Complex Lit Blog

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.…

Sanctions Appeal by Counsel Mooted Where Sanction Imposed on Client (for Counsel’s Conduct) and Client Settles Sanction, Despite Harm to Counsel’s Reputation from Language in Opinion — 2 to 1 Decision — Where Is the Line on Appealability?

Tesco Corp. v. Nat’l Oil Well Varco, LP, 2015 U.S. App. LEXIS 18903 (Fed. Cir. Oct. 30, 2015): Plaintiff Tesco Corporation ("Tesco") and interested parties-appellants [*2] Glenn A. Ballard, Jr. and John F. Luman, III (collectively "the Attorneys") filed this appeal from a decision of the United States D ...

Tesco Corp. v. Nat’l Oil Well Varco, LP, 2015 U.S. App. LEXIS 18903 (Fed. Cir. Oct. 30, 2015): Plaintiff Tesco Corporation ("Tesco") and interested parties-appellants [*2] Glenn A. Ballard, Jr. and John F. Luman, III (collectively "the Attorneys") filed this …

Facebook Authentication — Witness Who Accepted Friend Request Testifies She Was Tagged on Threatening Posts and Received Threatening Photo Via Facebook News Feed, and Her Screenshots of Posts and Photos Are Fair and Accurate

People v. Wooten, 2015 Cal. App. Unpub. LEXIS 8115 (Cal. Ct. App. Nov. 12, 2015): A jury convicted William Fred Wooten of making a criminal threat.*** FACTUAL AND PROCEDURAL BACKGROUND Jene Yates suspected that her 16-year-old sister was acting as a prostitute for Wooten. Yates had seen an advertisement featuring her sis ...

Judicial Notice of Internet Evidence — Can Emails of Public Entities Be Judicially Noticed as “Official Acts?” (Would Requisite Foundation Be Tantamount to Conventional Authentication?)

Takla v. Regents of the Univ. of Calif., 2015 U.S. Dist. LEXIS 150587 (C.D. Cal. Nov. 2, 2015): I. INTRODUCTION On August 28, 2015, plaintiffs Nefertiti Takla ("Takla") and Kristen Hillaire Glasgow ("Glasgow") filed their First Amended Complaint ("FAC") against defendant the Regent ...

Takla v. Regents of the Univ. of Calif., 2015 U.S. Dist. LEXIS 150587 (C.D. Cal. Nov. 2, 2015): I. INTRODUCTION On August 28, 2015, plaintiffs Nefertiti Takla ("Takla") and Kristen Hillaire Glasgow ("Glasgow") filed their First Amended Complaint ("FAC") against…

§ 1927 & Inherent Power Sanctions for Sending Settlement Agreement to Adversary Ostensibly Signed by Dead Client — Cross-Motion Denied Where “The Consequences of Counsel’s Violation Are Too Minimal to Justify Monetary Sanctions” (Good Quote)

Hubbard v. Plaza Bonita, LP, 2015 U.S. App. LEXIS 19715 (9th Cir. Nov. 12, 2015): The Appellant, Lynn Hubbard III, represented his mother in a lawsuit against a shopping mall and its tenants, alleging they denied her equal access to their facilities in violation of the Americans with Disabilities Act of 1990 ("ADA"), ...

Hubbard v. Plaza Bonita, LP, 2015 U.S. App. LEXIS 19715 (9th Cir. Nov. 12, 2015): The Appellant, Lynn Hubbard III, represented his mother in a lawsuit against a shopping mall and its tenants, alleging they denied her equal access to …

Attorney-Client Privilege — Banks Have Common Interest with Borrower in Getting Favorable Tax Treatment for Restructuring Where Viability Has Tax Law Element & Banks Retain Control of Legal Decisions — Work Product Extended to E&Y Tax Memo

Schaeffler v. United States, 2015 U.S. App. LEXIS 19617 (2d Cir. Nov. 10, 2015): Georg F.W. Schaeffler ("Mr. Schaeffler" or "Schaeffler") and associated entities ("Schaeffler Group") (collectively "appellants") appeal from Magistrate Judge Gorenstein's order denying a petition to quash an IR ...

Commercial Litigation and Arbitration

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

Sanctions Appeal by Counsel Mooted Where Sanction Imposed on Client (for Counsel’s Conduct) and Client Settles Sanction, Despite Harm to Counsel’s Reputation from Language in Opinion — 2 to 1 Decision — Where Is the Line on Appealability?

Facebook Authentication — Witness Who Accepted Friend Request Testifies She Was Tagged on Threatening Posts and Received Threatening Photo Via Facebook News Feed, and Her Screenshots of Posts and Photos Are Fair and Accurate

Judicial Notice of Internet Evidence — Can Emails of Public Entities Be Judicially Noticed as “Official Acts?” (Would Requisite Foundation Be Tantamount to Conventional Authentication?)

§ 1927 & Inherent Power Sanctions for Sending Settlement Agreement to Adversary Ostensibly Signed by Dead Client — Cross-Motion Denied Where “The Consequences of Counsel’s Violation Are Too Minimal to Justify Monetary Sanctions” (Good Quote)

Attorney-Client Privilege — Banks Have Common Interest with Borrower in Getting Favorable Tax Treatment for Restructuring Where Viability Has Tax Law Element & Banks Retain Control of Legal Decisions — Work Product Extended to E&Y Tax Memo

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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