Complex Lit Blog - Joseph Hage Aaronson

Commercial Litigation and Arbitration

Commercial Litigation and Arbitration

Complex Lit Blog

Rule 11 — Appealability: Time to Appeal Runs from Entry of Order Quantifying Sanctions, Not from Subsequent Entry of Judgment Restating Same Fee Awards — No Separate Document Setting Forth Judgment Required under Rule 58 Because Rule 11 Award Falls within 58(a)(3) Exception — Fact Judgment Entered Irrelevant to Question of Timeliness of Appeal — Failure to Request a Hearing on Sanctions = Waiver of Any Right to One; FRAP 38 Sanctions Warranted When Result Is Obvious Or Appellant’s Argument Is Wholly without Merit

Upchurch v. O'Brien, 2024 U.S. App. LEXIS 19560 (7th Cir. Aug. 6, 2024): *1 For years Timothy Upchurch waged a relentless and disturbing campaign of harassment against his neighbors, Timothy and Margaret O’Brien, in a dis ...

Upchurch v. O’Brien, 2024 U.S. App. LEXIS 19560 (7th Cir. Aug. 6, 2024): *1 For years Timothy Upchurch waged a relentless and disturbing campaign of harassment against his neighbors, Timothy and Margaret O’Brien, in a dispute over a claimed easement …

Inherent Power Sanctions: Barring Lead Counsel from Delivering Closing Argument at Trial Within Trial Court’s Discretion as Sanction for Serial Misconduct, Including Deposition Misconduct, Obstructionist Discovery Tactics; Scheduling Order Violations, Disregard of In Limine Orders and Ignoring a Sustained Objection

Rightchoice Managed Care, Inc. v. Hosp. Partners, Inc., 2024 U.S. App. LEXIS 18599 (8th Cir. July 29, 2024): *1 Beau Gertz, Mark Blake, SeroDynamics, and LabMed Services (collectively, the Sero Defendants) perpetrated a pass-throug ...

Rightchoice Managed Care, Inc. v. Hosp. Partners, Inc., 2024 U.S. App. LEXIS 18599 (8th Cir. July 29, 2024): *1 Beau Gertz, Mark Blake, SeroDynamics, and LabMed Services (collectively, the Sero Defendants) perpetrated a pass-through billing scheme for lab tests billed…

Sanctions: (1) Rule 11(c)(2) “Nonfrivolous Argument for Extending, Modifying, or Reversing Existing Law or For Establishing New Law”: Argument Barred by Supreme Court or Circuit Precedent “Not Per Se Sanctionable—An Attempt to Distinguish One’s Case … Is Enough” —(2) Mere Loss on Summary Judgment Doesn’t Necessarily Mean Sanctions Are Apt: Absence of Genuine Issue of Material Fact Does Not Negate Existence of Plausible Factual and Legal Contentions

Mazurek v. Metalcraft of Mayville, Inc., 2024 WL 3632732 (7th Cir. Aug. 2, 2024): Opinion

Mazurek v. Metalcraft of Mayville, Inc., 2024 WL 3632732 (7th Cir. Aug. 2, 2024): Opinion Jackson-Akiwumi, Circuit Judge. *1 A group of employees sued their employer, Metalcraft of Mayville, for failing to pay them for time spent working just…

RICO Pleading: Racketeering Activity Consists Exclusively of Crimes Listed in § 1961(1); Conclusory References to Crimes in Complaint Inadequate; Generic References To “Fraud” without Specifying Type of Frauds Listed In § 1961 That Each Defendant Allegedly Committed Is Inadequate; Fiduciary Duty Breach, Breach of Contract, Negligence, Defamation Are Not Predicate Acts

Lopez v. COMPA Indus., Inc., 2024 U.S. App. LEXIS 18176 (10th Cir. July 24, 2024) (unpublished): ...

Lopez v. COMPA Indus., Inc., 2024 U.S. App. LEXIS 18176 (10th Cir. July 24, 2024) (unpublished): *1 Samuel Lopez, proceeding pro se,1 appeals the district court’s order dismissing his various claims against Compa Industries, Inc., several of Compa’s officers…

RICO: (1) Victim vs. Perpetrator Enterprises — (2) § 1962(b): Elements of a Violation — (3) Meaning of “Interest” and “Control” in § 1962(b) — (4) The Defendant in a § 1962(b) Action Need Not Be an Enterprise; The Victim Must Be An Enterprise — (5) Acquisition/Maintenance Injury Required (6) Aiding and Abetting Liability under RICO

Laurel Gardens LLC v. McKenna, 2024 U.S. App. LEXIS 1594, 2024 WL 3220401 (3d Cir. June 28, 2024) (unpublished): OPINION**

Laurel Gardens LLC v. McKenna, 2024 U.S. App. LEXIS 1594, 2024 WL 3220401 (3d Cir. June 28, 2024) (unpublished): OPINION** JORDAN, Circuit Judge *1 In this civil RICO case, plaintiffs Laurel Gardens, LLC, American Winter Services, LLC,…

