Complex Lit Blog

Sanctions: Court May Dismiss with Prejudice Even after Voluntarily Dismissal without Prejudice under Rule 41 — Mortgage with Bank ≠ Grounds to Recuse — Judges Not Obliged to Make Greater Financial Disclosure Than Statute Requires

Zow v. Regions Fin’l Corp., 2014 U.S. App. LEXIS 23321 (11th Cir. Dec. 11, 2014): James Allen Zow, Sr. and Veronica Zow appeal the dismissal of their case with prejudice as a sanction for being in contempt of a discovery order. They argue that dismissal with prejudice was an inappropriate sanction because they had already voluntaril ...

Sanctions — Supreme Court Indicates Bankruptcy Courts May Be Empowered to Issue Inherent Power Sanctions — No Question That They May Sanction under § 1927

Dahiya v. Kramer (In re Khan), 2015 U.S. App. LEXIS 1792 (2d Cir. Feb. 5, 2015): Dahiya argues as a threshold matter that the bankruptcy court lacked the authority to sanction pursuant to 28 U.S.C. § 1927 and its inherent authority to sanction. We need not reach the issue of whether bankruptcy courts possess the inherent authority to ...

Rule 11 Sanctions — Pre-Dismissal Letter Is Insufficient to Satisfy Safe Harbor and Post-Dismissal Motion Is Untimely

Penn, LLC, et al. v. Prosper Bus. Dev. Corp., 2014 U.S. App. LEXIS 23368 (6th Cir. Dec. 12, 2014): In this dispute over the management of a joint venture, Defendants-Appellants James E. Arnold & Associates and the firm's eponymous partner (together the "Arnold Firm") challenge the district court's denial of their mot ...

Texts Authenticated by Recipient’s Testimony, Messages That Included Photo of Sender, ID’ed a Person Both Knew & by Evidence Phone Was Used to Contact Others Who Knew Sender and That Address for Phone Was a Former Address of Sender’s

Jackson v. State, 2015 Tex. App. LEXIS 6126 (Tex. App. June 17, 2015): II. MOTION TO SUPPRESS In his first issue, Jackson contends the trial court abused its discretion in denying his motion to suppress certain cell phone records and in "thereafter allow[ing] unauthenticated eviden ...

Jackson v. State, 2015 Tex. App. LEXIS 6126 (Tex. App. June 17, 2015): II. MOTION TO SUPPRESS In his first issue, Jackson contends the trial court abused its discretion in denying his motion to suppress certain cell phone records and …

Rule 37 Sanctions — Dismissal for Repeated Failure to Appear for Court-Ordered Deposition — 4-Factor Test (2d Circuit) — While Pro Se Is Due Special Solicitude, He or She Is Not Immune to Dismissal, If Willfulness, Bad Faith or Fault Is Found

Davis v. Citibank, N.A., 2015 U.S. App. LEXIS 10524 (2d Cir. June 23, 2015): If a party fails to attend its own deposition, the district court may, inter alia, dismiss the action and [*2] order the party to pay reasonable expenses. See Fed. R. Civ. P. 37(b)(2)(A)(v), (d)(3). "We review a district court's im ...

Davis v. Citibank, N.A., 2015 U.S. App. LEXIS 10524 (2d Cir. June 23, 2015): If a party fails to attend its own deposition, the district court may, inter alia, dismiss the action and [*2] order the party to pay reasonable …

Rule 11 — Failure to Issue Order to Show Cause Bars Sua Sponte Sanction — No Bad Faith Required in 6th Circuit for § 1927 Sanctions; Recklessness Enough, Even Absent “Conscious Impropriety”

Oakstone Community School v. Williams, 2015 U.S. App. LEXIS 10143 (6th Cir. June 12, 2015): What began as a case about a child's education has needlessly devolved into a dispute about attorney's fees and unjustified sanctions. After prevailing in an administrative claim filed by the Defendant parent and her lawyer under the In ...

