Complex Lit Blog

Rule 11 — Actual Notice by Email Doesn’t Satisfy Safe Harbor Requirements — Finding of Meritless, Alone, Insufficient Basis for 1927 or Inherent Power Sanctions

Chong v. Chang, 2015 U.S. App. LEXIS 5381 (2d Cir. April 3, 2015): Michael K. Chong appeals from the judgment of the United States District Court for the Southern District of New York (Forrest

Chong v. Chang, 2015 U.S. App. LEXIS 5381 (2d Cir. April 3, 2015): Michael K. Chong appeals from the judgment of the United States District Court for the Southern District of New York (Forrest , J.), granting appellees' motion for …

Email Authentication — Confirming Circumstances Beyond Sender’s Self-Identification Needed, Suffice to Authenticate Electronic Communications — Voicemails from Sender with Same Contents Plus The From Line of Email Suffice

Commonwealth v. Czubinski, 2015 Mass. App. Unpub. LEXIS 191 (Mass. Ct. App. Mar. 16, 2015): Following a jury trial in the District Court, the defendant, Theresa Czubinski, was convicted of one count of criminal harassment. She appeals, claiming error in the judge's reasonable doubt instruction and in the improper admission ...

Judicial Notice of Internet Evidence — No Judicial Notice of Website of Governmental Party Stating Fact Inconsistent With All Evidence before the Government Entity and Contrary to Its Own Findings of Fact (Website as Evidence Creator?)

Spokane Cnty. v. E. Wash. Growth Mgmt. Hearings Board, 2015 Wash. App. LEXIS 755 (Wash. Ct. App. April 9, 2015): We address once again the compliance of Spokane County with Washington's intractable Growth Management Act (GMA), chapter 36.70A RCW, this time in the context of a comprehensive plan amendment that rezoned a pa ...

Diversity Jurisdiction — Last Domicile Not Lost until New One Acquired — Domicile Not Lost by Forcible Change in State of Residence — Meaning of Abuse of Discretion (6th Circuit)

Pitt Excavating, LLC v. Pitt, 2015 U.S. App. LEXIS 3044 (6th Cir. Feb. 25, 2015): This case concerns the question of whether a person's domicile is his new Tennessee apartment or his old Kentucky home. Plaintiff-Appellant Pitt Excavating, LLC (Pitt Excavating), a Tennessee limited-liability company, filed this act ...

Pitt Excavating, LLC v. Pitt, 2015 U.S. App. LEXIS 3044 (6th Cir. Feb. 25, 2015): This case concerns the question of whether a person's domicile is his new Tennessee apartment or his old Kentucky home. Plaintiff-Appellant Pitt Excavating, LLC…

Lawyer Representing Fiduciary Does Not Also Represent, Or Owe Fiduciary Duty to, Beneficiaries — Third Party Beneficiary Argument Not Reached — Lawyer for Personal Representative Not Disqualified from Being Adverse to Beneficiaries

Bain v. McIntosh, 2015 U.S. App. LEXIS 3116 (11th Cir. Mar. 2, 2015): Howard Walther and Dorothy B. Walther (collectively, the Walthers), the beneficiaries of the James Walther Revocable Life Insurance Trust (the Trust), appeal the district court's order granting summary judgment in favor of Steven Kane, Esq. and Kane and Koltun, ...

Sanctions under Rule 11 and § 1927 Reviewed for Abuse of Discretion But Invocation of Inherent Power Reviewed De Novo, Factual Findings for Clear Error — Ct. App. Can Ignore Rule 11 and 1927 If Inherent Power Sanctions OK — FRAP 38 Standard

Meyers v. Textron Fin’l Corp., 2015 U.S. App. LEXIS 5736 (5th Cir. April 9, 2015): Following a two-day show-cause hearing, the court imposed sanctions, jointly and severally, against the Meyerses and Cole for their conduct in the RMC case and the sanctions action. In a thirty-six page opinion, the court awarded Textron $79,424.21 (l ...

Federal Jurisdiction — Principal Place of Business of an Inactive Corporation — Circuit Split

Snyder v. Advanced Academics, Inc., 2015 U.S. Dist. LEXIS 44014 (W.D. Okla. April 3, 2015): A. Circuit Split: Principal Place of Business of an Inactive Corporation There is a split among the circuits on the issue of how to determine the PPB of a "dissolved" or "inactive" corporation ...

