Complex Lit Blog

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.…

Chat Log Sufficiently Authenticated by Use of Name Defendant Also Used in Email Address, by Multiple References to His Email Address and by Defendant’s Self-Identification — Identity Is Jury Question (Rule 104(b))

United States v. Masters, 2015 U.S. App. LEXIS 9243 (9th Cir. June 3, 2015): Defendant Ryan Masters appeals his conviction for four counts of possession of 15 or more counterfeit or unauthorized access devices in violation of 18 U.S.C. § 1029(a)(3) and (c)(1)(A)(i), one count of conspiracy to possess such devices in violation of 18 U ...

Email Authentication — Gmails Are Not Google Business Records And Are Only Self-Authenticating Through 902(11) Certification from Google Custodian of Records Once the Underlying Emails Are Tied to the Alleged Sender

United States v. Shah, 2015 U.S. Dist. LEXIS 73103 (E.D.N.C. June 5, 2015): This matter comes before the court on the government's motion in limine for pretrial determination of the admissibility of certain evidence. (DE 52). The court, in large part, orally ruled on the government's motion at hearing, with such rulings confir ...

Judicial Notice of Internet Evidence — Noticing Contents of Corporate Website for Fact of What Is Displayed — Contract Dispute Over Proper Use of Trade Name

Saint Laurie Ltd. v Yves Saint Laurent Am., Inc., 2015 U.S. Dist. LEXIS 42621 (S.D.N.Y. Mar. 26, 2015): On September 26, 2013, Plaintiff Saint Laurie Ltd. ("Plaintiff" or "Saint Laurie") filed the present action. Plaintiff filed an Amended Complaint on December 23, 2013, [*2] against Defendants Y ...

RICO Claims Precluded If Another Federal Statute Provides Exclusive Remedy for Misconduct — Nonfactual Allegations Fail to State Enterprise — Threadbare Recital of Elements of Claim, Supported By Conclusory Statements, Fail under Both 12(b)(6) & 9(b)

Brink v. Continental Ins. Co., 2015 U.S. App. LEXIS 9112 (D.C. Cir. June 2, 2015): Appellant Daniel Brink, joined by thirty-one other individuals, brought a class action lawsuit stemming from the workers' compensation benefits owed to class members under the Defense Base Act, [*2] 42 U.S.C. § 1651 et seq., for ...

Brink v. Continental Ins. Co., 2015 U.S. App. LEXIS 9112 (D.C. Cir. June 2, 2015): Appellant Daniel Brink, joined by thirty-one other individuals, brought a class action lawsuit stemming from the workers' compensation benefits owed to class members under the …

Rule 11 Sanctions Order Not Final and Appealable Until Amount of Award Is Fixed — Where Leave to Amend Complaint Requested Only Informally in Brief, Court May Deny Request Implicitly by Not Addressing It

Corsini v. Condé Nast, 2015 U.S. App. LEXIS 7785 (2d Cir. May 12, 2015): IV. Rule 11 Sanctions Corsini argues that the district court abused its discretion in granting the Belkin defendants' motion for Rule 11 sanctions, because that motion was filed with the court before the expiration of the & ...

Corsini v. Condé Nast, 2015 U.S. App. LEXIS 7785 (2d Cir. May 12, 2015): IV. Rule 11 Sanctions Corsini argues that the district court abused its discretion in granting the Belkin defendants' motion for Rule 11 sanctions, because that motion …

Facebook Messages Authenticated by Recipients Who Set Up Fake Facebook Accounts to Draw Admissions from Sender — Sender’s ID Confirmed by Use of Rap Name, Fact That His Relatives and Friends Were Facebook Friends, and from Contents of Messages

Cotton v. State, 2015 Ga. 362, (Ga. Sup. Ct. June 1, 2015): Dustin James Cotton was tried by a Clayton County jury and convicted of murder and other crimes in connection with the fatal stabbing of Tyriss Turner. Cotton appeals, contending that the verdict is against the weight of the evidence. Cotton also asserts that the trial court ...

Pro Se Plaintiff Cannot Bring Qui Tam Action Because U.S. Is Real Party in Interest and Pro Se Can’t Represent Another — Does FCA Allow Private Citizen to File RICO Claim on Behalf of Government?

