Complex Lit Blog

(1) Bankruptcy Courts Have Only Civil Contempt Powers; (2) All Monetary Contempt Sanctions Must Be Civil — Designed Either to Coerce Compliance Or Compensate a Party for the Contemnor’s Violation, and Not Have As A Primary Purpose to Vindicate the Authority of the Bankruptcy Court Or Punish the Contemnor

Matter of Highland Capital Mgmt., LP (Charitable DAF Fund LP v. Highland Capital Mgmt., LP), 2024 U.S. App. LEXIS 8129, 2024 WL 1450065 (5th Cir Apr. 4, 2024): *1 A bankruptcy court held Appellants in civil contempt and ordered them to pay $239,655 in compensatory damages. The bankruptcy court abused its discretion. We vacate and remand. I.

Rule 11 and Inherent Power Sanctions: Vexatious Litigant Injunction (VLI) Broadened to Bar Any Further Filings in Issuing District Court Due to Violation of Narrower VLI And Failure to Pay Monetary Sanctions

Am. Ass'n for Lab'y Accreditation, Inc. v. Hutchinson, 2024 U.S. App. LEXIS 8189 (7th Cir. Apr. 3, 2024) (unpublished): ORDER* Robert Hutchinson appeals the district co ...

Am. Ass’n for Lab’y Accreditation, Inc. v. Hutchinson, 2024 U.S. App. LEXIS 8189 (7th Cir. Apr. 3, 2024) (unpublished): ORDER* Robert Hutchinson appeals the district court’s order enforcing a filing bar against him. The district judge enforced the filing …

(1) Order to Show Cause Why FRAP 38 Sanctions Should Not Issue Against Recidivist Filer of Frivolous Claims for Filing Brief Consisting Mostly of Unsubstantiated Accusations; (2) Vexatious Litigant Injunction to Issue If Any Monetary Penalty Not Paid Promptly

Henry v. Hall, 2024 U.S. App. LEXIS 8193 (7th Cir. Apr. 5, 2024): ORDER Michael Henry sued several Illinois circuit and appellate judges, and the Chief Justice of the Illinois Supreme Court, alleging that their actio ...

Henry v. Hall, 2024 U.S. App. LEXIS 8193 (7th Cir. Apr. 5, 2024): ORDER Michael Henry sued several Illinois circuit and appellate judges, and the Chief Justice of the Illinois Supreme Court, alleging that their actions in an ongoing state …

(1) Post-Judgment Motion for Rule 11 Sanctions Violates Safe Harbor, Precluding Any Rule 11 Award — (2) Judicial Speculation That Target Would Not Have Withdrawn the Offending Paper Even If Given the Opportunity Insufficient: “[A]ssumptions Do Not Excuse Compliance with the Text of Rule 11” (Good Quote) — (3) Citing Potential Rule 11 Violations in Summary Judgment Papers Insufficient — Rule 11 Motion Required: “Thus, Informal Notice Is Only A ‘Professional Courtesy’ … Not The Official Notice That Starts The 21-Day Safe Harbor Period” (Good Quote) — (4) Court Could Have Imposed Sanctions Sua Sponte under Rule 11(c)(3), § 1927 or Inherent Power Sanctions

Caranchini v. Nationstar Mortg., LLC, 2024 U.S. App. LEXIS 7890 (8th Cir. April 3, 2024): Attorney Gregory Leyh and his law firm were sanctioned by the district court pursuant to

Caranchini v. Nationstar Mortg., LLC, 2024 U.S. App. LEXIS 7890 (8th Cir. April 3, 2024): Attorney Gregory Leyh and his law firm were sanctioned by the district court pursuant to Missouri Supreme Court Rule 55.03 and Federal Rule of Civil …

(1) Sua Sponte Sanctions (3d Cir.): Reasonableness, Not Bad Faith, Is The Standard — Implicitly Rejecting the 2d Cir.’s Akin-to-Contempt Standard — (2) Sua Sponte Sanctions Require Extra Care Because of The Absence of the 21-Day Safe Harbor — (3) Appealability — Even Absent a Reprimand Or Other Sanction, A Court’s Finding of Sanctionable Conduct Injures A Lawyer’s Reputation Sufficiently to Confer Standing to Appeal — (4) Even Though Intent Is Not Required to Violate Rule 11, It Is Relevant to the Decision Whether to Sanction And, If So, What Sanction to Impose — (5) Rule 11 Imposes a Duty of Candor And Is Violated by Not Only by Misrepresentations But Also by Misleading Statements, Half-Truths, Inconsistencies, Mischaracterizations, Exaggerations, Omissions, Evasions And Failures to Correct Known Misimpressions — (6) Candor Is Critical in Ex Parte and Non-Adversarial Proceedings Where Both Sides Agree — (7) “Mild Sanctions” — Requiring an Apology in Writing And Ordering Better Conduct in Similar Cases in the Future

Wharton v. Superintendent Graterford SCI Phila. Dist. Attorney's Off., 2024 U.S. App. LEXIS 5642, 95 F ...

