Complex Lit Blog

30(b)(6) Testimony Binding Only in Sense It Can Be Used Against Organization — Testimony Can be Corrected, Explained or Supplemented — Entity Isn’t Bound to Whatever a Fairly-Prepared and Candid Deponent Happens to Recall

Keepers, Inc. v. Sidepockets, Inc., 2015 U.S. App. LEXIS 20223 (2d Cir. Nov. 20, 2015): Plaintiff Keepers, Inc. ("Keepers") and defendant City of Milford, Connecticut ("Milford" or "the City") appeal and cross-appeal, respectively, from partial summary judgment awards to each party by the United States Di ...

Changes to Deposition Testimony — Circuit Split as to Whether Substantive Changes Allowed — In Some Circuits That Allow Substantive Changes, Sham Affidavit Rule Bars Contradiction, But Applies Only on Summary Jmt; Otherwise, Credibility Is for Jury

Arce v. Chi. Trans. Auth., 2015 U.S. Dist. LEXIS 159917 (N.D. Ill. Nov. 30, 2015): On June 29, 2015, Defendant Chicago Transit Authority (the "CTA") deposed Charlotte Arce, spouse of Plaintiff Israel Arce, based upon Plaintiff's Rule 26(a) disclosure that Mrs. Arce is a witness with relevant knowledge of ...

Arce v. Chi. Trans. Auth., 2015 U.S. Dist. LEXIS 159917 (N.D. Ill. Nov. 30, 2015): On June 29, 2015, Defendant Chicago Transit Authority (the "CTA") deposed Charlotte Arce, spouse of Plaintiff Israel Arce, based upon Plaintiff's Rule 26(a) disclosure that …

RICO — “Difficult, Though Not Impossible, to Certify a Class in a RICO Mail Fraud Case” — First Party Reliance Usually Means Individual Inquiry — Setting Sights Lower Could Work Using Generalized Proof — Potential Use of Regression Analyses

Sergeants Benevolent Ass’n Health & Welfare Fund v. Sanofi-Aventis U.S. LLP, 2015 U.S. App. LEXIS 19797 (2d Cir. Nov. 13, 2015 (2d Cir Nov. 13, 2015): Plaintiffs-Appellants are three health-benefit plans ("HBPs") that brought suit under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et se ...

Sergeants Benevolent Ass’n Health & Welfare Fund v. Sanofi-Aventis U.S. LLP, 2015 U.S. App. LEXIS 19797 (2d Cir. Nov. 13, 2015 (2d Cir Nov. 13, 2015): Plaintiffs-Appellants are three health-benefit plans ("HBPs") that brought suit under the Racketeer Influenced and …

Spoliation — Adverse Inference Rejected — Lost Documents Likely Irrelevant — Presumption Insufficient to Show Prejudice — Instruction Could Effectively End Case — Fees Awarded for Needed Additional Discovery

Ruzhinskaya v. HealthPort Techs., LLC, 2015 U.S. Dist. LEXIS 156685 (S.D.N.Y. Nov. 19, 2015): This decision resolves a motion for sanctions against plaintiff Tatyana Ruzhinskaya ("Ruzhinskaya") and her counsel. The motion, by defendant HealthPort Technologies, LLC ("HealthPort"), seeks sanctions arising fro ...

Ruzhinskaya v. HealthPort Techs., LLC, 2015 U.S. Dist. LEXIS 156685 (S.D.N.Y. Nov. 19, 2015): This decision resolves a motion for sanctions against plaintiff Tatyana Ruzhinskaya ("Ruzhinskaya") and her counsel. The motion, by defendant HealthPort Technologies, LLC ("HealthPort"), seeks sanctions arising …

Documents Obtained from FDIC (or Other Governmental) Website Are Self-Authenticating and Properly Considered on Summary Judgment — Judicial Notice OK — (Official Documents of the Agency, Not Third Party Documents Posted on Site)

Avery v. LPP Mortgage, Ltd., 2015 Tex. App. LEXIS 11136 (Tex. Ct. App. Oct. 29, 2015): Appellant, Allan R. Avery, appeals the trial court's grant of summary judgment in favor of appellee, LPP Mortgage, Ltd. [LPP], on two notes guaranteed by Avery. We affirm in part and reverse and remand in part. ***2."the ...

Rule 15(a) — Court Can’t Order Plaintiff to Amend before Decision on 12(b)(6) Motion or Lose Right to Do So — Liberal Amendment Especially Important in Light of Twiqbal — Rigorous Appellate Review If No Amendment Allowed

Runnion v. Girl Scouts of Greater Chicago, 786 F.3d 510 (7th Cir. 2015): This appeal presents substantive issues concerning the scope of the federal Rehabilitation Act's coverage of private organizations (like the Girl Scouts) that receive federal funding. Before addressing the merits, though, we must address some recurring proced ...

Internet Evidence — Official Records from Government Websites Bearing Distinctive Characteristics (Official Insignias) Are Self-Authenticating under Fed. R. Evid. 902(5)

Johnson v. Cate, 2015 U.S. Dist. LEXIS 120839 (E.D. Cal. Sept. 10, 2015): Plaintiff is a state prisoner proceeding pro se in this civil rights action brought pursuant to 42 U.S.C. § 1983. The matter proceeds against Defendant Harrington on Plaintiff's Eighth Amendment claim and state law negligence claim. (ECF Nos. 19, 20, and 23 ...

