means of Knowing What Is Just re Sanctions (Good Quotes)

American Pipe Tolling Does Not Benefit Absent Class Members Who File Suit Before Class Certification Decided (Circuit Split) and Does Not Apply to Statutes of Repose (Another Circuit Split)

Judicial Notice of Internet Evidence — Governmentally-Chartered Corporation’s Articles of Incorporation As Posted on Its Website

FRAP 38, § 1927, § 1912 Sanctions — Bad Faith Not Required under Rule 38, But Sanctions Generally Imposed Only If Improper Purpose — Not Sanctionable to Urge, in a Complex Field, a Novel Argument Lost in Some District Courts But Never on Appeal

Facebook Admissibility — Victim’s Facebook Post 2 Hours Before His Death in Gunfight That He Was Resuming Gang Life, Including Murder, Properly Excluded from Trial on Issue of Who Fired First — Rule 403 Analysis (Cal. Evid. Code352)

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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