Rule 11 Sanctions: Request for Bill of Particulars re Sanctions Proceeding Reviewed for Abuse of Discretion — Court’s Discretion Narrows As Severity of Sanction Increases OR When It Initiates the Sanction Proceeding Itself — Particularly Strict Abuse of Discretion Standard Applied — “Rule 11 Does Not License a District Court to Sanction Any Action by an Attorney or Party That It Disapproves of” (Good Quote) — Failure to Identify Specific Pleading and Detail Specific, Objectionable Conduct within that Pleading Violates Due Process — Failure to Provide Notice That Most Severe Sanction May Be Imposed Violates Due Process — Failure to Provide Notice That “Scarlett Letter Sanction” (Mandatory Circulation of Sanctions Order) Or Other Sanction That Could Leave Indelible Imprint on Career Might Be Imposed Violates Due Process — Notice That Law Firm Might Be Sanctioned Insufficient to Afford Notice to Firm Lawyer and Managing Partner That He Might Be Sanctioned — Refusal to Impose Additional Sanction Until Impact of Other Imposed Penalties (Not Sanctions) Ascertained to See Whether Sanction Needed

In re Sanford Law Firm, 2024 U.S. App. LEXIS 15747, 2024 WL 3217609 (8th Cir. June 28, 2024): Judges: Before SMITH, Chief Judge,1 COLLOTON2

In re Sanford Law Firm, 2024 U.S. App. LEXIS 15747, 2024 WL 3217609 (8th Cir. June 28, 2024): Judges: Before SMITH, Chief Judge,1 COLLOTON2 and BENTON, Circuit Judges. Sanford Law Firm (SLF) and Josh Sanford (Sanford) appeal …

Rule 37(c)(1) Sanctions: (1) Exclusion of Expert Testimony Reviewed for Abuse of Discretion Even When It Results in Summary Judgment — (2) Whether Physicians Must File 26(a)(2)(B) Report Depends on Whether They Formed Their Opinions for Litigation Or in the Course of Medical Treatment — (3) Party Seeking to Avoid Exclusion of Its Expert for Noncompliance with Rule 26 Bears Burden of Showing Harmlessness or Substantial Justification — (4) Expert Report Subject to Exclusion If It Is Conclusory and Does Not Meet the Level of Rigor Required by Rule 26(a)(2)(B)

Adkins v. Marathon Petro. Co., LP, 2024 U.S. App. LEXIS 15240 6th Cir. June 24, 2024): [**1] Brent Adkins worked as a crew member on one of Marathon Petroleum Company's inland river barges. He brought claims against Marathon ...

Adkins v. Marathon Petro. Co., LP, 2024 U.S. App. LEXIS 15240 6th Cir. June 24, 2024): [**1] Brent Adkins worked as a crew member on one of Marathon Petroleum Company’s inland river barges. He brought claims against Marathon under the…

RICO: The Statute Defines Enterprise Broadly, “But That Breadth Is Not Without Limit” (Good Quote) — Enterprise Inadequately Pled Where Plaintiffs Fail to Name the Common Purpose, Explain How the Relationships Among the Defendants Allowed Them to Advance That Purpose, Or Specify the Period of Time Sufficient to Achieve That Purpose — In a Particular Case, the Pattern of Racketeering May Be Sufficient to Infer the Existence of an Association-in-Fact Enterprise, But Pattern Does Not Necessarily Establish Enterprise — A RICO Conspiracy May Exist Regardless of Whether the Substantive RICO Violation Is Consummated, But the Substantive Violation Must Be Adequately Pled

Kingfly Spirits v. Ragghianti, 2024 WL 3177773 (3d Cir. June 26, 2024) (unpublished): OPINION* *1 This case arises out of a business dispute between plaintiff Mark Willson and his former partner, defendant Blake Ragghianti. Willson filed this lawsuit along with plaintiffs Kingfly Spirits, LLC (“Kin ...

Kingfly Spirits v. Ragghianti, 2024 WL 3177773 (3d Cir. June 26, 2024) (unpublished): OPINION* *1 This case arises out of a business dispute between plaintiff Mark Willson and his former partner, defendant Blake Ragghianti. Willson filed this lawsuit along…

RICO: (1) Claim Accrued When Plaintiff Suffered, and Was Aware of, Her Injury — Overt Retaliation in Her Employment As A Result of Reporting Another Employee’s Sexual Misconduct — Not When a Report Confirming that Misconduct Later Became Public; (2) Inhouse Lawyer’s Conclusion No Sexual Misconduct Occurred Is a Mere Expression of a Legal Conclusion, Not Deception Warranting SOL Reprieve Due to Equitable Tolling or Fraudulent Concealment — Plaintiff Exhibited Lack of Diligence in Failing to Consult Own Counsel or Challenge Inhouse Counsel’s Conclusion; (3) Causation: Plaintiff Must Prove Her Injuries Were Directly Caused by the Predicate Acts — (4) Concealment of Report Commissioned by Employer Directly Harmed Employer (by Exposing It to Liability) and Victims of Sexual Misconduct, and Only Indirectly Harmed Plaintiff Who Suffered Retaliation in Her Employment for Reporting the Misconduct

Lewis v. Danos, 83 F.4th 948 (5th Cir. 2023): In 2012 and 2013, Plaintiff-Appellant Sharon Lewis—then an Assistant Athletic Director at Louisiana State University (“LSU”)—internally reported Head Football Coach Les Miles for sexually harassing students. LSU retained outside counsel—Taylor, Porter, Brooks & Phillips LLP (“Taylor Porter”)—to investigate the mat ...