Spoliation Sanctions under Inherent Power Require Finding of Bad Faith — Prelitigation Spoliation Not Sanctionable under Rule 37(b)(2)

Environmental World Watch, Inc. v. Walt Disney Co., 2015 U.S. App. LEXIS 19782 (9th Cir. Nov. 13, 2015): These appeals arise from litigation filed in 2009 by Environmental World Watch ("EWW") and individuals against The Walt Disney Company, Disney Enterprises, Inc., and Disney [*2] Worldwide Services, Inc. ...

Failing to Request Leave to Amend Complaint Prior to Dismissal, or Including Only a One-Line Request in Brief without Explaining Basis for Proposed Amendment, Warrants Denial of Belated Application

Muathe v. Fifth Third Bank, 2015 U.S. App. LEXIS 17618 (10th Cir. Oct. 8, 2015): Assuming his complaint was properly dismissed, Mr. Muathe says the district court at least should have allowed him to amend. But before the entry of judgment he never filed a motion asking to amend and he never suggested how he might be able to amend his ...

RICO Statute of Limitations Accrual = Injury + (Reasonable) Discovery — No Fraudulent Tolling Absent Due Diligence — Limitations Period Extended Only by Length of Period Due Dilig. Exerted; Period Doesn’t Start Anew at End of Due Diligence

Madison 92nd St. Assocs., LLC v. Courtyard Mgmt. Corp., 2015 U.S. App. LEXIS 16386 (2d Cir. Sept. 15, 2015): ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the order of the district court is AFFIRMED. The appellant, Madison 92nd Street Associates, LLC (&quo ...

Madison 92nd St. Assocs., LLC v. Courtyard Mgmt. Corp., 2015 U.S. App. LEXIS 16386 (2d Cir. Sept. 15, 2015): ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the order of the district court is AFFIRMED.…

Commercial Litigation and Arbitration

30(b)(6) Testimony Binding Only in Sense It Can Be Used Against Organization — Testimony Can be Corrected, Explained or Supplemented — Entity Isn’t Bound to Whatever a Fairly-Prepared and Candid Deponent Happens to Recall

Changes to Deposition Testimony — Circuit Split as to Whether Substantive Changes Allowed — In Some Circuits That Allow Substantive Changes, Sham Affidavit Rule Bars Contradiction, But Applies Only on Summary Jmt; Otherwise, Credibility Is for Jury

RICO — “Difficult, Though Not Impossible, to Certify a Class in a RICO Mail Fraud Case” — First Party Reliance Usually Means Individual Inquiry — Setting Sights Lower Could Work Using Generalized Proof — Potential Use of Regression Analyses

Spoliation — Adverse Inference Rejected — Lost Documents Likely Irrelevant — Presumption Insufficient to Show Prejudice — Instruction Could Effectively End Case — Fees Awarded for Needed Additional Discovery

Documents Obtained from FDIC (or Other Governmental) Website Are Self-Authenticating and Properly Considered on Summary Judgment — Judicial Notice OK — (Official Documents of the Agency, Not Third Party Documents Posted on Site)

Rule 15(a) — Court Can’t Order Plaintiff to Amend before Decision on 12(b)(6) Motion or Lose Right to Do So — Liberal Amendment Especially Important in Light of Twiqbal — Rigorous Appellate Review If No Amendment Allowed

Internet Evidence — Official Records from Government Websites Bearing Distinctive Characteristics (Official Insignias) Are Self-Authenticating under Fed. R. Evid. 902(5)

Spoliation Sanctions under Inherent Power Require Finding of Bad Faith — Prelitigation Spoliation Not Sanctionable under Rule 37(b)(2)

Failing to Request Leave to Amend Complaint Prior to Dismissal, or Including Only a One-Line Request in Brief without Explaining Basis for Proposed Amendment, Warrants Denial of Belated Application

RICO Statute of Limitations Accrual = Injury + (Reasonable) Discovery — No Fraudulent Tolling Absent Due Diligence — Limitations Period Extended Only by Length of Period Due Dilig. Exerted; Period Doesn’t Start Anew at End of Due Diligence

Recent Posts

RICO: Indirect Purchasers (Car Buyers/Renters) Lack Standing to Sue Manufacturers for RICO Violations Even Though Intermediaries (Auto Dealer Direct Purchasers) Lack Any Damages

RICO: Statutory Requirement that RICO Be Liberally Construed Does Not Establish a More Liberal Pleading Standard for RICO Claims — “To Be Sure, Adequately Pleading a RICO Claim Can Be Challenging” (Good Quote) — Court May Dismiss Action Pursuant to Rule 41(b) Absent A Motion

For An Appeal to Be Timely, A Motion for Reconsideration in The District Court (A Rule 59(e) Motion) Must Be Filed, And Not Just Served within 30 Days of The Decision, to Toll The 30-Day Period for Filing An Appeal

There Is No Good-Faith Defense For Issuing An Overly Burdensome Subpoena

Purposes of Rule 37 and Section 1927 Sanctions

While Rule 11 Doesn’t Apply to Appellate Proceedings (Unless It Has Been Incorporated in Local Appellate Rules), Rule 11 Caselaw Is Looked to for Guidance in Interpreting Applicable Sanctions Powers on Appeal

Rule 11 Sanctions & Appellate Review: Abuse of Discretion Standard Applies Unless Sanctions Are Based Solely (Not Just in Part) on Legal Issues, in Which Case Review Is De Novo

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