Complex Lit Blog

Pro Hac Vice Admission Fees Are Not Taxable by a Prevailing Party under 28 U.S.C. § 1920 — Circuit Split —Issue: Must an Opponent Underwrite a Decision to Be Represented by Unadmitted Counsel?

PPL Energy Plus, LLC v. Clerk’s Robt. M. Hanna, 2014 U.S. Dist. LEXIS 178285 (D.N.J. Dec. 30, 2014): Pro Hac Vice Admission Fees Plaintiffs seek the $1,200 cost of the admission pro hac vice of eight attorneys at the rate of $150 per attorney [Dkt. Entry 324-5, Ex. B], relying upon the case ...

PPL Energy Plus, LLC v. Clerk’s Robt. M. Hanna, 2014 U.S. Dist. LEXIS 178285 (D.N.J. Dec. 30, 2014): Pro Hac Vice Admission Fees Plaintiffs seek the $1,200 cost of the admission pro hac vice of eight attorneys at the rate…

Rule 68 Offer of Judgment — Time to Respond Not Extended to End of Discovery Despite Uncertainty as to Facts — Delay Apt Only If No Costs to Be Incurred — Offer for All Statutory Damages ≠ Complete Relief If Actual Damages Also Sought

Wallert v. Atlan, 2015 U.S. Dist. LEXIS 13958 (S.D.N.Y. Feb. 5, 2015) (Engelmayer, J.): In this copyright infringement action, the Court has received several letters regarding a Rule 68 Offer of Judgment (the "offer") served on plaintiff Charles Wallert by defendant Universal Music Publishing (" ...

Wallert v. Atlan, 2015 U.S. Dist. LEXIS 13958 (S.D.N.Y. Feb. 5, 2015) (Engelmayer, J.): In this copyright infringement action, the Court has received several letters regarding a Rule 68 Offer of Judgment (the "offer") served on plaintiff Charles Wallert by…

Facebook Authentication from Contents: Nonpublic Details of Life; References to Girlfriend and Brothers; Photo; Cell Number; Nickname; Structure & Style of Comments Match Texts — Out of Court Admission of Ownership

Moore v. State, 295 Ga. 709, 763 S.E.2d 670 (2014): Appellant Patrick Ramon Moore was convicted by a jury of murder and related offenses for the January 3, 2011 shootings of Erica Peterson, Fabian Ellis, and Jervod Jarvis, and shooting death of Tracy Burton. Appellant appeals the denial of his amended motion for new t ...

Moore v. State, 295 Ga. 709, 763 S.E.2d 670 (2014): Appellant Patrick Ramon Moore was convicted by a jury of murder and related offenses for the January 3, 2011 shootings of Erica Peterson, Fabian Ellis, and Jervod Jarvis, and shooting …

Even If § 1927 Sanctions Are Barred for Filing Complaint, They Apply to Adversary Action, Part of a Larger Bankruptcy — 4-Factor 1927 Test — Suit Based on Adversary’s Error Quickly Corrected, Avoidable with Phone Call, Violates 1927

Prosser v. Gerber (In re Prosser), 2015 U.S. App. LEXIS 1180 (3d Cir. Jan. 26, 2015): James P. Carroll, trustee of debtor Jeffrey J. Prosser's bankruptcy estate, appeals the District Court's order vacating the Bankruptcy Court's imposition of 28 U.S.C. § 1927 sanctions. The Bankruptcy Court imposed sanctions becau ...

Prosser v. Gerber (In re Prosser), 2015 U.S. App. LEXIS 1180 (3d Cir. Jan. 26, 2015): James P. Carroll, trustee of debtor Jeffrey J. Prosser's bankruptcy estate, appeals the District Court's order vacating the Bankruptcy Court's imposition of 28 U.S.C. …

Erie Doctrine: Other Circuits Will Defer to Analysis of State Law by State’s Home Circuit, Unless the Latter Has Disregarded Clear Signals from the State’s Highest Court — Odd to Create Circuit Split Over State Law (Good Quote)

Sutherland v. DCC Litig. Facility, Inc. (In re Dow Corning Corp.), 2015 U.S. App. LEXIS 2600 (6th Cir. Feb. 20, 2015): In resolving issues of state law, the panel looks to "the final decisions of that state's highest court, and if there is no decision directly on point, then we must make an Erie guess to determine how ...

Summary Judgment — Post-2010, Don’t Move to Strike Evidence But Object — Affidavit Needn’t State Competence, Knowledge — Presumption Officer Knows Corporate Acts — Customer Email Complaints Authenticated by Contents, Circumstances

OFI Int’l, Inc. v. Port Newark Refrigerated Warehouse, 2015 U.S. Dist. LEXIS 2926 (D.N.J. Jan. 12, 2015): Plaintiffs OFI International, Inc. ("OFI") and Watermark Foods, Inc. ("Watermark") filed this action against Defendant Hudson Refrigeration Company d/b/a Port Newark Refrigerated Warehouse ("Defendant&qu ...

