Complex Lit Blog

Internet Evidence — Terrorist Website Authenticated by Fact Governments Rely on It, Language and Facts in Postings, Exclusive Interviews, Non-Public Details re Leaders, and Official Seals — No Chain of Custody Needed for Accurate Video

Linde v. Arab Bank, 2015 WL 1565479 (E.D.N.Y. April 8, 2015): VII. Evidentiary Rulings A. Authentication Generally

Linde v. Arab Bank, 2015 WL 1565479 (E.D.N.Y. April 8, 2015): VII. Evidentiary Rulings A. Authentication Generally Federal Rule of Evidence 901 “does not erect a particularly high hurdle” for authenticating evidence. United States v. Dhinsa, 243 F.3d 635, 658 …

Sanctions — No Appellate Jurisdiction Where Appealed Order Didn’t Include Amount and Subsequent Order Not Appealed From — Substantial Degree of Frivolousness Required for FRAP 38 Sanctions on Pro Se Litigant

McCavey v. Gold, 2015 U.S. App. LEXIS 15761 (11th Cir. Sept. 4, 2015): William M. McCavey, proceeding pro se, appeals the district court's dismissal of his complaint filed against nine defendants involved in varying degrees with his state divorce action, asserting claims under 42 U.S.C. § 1983 and Georgia state law. ***

Judicial Notice of Internet Evidence Taken on 12(b)(6) Motion to Dismiss without Converting It into a Summary Judgment Motion — Newspaper Website — Article Stating Date Official (a Defendant) Appointed to Office

Jones v. Chapman, 2015 U.S. Dist. LEXIS 96964 (D. Md. July 24, 2015): This case arises from allegations of police brutality in connection with the untimely death of Tyrone A. West, Sr. ("Mr. West" or the "Decedent") on July 18, 2013.1 Tawanda Jones, as Personal Representative of the Estate of Tyrone A. W ...

Rule 11 Safe Harbor Triggered by Motion, Not Brief, Declarations — Motion Must Give Sufficient Notice of Conduct at Issue — Discovery re Sanctions only in Extraordinary Circumstances; No Trial Required (Good Quotes)

Burbidge Mitchell & Gross v. Peters, 2015 U.S. App. LEXIS 14405 (10th Cir. Aug. 17, 2015): This diversity case involves the tort of wrongful use of civil proceedings. The case was filed by the Utah law firm of Burbidge, Mitchell & Gross (BMG) against former client C&M Properties, LLC (C&M), which had sued BMG for legal malprac ...

Burbidge Mitchell & Gross v. Peters, 2015 U.S. App. LEXIS 14405 (10th Cir. Aug. 17, 2015): This diversity case involves the tort of wrongful use of civil proceedings. The case was filed by the Utah law firm of Burbidge, Mitchell …

Sanctions — Rule 37 Dismissal Requires Willfulness, Bad Faith or Fault — Fees Limited to Cost of Misconduct, Not Responding to Discovery — Extraordinary Circumstances Needed to Withdraw Consent to Proceed before Magistrate Judge

Odige v. Nat’l Mentor Healthcare, LLC, 2015 U.S. App. LEXIS 15831 (9th Cir. Sept. 4, 2015): In these consolidated appeals, Chuks Odigwe appeals pro se from the district court's judgment dismissing his employment discrimination action as a discovery sanction under Federal Rule of Civil Procedure 37(b). We have jurisdiction under ...

Sanctions — Spoliation — Bad Faith as Well as Prejudice Required for Adverse Inference Instruction in Eleventh Circuit

Rives v. LaHood, 2015 U.S. App. LEXIS 4838 (11th Cir. Mar. 25, 2015): We review a district court's decision regarding spoliation sanctions for abuse of discretion. Mann, 588 F.3d at 1310. "[A] party moving for [spoliation] sanctions must establish, among other things, that the destroyed evide ...

Rives v. LaHood, 2015 U.S. App. LEXIS 4838 (11th Cir. Mar. 25, 2015): We review a district court's decision regarding spoliation sanctions for abuse of discretion. Mann, 588 F.3d at 1310. "[A] party moving for [spoliation] sanctions must establish, …

Unethical or Illegal Conduct by Counsel Vitiates Work Product Protection — RICO: Awareness of Essential Nature and Scope of Enterprise, and Intent to Participate in It, Suffice for §1962(c)

United States v. Pellicano, 2015 U.S. App. LEXIS 14961 (9th Cir. Aug. 25, 2015): Six defendants appeal [*7] their criminal convictions stemming from a widespread criminal enterprise offering illegal private investigation services in Southern California. At the center of this criminal enterprise was Pellicano Investigative Ag ...

