Complex Lit Blog

Purposes of Rule 37 Sanctions – Necessity District Court Set Forth Reasons – If Granted, Fees Are “Generally Mandatory” – Three Exceptions – 4 Ways An Appellant Can Abandon A Claim – Rule 69 Doesn’t Limite Post-Judgment Discovery to Federal, As Opposed to State, Discovery Mechanisms – Dismissal Without Prejudice After Statute Of Limitations Has Run Is Reviewed As If It Were With Prejudice

Ctr. for Individual Rights v. Chevaldina, 2022 U.S. App. LEXIS 26869, 2022 WL 4462246 (11th Cir. Sept. 26, 2022) (per curiam) PER CURIAM: *1 Irina Chevaldin ...

Ctr. for Individual Rights v. Chevaldina, 2022 U.S. App. LEXIS 26869, 2022 WL 4462246 (11th Cir. Sept. 26, 2022) (per curiam) PER CURIAM: *1 Irina Chevaldina, proceeding pro se, appeals following the voluntary dismissal, without prejudice, of a…

Rule 37 Sanctions — Default Judgment — Three Purposes of Rule 37 Sanctions — Oral Order Sufficient under Rule 37(b)(2)(A) — Consideration of Lesser Sanctions Need Not Explicit, Particularly If Misconduct Is Egregious — Recidivism Appropriately Considered

Anderson v. Credit One Bank, N.A. (In re Anderson), 641 B.R. 1 (Bankr. S.D.N.Y. 2022): Plaintiff Orin S. Anderson (“Plaintiff” or “Anderson”) brought this adversary proceeding for himself and as a putative class action to enforce his and the other class members’ bankruptcy discharge under

Anderson v. Credit One Bank, N.A. (In re Anderson), 641 B.R. 1 (Bankr. S.D.N.Y. 2022): Plaintiff Orin S. Anderson (“Plaintiff” or “Anderson”) brought this adversary proceeding for himself and as a putative class action to enforce his and the other …

Rule 37 Sanctions — Default Judgment — Death Penalty Sanctions: 4 Factors: (1) Willfulness, Bad Faith Or Fault (e.g., Flouting Court Order), (2) Client, Not Counsel, Responsible, (3) Substantial Prejudice, (4) Lesser Sanctions Insufficient — For Non-Death Penalty Sanctions, Sanction Merely Need Be Just And Related to The Particular Claim at Issue — List of Sanctions in Rule 37 Is Not Exhaustive

Lara v. Power of Grace Trucking, LLC, 2022 U.S. Dist. LEXIS 18593, *1, 2022 WL 304982 (Feb. 2, 2022 (Report and Recommendation): BEFORE THE COURT is Plaintiffs Miguel Lara and Maria Estela ...

Lara v. Power of Grace Trucking, LLC, 2022 U.S. Dist. LEXIS 18593, *1, 2022 WL 304982 (Feb. 2, 2022 (Report and Recommendation): BEFORE THE COURT is Plaintiffs Miguel Lara and Maria Estela Lara’s (collectively, “Compelling Plaintiffs”) Amended Motion for Sanctions…

Rule 11 Sanctions — Appealability: Mere Criticism in Order Separately Imposing Sanctions Is Unappealable — Due Process Satisfied by Order Giving Clear Notice of Specific Conduct to Be Considered for Sanctions Even If Words “Show Cause” (Rule 11(c)(3)) Missing — Firm Appearing on Signature Page “Present[s]” Brief to Court (Unless Merely “Secondary” Counsel) — When Counsel Appears Unopposed, A Stricter Standard of Candor Applies — Mischaracterization of Submitted Document Sanctionable — Good Quotes: “Rule 11 Is Not A Strict Liability Provision” / “The Argument Is Like The Thirteenth Chime of A Clock: You Not Only Know It’s Wrong, But It Causes You to Wonder About Everything You Heard Before” / “Pursuit of Sanctions by a Court Can Alter Its More Customary Relationship with Counsel and Its Role As Neutral Decisionmaker”

Ark. Teacher Ret. Sys. v. State St. Corp., 2022 U.S. App. LEXIS 3556 (1st Cir. Feb. 9, 20 ...

