Complex Lit Blog

Sanctions in the Form of Penalty Not Dischargeable in Bankruptcy — Award of Sanctions Not Subject to Statute of Limitations Defense

O'Dwyer v. Carter, 2023 U.S. App. LEXIS 10840 (5th Cir. May 3, 2023) (unpublished) PER CURIAM:* *1 Former attorney Ashton O’Dwyer, proceeding pro se, appeals from the dismissal of a suit that he filed in the United States District Court for the Eastern District of Louisiana. He has been disbarred f ...

O’Dwyer v. Carter, 2023 U.S. App. LEXIS 10840 (5th Cir. May 3, 2023) (unpublished) PER CURIAM:* *1 Former attorney Ashton O’Dwyer, proceeding pro se, appeals from the dismissal of a suit that he filed in the United States District…

Rule 37(c)(1) sanctions for failure to disclose pursuant to Rule 26(a) — (1) Party facing Rule 37(c)(1) Sanctions Bears Burden of Proving Her Violations Were Substantially Justified or Harmless — (2) Ninth Circuit’s 4-Factor Test for Determining Whether Violation Is Harmless — (3) Parties Not Excused from Making Rule 26(a) Disclosures Simply Because They Don’t Have All Evidence — Must Disclose and Later Supplement — (4) When Rule 37(c)(1) Sanction Will Be Dispositive, Court Must Consider (a) Willfulness, Fault, Bad Faith and (b) Availability of Lesser Sanctions (9th Cir. Requirements) — (5) Court Is Required to Consider Lesser Sanctions Under Rule 37(c)(1) Only If Asked to Do So

Gryglak v. HSBC Bank USA, N.A., 2023 U.S. App. LEXIS 10946 (9th Cir. May 4, 2023) (unpublished) < ...

Gryglak v. HSBC Bank USA, N.A., 2023 U.S. App. LEXIS 10946 (9th Cir. May 4, 2023) (unpublished) MEMORANDUM* *1 Edyta Gryglak (“Gryglak”) appeals the district court’s summary judgment in favor of HSBC Bank USA, N.A., as trustee for Wells…

Trial: Unanticipated/Undisclosed Evidence — An Objection Need Not Be Perfectly Contemporaneous with the Challenged Evidence to Be Timely

Johnson v. C.R. Bard, Inc., 2023 U.S. App. LEXIS 20963 (7th Cir. Aug. 11, 2023)

Johnson v. C.R. Bard, Inc., 2023 U.S. App. LEXIS 20963 (7th Cir. Aug. 11, 2023) We appreciate the challenges that parties face when attempting to respond to unanticipated issues arising in the heat of trial. For this reason, we have …

Inherent Power Sanctions: Finding of Willfulness ≠ Finding of Subjective Bad Faith — Due Process Requires Notice of Precise Rule, Standard or Law The Lawyer Allegedly Violated And How The Lawyer Allegedly Violated It

Baker v. 3M Co., 2023 U.S. App. LEXIS 13339 (11th Cir. May 31, 2023) (unpublished) *1< ...

Baker v. 3M Co., 2023 U.S. App. LEXIS 13339 (11th Cir. May 31, 2023) (unpublished) *1 This is an appeal from the district court’s order imposing monetary sanctions against attorneys Kimberly O. Branscome and Jay L. Bhimani. At the conclusion…

Rule 41(b) Sanctions: Dismissals Without Prejudice Generally Cause Minimal Harm — Absent a Statute of Limitations Impediment to Refiling, Court of Appeals Therefore Applies a Less Stringent Standard of Review

Ubiquitous Connectivity, LP v. Txu Energy Retail Co. LLC, 2023 U.S. App. LEXIS 14377 (Fed. Cir. June 9, 2023) (unpublished) (applying 5th Circuit law) Per Curiam. Ubiquitous Connectivity, LP, sued TXU Energy Retail Co. LLC in the Nor ...

Ubiquitous Connectivity, LP v. Txu Energy Retail Co. LLC, 2023 U.S. App. LEXIS 14377 (Fed. Cir. June 9, 2023) (unpublished) (applying 5th Circuit law) Per Curiam. Ubiquitous Connectivity, LP, sued TXU Energy Retail Co. LLC in the Northern District of …

Rule 16(f) and 37(b)(2)(A) Sanctions: Fifth Circuit Factors for Case-Ending Sanctions and for 37(b)(2) Sanctions Generally — Preclusion, Including Exclusion of Experts, Is Not as Drastic as Dismissal or Default — The Fact that Exclusion May Have the Legal Consequence of Dismissal (Or Any Other Consequence) Does Not Affect the Appropriateness of the Sanction

Williams v. Am. Honda Motor Co., Inc., 2023 U.S. App. LEXIS 13420 (5th Cir. May 31, 2023) (unpublished) PER CURIAM:* * This opinion is not designat ...