United States v. Pellicano, 2015 U.S. App. LEXIS 14961 (9th Cir. Aug. 25, 2015): Six defendants appeal [*7] their criminal convictions stemming from a widespread criminal enterprise offering illegal private investigation services in Southern California. At the center of this …

Rule 37(c)(2) Sanctions for Failure to Admit Per Rule 36 (Here, Lack of Legally Cognizable Injury) — Test: Reasonable Belief Responder Might Prevail on Matter Denied

Magnetar Techs. Corp. v. Intamin, Ltd., 2015 U.S. App. LEXIS 16310 (9th Cir. Sept. 14, 2015): III. Rule 37 Sanctions On cross-appeal, Intamin contends that the district court erred in denying its request for attorney's fees and costs under Rule 37. Intamin claims that Magnetar should be san ...

Magnetar Techs. Corp. v. Intamin, Ltd., 2015 U.S. App. LEXIS 16310 (9th Cir. Sept. 14, 2015): III. Rule 37 Sanctions On cross-appeal, Intamin contends that the district court erred in denying its request for attorney's fees and costs under Rule…

Spoliation — While Duty to Preserve Isn’t Dependent on Preservation Letter, Where One Is Sent and Abided by, No Error to Deny Adverse Inference for Destroying Other Documents Per Customary Retention Policy (11th Cir. — Bad Faith Required)

Hill v Cundiff, 2015 U.S. App. LEXIS 14101 (11th Cir. Aug. 12, 2015): These consolidated appeals involve student-on-student sexual harassment. Jane Doe, an eighth-grade student at Sparkman Middle School, was raped in a bathroom after school officials decided to use her as bait in a sting operation to catch CJC, another eighth-grade st ...

Mooting Claim by Offer of Judgment That Offers Plaintiff Complete Relief — Procedure under Rule 12(b)(1) Mirrors Summary Judgment Practice under Rule 56 — Plaintiff’s 26(a)(1) Damages Calculation May ≠ Full Post-Discovery Claim

Flores v. ACT Event Servs., Inc., 2015 U.S. Dist. LEXIS 16773 (N.D. Tex. Feb. 11, 2015): 3. Mooting Claims Through Offers of Judgment a. Examples of Rule 12(b)(1) Motions Following Offers of Judgment Federal Rule of Civil Procedure 68 provides defendan ...

Flores v. ACT Event Servs., Inc., 2015 U.S. Dist. LEXIS 16773 (N.D. Tex. Feb. 11, 2015): 3. Mooting Claims Through Offers of Judgment a. Examples of Rule 12(b)(1) Motions Following Offers of Judgment Federal Rule of Civil Procedure 68 provides …

Commercial Litigation and Arbitration

Internet Evidence — Terrorist Website Authenticated by Fact Governments Rely on It, Language and Facts in Postings, Exclusive Interviews, Non-Public Details re Leaders, and Official Seals — No Chain of Custody Needed for Accurate Video

Sanctions — No Appellate Jurisdiction Where Appealed Order Didn’t Include Amount and Subsequent Order Not Appealed From — Substantial Degree of Frivolousness Required for FRAP 38 Sanctions on Pro Se Litigant

Judicial Notice of Internet Evidence Taken on 12(b)(6) Motion to Dismiss without Converting It into a Summary Judgment Motion — Newspaper Website — Article Stating Date Official (a Defendant) Appointed to Office

Rule 11 Safe Harbor Triggered by Motion, Not Brief, Declarations — Motion Must Give Sufficient Notice of Conduct at Issue — Discovery re Sanctions only in Extraordinary Circumstances; No Trial Required (Good Quotes)

Sanctions — Rule 37 Dismissal Requires Willfulness, Bad Faith or Fault — Fees Limited to Cost of Misconduct, Not Responding to Discovery — Extraordinary Circumstances Needed to Withdraw Consent to Proceed before Magistrate Judge

Sanctions — Spoliation — Bad Faith as Well as Prejudice Required for Adverse Inference Instruction in Eleventh Circuit

Unethical or Illegal Conduct by Counsel Vitiates Work Product Protection — RICO: Awareness of Essential Nature and Scope of Enterprise, and Intent to Participate in It, Suffice for §1962(c)

Rule 37(c)(2) Sanctions for Failure to Admit Per Rule 36 (Here, Lack of Legally Cognizable Injury) — Test: Reasonable Belief Responder Might Prevail on Matter Denied

Spoliation — While Duty to Preserve Isn’t Dependent on Preservation Letter, Where One Is Sent and Abided by, No Error to Deny Adverse Inference for Destroying Other Documents Per Customary Retention Policy (11th Cir. — Bad Faith Required)

Mooting Claim by Offer of Judgment That Offers Plaintiff Complete Relief — Procedure under Rule 12(b)(1) Mirrors Summary Judgment Practice under Rule 56 — Plaintiff’s 26(a)(1) Damages Calculation May ≠ Full Post-Discovery Claim

Recent Posts

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”

Statements in Briefs As Judicial Admissions

Supreme Court: TRO As Appealable Order — And District Court Inaction As Tantamount to Refusing An Injunction And Thus Appealable

“Slow-Playing Discovery” in Response to Court Order, Prejudicing Opponent, Violates Rule 37(b)(2)(A)

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