Complex Lit Blog

Spoliation Sanctions — Fed. R. Civ. P. 37(e) —Adverse Inference — Fifth Circuit Equates “Intent to Deprive Another Party of the Information’s Use in the Litigation” with Its Traditional Test of “‘Bad Faith’ or ‘Bad Conduct’”

Ford v. Anderson Cnty., 2024 U.S. App. LEXIS 506 (5th Cir. Jan. 8, 2024) Per Curiam: On June 15, 2018, pretrial detainee Rhonda Newsome died in Anderson County Jail due to complications [*2]

Ford v. Anderson Cnty., 2024 U.S. App. LEXIS 506 (5th Cir. Jan. 8, 2024) Per Curiam: On June 15, 2018, pretrial detainee Rhonda Newsome died in Anderson County Jail due to complications [*2] from Addison’s disease. Newsome’s family members filed…

Criminal Spoliation — Eleventh Circuit Has Never Ruled That A Spoliation Instruction Should Be Given in a Criminal Case, But Holds That Bad Faith Would Be Required Were It Ever To So Rule — Also Surveying Other Circuits’ Law on Criminal Spoliation

United States v. Fey, 2023 U.S. App. LEXIS 34456 (11th Cir. Dec. 28, 2023): Criminal Spoliation — Eleventh Circuit Has Never Ruled That A Spoliation Instruction Should Be Given in a Criminal Case, But Hol ...

United States v. Fey, 2023 U.S. App. LEXIS 34456 (11th Cir. Dec. 28, 2023): Criminal Spoliation — Eleventh Circuit Has Never Ruled That A Spoliation Instruction Should Be Given in a Criminal Case, But Holds That Bad Faith Would Be …

Rule 37(d) and 41(b) Dismissal Sanction: (1) Sixth Circuit Factors (Bad Faith/Fault, Prejudice, Warning, Lesser Sanctions Considered); (2) Deliberate Disregard of Court Order Excuses District Court’s Failure to Warn Litigant That Case Could Be Dismissed (Here, Opposing Counsel Had So Warned in Writing); (3) While Lesser Sanctions Should Be Considered, District Court May Dismiss As First And Only Sanction; (4) Type of Misconduct Justifying Dismissal with Prejudice

Moore v. Erickson, 2023 U.S. App. LEXIS 26639 (6th Cir. Oct. 5, 2023) (unpublished) ORDER *1 In this

Moore v. Erickson, 2023 U.S. App. LEXIS 26639 (6th Cir. Oct. 5, 2023) (unpublished) ORDER *1 In this 42 U.S.C. § 1983 action, Anthony Lamont Moore, a former Michigan prisoner proceeding pro se, appeals a district court judgment imposing costs…

Spoliation Sanctions: Sixth Circuit Standards — Using Residential Funding Framework For Electronic Spoliation — Call to Ethics Hotline Absent Threat of Litigation or Preservation Demand Insufficient to Trigger Duty to Preserve

Goodale v. Elavon, Inc., 2023 U.S. App. LEXIS 32861 (6th Cir. Dec. 12, 2023) (unpublished) ORDER Elizabeth Ann Goodale, proceeding through counsel, appeals the district court's judgment in favor of Elavon, Inc., on her employment-disc ...

Goodale v. Elavon, Inc., 2023 U.S. App. LEXIS 32861 (6th Cir. Dec. 12, 2023) (unpublished) ORDER Elizabeth Ann Goodale, proceeding through counsel, appeals the district court’s judgment in favor of Elavon, Inc., on her employment-discrimination claims. The parties have waived…

Disqualification: Lawyers Who Initially Represented A Group of Plaintiffs But Ended Up Representing Only 2 Of Them Because the Group Couldn’t Agree on a Remedy Were Not Subject to Disqualification by Former Clients Because \ Disagreement as to Remedy Was Not Materially Adverse to the Former Clients

Whitest v. Crisp Cnty. Sch. Dist., 2023 U.S. App. LEXIS 32934 (11th Cir. Dec. 13, 2023) (unpublished): PER CURIAM: [*2] On June 14, 2017, Crandall Postell and numerous co-plaintiffs, represented by Bryan L. Sells and ACLU ...

Whitest v. Crisp Cnty. Sch. Dist., 2023 U.S. App. LEXIS 32934 (11th Cir. Dec. 13, 2023) (unpublished): PER CURIAM: [*2] On June 14, 2017, Crandall Postell and numerous co-plaintiffs, represented by Bryan L. Sells and ACLU-affiliated attorneys, filed a lawsuit…

Arbitration: Party That Frustrates Arbitration by Failing to Comply with Designated Arbitral Forum’s Policies Is Subject to Suit in Court

Bedgood v. Wyndham Vacation Resorts, Inc., 2023 U.S. App. LEXIS 33600 (11th Cir. Dec. 19, 2023): This is an odd case. The lead defendant here, Wyndham Vacation Resorts—which, to distinguish it from other Wyndham-related entities, we'll ju ...

