Complex Lit Blog

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…

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

Commercial Litigation and Arbitration

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

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

Recent Posts

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”

Statements in Briefs As Judicial Admissions

Supreme Court: TRO As Appealable Order — And District Court Inaction As Tantamount to Refusing An Injunction And Thus Appealable

“Slow-Playing Discovery” in Response to Court Order, Prejudicing Opponent, Violates Rule 37(b)(2)(A)

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