Lewis v. Danos, 83 F.4th 948 (5th Cir. 2023): In 2012 and 2013, Plaintiff-Appellant Sharon Lewis—then an Assistant Athletic Director at Louisiana State University (“LSU”)—internally reported Head Football Coach Les Miles for sexually harassing students. LSU retained outside counsel—Taylor, Porter,…

RICO: Without Injury to Business or Property, Injury Resulting from RICO Violation Is Not Actionable under RICO — Meaning of “Property” in § 1964(c) — Meaning of “Business” in § 1964(c) — Mere “Expectancy Interests” ≠ Business or Property — Loss of NCAA Eligibility = Loss of a Status, Not Loss of Property — Pecuniary Losses (Here, Attorney’s Fees) Flowing from a Non-Cognizable Injury Are Not Recoverably via RICO

Bowen v. Adidas Am. Inc., 84 F.4th 166 (4th Cir. 2023): Affirmed by published opinion. Judge

Bowen v. Adidas Am. Inc., 84 F.4th 166 (4th Cir. 2023): Affirmed by published opinion. Judge Rushing wrote the majority opinion, in which Judge Heytens joined. Judge King wrote a dissenting opinion. Majority Opinion RUSHING, Circuit Judge: In 2017, …

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Recent Posts

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

Rule 37(b)(2)(A) Sanctions for Altering Expert’s 26(a)(2)(B) Report — Without the Expert’s Knowledge or Approval — by Converting It from PDF to Word, Changing Headings and Other Formatting, and Omitting a Page of Relevant Text and Appendices, Even Though Expert Testified That The Overall Substance of the Report Was Unchanged — Rule 37(b)(2)(A) Sanctions May Be Reversed If Failure to Comply with Discovery Order Was Due to Misunderstanding or Inability to Comply

Spoliation: Fed. R. Civ. P. 37(e) Imposes a Higher Standard — Intent — Than Fourth Circuit Law Previously Applied to Spoliation of Electronically-Stored Information (And Still Does As to Non-ESI) — Willfulness vs. Intent

Inherent Power and § 1927 Sanctions: Removal of counsel from case, referral for disciplinary action, and award of fees and costs for assaulting opposing counsel at deposition — Failure to request hearing waive any right to a hearing — Notice and opportunity to be heard required before sua sponte sanctions imposed, whether under Rule 11, the inherent power of the court or § 1927 — Notice may come from court or opposing counsel — Order imposing sanctions cannot provide notice of sanctions — Nature of bad faith requirement for inherent power sanctions: bad faith to obstruct the judicial process or bring about violation of a court order — Sanctions proceeding need not defer (Younger abstention) to disciplinary proceeding involving the same conduct — Sanctions proceeding doesn’t threaten to interfere with disciplinary proceeding — Why District Court is accorded significant deference in matters concerning attorney’s fees

Rule 11 Sanctions — Even If Court Invites Sanctions Motion, Safe Harbor Must Be Complied With — If Safe Harbor Is Not Provided, Court May Not Proceed Sua Sponte without Affording the Due Process Required by Rule 11(c)(3): Issuing a Show Cause Order Why Conduct Specifically Described In The Order Has Not Violated — The Show Cause Order Need Not Be A Separate Order — Appellee’s Request That Appellate Court Consider Alternate Ground of Inherent Power Sanctions Fails Due to Lack of Notice That Inherent Power Sanctions, and Therefore Bad Faith, Were At Issue

FRAP 38 Sanctions: An Appeal That Has “Some Arguable Basis” Either in Law or Fact—A Low Bar—Is Not Frivolous — “Simply Quibbl[ing]”/Raising Factual Disputes Insufficient to Obtain Sanctions — Sixth Circuit Usually Imposes FRAP 38 Sanctions Only If An Improper Purpose Underlies the Appeal — Simply Seeking Sanctions Below (Unsuccessfully) And On Appeal Is Not Per Se Violative of § 1927

RICO: “The RICO Statute Is A Very Powerful, But Tricky, Tool” (Good Quote) — The Seven Elements of a RICO Claim, Before Even Reaching Injury and Causation — “Courts Must Flush Out Frivolous RICO Completes At An Early Stage Of The Litigation” (Good Quote) — 9(b) Obligations for Fraud-Based RICO Claims — The 3 Features of the Structure Requirement for the Enterprise Element — Factors Analyzed in Determining Whether Association-in-Fact Enterprise Pled — Hub-and-Spoke Structure ≠ Enterprise —Merely Taking Directions Insufficient for §1962(c) Liability —Operation and Management Test = Low Hurdle —Commission of Predicate Acts by Enterprise Insufficient — RICO Persons Must Commit the Acts —2-Year Minimum for Closed-End Continuity in Second Circuit — Horizontal and Vertical Relatedness: Requirements

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