Complex Lit Blog

Rule 11 and Removal — No Abuse of Discretion to Deny Sanctions for Clear Rule 11 Violation — Rooker-Feldman Inapplicable to Removed Claims — § 1447(c) Sanctions Shouldn’t Be Imposed to Discourage All But Air-Tight Cases for Removal

Lundahl v. Home Depot, Inc., 2014 U.S. App. LEXIS 22993 (10th Cir. Dec. 3, 2014): Plaintiff Holli Lundahl, proceeding pro se,1 appeals from the district court's order denying her motion for sanctions under Fed. R. Civ. P. 11 against defendants Home Depot, Inc., and Citibank N.A based on her assertion they wrongfully rem ...

RICO — The Act of Filing Even a Frivolous Lawsuit Does Not, by Itself, Constitute an Act of Extortion within the Hobbs Act — Noerr Pennington Applied to Litigation: Two-Part Test

Content Extraction & Transmission LLC v. Wells Fargo Bank, N.A., 2014 U.S. App. LEXIS 24258 (Fed. Cir. Dec. 23, 2014): We turn next to Diebold's appeal from the district court's dismissal of its tortious interference and RICO violation claims against CET. Diebold's claims all arise from the following pred ...

Content Extraction & Transmission LLC v. Wells Fargo Bank, N.A., 2014 U.S. App. LEXIS 24258 (Fed. Cir. Dec. 23, 2014): We turn next to Diebold's appeal from the district court's dismissal of its tortious interference and RICO violation claims against …

Sanctions — Court May Dismiss for Deliberate Violation of Rule 37 without Considering Lesser Sanctions (Unlike Inherent Power) — Not Every Willful Violation of Court Order Justifies Dismissal — 8th Circuit’s 3-Part Test — What Is Prejudice

Comstock v. UPS Ground Freight, Inc., 2014 U.S. App. LEXIS 24554 (8th Cir. Dec. 30, 2014): Responding to serious misconduct during discovery, the district court1 sanctioned Dolores Comstock by dismissing her lawsuit. Comstock appeals this dismissal, and we affirm. 1 The Honorable Susan ...

Experts — Reliance on Business Plan without Inquiry into Qualifications of Preparers or Underlying Assumptions Renders Opinion Unreliable — Expert’s Alternate Opinion Should’ve Been Allowed: Exclusion of Critical Evidence Is Extreme Sanction

ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254 (3d Cir. 2012): 2. Expert Testimony on Damages In their cross-appeal, Plaintiffs argue that the District Court erred in excluding DeRamus's testimony on the issue of damages. The core of DeRamus's damages analysis was one page (titled " ...

ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254 (3d Cir. 2012): 2. Expert Testimony on Damages In their cross-appeal, Plaintiffs argue that the District Court erred in excluding DeRamus's testimony on the issue of damages. The core of DeRamus's …

Internet Evidence — Circumstantial Authentication That Defendants Made Yelp Postings: Failure to Deny Authorship and Repetition of Substantially the Same Alleged Grievances in Court Filings Suffices

Pham v. Lee, 2014 Cal. App. Unpub. LEXIS 8812 (Cal. Ct. App. Dec. 11, 2014): Plaintiff Randal Pham, an ophthalmologist, filed a defamation action against defendants Jenny Lee and Alvin Lee (the Lees) for statements they made on the Internet accusing Dr. Pham of fraud, among other things. The Lees moved to strike Dr. P ...

Pham v. Lee, 2014 Cal. App. Unpub. LEXIS 8812 (Cal. Ct. App. Dec. 11, 2014): Plaintiff Randal Pham, an ophthalmologist, filed a defamation action against defendants Jenny Lee and Alvin Lee (the Lees) for statements they made on the Internet …

§ 1782 Allows Foreign Criminal Complainant to Obtain Documentary Discovery in the United States for Foreign Criminal Investigation Involved an Investigating Magistrate

In re Application for an Order Pursuant to 28 U.S.C. § 1782 to Conduct Discovery for Use in Foreign Proceedings, 2014 U.S. App. LEXIS 23492 (2d Cir. Dec. 12, 2014): The question presented is one of first impression2 in this Court--whether 28 U.S.C. § 1782, which ...

Supreme Court — Removal — § 1446(a) Requires Only Plausible Allegation of Amount in Controversy — Evidence Required Only If Plaintiff Contests, or Court Questions, Defendant’s Allegation — No Presumption against Removal in CAFA Cases

Dart Cherokee Basin Operating Company, LLC v. Owens, 2014 U.S. LEXIS 8435 (U.S. Dec. 15, 2014): To remove a case from a state court to a federal court, a defendant must file in the federal forum a notice of removal "containing a short and plain statement of the grounds for removal." 28 U. S. C. §1446(a). When remov ...

