Complex Lit Blog

Rule 11: Failure to Address Controlling Decision Issued Post-Filing/Pre-Dismissal Brief Warrants Sanctions — FRAP 38 Sanctions Imposable, But Denied, for Rehashing Arguments from Below without Addressing District Court’s Conclusions

Duncan v. CitiMortgage, Inc., 2015 U.S. App. LEXIS 10111 (11th Cir. June 16, 2015): Appellants Brendalynne and Tyrone Duncan appeal the district court's grants of motions to dismiss filed by Appellees Citimortgage, Inc., Pendergast & Associates, P.C., Howell A. Hall, and John F. Pendergast. Their attorney, Deirdre M. Stephens-John ...

RICO & Res Judicata — Continuation of Same Activity at Issue in Prior Action Doesn’t Raise New or Independent RICO Claim — Test Isn’t Whether New Facts Occurred after Judgment But Whether Material Facts, Witnesses, Docs Are the Same in Both Suits

Foster v Denenberg, 2015 U.S. App. LEXIS 9644 (3d Cir. June 10, 2015): Frederick Foster appeals from an order of the District Court dismissing his complaint. For the reasons that follow, we will summarily affirm. Foster filed suit in 2010 in the United States District Court for the Eastern District of Pennsylvania against David ...

YouTube Admissibility — Admission of Defendant’s Words in Video, However Accomplished, Violates Crawford Confrontation

State v. Patton, 2015 Ohio App. LEXIS 1783 (Ohio Ct. App. May 15, 2015): [*P1] Daurin Patton, appeals a December 10, 2012 judgment of conviction and sentence of the Lucas County Court of Common Pleas on two counts of aggravated murder with two accompanying firearms specifications and one count of aggravated robbery. The aggravated m ...

§ 1927 Sanctions Affirmed for Issuing Trial Subpoena after Court Has Precluded Deposition of Same Apex Witness and While Motion to Compel Witness’s Attendance at Trial Is Pending

Wagner v. Gallup, Inc., 2015 U.S. App. LEXIS 9856 (8th Cir. June 12, 2015): Rodd Wagner appeals various district court decisions, the sum total of which limited matters of discovery, imposed sanctions on Wagner's attorney and ultimately dismissed Wagner's age discrimination and appropriation claims. We affirm. I ...

Facebook Post Authenticated by Its Content, Timing, Appended Name, Witness Testimony She Recognizes Page as Alleged Author’s & Fact Page Is Password Protected — There Are as Many Ways to Try a Case as There Are Trial Lawyers (Good Quote)

State v. Fawver, 2015 Wash. App. LEXIS 1208 (Wash. Ct. App. June 9, 2015): Corey Fawver challenges his convictions for first degree burglary and second degree assault, alleging both that his counsel's performance was flawed and the evidence did not support the assault conviction. We disagree and affirm. FACTS

Appeals — Liberal Construction of Pro Se Notice of Appeal — Discovery Sanctions/Due Process — Fact That Agreement Is Unsigned Does Not Make It Per Se Inadmissible (Good Quote) — Standards of Review of Damages Determinations

Chen v. Chan, 2015 U.S. App. LEXIS 9271 (2d Cir. June 4, 2015): Appellant Wai Yin Chan appeals from a judgment of the district court awarding damages to the plaintiffs on their claims under the New York Labor Law ("NYLL"). Chan asserts that the district court erred by (1) excluding evidence of a purported settlement agreemen ...

Rooker-Feldman Doesn’t Bar Federal Jurisdiction over Independent Claim, Even If It Denies a Legal Conclusion State Court Reached — Plaintiff Must Seek Relief That Directly Attacks the Validity of a State Court Judgment

Avdeef v. Royal Bank of Scotland, PLC, 2015 U.S. App. LEXIS 9498 (5th Cir. June 8, 2015): 1. The Rooker-FeldmanDoctrine The Rooker-Feldman doctrine occupies "narrow ground": it bars only "cases brought by state-court ...

Avdeef v. Royal Bank of Scotland, PLC, 2015 U.S. App. LEXIS 9498 (5th Cir. June 8, 2015): 1. The Rooker-FeldmanDoctrine The Rooker-Feldman doctrine occupies "narrow ground": it bars only "cases brought by state-court losers complaining of injuries caused by state-court …

Facebook Authentication — Sufficient Where Party Admits Making One Post; Later Posts Refer Back to It; No Evidence Anyone Else Had Access to Facebook Account — Statements on Facebook Page = Party Admissions

Matter of MC v. State, 2015 Nev. Unpub. LEXIS 646 (Nev. Sup. Ct. Feb. 26, 2015): North Las Vegas Police monitored the Facebook activity of approximately 130 individuals by befriending them under a fictitious name. M.C. was one of the individuals monitored. North Las Vegas Police Officer Richard Arnold found a two-day- ...