Wharton v. Superintendent Graterford SCI Phila. Dist. Attorney’s Off., 2024 U.S. App. LEXIS 5642, 95 F.4th 140 (3d Cir. 2024): Courts rely on lawyers’ honesty; lawyers may not mislead them. But the Philadelphia District Attorney’s Office did just that.…

Expert (702) vs. Lay Opinion (701) Testimony: “The Line Between Expert And Lay Testimony Is Not Always Sharp” (Good Quote) — Owner of New Business Not Allowed to Offer Lay Opinion As to Lost Future Profits Where Basis Extended Beyond Knowledge He Possessed Due to His Position in the Company (His Own Perception) And Beyond The Reasoning Process of an Average Person in Everyday Life — Sandbagging with Late Opinion: “The Proper Function Of Rebuttal Evidence Is To Contradict, Impeach Or Defuse The Impact Of The Evidence Offered By An Adverse Party” (Good Quote) — Where Opinion Being Rebutted Is Not Admitted, There Is Nothing to Rebut —“ The Duty To Supplement Cannot Be Transformed Into A Right To Ambush Just Before Trial” (Good Quote)

Chi. Joe's Tea Room, LLC v. Vill. of Broadview, 2024 U.S. App. LEXIS 4357, 94 F.4th 588 (7th Cir. 2024 ...

Chi. Joe’s Tea Room, LLC v. Vill. of Broadview, 2024 U.S. App. LEXIS 4357, 94 F.4th 588 (7th Cir. 2024): This appeal presents a host of issues arising from an effort to prove lost profits for a business that…

Right to File Motions, Pleadings, Appeals: Absent Extraordinary Circumstances, Like a History of Litigation Abuse Or Failure to Comply with Sanctions, a Court Has No Power to Prevent a Party from Filing Pleadings, Motions or Appeals — Construing Pre-Motion Letters As Motions OK for Non-Dispositive Motions Or Denial of Dispositive Motions — It Is Also OK If Dispositive Motion Is Predominantly Legal And Complaint Has Substantial Deficiencies — Granting Summary Judgment on Reconsideration of Prior Denial Based on Premotion Letters Only Reversed for Lack of Due Process

Kowalchuck v. Metro. Transp. Auth., 2024 U.S. App. LEXIS 4533 94 F.4th 210 (2d Cir. Feb. 27, 2024): In this case, plaintiff-appellant John Kowalchuck sued his former employer, defendant-appellee Metropolitan Transportation Authority (the “MTA”), under the Federal Employers’ Liability Act (“FELA”),

Kowalchuck v. Metro. Transp. Auth., 2024 U.S. App. LEXIS 4533 94 F.4th 210 (2d Cir. Feb. 27, 2024): In this case, plaintiff-appellant John Kowalchuck sued his former employer, defendant-appellee Metropolitan Transportation Authority (the “MTA”), under the Federal Employers’ Liability Act …

Appeals: Notice of Appeal (“NOA”) Designating Judgment AND Any Judgment from Pending Post-Trial Motion Becomes Effective When Post-Trial Motion (e.g., Sanctions, Reconsideration) Is Decided BUT Is Effective Only As to the Designated Judgment — To Confer Appellate Jurisdiction Over Decision on Pending Motion. New Or Amended NOA Appealing from That Decision Is Necessary — Sometimes Other Documents Can Confer Appellate Jurisdiction (e.g., Docketing Statement) If Intent to Appeal Is Clear

Wall Guy, Inc. v. FDIC, 2024 U.S. App. LEXIS 6395 (4th Cir. Mar. 18, 2024): *1 ...