Sanctions Wrongly Based in Part on Speculation (X May Have Submitted False Filings) — Defendant Not Tarred with Co-Defendant’s Misconduct — Ninth Circuit Default Standards — Discretion Narrows as Severity of Sanction Increases (Good Quote)

Loops, LLC v. Phoenix Trading, Inc., 2014 U.S. App. LEXIS 21602 (Fed. Cir. Nov. 13, 2014): The issue before us on appeal is whether the district court abused its discretion in granting sanctions of default judgment, attorney's fees, and costs to plaintiffs. The attorney's fees and costs were imposed jointly on defendan ...

Loops, LLC v. Phoenix Trading, Inc., 2014 U.S. App. LEXIS 21602 (Fed. Cir. Nov. 13, 2014): The issue before us on appeal is whether the district court abused its discretion in granting sanctions of default judgment, attorney's fees, and costs …

Email Admissibility — Admissions, State of Mind, Excited Utterance, Intent or Plan — Courts Sometimes More Lenient with Affidavits and Documents of Party Opposing Summary Judgment

Fleming v. Purcell Painting & Coatings Sw., Inc., 2014 U.S. Dist. LEXIS 178471 (E.D. Cal. Dec. 30, 2014): Defendant Purcell Painting and Coatings Southwest moves for summary judgment. (Def.'s Corrected Mot. Summ. J., ECF No. 29.) Plaintiff Jay Fleming opposes the motion. (Pl.'s Opp'n to Def.'s Mot., ECF No. 39.) ***

Three Good Quotes When You Have to Change Position or Ask a Judge to

“Justice Frankfurter once remarked that, ‘Wisdom too often never comes, and so one ought not to reject it merely because it comes late.’ Henslee v. Union Planters Nat’l Bank & Trust Co., 355 U.S. 595, 600 (Frankfurter, J., dissenting). This is one of those moments.” Marsden v. Select Medical Corp., 2007 U.S. D ...

“Justice Frankfurter once remarked that, ‘Wisdom too often never comes, and so one ought not to reject it merely because it comes late.’ Henslee v. Union Planters Nat’l Bank & Trust Co., 355 U.S. 595, 600 (Frankfurter, J.,…

Commercial Litigation and Arbitration

Rule 11 and Removal — No Abuse of Discretion to Deny Sanctions for Clear Rule 11 Violation — Rooker-Feldman Inapplicable to Removed Claims — § 1447(c) Sanctions Shouldn’t Be Imposed to Discourage All But Air-Tight Cases for Removal

RICO — The Act of Filing Even a Frivolous Lawsuit Does Not, by Itself, Constitute an Act of Extortion within the Hobbs Act — Noerr Pennington Applied to Litigation: Two-Part Test

Sanctions — Court May Dismiss for Deliberate Violation of Rule 37 without Considering Lesser Sanctions (Unlike Inherent Power) — Not Every Willful Violation of Court Order Justifies Dismissal — 8th Circuit’s 3-Part Test — What Is Prejudice

Experts — Reliance on Business Plan without Inquiry into Qualifications of Preparers or Underlying Assumptions Renders Opinion Unreliable — Expert’s Alternate Opinion Should’ve Been Allowed: Exclusion of Critical Evidence Is Extreme Sanction

Internet Evidence — Circumstantial Authentication That Defendants Made Yelp Postings: Failure to Deny Authorship and Repetition of Substantially the Same Alleged Grievances in Court Filings Suffices

§ 1782 Allows Foreign Criminal Complainant to Obtain Documentary Discovery in the United States for Foreign Criminal Investigation Involved an Investigating Magistrate

Supreme Court — Removal — § 1446(a) Requires Only Plausible Allegation of Amount in Controversy — Evidence Required Only If Plaintiff Contests, or Court Questions, Defendant’s Allegation — No Presumption against Removal in CAFA Cases

Sanctions Wrongly Based in Part on Speculation (X May Have Submitted False Filings) — Defendant Not Tarred with Co-Defendant’s Misconduct — Ninth Circuit Default Standards — Discretion Narrows as Severity of Sanction Increases (Good Quote)

Email Admissibility — Admissions, State of Mind, Excited Utterance, Intent or Plan — Courts Sometimes More Lenient with Affidavits and Documents of Party Opposing Summary Judgment

Three Good Quotes When You Have to Change Position or Ask a Judge to

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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