Complex Lit Blog

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 ...

Sanctions — Vexatious Litigant Injunction Must Allow Enjoinee to Seek Permission for Additional Filings (Even If He’s Up to His Sixth Amended Complaint) and Can’t Shut Him Down Categorically

Gottlieb v. Ford, 2016 U.S. App. LEXIS 2330 (2d Cir. Feb. 11, 2016): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED in part and VACATED and REMANDED in part. Plaintiff-Appellant Allen Gottlieb ("Gottl ...

Gottlieb v. Ford, 2016 U.S. App. LEXIS 2330 (2d Cir. Feb. 11, 2016): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED in part and VACATED and REMANDED in part.…

Twitter Admissibility — Third-Party Tweets = Hearsay on Issue of Actual Confusion in Trademark Dispute Absent Authentication from Declarants

Ponelman v. Nike, Inc., 2016 U.S. Dist. LEXIS 17662 (N.D. Ill. Feb. 9, 2016): Daniel Poneman ("Plaintiff") brings suit against Nike, Inc. ("Nike"), and Footlocker, Inc. ("Foot Locker"), (collectively "Defendants") for trademark infringement related to his "SwagAir" mark pursuan ...

Removal: Does Voluntary Removal by State Defendants Waive Eleventh Amendment Immunity? — Circuit Split

Singleton v. Commonwealth of Ky., 2016 U.S. Dist. LEXIS 43383 (E.D. Ky. Mar. 31, 2016): To the extent the Singletons argue these parties waived their Eleventh Amendment immunity by removing this suit to federal court, the Court disagrees. The circuit courts are split as to whether voluntarily removing a lawsuit to federal cour ...

Commercial Litigation and Arbitration

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

Sanctions — Vexatious Litigant Injunction Must Allow Enjoinee to Seek Permission for Additional Filings (Even If He’s Up to His Sixth Amended Complaint) and Can’t Shut Him Down Categorically

Twitter Admissibility — Third-Party Tweets = Hearsay on Issue of Actual Confusion in Trademark Dispute Absent Authentication from Declarants

Removal: Does Voluntary Removal by State Defendants Waive Eleventh Amendment Immunity? — Circuit Split

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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