Complex Lit Blog

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 …

Sanctions — Mandatory Statutory Damages Provision (“Shall Recover”) Doesn’t Bar Inherent Power Dismissal of All Claims, Even Those Not Directly Touched by Bad Faith Misconduct — Bankruptcy Court Has Inherent Power (3d Cir.)

Theokary v. Shay (In re Theokary), 2015 U.S. App. LEXIS 1811 (3d Cir. Feb. 5, 2015): Rafail Theokary appeals the dismissal of an adversary action he commenced in the course of his Chapter 7 bankruptcy proceedings. The adversary action was dismissed as a sanction for Theokary's submission of a fraudulent expert report on da ...

Class Actions — Individualized Monetary Claims Arising from Common Course of Misconduct Remain Certifiable — Comcast “Did Not Rewrite the Standards Governing Individualized Damage Considerations” (Good Quote)

Sykes v. Harris, 2015 U.S. App. LEXIS 2057 (2d Cir. Feb. 10, 2015): These consolidated appeals are taken from the September 4, 2012 class certification opinion, Sykes v. Mel Harris & Assocs., LLC, 285 F.R.D. 279 (S.D.N.Y. 2012) ("Sykes II"), and March 28, 2013 class certification order of the United States ...

Fifth Amendment Privilege in Civil Cases — Party Barred from Offering Any Evidence on Subjects Shielded from Discovery by Its Own Assertion of Fifth

Barrette Outdoor Living, Inc. v. Mich. Resin. Representatives, 2015 U.S. Dist. LEXIS 8936 (E.D. Mich. Jan. 27, 2015): B. Plaintiff's Motion in Limine to Preclude Defendant John Lemanski from Offering Any Evidence and/or Testimony on Subjects He Shielded from Discovery Through His Assertion of th ...

Barrette Outdoor Living, Inc. v. Mich. Resin. Representatives, 2015 U.S. Dist. LEXIS 8936 (E.D. Mich. Jan. 27, 2015): B. Plaintiff's Motion in Limine to Preclude Defendant John Lemanski from Offering Any Evidence and/or Testimony on Subjects He Shielded from Discovery …

Text Authentication = Knowledge of Cell Password & Identifying Info in Other Texts — Contact Info for Brother, Girlfriend + Texts Addressed to Person Suffice — Incoming Texts ≠ Hearsay But Context for Outgoing — 901(b)(6) Doesn’t Apply to Texts

United States v. Benford, 2015 U.S. Dist. LEXIS 17046 (W.D. Okla. Feb. 12, 2015): A. Text Messages Although Defendant represents that over 3,800 text messages were retrieved from the cellphone, at issue are 12 text messages exchanged on February 11, 2014, approximately three months before Def ...

United States v. Benford, 2015 U.S. Dist. LEXIS 17046 (W.D. Okla. Feb. 12, 2015): A. Text Messages Although Defendant represents that over 3,800 text messages were retrieved from the cellphone, at issue are 12 text messages exchanged on February 11,…

Judicial Notice of Internet Evidence — Gmail Functionality as Described on Gmail Website — Note: Gmail Allows Users to Send Messages with Another of Their Email Addresses Listed Instead of Gmail

McNaughton v. de Blasio, 2015 U.S. Dist. LEXIS 13352 (S.D.N.Y. Feb. 4, 2015): Footnote 10 One accusation raised in the portion of Plaintiff's opposition brief dedicated to the alleged "deletion or falsification of emails" (Pl. Opp. 6) requires a brief response -- if only to illustrate Plaintiff's knack for inferr ...

Sanctions for Failure to Disclose Insurance Coverage under Rule 26(a)(1) Not Waived If Not Raised in District Court — Rule 26(g)(3) Mandates Sanctions Sua Sponte for Breach of Disclosure Duty

Food Team Int’l, Ltd. v. Unilink, LLC, 2014 U.S. App. LEXIS 23732 (3d Cir. Dec. 17, 2014): D. Rule 26 Sanctions The parties dispute whether the District Court should have sanctioned Defendants and their counsel for their failure to disclose Unilink's insurance policy. Rule 26(a) provides ...

