Complex Lit Blog

Does Twiqbal’s Plausibility Standard Apply to Affirmative Defenses? Case Law Split — Policy Arguments against Application (Including Reliance on Still-Extent Official Form)

Jam Tire, Inc. v. Harbin, 2014 U.S. Dist. LEXIS 124581 (N.D. Ohio Sept. 5, 2013): Since the Supreme Court's decision in Iqbal v. Ashcroft, 556 U.S. 662 (2009), more than 230 federal decisions have addressed whether the plausibility standard applies to affirmative defenses pled in an answer. William M. Jan ...

Jam Tire, Inc. v. Harbin, 2014 U.S. Dist. LEXIS 124581 (N.D. Ohio Sept. 5, 2013): Since the Supreme Court's decision in Iqbal v. Ashcroft, 556 U.S. 662 (2009), more than 230 federal decisions have addressed whether the plausibility standard applies …

Class Actions — Circuit Split as to Whether Offer of Complete Relief to Named Plaintiff before Certification Motion Filed Moots Case — Split as to Whether Plaintiff May Immediately File Unsupported Certification Motion to Avoid Issue

Minniti v. Eilers, 2014 U.S. Dist. LEXIS 142439 (S.D. Fla. Sept. 23, 2014): THIS CAUSE has come before the court upon the Plaintiff's Motion for Class Certification [ECF No.4]. Plaintiff, Lauren Minniti, filed a Class Action Complaint [ECF No. 1] against John Hancock Financial Network, Inc., John Hancock Life & He ...

Minniti v. Eilers, 2014 U.S. Dist. LEXIS 142439 (S.D. Fla. Sept. 23, 2014): THIS CAUSE has come before the court upon the Plaintiff's Motion for Class Certification [ECF No.4]. Plaintiff, Lauren Minniti, filed a Class Action Complaint [ECF No. 1]…

Email/Text — Difficulties in Satisfying the Present Sense Impression, Excited Utterance, State of Mind and Business Records Exceptions — In Limine Motion to Exclude Granted Only If Evidence Is Clearly Inadmissible on All Potential Grounds: Good Quote

Galloway v. Chesapeake Union Exempted Village Sch. Bd. of Educ., 2014 U.S. Dist. LEXIS 151678 (S.D. Ohio Oct. 27, 2014): This civil action is before the court on Defendants' omnibus motion in limine to exclude evidence.... I. ANALYSIS Because a ruling on a motion < ...

Experts — New Opinion Based on Info Known at Time of Original Report Not Supplemental Report — If Facts Unchanged, 2d Report = Impermissible New Opinion — Preclusion Is Drastic, Imposed Rarely (Good Quotes)

Coene v. 3M Co., 2014 U.S. Dist. LEXIS 128150 (W.D.N.Y. Sept. 11, 2014): 2. Analysis Rule 26(a)(2)(B)(i) of the Federal Rules of Civil Procedure provides that a written expert report must contain "a complete statement of all opinions the witness will express and the basis and reasons for ...

Coene v. 3M Co., 2014 U.S. Dist. LEXIS 128150 (W.D.N.Y. Sept. 11, 2014): 2. Analysis Rule 26(a)(2)(B)(i) of the Federal Rules of Civil Procedure provides that a written expert report must contain "a complete statement of all opinions the witness…

28 U.S.C. § 1446(c)’s New Exception Allowing Removal after One Year If Plaintiff Acted in Bad Faith — Two Part Test — Reasons Plaintiffs Prefer State to Federal Court

Aguayo v. AMCO Ins. Co., 2014 U.S. Dist. LEXIS 160244 (D.N.M. Oct. 31, 2014): THIS MATTER comes before the Court on the Plaintiffs' Motion to Remand, filed May 28, 2014 (Doc. 12)("Motion"). The Court held a hearing on August 7, 2014. The primary issue is whether the Court should grant the Motion ...

Aguayo v. AMCO Ins. Co., 2014 U.S. Dist. LEXIS 160244 (D.N.M. Oct. 31, 2014): THIS MATTER comes before the Court on the Plaintiffs' Motion to Remand, filed May 28, 2014 (Doc. 12)("Motion"). The Court held a hearing on August 7, …

Judicial Notice of Internet Evidence — A Federal District Court Is Permitted to Take Judicial Notice of Another Court’s Website

United States v. Newsome, 2014 U.S. Dist. LEXIS 150659 (S.D. Ohio Oct. 23, 2014): Newsome's second objection is to the Report's reference to the Montgomery County Clerk of Court's website for the indictment in Newsome's felonious assault case. He says this is a "clear and obvious error," but he doesn't sa ...