Ark. Teacher Ret. Sys. v. State St. Corp., 2022 U.S. App. LEXIS 3556 (1st Cir. Feb. 9, 2022) Lieff Cabraser Heimann & Bernstein LLP served as one of the principal law firms representing a class of investors in a very…

Rule 37(c)(1) Sanctions — Exclusion of Critical Evidence Generally Requires Willful Deception or Flagrant Disregard of Court Order — Disclosure of Undisclosed Rule 26(a)(1)(A)(i) During Discovery Precludes Claim of Surprise or Prejudice (and Satisfies Rule 26(e)(1)(A))

Cost v. Borough of Dickson City, 2021 WL 2255505 (3d Cir. June 3, 2021) (unpublished): OPINION**

Cost v. Borough of Dickson City, 2021 WL 2255505 (3d Cir. June 3, 2021) (unpublished): OPINION** SHWARTZ, Circuit Judge. *1 Plaintiffs William Cost, Sr. and William Cost, Jr. brought claims under 42 U.S.C. § 1983 and Pennsylvania state…

Inherent Power Sanctions — Notice of Contemplated Sanctions against Client (in Motion and Show Cause Order) Did Not Provide Notice of Potential Sanctions against Counsel — Finding of Bad Faith Required for Inherent Power Sanctions

Miller v. Midland Credit Mgmt., Inc., 2021 WL 42(11th Cir. Sept. 17, 2021) (unpublished): Attorneys Daniel Zemel and Brian Giles appeal from the district court’s order imposing sanctions on them, arising out of their representation of plaintiff Deondra Miller in the district court. On appeal, the attorneys argue that the district court abused its discretion in sanction ...

Miller v. Midland Credit Mgmt., Inc., 2021 WL 42(11th Cir. Sept. 17, 2021) (unpublished): Attorneys Daniel Zemel and Brian Giles appeal from the district court’s order imposing sanctions on them, arising out of their representation of plaintiff Deondra Miller in…

Spoliation Sanctions: (1) Meaning of “Relevance” for Preservation vs. for Adverse Inference Purposes; (2) Only “Very Slight Showing” of Latter Required; (3) Adverse Inference Instruction OK for Negligent Spoliation of Tangible Evidence in D.C. Cir.; (4) Preponderance of Evidence for Adverse Inference Instruction vs. Clear & Convincing for Attorney’s Fees; (5) Wide Range of Inherent Power Sanctions Available; (6) Two Sets of Factors for Adverse Inference Instruction (D.C. Cir.) — Prerequisites and Propriety in the Circumstances; (7) Ordinary vs. Gross Negligence; (8) Cite

Paavola v. Hope Vill., 2021 U.S. Dist. LEXIS 168241, 2021 WL 4033101 (D.D.C. Sept. 4, 2021): MEMORANDUM OPINION Plaintiff Lana Paavola, individually and on behalf of the ...

Paavola v. Hope Vill., 2021 U.S. Dist. LEXIS 168241, 2021 WL 4033101 (D.D.C. Sept. 4, 2021): MEMORANDUM OPINION Plaintiff Lana Paavola, individually and on behalf of the estate of her late husband Joel D. Paavola and his beneficiaries, sued…

Rule 11 Sanctions Should Be Allocated Among Persons Responsible — Not Imposed Lightly As Misapplication Can Chill Counsel’s Enthusiasm and Stifle Creativity in Pursuing Novel Factual Or Legal Theories — Disgorgement of Fees into Court — Focus of Improper Purpose Inquiry Is On Objective Facts Supporting Inference Goal Was Harassment Or Unnecessary Delay — While Rule 11 Is Not Intended to Be Compensatory in First Instance, Effective Deterrence May Require Compensation of Victim — Rule 37 Sanctions: Where Case Has Been Dismissed after Violation, Best Sanction Is Award of Fees and Expenses Incurred in Bringing Motions to Compel and for Sanctions Against Client and Counsel Jointly

Upchurch v. O’Brien, 2021 WL 3617098 (W.D. Wis. Aug. 16, 2021): Before the court are three motions for sanctions filed against plaintiff Timothy Upchurch and his attorney, Timothy Alan Provis. (Dkt. #36, 67, 75.) Although the case has been voluntarily dismissed on the merits, the court retains jurisdiction to consider these motions. The first sanctions ...

