Complex Lit Blog

RICO: 9(b) Particularity Applies to Mail and Wire Fraud Allegations; Even Where Some Allegations Are Insufficiently Particular, A Complaint May Satisfy 9(B) If Its Allegations Are Sufficiently Particularized When Taken As A Whole; Four Elements of a § 1962(c)-Based RICO Claim — Appealability: Dismissal without Prejudice Is Appealable If No Leave to Amend Granted, Judgment Entered and Case Closed — Dismissal for Failure to Satisfy 9(b) Treated As 12(b)(6) Dismissal for Failure to State Claim for Relief — Court First Determines Whether 9(b) Satisfied And, If So, Whether 12(b)(6) Is — “Rule 12(b)(6) Motions To Dismiss Are Not Designed To Weigh Evidence Or Consider The Truth Or Falsity Of An Adequately Pled Complaint” (Good Quote)

Clinton v. Sec. Ben. Life Ins. Co., 63 F.4th 1264 (10th Cir. 2023): [*1269] ROSSMAN, Circuit Judge. Plaintiffs are consumers who sued Defendant Security Benefit Life Insurance Company under the ...

Clinton v. Sec. Ben. Life Ins. Co., 63 F.4th 1264 (10th Cir. 2023): [*1269] ROSSMAN, Circuit Judge. Plaintiffs are consumers who sued Defendant Security Benefit Life Insurance Company under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 …

RICO Standing: As Long As Pattern of Racketeering Has Caused Harm to Plaintiff’s Business or Property, Plaintiff Need Not Have Been Injured by Multiple Predicate Acts — Injury from One of the Predicate Acts Suffices to Confer Standing

Pacmar Techs. LLC v. Kao, 2023 U.S. Dist. LEXIS 231131 (D. Haw. Dec. 29, 2023): ORDER GRANTING IN PART AND DENYING IN PART: DEFENDANT DUKE HARTMAN'S MOTION TO DISMISS SECOND AMENDED COMPLAINT, FILED APRIL 21, 2023 [ECF 97]; DEFENDANT/C ...

Pacmar Techs. LLC v. Kao, 2023 U.S. Dist. LEXIS 231131 (D. Haw. Dec. 29, 2023): ORDER GRANTING IN PART AND DENYING IN PART: DEFENDANT DUKE HARTMAN’S MOTION TO DISMISS SECOND AMENDED COMPLAINT, FILED APRIL 21, 2023 [ECF 97]; DEFENDANT/CROSS-CLAIMANT CLIFFORD …

Sanctions for “Exceptional” Patent Cases under 35 U.S.C. § 285 — Liability for Attorneys’ Fees Limited to Parties — Silence of Statute on Liability of Counsel, Unlike § 1927 and Rule 11, Precludes Award

Dragon Intell. Prop. LLC v. Dish Network L.L.C., 2024 U.S. App. LEXIS 12057 (Fed. Cir. May 20, 2024): ...

Dragon Intell. Prop. LLC v. Dish Network L.L.C., 2024 U.S. App. LEXIS 12057 (Fed. Cir. May 20, 2024): Sanctions for “Exceptional” Patent Cases under 35 U.S.C. § 285 — Liability for Attorneys’ Fees Limited to Parties — Silence of Statute …

Supreme Court — Federal Arbitration Act — Inherent Power May Be Controlled or Overridden by Statute or Rule — When the District Court Compels Arbitration, It Must Stay and Cannot Dismiss The Federal Action — “Shall Means Shall”

Smith v. Spizzirri, 2024 U.S. LEXIS 2170, 2024 WL 2193872 (U.S. May 16, 2024): The Federal Arbitration Act (FAA) sets forth procedures for enforcing arbitration agreements in federal court. Section 3 of the FAA specifies that, when a dispute is s ...

FRAP 38 Sanctions: An Appeal May Not Be “Wholly Without Merit” — And Therefore May Not Be Sanctionable — Even If Several of Appellant’s Arguments Are Frivolous; Soundness of Central Arguments May Dominate

Baskin v. EC Paia LLC, 2024 U.S. App. LEXIS 1108 (9th Cir. Jan. 19, 2024): ORDER Defendant-Appellant's motion for attorneys' fees, including the request to assess fees as damages under Rule 38 of the Federal Rules of A ...

Baskin v. EC Paia LLC, 2024 U.S. App. LEXIS 1108 (9th Cir. Jan. 19, 2024): ORDER Defendant-Appellant’s motion for attorneys’ fees, including the request to assess fees as damages under Rule 38 of the Federal Rules of Appellate Procedure for…

Standing: An “Identifiable Trifle” Suffices — PSLRA/Rule 11: District Court Must Make Findings As to Compliance with Rule 11 Whether or Not Asked — Filing Securities Lawsuit to Obtain Immaterial Disclosures Presumptively Violative of Rule 11

Alcarez v. Akorn, Inc., 99 F.4th 368 (7th Cir. 2024):* *Circuit Judge Kanne, a member of the panel, died after the appeals were argued. They are being decided by a quorum.