Federal Jurisdiction — Grable — If Success of Claim Only Partially Depends on Federal Law, or Does So Only in the Alternative, No JD — If Claims Contradicted by Federal Rules with Force of Law, Then JD But Also Preemption Defense

Manning v. Merrill Lynch Pierce Fenner & Smith, Inc., 2014 U.S. App. LEXIS 21362 (3d Cir. Nov. 10, 2014): After the District Court denied Plaintiffs' motion to remand this case to New Jersey state court, we granted their petition for an interlocutory appeal. The issue before us is whether there is federal-question jurisdiction over Plai ...

Spoliation — Sanctions in the Form of Extra Discovery Costs Caused by the Spoliation, Including the Cost of the Sanctions Motion

Herson v. City of Richmond, 2014 U.S. App. LEXIS 20467 (9th Cir. Oct. 21, 2014): 4. Finally, the district court did not err in granting the City's motion for sanctions. Courts may impose monetary sanctions in the amount of extra discovery costs caused by spoliation, including the cost of the sanctions motion. ...

Herson v. City of Richmond, 2014 U.S. App. LEXIS 20467 (9th Cir. Oct. 21, 2014): 4. Finally, the district court did not err in granting the City's motion for sanctions. Courts may impose monetary sanctions in the amount of extra …

Rule 11 and § 1927 Sanctions Properly Denied Where Misconduct Occurred in Other Actions and Is Unrelated to Opponent’s Conduct in Pending Case

Barksdale v. United States, 2014 U.S. App. LEXIS 21404 (Fed. Cir. Nov. 10, 2014): Christopher Scott Barksdale ("Barksdale") appeals the decisions of the United States Court of Federal Claims ("Claims Court") dismissing his complaint for lack of jurisdiction and denying his motion for sanctions. See Barksdale v. ...

Arbitration — Theories for Compelling Non-Parties to Arbitrate — All Governed by Applicable (State) Law — Rule 56 Standards Govern Motion to Compel Arbitration — Argument Raised Initially at Oral Argument, Like Footnote in Reply Brief, Waived

Flinkote Co. v. Aviva PLC, 2014 U.S. App. LEXIS 19272 (3d Cir. Oct. 9, 2014): We exercise plenary review over the District Court's order on a motion to compel arbitration. Quilloin v. Tenet Healthsystem Phila., Inc., 673 F.3d 221, 228 (3d Cir. 2012). In assessing the motion to compel arbitration itself, we apply t ...

Commercial Litigation and Arbitration

Does Twiqbal’s Plausibility Standard Apply to Affirmative Defenses? Case Law Split — Policy Arguments against Application (Including Reliance on Still-Extent Official Form)

Class Actions — Circuit Split as to Whether Offer of Complete Relief to Named Plaintiff before Certification Motion Filed Moots Case — Split as to Whether Plaintiff May Immediately File Unsupported Certification Motion to Avoid Issue

Email/Text — Difficulties in Satisfying the Present Sense Impression, Excited Utterance, State of Mind and Business Records Exceptions — In Limine Motion to Exclude Granted Only If Evidence Is Clearly Inadmissible on All Potential Grounds: Good Quote

Experts — New Opinion Based on Info Known at Time of Original Report Not Supplemental Report — If Facts Unchanged, 2d Report = Impermissible New Opinion — Preclusion Is Drastic, Imposed Rarely (Good Quotes)

28 U.S.C. § 1446(c)’s New Exception Allowing Removal after One Year If Plaintiff Acted in Bad Faith — Two Part Test — Reasons Plaintiffs Prefer State to Federal Court

Judicial Notice of Internet Evidence — A Federal District Court Is Permitted to Take Judicial Notice of Another Court’s Website

Federal Jurisdiction — Grable — If Success of Claim Only Partially Depends on Federal Law, or Does So Only in the Alternative, No JD — If Claims Contradicted by Federal Rules with Force of Law, Then JD But Also Preemption Defense

Spoliation — Sanctions in the Form of Extra Discovery Costs Caused by the Spoliation, Including the Cost of the Sanctions Motion

Rule 11 and § 1927 Sanctions Properly Denied Where Misconduct Occurred in Other Actions and Is Unrelated to Opponent’s Conduct in Pending Case

Arbitration — Theories for Compelling Non-Parties to Arbitrate — All Governed by Applicable (State) Law — Rule 56 Standards Govern Motion to Compel Arbitration — Argument Raised Initially at Oral Argument, Like Footnote in Reply Brief, Waived

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The Word “Include” May Be A Word of Limitation As Opposed to a Word of Enlargement, Depending on the Context

Spoliation/Sanctions: “A Party Does Not Spoliate Evidence When, Without Notice Of The Evidence’s Potential Relevance, It Destroys The Evidence According To Its Policy Or In The Normal Course Of Its Business” (Good Quote)

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