Wall Guy, Inc. v. FDIC, 2024 U.S. App. LEXIS 6395 (4th Cir. Mar. 18, 2024): *1 This case originates from a lending relationship between Plaintiffs—Jeffrey Frye and his companies The Wall Guy, Inc., and JR Contractors—and First State Bank (“the…

§ 1927 and FRAP 46(c) Sanctions for Misrepresenting to Court of Appeals When Party Learned of the “New Evidence” Argued under Fed. R. Civ. P. 60(b)(2) — When a Lawyer Raises a Frivolous Argument with the District Court, and That Issue Is Appealed and Re-Argued to the Court of Appeals by Someone Else, The Original Lawyer Can Be Sanctioned under § 1927 For Multiplying Proceedings — Recklessly Raising Frivolous Argument Satisfies Bad Faith Requirement for § 1927 in 9th Circuit — § 1927 Does Not Apply to Law Firms — § 1927 Applies to All Responsible Lawyers, Not Just Those Appearing of Record Or Licensed to Practice Before Sanctioning Court — Reviewing and Approving Filings by General Counsel or Supervising Attorney Suffices — FRAP 46(c): Violating Rules of Professional Ethics = “Conduct Unbecoming of the Court’s Bar” Violative of FRAP 46(c) — Financial Sanctions and Notifications to State Bars and District Courts

Caputo ex rel. United States of Am. v. Tungsten Heavy Powder, Inc., 2024 U.S. App. LEXIS 6126 (9th Cir ...

Caputo ex rel. United States of Am. v. Tungsten Heavy Powder, Inc., 2024 U.S. App. LEXIS 6126 (9th Cir. Mar. 14, 2024): ORDER Petitioners Global Tungsten & Powders Corp. (GTP) and Gregory Caputo have filed a motion for sanctions against …

§ 1927 Sanctions: Even If Court Lacks Subject Matter Jurisdiction Over The Merits of a Case, It Retains Jurisdiction to Impose Sanctions — Forfeiture (Failure to Assert Right) vs. Waiver (Intentional Relinquishment of Known Right) — Two Judge Concurrence Finds Strong Textual Argument There Is No Statutory Basis for the Existence of the Virgin Islands Bankruptcy Court

Prosser v Gerber (In re Prosser), 2024 WL 1230148 (3d Cir. Mar. 22, 2024) (unpublished): Sanctions: Even If Court Lacks Subject Matter Jurisdiction, It Retains Jurisdiction to Impose Sanctions — Forfeiture (Failure to Assert Right) vs. Waiver (Intentional Relinquishment of Known Right) — Two Judge Concurrence Finds Strong Textual Argument There Is No ...

Prosser v Gerber (In re Prosser), 2024 WL 1230148 (3d Cir. Mar. 22, 2024) (unpublished): Sanctions: Even If Court Lacks Subject Matter Jurisdiction, It Retains Jurisdiction to Impose Sanctions — Forfeiture (Failure to Assert Right) vs. Waiver (Intentional Relinquishment …

Commercial Litigation and Arbitration

Rule 11 and Inherent Power Sanctions: Vexatious Litigant Injunction (VLI) Broadened to Bar Any Further Filings in Issuing District Court Due to Violation of Narrower VLI And Failure to Pay Monetary Sanctions

(1) Order to Show Cause Why FRAP 38 Sanctions Should Not Issue Against Recidivist Filer of Frivolous Claims for Filing Brief Consisting Mostly of Unsubstantiated Accusations; (2) Vexatious Litigant Injunction to Issue If Any Monetary Penalty Not Paid Promptly

Recent Posts

Rule 37 Discovery Sanctions: Ninth Circuit’s Five-Factor Test for Gauging Appropriateness of Dismissal — The Limited Utility of Rule 12(f) Motions to Strike

Inherent Power Sanction of Dismissal — Preponderance of the Evidence Burden of Proof, Not Clear and Convincing Evidence (7th Circuit)

§ 1927 Sanctions — Must A Lawyer Who Unreasonably and Vexatiously Multiplies Federal Court Proceedings Be Acting “As An Attorney” When Committing the Misconduct To Be Subject to Sanction under § 1927?

Rule 37 Sanctions — Unfamiliarity With Litigation Process Does Not Excuse Intentional Disregard of Court Order — Also Affirming Rule 26(g) Sanctions on Clients and Counsel for False Representations That All Responsive Documents Had Been Produced

Supreme Court: Notice of Appeal Filed After The Original Deadline But Before Reopening by The District Court Is Timely — It Relates Forward to The Date of The Order Making The Appeal Possible — Second Notice of Appeal After Reopening Unnecessary

Rule 37 Default Judgment: Second Circuit’s Four-Factor Test for Imposing Defaults and Three-Factor Test for Lifting Them

RICO: Cover-Up Within Limitations Period of Untimely RICO Violation “Was Merely A Continuation” Of The Original Injury And Could Not Be Used “As A ‘Bootstrap’ To Salvage [The] Time-Barred Claims–Declining to Apply Pinkerton Doctrine to Civil RICO Claims

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