Spoliation — Bad Faith Required for Adverse Inference Instruction in Eleventh Circuit — Speculation Insufficient to Prove Bad Faith — Judicial Notice of Internet Evidence — Reference Book (Oxford English Dictionary)

Horton v. Maersk Line, Ltd., 2015 U.S. App. LEXIS 3033 (11th Cir. Feb. 27, 2015): On the morning of March 18, 2011, plaintiff-appellant John Horton ("Plaintiff"), a longshoreman, was working aboard the M/V Sealand Champion when a crane operator, placing a shipping container onto a stack of other shipping containers, ...

Authentication of Entries in Cell Phone’s User Text Dictionary Requires Circumstantial Evidence That Owner Was the Person Who Entered the Words into His or Her Phone

Wilcock v. State, 2015 Nev. Unpub. LEXIS 652 (Nev. Sup. Ct. May 29, 2015): This is an appeal from a judgment of conviction, pursuant to a jury verdict, of one count of first-degree murder with use of a deadly weapon, one count of robbery with use of a deadly weapon, two counts of possession of stolen property, one count of burglary wh ...

§ 1927 Sanctions — Due Process — Failure to Grant Oral Argument = Abuse of Discretion Where Different Judges Presided over Case, Significant Sanction Imposed and Given Unspecified “Particulars of This Action”

Smith v. Banner Health Sys., 2015 U.S. App. LEXIS 10191 (9th Cir. June 17, 2015): Smith appeals from the district court's order granting summary judgment in favor of defendants Banner Health Systems and its employee Dr. Scott Elton (collectively "Banner"), and the order granting summary judgment in favor of the State of ...

Rule 11 Sanctions — Refiling Impertinent, Scandalous Allegations, Despite Warning, Violates 11(b)(1) — Refiling and Issuing Multiple Subpoenas Suggests Improper Purpose — No Rule 38 Sanctions If Chances Are Merely Slim

Marceaux v. Lafayette City-Parish Consolidated Govt., 2015 U.S. App. LEXIS 9540 (5th Cir. June 8, 2015): Plaintiffs are fifteen current and former officers of the Lafayette Police Department suing the local government, the department, and other officers and city officials for numerous alleged violations of their constitutiona ...

Commercial Litigation and Arbitration

Sanctions: Court May Dismiss with Prejudice Even after Voluntarily Dismissal without Prejudice under Rule 41 — Mortgage with Bank ≠ Grounds to Recuse — Judges Not Obliged to Make Greater Financial Disclosure Than Statute Requires

Sanctions — Supreme Court Indicates Bankruptcy Courts May Be Empowered to Issue Inherent Power Sanctions — No Question That They May Sanction under § 1927

Rule 11 Sanctions — Pre-Dismissal Letter Is Insufficient to Satisfy Safe Harbor and Post-Dismissal Motion Is Untimely

Texts Authenticated by Recipient’s Testimony, Messages That Included Photo of Sender, ID’ed a Person Both Knew & by Evidence Phone Was Used to Contact Others Who Knew Sender and That Address for Phone Was a Former Address of Sender’s

Rule 37 Sanctions — Dismissal for Repeated Failure to Appear for Court-Ordered Deposition — 4-Factor Test (2d Circuit) — While Pro Se Is Due Special Solicitude, He or She Is Not Immune to Dismissal, If Willfulness, Bad Faith or Fault Is Found

Rule 11 — Failure to Issue Order to Show Cause Bars Sua Sponte Sanction — No Bad Faith Required in 6th Circuit for § 1927 Sanctions; Recklessness Enough, Even Absent “Conscious Impropriety”

Spoliation — Bad Faith Required for Adverse Inference Instruction in Eleventh Circuit — Speculation Insufficient to Prove Bad Faith — Judicial Notice of Internet Evidence — Reference Book (Oxford English Dictionary)

Authentication of Entries in Cell Phone’s User Text Dictionary Requires Circumstantial Evidence That Owner Was the Person Who Entered the Words into His or Her Phone

§ 1927 Sanctions — Due Process — Failure to Grant Oral Argument = Abuse of Discretion Where Different Judges Presided over Case, Significant Sanction Imposed and Given Unspecified “Particulars of This Action”

Rule 11 Sanctions — Refiling Impertinent, Scandalous Allegations, Despite Warning, Violates 11(b)(1) — Refiling and Issuing Multiple Subpoenas Suggests Improper Purpose — No Rule 38 Sanctions If Chances Are Merely Slim

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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