Williams v. Am. Honda Motor Co., Inc., 2023 U.S. App. LEXIS 13420 (5th Cir. May 31, 2023) (unpublished) PER CURIAM:* * This opinion is not designated for publication. See 5TH CIR. R. 47.5. *1 Following a car accident,…

Rule 37(c)(1) Requires Exclusion of Undisclosed, Or Untimely Disclosed, Evidence — Here, Expert Report — Unless The Target of Sanctions Moves The Court to Consider Lesser Sanctions

Cantrell v. Coloplast Corp., 2023 U.S. App. LEXIS 20785 (8th Cir. Aug. 10, 2023): Opinion *1 Coloplast Corporation and Coloplast Manufacturing US, LLC (collectively, Coloplast) manufacture and market Restorelle L, a

Cantrell v. Coloplast Corp., 2023 U.S. App. LEXIS 20785 (8th Cir. Aug. 10, 2023): Opinion *1 Coloplast Corporation and Coloplast Manufacturing US, LLC (collectively, Coloplast) manufacture and market Restorelle L, a surgical mesh device. Angela Cantrell sued Coloplast for injuries…

Sanctions — Conditional Payment of Monetary Award Prevents Mootness — Contempt Sanction — Payment into Court Escrow Account — Court Can Declare Effective Relief By Ordering That The Sum Paid Be Returned

In re Sealed Case, 2023 U.S. App. LEXIS 20733 (D.C. Cir. July 18, 2023): Pan, Circuit Judge:* The district court issued a search warrant in a criminal case, directing appellant ...

In re Sealed Case, 2023 U.S. App. LEXIS 20733 (D.C. Cir. July 18, 2023): Pan, Circuit Judge:* The district court issued a search warrant in a criminal case, directing appellant Twitter, Inc. (“Twitter”) to produce information to the government …

Fraud on the Court

Nat’l Oilwell Varco, LP v. Auto-Dril, Inc., 68 F.4th 206 (5th Cir. 2023): “To establish fraud on the court, ‘it is necessary to show an unconscionable plan or scheme which is designed to improperly influence the court in its decision.’ ”

Inherent Power Sanctions – Extrajudicial Misconduct: 1. Unilaterally obtaining $300 million arbitration award, absent an arbitration agreement or notice to adversary, is sanctionable even though it precedes commencement of bad faith attempt to confirm award in federal court. 2. District Court retained jurisdiction to rule on sanctions motion filed prior to notice of appeal of decision vacating arbitration award. 3. FRAP 38 appellate sanctions denied for failure to make separate motion.

Matios v. City of Loveland, 2023 U.S. App. LEXIS 15749 (10th Cir. June 23, 2023) (unpublished)

Matios v. City of Loveland, 2023 U.S. App. LEXIS 15749 (10th Cir. June 23, 2023) (unpublished) Eyoel-Dawit Matios, proceeding pro se, appeals from the district court’s order imposing monetary sanctions under its inherent powers. Exercising jurisdiction under 28 U.S.C. § …

Commercial Litigation and Arbitration

Sanctions in the Form of Penalty Not Dischargeable in Bankruptcy — Award of Sanctions Not Subject to Statute of Limitations Defense

Trial: Unanticipated/Undisclosed Evidence — An Objection Need Not Be Perfectly Contemporaneous with the Challenged Evidence to Be Timely

Inherent Power Sanctions: Finding of Willfulness ≠ Finding of Subjective Bad Faith — Due Process Requires Notice of Precise Rule, Standard or Law The Lawyer Allegedly Violated And How The Lawyer Allegedly Violated It

Rule 41(b) Sanctions: Dismissals Without Prejudice Generally Cause Minimal Harm — Absent a Statute of Limitations Impediment to Refiling, Court of Appeals Therefore Applies a Less Stringent Standard of Review

Rule 37(c)(1) Requires Exclusion of Undisclosed, Or Untimely Disclosed, Evidence — Here, Expert Report — Unless The Target of Sanctions Moves The Court to Consider Lesser Sanctions

Sanctions — Conditional Payment of Monetary Award Prevents Mootness — Contempt Sanction — Payment into Court Escrow Account — Court Can Declare Effective Relief By Ordering That The Sum Paid Be Returned

Fraud on the Court

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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