Complex Lit Blog

Sanctions — Claims That Survived Rule 12(c) and 56 Motions and Were Supported by Multiple Witnesses Not Sanctionable under Rule 11, § 1927 or Inherent Power — District Judge in Best Position to Evaluate Sanctions (Good Quote)

Duranseau v. Portfolio Recovery Assocs., LLC, 2016 U.S. App. LEXIS 6112 (8th Cir. Apr. 4, 2016) Harvey Duranseau sued Portfolio Recovery Associates, LLC (PRA), alleging violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692 et seq., and Minnesota law. The parties filed cross-motions for summary judg ...

Spoliation — Tangible Evidence — Negligence Still Enough in 6th Circuit — No Adverse Inference Instruction If Moot in Light of Governing Law and No Default Judgment If Insufficient Prejudice or Egregiousness

McCarty v. Liberty Mut. Agency Mkts., 2016 U.S. App. LEXIS 2696 (6th Cir. Feb. 16, 2016): David McCarty, a subcontractor, was killed during the installation of a garage door at the Defendant-Appellee Covol Fuels (Covol) coal mine in Muhlenberg County, Kentucky. McCarty's wife, Plaintiff-Appellant Nancy McCarty (Ms. McCarty) filed ...

FRAP 38 / § 1927 Sanctions on Appeal Permissible for Failure to Engage Substantively with Cases District Court Relied on or If Appeal Brought Solely to Delay

B. Bowles's Motion for Fees, Costs, and Sanctions In re De La Madrid (De La Madrid v. Bowles Custom Pools & Spa, 2016 U.S. App. LEXIS 5626 (1st Cir. Mar. 25, 2016): This appeal arises from a dispute whether the bankruptcy court erred in enlarging time for a creditor to file an unsecured claim. Appellant Jul ...

B. Bowles's Motion for Fees, Costs, and Sanctions In re De La Madrid (De La Madrid v. Bowles Custom Pools & Spa, 2016 U.S. App. LEXIS 5626 (1st Cir. Mar. 25, 2016): This appeal arises from a dispute whether the…

RICO Injunctive Relief Allowed (Circuit Split) — Request for Legal Relief Doesn’t Preclude Asset Freeze to Preserve Availability of Equitable Relief (Disgorgement) — Alternative Pleading OK — Motions to Strike Disfavored

Absolute Activist Value Master Fund Ltd. v. Devine, 2016 U.S. Dist. LEXIS 52263 (M.D. Fla. Apr. 19, 2016): This matter comes before the Court on defendant Susan Devine's Motion to Dissolve Temporary Restraining Order (Doc. #96) filed on September 29, 2015. Plaintiffs filed a Motion to Strike defendants' Motion ...

Absolute Activist Value Master Fund Ltd. v. Devine, 2016 U.S. Dist. LEXIS 52263 (M.D. Fla. Apr. 19, 2016): This matter comes before the Court on defendant Susan Devine's Motion to Dissolve Temporary Restraining Order (Doc. #96) filed on September 29,…

Spoliation — No Adverse Inference Sufficient to Avoid Summary Judgment Generated by Loss of Evidence Irrelevant to the Causation Problem That Led to Grant of SJ

Vaughn v. Konecranes, Inc., 2016 U.S. App. LEXIS 4061 (6th Cir. Mar. 1, 2016): The essential question is one of causation in this diversity action arising out of an accident on a job site in Paris, Kentucky. The case is very fact-intensive. Plaintiff, George Vaughn, was injured when an overhead crane moved a piece of equipment ...

Voicemail Admissibility — Rule 801(d)(2)(C) — Voicemail Left by A Purportedly on B’s Behalf Is Hearsay Absent Independent Proof That A Was an Agent of Or Was Otherwise Authorized by B to Leave the Voicemail

State v. Davis, 2016 Ariz. App. Unpub. LEXIS 323 (Ariz. Ct. App. Mar. 16, 2016): P1 Following a jury trial, Mohammed Davis was convicted of three counts of aggravated harassment. On appeal, Davis argues the trial court abused its discretion by admitting evidence of prior bad acts, denying his motion to sever offenses, ...