Bedgood v. Wyndham Vacation Resorts, Inc., 2023 U.S. App. LEXIS 33600 (11th Cir. Dec. 19, 2023): This is an odd case. The lead defendant here, Wyndham Vacation Resorts—which, to distinguish it from other Wyndham-related entities, we’ll just call “Resorts”—entered into …

(1) Rule 37 Sanctions: Court’s Discretion Narrows As the Severity of the Sanction Increases; (2) Party Does Not Waive Personal Jurisdiction Defense by Moving to Set Aside Default

Hawkeye Gold, LLC v. China Nat'l Materials Indus. Imp. & Exp. Corp., 2023 U.S. App. LEXIS 33531 (8th Cir. Dec. 19, 2023) Appellant Hawkeye Gold, LLC, an Iowa-based seller of livestock feed, brought this action ...

Hawkeye Gold, LLC v. China Nat’l Materials Indus. Imp. & Exp. Corp., 2023 U.S. App. LEXIS 33531 (8th Cir. Dec. 19, 2023) Appellant Hawkeye Gold, LLC, an Iowa-based seller of livestock feed, brought this action against China National Materials Industry…

Good Cause Requirement of Fed. R. Civ. P. 16(b) to Modify Scheduling Order Applies to Deadlines in District Judge’s Individual Rules and Practices — Here, Untimely Challenge to Expert Testimony

Tr. for the Liquidation of Bernard L. Madoff Inv. Sec. LLC v. Rar Entrepreneurial Fund, Ltd.. (In re Bernard L. Madoff Inv. Sec. LLC), 2023 U.S. App. LEXIS 33544 (2d Cir. Dec. 19, 2023): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGE ...

Inherent Power Sanctions/Due Process/Vexatious Litigant Injunction: (1) Pro Se Status Relevant to Considering Whether Due Process Issue Waived Due to Failure to Assert; (2) Party Has a Right to Notice That a Vexatious Litigant Injunction Is Under Consideration and an Opportunity to Be Heard; (3) Prior Warnings of Frivolousness from Other Courts Does Not Afford Notice That Party Is at Risk of Sanction in Present Court (i.e., Distinguishing Notice of Frivolousness from Due Process Notice of Risk of Sanction)

Allen v. United States, 2023 U.S. App. LEXIS 33380 (Fed. Cir. Dec. 28, 2023) Per Curiam. *1 Derrick Allen filed a pro se complaint in the Court of Federal Claims alleging that the Clerk’s Office in the ...

Allen v. United States, 2023 U.S. App. LEXIS 33380 (Fed. Cir. Dec. 28, 2023) Per Curiam. *1 Derrick Allen filed a pro se complaint in the Court of Federal Claims alleging that the Clerk’s Office in the United States District…

(1) Party May Simultaneously Claim Privilege And Dispute Document’s Authenticity; (2) No Per Se Waiver Rule When Privilege Log Is Not Produced; (3) Fact Opponent Actually Possesses Challenged Documents Significantly Affects Log Analysis; (4) Inherent Power Sanctions: Ninth Circuit Factors

Mayorga v. Ronaldo, 2023 U.S. App. LEXIS 30921 (9th Cir. Nov. 21, 2023) (unpublished): MEMORANDUM* In 2010, Defendant-Appellee Cristiano Ronaldo ("Ronaldo") ...

Mayorga v. Ronaldo, 2023 U.S. App. LEXIS 30921 (9th Cir. Nov. 21, 2023) (unpublished): MEMORANDUM* In 2010, Defendant-Appellee Cristiano Ronaldo (“Ronaldo”) settled a sexual assault claim made against him by Plaintiff-Appellant Kathryn Mayorga (“Mayorga”). The matter lay dormant until…

Commercial Litigation and Arbitration

Spoliation Sanctions — Fed. R. Civ. P. 37(e) —Adverse Inference — Fifth Circuit Equates “Intent to Deprive Another Party of the Information’s Use in the Litigation” with Its Traditional Test of “‘Bad Faith’ or ‘Bad Conduct’”

Criminal Spoliation — Eleventh Circuit Has Never Ruled That A Spoliation Instruction Should Be Given in a Criminal Case, But Holds That Bad Faith Would Be Required Were It Ever To So Rule — Also Surveying Other Circuits’ Law on Criminal Spoliation

Spoliation Sanctions: Sixth Circuit Standards — Using Residential Funding Framework For Electronic Spoliation — Call to Ethics Hotline Absent Threat of Litigation or Preservation Demand Insufficient to Trigger Duty to Preserve

Arbitration: Party That Frustrates Arbitration by Failing to Comply with Designated Arbitral Forum’s Policies Is Subject to Suit in Court

(1) Rule 37 Sanctions: Court’s Discretion Narrows As the Severity of the Sanction Increases; (2) Party Does Not Waive Personal Jurisdiction Defense by Moving to Set Aside Default

Good Cause Requirement of Fed. R. Civ. P. 16(b) to Modify Scheduling Order Applies to Deadlines in District Judge’s Individual Rules and Practices — Here, Untimely Challenge to Expert Testimony

(1) Party May Simultaneously Claim Privilege And Dispute Document’s Authenticity; (2) No Per Se Waiver Rule When Privilege Log Is Not Produced; (3) Fact Opponent Actually Possesses Challenged Documents Significantly Affects Log Analysis; (4) Inherent Power Sanctions: Ninth Circuit Factors

Recent Posts

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

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”

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