Complex Lit Blog

Judicial Notice of Internet Evidence (Lanham Act Case): (1) Party’s Filings As They Appear on Secretary of State Website; (2) Corporate Info from Google Search; (3) Co. Profile on ZoomInfo.com; (4) Party’s Website (Admission)

Nat’l Grange of Order of Patrons of Husbandry v. Cal. State Grange, 2016 U.S. Dist. LEXIS 53038 (E.D. Cal. Apr. 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. Presently befo ...

Rule 16(f) & 37(b) Dismissal Sanction for Pro Se’s Failure to Appear for 2 Pretrial Conferences — Noncompliance with Pretrial Orders Is Willful If Party Warned of Obligation to Appear — Pro Se Must Comply with Court Orders

Johnson v. NYC, 2016 U.S. App. LEXIS 7098 (2d Cir. April 20, 2016): Plaintiff-Appellant Brenda Johnson, proceeding pro se, appeals the district court's judgment sua sponte dismissing her 42 U.S.C. § 1983 complaint for failure to comply with court orders pursuant to Federal Rules of Civil Procedure 16(f) ...

Johnson v. NYC, 2016 U.S. App. LEXIS 7098 (2d Cir. April 20, 2016): Plaintiff-Appellant Brenda Johnson, proceeding pro se, appeals the district court's judgment sua sponte dismissing her 42 U.S.C. § 1983 complaint for failure to comply with court orders …

Judicial Notice of Internet Evidence — Judicial Notice of Identities of Governmental Board Members from Board’s Website

Mauna Kea Anaina Hou v. Bd. of Land & Natural Res., 2015 Haw. LEXIS 325 (Hawaii Sup. Ct. Dec. 2, 2015): This case requires us to determine whether the procedure followed by the Board of Land and Natural Resources (Board or BLNR) in issuing a permit to construct an observatory in a conservation district1 comported with due p ...

Real-Party-in-Interest: President of Corp. Is Not RPI in Corp.’s Action on Lease, Even If Pres. Provided Money for Lease — RICO: 4 Mandatory Elements to Plead Mail/Wire Fraud (11th Circuit) — Appeals: Rule 3 Interpreted Liberally

Symonette v. V.A. Leasing Corp., 2016 U.S. App. LEXIS 6843 (11th Cir. April 15, 2016): Maurice Symonette and Ferris Rhodes, Jr. appeal the district court's dismissal of their complaint alleging that V.A. Leasing Corporation ("V.A. Leasing") and Euro Motor Sport, Inc. ("Euro") defrauded them in connection with a ...

Rule 11 Sanctions: Forum-Shopping ≠ Improper Purpose If Jurisdiction Is Arguable — No Answer to Say Movant Unhappy with Other Court — Objective Reasonableness Is Tough Standard: Aggressive ≠ Unreasonable (Good Quotes) — Supp. v Amended Complaint

Predator Int’l, Inc. v. Gamo Outdoor USA, Inc., 793 F.3d 1177 (10th Cir. 2015): Attorney John Cogswell appeals the imposition of a Rule 11 sanction. Acting on behalf of Predator International, Inc., Cogswell filed a lawsuit in April 2009 in the United States District Court for the District of Colorado against Gamo Outdoor US ...

Predator Int’l, Inc. v. Gamo Outdoor USA, Inc., 793 F.3d 1177 (10th Cir. 2015): Attorney John Cogswell appeals the imposition of a Rule 11 sanction. Acting on behalf of Predator International, Inc., Cogswell filed a lawsuit in April 2009 in …

Social Media (Twitter, Facebook, Etc.) Authentication — Louisiana Adopts the “Reasonable Juror” / Circumstantial-Evidence Approach: Is There Proof from Which a Reasonable Juror Could Find That the Evidence Is What the Proponent Claims?

State v. Smith, 2016 La. App. LEXIS 760 (La. Ct. App. Apr. 20, 2016): [Pg 1] Defendant Demontre Smith ("Mr. Smith") seeks review of the trial court's November 18, 2015 ruling that denied his motion to exclude digital evidence for lack of authentication. Finding the State failed to present any evidence at all to a ...

State v. Smith, 2016 La. App. LEXIS 760 (La. Ct. App. Apr. 20, 2016): [Pg 1] Defendant Demontre Smith ("Mr. Smith") seeks review of the trial court's November 18, 2015 ruling that denied his motion to exclude digital evidence for …

Judicial Notice of Internet Evidence — Notice Properly Taken of eBay’s Website, Its Operation, and Its User Agreement

Estate of Graham v. Sotheby’s, Inc., 2016 U.S. Dist. LEXIS 53079 (C.D. Cal. Apr. 11, 2016): Before the Court are three Motions filed in these related actions: o Auction House Defendants' Joint Motion to Dismiss the Complaints (the "Joint Motion"), filed on February 1, 2016. (No. ...

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…

Commercial Litigation and Arbitration

Judicial Notice of Internet Evidence (Lanham Act Case): (1) Party’s Filings As They Appear on Secretary of State Website; (2) Corporate Info from Google Search; (3) Co. Profile on ZoomInfo.com; (4) Party’s Website (Admission)

Rule 16(f) & 37(b) Dismissal Sanction for Pro Se’s Failure to Appear for 2 Pretrial Conferences — Noncompliance with Pretrial Orders Is Willful If Party Warned of Obligation to Appear — Pro Se Must Comply with Court Orders

Judicial Notice of Internet Evidence — Judicial Notice of Identities of Governmental Board Members from Board’s Website

Real-Party-in-Interest: President of Corp. Is Not RPI in Corp.’s Action on Lease, Even If Pres. Provided Money for Lease — RICO: 4 Mandatory Elements to Plead Mail/Wire Fraud (11th Circuit) — Appeals: Rule 3 Interpreted Liberally

Rule 11 Sanctions: Forum-Shopping ≠ Improper Purpose If Jurisdiction Is Arguable — No Answer to Say Movant Unhappy with Other Court — Objective Reasonableness Is Tough Standard: Aggressive ≠ Unreasonable (Good Quotes) — Supp. v Amended Complaint

Social Media (Twitter, Facebook, Etc.) Authentication — Louisiana Adopts the “Reasonable Juror” / Circumstantial-Evidence Approach: Is There Proof from Which a Reasonable Juror Could Find That the Evidence Is What the Proponent Claims?

Judicial Notice of Internet Evidence — Notice Properly Taken of eBay’s Website, Its Operation, and Its User Agreement

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

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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