Interest on Sanctions Award Only from Time of Quantified Order — 2 Evidentiary Standards for Inherent Power Sanctions — Meaning of Abuse of Discretion, Substantially Justified (D.C. Cir.) — Sanctions Affirmable Only on Grounds Articulated Below

Parsi v. Daioleslam, 2015 U.S. App. LEXIS 2046 (D.C. Cir. Feb. 10, 2015): Following an acrimonious, three-year discovery process, the District Court awarded $183,480.09 in monetary sanctions to Appellee Seid Hassan Daioleslam for attorney's fees and expenses he accrued in defending a defamation action brought by Appellants the Nat ...

Text Authentication: Incoming Texts on Phone That Has Independently Been Authenticated as The Alleged Recipient’s Are Not Hearsay When They Consist of Questions or Commands, or Are Offered to Show The Fact The Statements Were Made

United States v. Ellis, 2013 WL 2285457 (E.D. Mich. May 23, 2013) (the discussion in this case concerning authentication of outgoing texts is contained in our post of February 20, 2015): II. INCOMING TEXT MESSAGES *2 Defendant also argues that all incoming text messages shoul ...

United States v. Ellis, 2013 WL 2285457 (E.D. Mich. May 23, 2013) (the discussion in this case concerning authentication of outgoing texts is contained in our post of February 20, 2015): II. INCOMING TEXT MESSAGES *2 Defendant also argues that…

Text Authentication: Phone in Defendant’s Possession with Photos of Him and His Car, Contact Info for His Brother and Girlfriend, and Texts Addressed to Him Suffices to Tie Him to Outgoing Texts Absent Proof Phone Was in Another’s Possession

United States v. Ellis, 2013 WL 2285457 (E.D. Mich. May 23, 2013): Defendant Javon Franklin Ellis is charged in a three count indictment with Felon in Possession of a Firearm pursuant to

United States v. Ellis, 2013 WL 2285457 (E.D. Mich. May 23, 2013): Defendant Javon Franklin Ellis is charged in a three count indictment with Felon in Possession of a Firearm pursuant to 18 U.S.C. §§ 922(g)(1) and 924(e), Possession…

Federal Court Can’t Usually Order a Receivership When No Other Relief Is Sought But May Do So Ancillary to Arbitration If Contract Permits — Can Court Issue Injunction Pending Arbitration If Not Contractually Provided? Circuit Split

Wells Fargo Bank, N.A. v. Star Texas Gasoline & Oil Dist., Inc., 2015 U.S. Dist. LEXIS 10673 (S.D. Tex. Jan. 29, 2015): Plaintiff Wells Fargo Bank, N.A. ("Wells Fargo") commenced this action by filing its Emergency Application for Appointment of Receiver (the "emergency application") on November 17, 2014. . ...

Wells Fargo Bank, N.A. v. Star Texas Gasoline & Oil Dist., Inc., 2015 U.S. Dist. LEXIS 10673 (S.D. Tex. Jan. 29, 2015): Plaintiff Wells Fargo Bank, N.A. ("Wells Fargo") commenced this action by filing its Emergency Application for Appointment of …

Commercial Litigation and Arbitration

Pro Hac Vice Admission Fees Are Not Taxable by a Prevailing Party under 28 U.S.C. § 1920 — Circuit Split —Issue: Must an Opponent Underwrite a Decision to Be Represented by Unadmitted Counsel?

Rule 68 Offer of Judgment — Time to Respond Not Extended to End of Discovery Despite Uncertainty as to Facts — Delay Apt Only If No Costs to Be Incurred — Offer for All Statutory Damages ≠ Complete Relief If Actual Damages Also Sought

Facebook Authentication from Contents: Nonpublic Details of Life; References to Girlfriend and Brothers; Photo; Cell Number; Nickname; Structure & Style of Comments Match Texts — Out of Court Admission of Ownership

Even If § 1927 Sanctions Are Barred for Filing Complaint, They Apply to Adversary Action, Part of a Larger Bankruptcy — 4-Factor 1927 Test — Suit Based on Adversary’s Error Quickly Corrected, Avoidable with Phone Call, Violates 1927

Erie Doctrine: Other Circuits Will Defer to Analysis of State Law by State’s Home Circuit, Unless the Latter Has Disregarded Clear Signals from the State’s Highest Court — Odd to Create Circuit Split Over State Law (Good Quote)

Summary Judgment — Post-2010, Don’t Move to Strike Evidence But Object — Affidavit Needn’t State Competence, Knowledge — Presumption Officer Knows Corporate Acts — Customer Email Complaints Authenticated by Contents, Circumstances

Interest on Sanctions Award Only from Time of Quantified Order — 2 Evidentiary Standards for Inherent Power Sanctions — Meaning of Abuse of Discretion, Substantially Justified (D.C. Cir.) — Sanctions Affirmable Only on Grounds Articulated Below

Text Authentication: Incoming Texts on Phone That Has Independently Been Authenticated as The Alleged Recipient’s Are Not Hearsay When They Consist of Questions or Commands, or Are Offered to Show The Fact The Statements Were Made

Text Authentication: Phone in Defendant’s Possession with Photos of Him and His Car, Contact Info for His Brother and Girlfriend, and Texts Addressed to Him Suffices to Tie Him to Outgoing Texts Absent Proof Phone Was in Another’s Possession

Federal Court Can’t Usually Order a Receivership When No Other Relief Is Sought But May Do So Ancillary to Arbitration If Contract Permits — Can Court Issue Injunction Pending Arbitration If Not Contractually Provided? Circuit Split

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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