Food Team Int’l, Ltd. v. Unilink, LLC, 2014 U.S. App. LEXIS 23732 (3d Cir. Dec. 17, 2014): D. Rule 26 Sanctions The parties dispute whether the District Court should have sanctioned Defendants and their counsel for their failure to disclose …

Email/Text — Text Messages on Cell Phone Found on Vehicle Occupied by Only One Person Sufficiently Tied to Person by Circumstantial Evidence (Contents of Messages) = Admissions, Declarations against Interest

Jiminez v. State, 2014 Tex. App. LEXIS 12737 (Tex. Ct. App. Nov. 25, 2014): Appellant Martin Robeles Jimenez was convicted by a jury of possession of a controlled substance, methamphetamine, in an amount of four grams or more but less than 200 grams, with the intent to deliver. The jury imposed a punishment of fifteen years in prison ...

Fact That Document Is Publicly Available Does Not Justify Failure to Disclose It under Rule 26(a)(1) to Provide Notice to Adversary — Failure to Disclose Leads to Preclusion under Rule 37(c)

Martino v. Kiewit New Mexico, 2015 U.S. App. LEXIS 1457 (5th Cir. Jan. 29, 2015): I. Background This dispute arose out of a construction worksite accident in which Gomez, one of Kiewit's employees, ran over Martino with a "skid steer," a machine Gomez was using to excavate dirt. The constr ...

Martino v. Kiewit New Mexico, 2015 U.S. App. LEXIS 1457 (5th Cir. Jan. 29, 2015): I. Background This dispute arose out of a construction worksite accident in which Gomez, one of Kiewit's employees, ran over Martino with a "skid steer," …

Instagram — Testimony That Witness Downloaded Photo from Instagram and Third Party’s Cell = Sufficient Authentication Where Photo Clearly Showed Defendant — No Need for Expert Evidence as to Downloading Process

In re D.H., 2015 Cal. App. Unpub. LEXIS 867 (Cal. Ct. App. Feb. 6, 2015): D.H. appeals from a judgment entered in a proceeding under Welfare and Institutions Code section 602. He contends (1) the juvenile court erred by admitting a photograph of a photograph that was on someone else's cell phone, and which was also posted o ...

Commercial Litigation and Arbitration

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

Sanctions — Mandatory Statutory Damages Provision (“Shall Recover”) Doesn’t Bar Inherent Power Dismissal of All Claims, Even Those Not Directly Touched by Bad Faith Misconduct — Bankruptcy Court Has Inherent Power (3d Cir.)

Class Actions — Individualized Monetary Claims Arising from Common Course of Misconduct Remain Certifiable — Comcast “Did Not Rewrite the Standards Governing Individualized Damage Considerations” (Good Quote)

Fifth Amendment Privilege in Civil Cases — Party Barred from Offering Any Evidence on Subjects Shielded from Discovery by Its Own Assertion of Fifth

Text Authentication = Knowledge of Cell Password & Identifying Info in Other Texts — Contact Info for Brother, Girlfriend + Texts Addressed to Person Suffice — Incoming Texts ≠ Hearsay But Context for Outgoing — 901(b)(6) Doesn’t Apply to Texts

Judicial Notice of Internet Evidence — Gmail Functionality as Described on Gmail Website — Note: Gmail Allows Users to Send Messages with Another of Their Email Addresses Listed Instead of Gmail

Sanctions for Failure to Disclose Insurance Coverage under Rule 26(a)(1) Not Waived If Not Raised in District Court — Rule 26(g)(3) Mandates Sanctions Sua Sponte for Breach of Disclosure Duty

Email/Text — Text Messages on Cell Phone Found on Vehicle Occupied by Only One Person Sufficiently Tied to Person by Circumstantial Evidence (Contents of Messages) = Admissions, Declarations against Interest

Fact That Document Is Publicly Available Does Not Justify Failure to Disclose It under Rule 26(a)(1) to Provide Notice to Adversary — Failure to Disclose Leads to Preclusion under Rule 37(c)

Instagram — Testimony That Witness Downloaded Photo from Instagram and Third Party’s Cell = Sufficient Authentication Where Photo Clearly Showed Defendant — No Need for Expert Evidence as to Downloading Process

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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