Upchurch v. O’Brien, 2021 WL 3617098 (W.D. Wis. Aug. 16, 2021): Before the court are three motions for sanctions filed against plaintiff Timothy Upchurch and his attorney, Timothy Alan Provis. (Dkt. #36, 67, 75.) Although the case has been …

Rule 37(c) Preclusion for 26(a)(1) Non-Disclosure Requires Harm to Opponent, And Harm Doesn’t Require Preclusion — Preclusion Factors (1st Cir.) — “Substantially Justified” And “Harmless[ness]” Exceptions — Late Disclosure Can Be Harmless Even If It Follows Filing of Summary Judgment Motion

Zampierollo-Rheinfeldt v. Ingersoll-Rand De P.R., 2021 U.S. App. LEXIS 16146 (1st Cir. May 28, 2021): Trane Puerto Rico, LLC and its parent company, Ingersoll-Rand de Puerto Rico, Inc. (collectively "Trane") terminated the employment of Giorgio ...

Circuit Split: District Court Lacks Jurisdiction to Modify Protective Order after Rule 41(a)(1) Dismissal (11th Cir. (2-1))— Not a “Collateral Matter” over Which Jurisdiction Remains (Like Costs, Fees, Contempt Sanctions, Rule 11 Sanctions, and Motions to Confirm Arbitral Awards) — Stipulated Protective Order Is an Enforceable Contract, Subject to Post-Dismissal Lawsuit — Strong Dissenting Opinion

Absolute Activist Value Master Fund v. Devine, 2021 U.S. App. LEXIS 16110 (11th Cir. May 28, 2021): Susan Devine, who was sued for her alleged involvement in money laundering and market manipulation schemes, appeals the District Court's denial o ...

Commercial Litigation and Arbitration

Rule 37 Sanctions — Default Judgment — Three Purposes of Rule 37 Sanctions — Oral Order Sufficient under Rule 37(b)(2)(A) — Consideration of Lesser Sanctions Need Not Explicit, Particularly If Misconduct Is Egregious — Recidivism Appropriately Considered

Rule 37(c)(1) Sanctions — Exclusion of Critical Evidence Generally Requires Willful Deception or Flagrant Disregard of Court Order — Disclosure of Undisclosed Rule 26(a)(1)(A)(i) During Discovery Precludes Claim of Surprise or Prejudice (and Satisfies Rule 26(e)(1)(A))

Inherent Power Sanctions — Notice of Contemplated Sanctions against Client (in Motion and Show Cause Order) Did Not Provide Notice of Potential Sanctions against Counsel — Finding of Bad Faith Required for Inherent Power Sanctions

Recent Posts

RICO: Enterprise Not Sufficiently Distinct from Defendant Where Enterprise Allegedly Consisted of the Defendant Corporation, Corporate Employees, Their Counsel and “Friends”

FRAP 38 Sanctions Should Not Lightly Be Awarded on the Ground That an Incorrect Argument Was Frivolous — “An Appeal Can Be Weak, Indeed Almost Hopeless, Without Being Frivolous” (Good Quote) — There Must Be “No Legitimate Basis for Pursuing the Appeal” (Good Quote)

RICO — Neither Filing a Complaint Nor Issuing a Press Release Constitutes Wire Fraud — Litigation Privilege Is Absolute and Bars All Tort Claims Other Than Malicious Prosecution — Abuse of Process Claim Barred (California Law)

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