Snyder v. Advanced Academics, Inc., 2015 U.S. Dist. LEXIS 44014 (W.D. Okla. April 3, 2015): A. Circuit Split: Principal Place of Business of an Inactive Corporation There is a split among the circuits on the issue of how to determine …

Email Authentication by Distinctive Characteristics: Names of Parties & Other Employees of Involved Entities, Email Addresses, Dates — Summary Charts: 4-Factor Test & Instruction

United States v. Hoffman, 2015 U.S. Dist. LEXIS 42818 (E.D. La. April 1, 2015): Before the Court are two motions: (1) the United States' motion in limine for pretrial determination of admissibility [*2] of emails; and (2) the United States' motion to admit summary witness testimony and summary exhibits. For the rea ...

Website Authenticated by Affidavits of Persons Who Accessed Pages Plus Contents of Printouts — Instagram Comments Relevant for Use of Allegedly Generic Term Regardless of Truth of Commenter’s Attitude Toward Term

Camowraps, LLC v. Quantum Digital Ventures LLC, 2015 U.S. Dist. LEXIS 16091 (E.D. La. Feb. 10, 2015): Plaintiff, Camowraps, LLC ("Camowraps"), is "a leader in the business of manufacturing, selling, and distributing adhesive vinyl films and products," "which are often sold in camouflage patterns . . . [and] us ...

Texts on Defendant’s Phone Requesting Cocaine Not Hearsay when Offered to Prove His State of Mind — That He Had Drugs in His Possession and Was Aware of a Forthcoming Shipment (Also: Verbal Act)

State v. Whitfield, 2015 S.D. LEXIS 45 (S.D. Sup. Ct. Apr. 1, 2015): 1. Text Messages [*P12] Whitfield argues that the two text messages from JKenny were inadmissible hearsay and the admission of the messages prejudiced him. The messages were hearsay, Whitfield contends, because the ...

State v. Whitfield, 2015 S.D. LEXIS 45 (S.D. Sup. Ct. Apr. 1, 2015): 1. Text Messages [*P12] Whitfield argues that the two text messages from JKenny were inadmissible hearsay and the admission of the messages prejudiced him. The messages were …

Commercial Litigation and Arbitration

Rule 11 — Actual Notice by Email Doesn’t Satisfy Safe Harbor Requirements — Finding of Meritless, Alone, Insufficient Basis for 1927 or Inherent Power Sanctions

Email Authentication — Confirming Circumstances Beyond Sender’s Self-Identification Needed, Suffice to Authenticate Electronic Communications — Voicemails from Sender with Same Contents Plus The From Line of Email Suffice

Judicial Notice of Internet Evidence — No Judicial Notice of Website of Governmental Party Stating Fact Inconsistent With All Evidence before the Government Entity and Contrary to Its Own Findings of Fact (Website as Evidence Creator?)

Diversity Jurisdiction — Last Domicile Not Lost until New One Acquired — Domicile Not Lost by Forcible Change in State of Residence — Meaning of Abuse of Discretion (6th Circuit)

Lawyer Representing Fiduciary Does Not Also Represent, Or Owe Fiduciary Duty to, Beneficiaries — Third Party Beneficiary Argument Not Reached — Lawyer for Personal Representative Not Disqualified from Being Adverse to Beneficiaries

Sanctions under Rule 11 and § 1927 Reviewed for Abuse of Discretion But Invocation of Inherent Power Reviewed De Novo, Factual Findings for Clear Error — Ct. App. Can Ignore Rule 11 and 1927 If Inherent Power Sanctions OK — FRAP 38 Standard

Federal Jurisdiction — Principal Place of Business of an Inactive Corporation — Circuit Split

Email Authentication by Distinctive Characteristics: Names of Parties & Other Employees of Involved Entities, Email Addresses, Dates — Summary Charts: 4-Factor Test & Instruction

Website Authenticated by Affidavits of Persons Who Accessed Pages Plus Contents of Printouts — Instagram Comments Relevant for Use of Allegedly Generic Term Regardless of Truth of Commenter’s Attitude Toward Term

Texts on Defendant’s Phone Requesting Cocaine Not Hearsay when Offered to Prove His State of Mind — That He Had Drugs in His Possession and Was Aware of a Forthcoming Shipment (Also: Verbal Act)

Recent Posts

nherent 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

Inherent Power — Circumstantial Evidence — Fact That Bad Faith May Be Shown by Establishing That Conduct Was So Egregious It Was Necessarily Committed in Bad Faith Does Not Mean That Bad Faith Must Be The Sole Explanation for The Bad Conduct

RICO Causation: Testing Labs’ Misstatements As to Alcohol Tests’ Efficacy Not Communicated to Plaintiffs’ Employers Did Not Cause Plaintiffs’ Professional Harm

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