Alcarez v. Akorn, Inc., 99 F.4th 368 (7th Cir. 2024):* *Circuit Judge Kanne, a member of the panel, died after the appeals were argued. They are being decided by a quorum. 28 U.S.C. § 46(d) Six suits, filed under the…

FRAP 38 Sanctions for Frivolous Claims of Judicial Bias, Citing Non-Existent Cases/Sources, Inventing Quotes from Real Ones, And Exhibiting Inflammatory and Antagonistic Tone — Recusal: “Adverse Rulings Are Not Evidence of Bias” (Good Quote) — Critical Judicial Remarks Ordinarily Do Not Support A Claim of Bias — Circuit-Wide Filing Bar Until $5,000 Fine Paid

Froemming v. City of W. Allis, 2024 U.S. App. LEXIS 1817 (7th Cir. Jan. 24, 2024) (unpublished): ORDER William Froemming sued the City of West Allis, Wisconsin, its police chief, and three police officers raising several c ...

Froemming v. City of W. Allis, 2024 U.S. App. LEXIS 1817 (7th Cir. Jan. 24, 2024) (unpublished): ORDER William Froemming sued the City of West Allis, Wisconsin, its police chief, and three police officers raising several constitutional claims under 42 …

Court’s Inherent Power to Police the Conduct of Litigants and Attorneys Extends to Persons Engaged in the Unauthorized Practice of Law Before Them

In re Rudder, 2024 U.S. App. LEXIS 10484 (5th Cir. April 30, 2024) (per curiam): Per Curiam: Pro se Appellant Levi Rudder challenges the district court's imposition of sanctions on him for engaging in the unauthorized practice of law in a ...

In re Rudder, 2024 U.S. App. LEXIS 10484 (5th Cir. April 30, 2024) (per curiam): Per Curiam: Pro se Appellant Levi Rudder challenges the district court’s imposition of sanctions on him for engaging in the unauthorized practice of law in…

(1) Inherent Power Sanctions — Duty to Correct or Withdraw — Strategic Silence As Bad Faith — Failure to Advise Court of Absence of Diversity Jurisdiction for 15 Months for Strategic Reasons, Only “Pull[ing] Out The Diversity-Destroying Card” After Losing = “A Textbook Example of Bad Faith” — (2) Under Goodyear, The Court’s Fundamental Job Is to Decide Whether Fees Would Have Been Incurred Absent the Sanctioned Conduct — (3) Appellate Review: While Sanctions Orders Are Reviewed for Abuse of Discretion, A Finding of Bad Faith Is Reviewed for Clear Error — (4) When There Are Two Permissible Views of The Evidence, The Factfinder’s Choice Between Them Cannot Be Clearly Erroneous — (5) “A District Court Is Not Required To Consider Irrelevant Evidence” — (Good Quotes)

J.C. Penney Corp., Inc. v. Oxford Mall, LLC, 2024 U.S. App. LEXIS 10637 (11th Cir. May 1, 2024): A limited liability company named Oxford Mall fought J.C. Penney in federal court for over two years. Just when it was poised to lose the cas ...

J.C. Penney Corp., Inc. v. Oxford Mall, LLC, 2024 U.S. App. LEXIS 10637 (11th Cir. May 1, 2024): A limited liability company named Oxford Mall fought J.C. Penney in federal court for over two years. Just when it was poised …

Criminal Spoliation Can Be A Due Process Violation — Defendant Must Show That (1) The Evidence Had Exculpatory Value Before It Was Destroyed, (2) Defendant Is Unable to Obtain Comparable Evidence by Reasonable Means, and (3) Bad Faith Failure to Preserve

United States v. Perry, 92 F.4th 500 (4th Cir. 2024): Adonis Perry was arrested in 2017 for possessing a firearm as a felon and for possessing marijuana after he was found with both during a traffic stop. While awaiting t ...

United States v. Perry, 92 F.4th 500 (4th Cir. 2024): Adonis Perry was arrested in 2017 for possessing a firearm as a felon and for possessing marijuana after he was found with both during a traffic stop. While awaiting trial,…

Commercial Litigation and Arbitration

RICO Standing: As Long As Pattern of Racketeering Has Caused Harm to Plaintiff’s Business or Property, Plaintiff Need Not Have Been Injured by Multiple Predicate Acts — Injury from One of the Predicate Acts Suffices to Confer Standing

Sanctions for “Exceptional” Patent Cases under 35 U.S.C. § 285 — Liability for Attorneys’ Fees Limited to Parties — Silence of Statute on Liability of Counsel, Unlike § 1927 and Rule 11, Precludes Award

Supreme Court — Federal Arbitration Act — Inherent Power May Be Controlled or Overridden by Statute or Rule — When the District Court Compels Arbitration, It Must Stay and Cannot Dismiss The Federal Action — “Shall Means Shall”

FRAP 38 Sanctions: An Appeal May Not Be “Wholly Without Merit” — And Therefore May Not Be Sanctionable — Even If Several of Appellant’s Arguments Are Frivolous; Soundness of Central Arguments May Dominate

Standing: An “Identifiable Trifle” Suffices — PSLRA/Rule 11: District Court Must Make Findings As to Compliance with Rule 11 Whether or Not Asked — Filing Securities Lawsuit to Obtain Immaterial Disclosures Presumptively Violative of Rule 11

Court’s Inherent Power to Police the Conduct of Litigants and Attorneys Extends to Persons Engaged in the Unauthorized Practice of Law Before Them

Criminal Spoliation Can Be A Due Process Violation — Defendant Must Show That (1) The Evidence Had Exculpatory Value Before It Was Destroyed, (2) Defendant Is Unable to Obtain Comparable Evidence by Reasonable Means, and (3) Bad Faith Failure to Preserve

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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