State v. Davis, 2016 Ariz. App. Unpub. LEXIS 323 (Ariz. Ct. App. Mar. 16, 2016): P1 Following a jury trial, Mohammed Davis was convicted of three counts of aggravated harassment. On appeal, Davis argues the trial court abused its discretion…

Disqualification — Lower Court Affirmed If Record Reveals Any Sound Basis for Its Action (Good Quote) — Denial of Sanctions Appropriate Where Written Discovery Corrected Incorrect Aspects of 26(a) Disclosures

Garcia v. Johnson, 2015 U.S. App. LEXIS 19786 (9th Cir. Nov. 13, 2015): This appeal arises from the District Court's grant of summary judgment to Defendant-Appellee Jeh Johnson, Secretary of the Department of Homeland Security ("DHS" or "Defendant"), and denial of several other motions. Plaintiff-Appellant Stev ...

Sanctions: Deliberately Disobeying Order = Bad Faith for Inherent Power — Appeals: Appellant May Not Incorporate by Reference Arguments Made Below — Ethical Violations Bar Service As Qui Tam Relator

U.S. ex rel. Holmes v. Northrop Grumman Corp., 2016 U.S. App. LEXIS 5370 (5th Cir. Mar. 23, 2016): Plaintiff-Appellant Donald Holmes brought this qui tam action as relator for the Government under the False Claims Act. He appeals the district court's order disqualifying him from serving as a relator in the suit and dismissing

Voicemail Admissibility — Victim’s Voicemail to Girlfriend Prior to Attack Relevant to His State of Mind & Issue of Who Was the Aggressor, Thus Not Hearsay

People v. Martinez, 2016 Cal. App. Unpub. LEXIS 927 (Cal. Ct. App. Feb. 8, 2016): A jury convicted defendant Roberto Jaime Martinez of first degree murder (Pen. Code, § 187, subd. (a)) and possession of a concealed dirk or dagger (former § 12020, subd. (a)(4)). As to the murder, the jury found true ...

People v. Martinez, 2016 Cal. App. Unpub. LEXIS 927 (Cal. Ct. App. Feb. 8, 2016): A jury convicted defendant Roberto Jaime Martinez of first degree murder (Pen. Code, § 187, subd. (a)) and possession of a concealed dirk or dagger …

Judicial Notice of Internet Evidence — Wayback Machine

Hepp v. Ultra Green Energy Servs., LLC, 2016 U.S. Dist. LEXIS 34953 (N.D. Ill. Mar. 18, 2016): Defendant Ultra Green Energy Services LLC ("Ultra Green") moves this Court for a new trial pursuant to Rule 59(a) or for an order altering or amending its judgment pursuant to Rule 59(e). For the reasons ...

Commercial Litigation and Arbitration

Sanctions — Claims That Survived Rule 12(c) and 56 Motions and Were Supported by Multiple Witnesses Not Sanctionable under Rule 11, § 1927 or Inherent Power — District Judge in Best Position to Evaluate Sanctions (Good Quote)

Spoliation — Tangible Evidence — Negligence Still Enough in 6th Circuit — No Adverse Inference Instruction If Moot in Light of Governing Law and No Default Judgment If Insufficient Prejudice or Egregiousness

FRAP 38 / § 1927 Sanctions on Appeal Permissible for Failure to Engage Substantively with Cases District Court Relied on or If Appeal Brought Solely to Delay

RICO Injunctive Relief Allowed (Circuit Split) — Request for Legal Relief Doesn’t Preclude Asset Freeze to Preserve Availability of Equitable Relief (Disgorgement) — Alternative Pleading OK — Motions to Strike Disfavored

Spoliation — No Adverse Inference Sufficient to Avoid Summary Judgment Generated by Loss of Evidence Irrelevant to the Causation Problem That Led to Grant of SJ

Voicemail Admissibility — Rule 801(d)(2)(C) — Voicemail Left by A Purportedly on B’s Behalf Is Hearsay Absent Independent Proof That A Was an Agent of Or Was Otherwise Authorized by B to Leave the Voicemail

Disqualification — Lower Court Affirmed If Record Reveals Any Sound Basis for Its Action (Good Quote) — Denial of Sanctions Appropriate Where Written Discovery Corrected Incorrect Aspects of 26(a) Disclosures

Sanctions: Deliberately Disobeying Order = Bad Faith for Inherent Power — Appeals: Appellant May Not Incorporate by Reference Arguments Made Below — Ethical Violations Bar Service As Qui Tam Relator

Voicemail Admissibility — Victim’s Voicemail to Girlfriend Prior to Attack Relevant to His State of Mind & Issue of Who Was the Aggressor, Thus Not Hearsay

Judicial Notice of Internet Evidence — Wayback Machine

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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