Complex Lit Blog

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 ...

1st Circuit: Bankruptcy Court Has Inherent Power to Sanction (Circuit Split) — Bad Faith Not Always Needed — Punitive Non-Contempt vs. Contempt — Factors in Evaluating Court’s Discretion in Imposing Sanctions

In re Charbono (Charbono v. Sumski), 2015 U.S. App. LEXIS 10053 (1st Cir. June 15, 2015): This appeal poses the question of whether a bankruptcy court has inherent power to sanction parties for noncompliance with court orders. We hold that it does -- and we reject the debtor's attempt to subsume this power within the bankr ...

In re Charbono (Charbono v. Sumski), 2015 U.S. App. LEXIS 10053 (1st Cir. June 15, 2015): This appeal poses the question of whether a bankruptcy court has inherent power to sanction parties for noncompliance with court orders. We hold that …

Authentication of Map of Locations Based on Cell Phone Signals to Towers — Expert Testimony re Technology Plus Circumstantial Evidence Linking Phones to Owners at Relevant Times — Use of Names vs. Phone Numbers on Exhibit Upheld

United States v. Reed, 780 F.3d 260 (4th Cir. 2015): Four masked men committed a string of robberies around Alexandria and Arlington, Virginia, in December 2012. During the third and final robbery, the thieves took $60,411.15 from a credit union. [**2] They also unwittingly took three GPS tracking devices embedded in the cash ...

United States v. Reed, 780 F.3d 260 (4th Cir. 2015): Four masked men committed a string of robberies around Alexandria and Arlington, Virginia, in December 2012. During the third and final robbery, the thieves took $60,411.15 from a credit union. …

Sanctions — Appealability — Judicial Referral of Attorney Conduct to a Disciplinary Committee, Absent a Specific Finding of Misconduct by the Court, Is Not a Sanction and Is Not Appealable

Zente v. Credit Mgmt., LP, 2015 U.S. App. LEXIS 10063 (5th Cir. June 15, 2015): Albeit in the name of Plaintiff-Appellant Joseph Zente, his attorney, Sergei Lemberg, appeals the district court's referral of his conduct to the disciplinary committee of the Western District of Texas. We conclude that neither Zente nor Lember ...

Zente v. Credit Mgmt., LP, 2015 U.S. App. LEXIS 10063 (5th Cir. June 15, 2015): Albeit in the name of Plaintiff-Appellant Joseph Zente, his attorney, Sergei Lemberg, appeals the district court's referral of his conduct to the disciplinary committee of …

Commercial Litigation and Arbitration

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

1st Circuit: Bankruptcy Court Has Inherent Power to Sanction (Circuit Split) — Bad Faith Not Always Needed — Punitive Non-Contempt vs. Contempt — Factors in Evaluating Court’s Discretion in Imposing Sanctions

Authentication of Map of Locations Based on Cell Phone Signals to Towers — Expert Testimony re Technology Plus Circumstantial Evidence Linking Phones to Owners at Relevant Times — Use of Names vs. Phone Numbers on Exhibit Upheld

Sanctions — Appealability — Judicial Referral of Attorney Conduct to a Disciplinary Committee, Absent a Specific Finding of Misconduct by the Court, Is Not a Sanction and Is Not Appealable

Recent Posts

Rule 37(b) Sanctions — Exclusion of Supplemental Expert Report for Advancing New Opinions — Third Circuit Exclusion Factors — “Importance of Excluded Evidence:” If, As Proponent Argues, There Is Nothing New, Then Exclusion Doesn’t Harm Proponent; If There Is, It Harms Opponent

RICO Pleading: Generic Allegations of Fraud (Failing Even to Set Forth Any False Representation) And Extortion (Failing to Describe Actual Threats) Too Conclusory to State a Claim

RICO Pleading: Statutory Directive That RICO Be Liberally Construed Does Not Extend to More Liberal Pleading Requirements

FRAP 38 Sanctions Imposed Due to the “Striking Legal Emptiness” of Brief/Appeal, “A Legal Nothingburger” — Bad Faith Not Required: An Appeal “May Also Be Frivolous If It Is Filed Out Of Sheer Obstinacy” (Good Quotes)

RICO: Hobbs Act does not apply when the alleged extortion is meant to benefit the state

RICO: Indirect Injury Unrecoverable — Indirect Purchaser Rule Imported from Antitrust

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