Gunn v. Credit Suisse Grp. AG, 2015 U.S. App. LEXIS 6541 (3d Cir. April 1, 2015): In January 2013, Gunn filed a pro se qui tam action under the False Claims Act ("FCA"), 31 U.S.C. § 3730 et seq., on behalf of the United States.1 *** 1. The FCA makes it unlawful to knowingly submit ...

Text Authentication — Party Possessed Phone, Witness Texted Phone Number, Witness’s Cell Ties Number to Party’s Name, Party Acted Per Earlier Texts, Witness Called Number 6 Hours after Texts & Party Answered — Affirmed on Other Grounds

People v. Sissac, 2015 Cal. App. Unpub. LEXIS 1504 (Cal. Ct. App. Mar. 3, 2015): The San Diego County District Attorney charged Demetrius Sissac with first degree, special circumstance murder (Pen. Code, 187, subd. (a)) in connection with the October 30, 2011 shooting of taxicab driver Jalaludin Hamrah, alleging that ...

People v. Sissac, 2015 Cal. App. Unpub. LEXIS 1504 (Cal. Ct. App. Mar. 3, 2015): The San Diego County District Attorney charged Demetrius Sissac with first degree, special circumstance murder (Pen. Code, 187, subd. (a)) in connection with the October …

Sanctions — Rule 37(b)(2) and Inherent Power — Default Judgment Requires Willfulness, Bad Faith or Fault, Not Inability to Comply

Klein v. Harper, 2015 U.S. App. LEXIS 1839 (10th Cir. Feb. 4, 2015): Under Rule 37(b)(2), "a district court may issue sanctions, including default judgment against the disobedient party when a party disobeys a discovery order." Klein-Becker USA, LLC v. Englert, 711 F.3d 1153, 1159 (10th Cir. 2013) ( ...

Klein v. Harper, 2015 U.S. App. LEXIS 1839 (10th Cir. Feb. 4, 2015): Under Rule 37(b)(2), "a district court may issue sanctions, including default judgment against the disobedient party when a party disobeys a discovery order." Klein-Becker USA, LLC…

Commercial Litigation and Arbitration

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

Chat Log Sufficiently Authenticated by Use of Name Defendant Also Used in Email Address, by Multiple References to His Email Address and by Defendant’s Self-Identification — Identity Is Jury Question (Rule 104(b))

Email Authentication — Gmails Are Not Google Business Records And Are Only Self-Authenticating Through 902(11) Certification from Google Custodian of Records Once the Underlying Emails Are Tied to the Alleged Sender

Judicial Notice of Internet Evidence — Noticing Contents of Corporate Website for Fact of What Is Displayed — Contract Dispute Over Proper Use of Trade Name

RICO Claims Precluded If Another Federal Statute Provides Exclusive Remedy for Misconduct — Nonfactual Allegations Fail to State Enterprise — Threadbare Recital of Elements of Claim, Supported By Conclusory Statements, Fail under Both 12(b)(6) & 9(b)

Rule 11 Sanctions Order Not Final and Appealable Until Amount of Award Is Fixed — Where Leave to Amend Complaint Requested Only Informally in Brief, Court May Deny Request Implicitly by Not Addressing It

Facebook Messages Authenticated by Recipients Who Set Up Fake Facebook Accounts to Draw Admissions from Sender — Sender’s ID Confirmed by Use of Rap Name, Fact That His Relatives and Friends Were Facebook Friends, and from Contents of Messages

Pro Se Plaintiff Cannot Bring Qui Tam Action Because U.S. Is Real Party in Interest and Pro Se Can’t Represent Another — Does FCA Allow Private Citizen to File RICO Claim on Behalf of Government?

Text Authentication — Party Possessed Phone, Witness Texted Phone Number, Witness’s Cell Ties Number to Party’s Name, Party Acted Per Earlier Texts, Witness Called Number 6 Hours after Texts & Party Answered — Affirmed on Other Grounds

Sanctions — Rule 37(b)(2) and Inherent Power — Default Judgment Requires Willfulness, Bad Faith or Fault, Not Inability to Comply

Recent Posts

Rule 37(c)(1) Exclusion of Untimely Expert Report: Failure to Argue Harmlessness Essentially Waives Issue

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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