Matter of MC v. State, 2015 Nev. Unpub. LEXIS 646 (Nev. Sup. Ct. Feb. 26, 2015): North Las Vegas Police monitored the Facebook activity of approximately 130 individuals by befriending them under a fictitious name. M.C. was one of…

Motion for Reconsideration Precludes Mandamus — Mandamus Doesn’t Lie Where There Is Another Adequate Means to Obtain the Relief Sought — May Not Be Used to Circumvent Rule 54(b) or As a Substitute for Appeal

In re Ingris, 2015 U.S. App. LEXIS 3634 (3d Cir. Mar. 9, 2015): Peter Ingris has filed a petition for writ of mandamus. For the reasons that follow, we will deny the petition. Ingris is a litigant in a number of cases in the United States District Court for the District of New Jersey. In this petition, he seeks a writ of mand ...

Discovery Sanctions — 4-Factor Test for Rule 37(b) Dismissal (6th Circuit) — Meaning of Contumaciousness and Prejudice — Allocation between Lawyer & Client — Continuing Failure to Make Discovery after New Counsel Hired = Client Fault

Barron v. Univ. of Mich., 2015 U.S. App. LEXIS 9188 (6th Cir. May 29, 2015): A. Rule 37(b) Dismissal We review a district court's dismissal of an action under Federal Rule of Civil Procedure 37(b) for an abuse of discretion. Univ. Health Grp. v. Allstate Ins. Co., 703 F.3d 953, 955-56 (6th Cir. 201 ...

Barron v. Univ. of Mich., 2015 U.S. App. LEXIS 9188 (6th Cir. May 29, 2015): A. Rule 37(b) Dismissal We review a district court's dismissal of an action under Federal Rule of Civil Procedure 37(b) for an abuse of discretion.…

Commercial Litigation and Arbitration

Rule 11: Failure to Address Controlling Decision Issued Post-Filing/Pre-Dismissal Brief Warrants Sanctions — FRAP 38 Sanctions Imposable, But Denied, for Rehashing Arguments from Below without Addressing District Court’s Conclusions

RICO & Res Judicata — Continuation of Same Activity at Issue in Prior Action Doesn’t Raise New or Independent RICO Claim — Test Isn’t Whether New Facts Occurred after Judgment But Whether Material Facts, Witnesses, Docs Are the Same in Both Suits

YouTube Admissibility — Admission of Defendant’s Words in Video, However Accomplished, Violates Crawford Confrontation

§ 1927 Sanctions Affirmed for Issuing Trial Subpoena after Court Has Precluded Deposition of Same Apex Witness and While Motion to Compel Witness’s Attendance at Trial Is Pending

Facebook Post Authenticated by Its Content, Timing, Appended Name, Witness Testimony She Recognizes Page as Alleged Author’s & Fact Page Is Password Protected — There Are as Many Ways to Try a Case as There Are Trial Lawyers (Good Quote)

Appeals — Liberal Construction of Pro Se Notice of Appeal — Discovery Sanctions/Due Process — Fact That Agreement Is Unsigned Does Not Make It Per Se Inadmissible (Good Quote) — Standards of Review of Damages Determinations

Rooker-Feldman Doesn’t Bar Federal Jurisdiction over Independent Claim, Even If It Denies a Legal Conclusion State Court Reached — Plaintiff Must Seek Relief That Directly Attacks the Validity of a State Court Judgment

Facebook Authentication — Sufficient Where Party Admits Making One Post; Later Posts Refer Back to It; No Evidence Anyone Else Had Access to Facebook Account — Statements on Facebook Page = Party Admissions

Motion for Reconsideration Precludes Mandamus — Mandamus Doesn’t Lie Where There Is Another Adequate Means to Obtain the Relief Sought — May Not Be Used to Circumvent Rule 54(b) or As a Substitute for Appeal

Discovery Sanctions — 4-Factor Test for Rule 37(b) Dismissal (6th Circuit) — Meaning of Contumaciousness and Prejudice — Allocation between Lawyer & Client — Continuing Failure to Make Discovery after New Counsel Hired = Client Fault

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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