Complex Lit Blog

§ 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.,…

Circumstantial Email Authentication — Testimony from One User of a Shared Account That Emails Bore the Typical Signature of One Defendant (Sender) and Contents Reflected Matters Known to Her Husband (On Whose Behalf The Messages Were Sent)

Commonwealth v. Johnson, 470 Mass. 300, 2014 Mass. LEXIS 955 (Mass. Dec. 23, 2014): This case concerns the constitutionality of the criminal harassment statute, G. L. c. 265, § 43A (a), and its application to acts of cyberharassment among others. Specifically, we consider whether a pattern of harassing conduct that includes ...

Inherent Power Sanction: Stripping Pro Hac Vice Status (PHV) for Slipping Note to Witness — PHV as Property Right — Tossing Note = Spoliation — That Lawyer Was Corner-Cutting Before Relevant to Sanction (Good Quote)

Ryan v. Astra Tech, Inc., 2014 U.S. App. LEXIS 21628 (1st Cir. Nov. 14, 2014) (Kayatta, J.): Attorney Jeffrey Ryan ("Ryan") appeals from the district court's revocation of his permission to practice pro hac vice for the plaintiff in the underlying lawsuit that gave rise to these proceedings.1 ...

Ryan v. Astra Tech, Inc., 2014 U.S. App. LEXIS 21628 (1st Cir. Nov. 14, 2014) (Kayatta, J.): Attorney Jeffrey Ryan ("Ryan") appeals from the district court's revocation of his permission to practice pro hac vice for the plaintiff in the …

Judicial Notice of Internet Evidence — Obituary Posted on Funeral Home Website Properly Noticed, Like Obituary Appearing in Newspaper

Shaut v. Sec’y of Dep’t of HHS, 2014 U.S. Dist. LEXIS 176591 (N.D.N.Y. Dec. 22, 2014): On July 23, 2014, pro se Plaintiff Anna M. Shaut filed a complaint against the United States Department of Health and Human Services ("HHS") seeking judicial review, pursuant to 42 U.S.C. § 1395ff(b), of a May 22, 2014, decision of the Medicar ...

Supreme Court: Application of Res Judicata to Nonparties — Six Situations — Federal vs. State Law on the Preclusive Effect of Federal-Court Judgments (Federal Question vs. Diversity Cases)

Taylor v. Sturgell, 553 U.S. 880 (2008): The preclusive effect of a federal-court judgment is determined by federal common law. See Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 507-508, 121 S. Ct. 1021, 149 L. Ed. 2d 32 (2001). For judgments in federal-question cases--for example, Herrick ...

Taylor v. Sturgell, 553 U.S. 880 (2008): The preclusive effect of a federal-court judgment is determined by federal common law. See Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 507-508, 121 S. Ct. 1021, 149 L. Ed. 2d…

Attorney-Client Privilege — Three Approaches to Waiver of Privilege and Work Product Protection — Evidence of Reliance on Advice of Counsel in Settling Case = Waiver in Insurer’s Trial against Adjuster and His Firm

Seneca Ins. Co. v. Western Claims, Inc., 2014 U.S. App. LEXIS 24172 (10th Cir. Dec. 22, 2014): Seneca Insurance Company paid $1 million to settle a lawsuit in which its insured alleged Seneca had mishandled insurance claims for hail damage to the insured's property. Seeking to recoup the costs of defending and settling the ...

Commercial Litigation and Arbitration

§ 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

Circumstantial Email Authentication — Testimony from One User of a Shared Account That Emails Bore the Typical Signature of One Defendant (Sender) and Contents Reflected Matters Known to Her Husband (On Whose Behalf The Messages Were Sent)

Inherent Power Sanction: Stripping Pro Hac Vice Status (PHV) for Slipping Note to Witness — PHV as Property Right — Tossing Note = Spoliation — That Lawyer Was Corner-Cutting Before Relevant to Sanction (Good Quote)

Judicial Notice of Internet Evidence — Obituary Posted on Funeral Home Website Properly Noticed, Like Obituary Appearing in Newspaper

Supreme Court: Application of Res Judicata to Nonparties — Six Situations — Federal vs. State Law on the Preclusive Effect of Federal-Court Judgments (Federal Question vs. Diversity Cases)

Attorney-Client Privilege — Three Approaches to Waiver of Privilege and Work Product Protection — Evidence of Reliance on Advice of Counsel in Settling Case = Waiver in Insurer’s Trial against Adjuster and His Firm

Recent Posts

Rule 37(d) Sanctions — For Failure to Serve Answers, Objections, Or Written Response to Discovery Requests — Are Not Limited to Intentional Misconduct; Even Innocent Mistakes May Be Covered

Sanctions: (1) Rule 11 Does Not Apply to Litigation Papers Initially Filed in State Court — Only Reaffirmance in Federal Court Post-Removal Is Subject to Sanction — (2) “The Fact That A Legal Theory Is A Long-Shot Does Not Necessarily Mean It Is Sanctionable” (Good Quote)

Supreme Court: Relief under Rule 60(b)(6) Requires Extraordinary Circumstances Even If It Is Invoked to Allow Amendment of The Complaint–Rule 15’s Liberal Approach to Amendment Does Not Change That (Reversing Second Circuit)

FRAP 38 Sanctions — Eleventh Circuit Generally Does Not Impose FRAP 38 Sanctions on Pro Se Litigants, But May Do So If They Have Persisted Despite Judicial Warnings of Frivolousness

Inherent Power Sanctions: No Dismissal with Prejudice If Lesser Sanctions Will Suffice — The Liberal Pleading Standard of Swierkiewicz “Is Still Good Law”

Statements in Briefs As Judicial Admissions

Supreme Court: TRO As Appealable Order — And District Court Inaction As Tantamount to Refusing An Injunction And Thus Appealable

“Slow-Playing Discovery” in Response to Court Order, Prejudicing Opponent, Violates Rule 37(b)(2)(A)

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