Complex Lit Blog

(1) Section 1927 Sanctions Precluded by Denial of Summary Judgment; (2) Filing of Complaint Found Meritless on Appeal Not Automatically Sanctionable under § 1927 (Sixth Circuit); (3) Post-Judgment Rule 11 Motion Fails for Failure to Provide 21-Day Safe Harbor

CAN IV Packard Square, LLC v. Schubiner, 2023 U.S. App. LEXIS 30292 (6th Cir. Nov. 14, 2023) (unpublished): ORDER Craig Schubiner, a pro se New York resident, appeals the district court's order denyin ...

CAN IV Packard Square, LLC v. Schubiner, 2023 U.S. App. LEXIS 30292 (6th Cir. Nov. 14, 2023) (unpublished): ORDER Craig Schubiner, a pro se New York resident, appeals the district court’s order denying his post-judgment motion for sanctions against Can…

Inherent Power Sanctions: (1) Bad Faith in Manufacturing Personal Injuries Supposedly Caused by Accident—By Lying to Doctors, Court, Opponent And Plaintiff’s Own Counsel—Warranted Dismissal of All Non-Economic Damages Claims; (2) Proper under Goodyear v. Haeger to Award All Attorney’s Fees Incurred in Defending Action Initiated in Bad Faith; (3) Tenth Circuit Factors Governing Dismissal for Discovery Misconduct; (4) “The Lodestar Calculation Produces a Presumptively Reasonable Fee” (Good Quote); (5) Furnishing Business Records Certification Just Prior to Trial Violates Fed. R. Evid. 902(11) Requirement That Opponent Be Given “A Fair Opportunity to Challenge” The Certification and Record

Stetson v. Edmonds, 2023 U.S. App. LEXIS 30361 (10th Cir. Nov. 15, 2023) When a party to litigation seeks to intentionally deceive the court and its adversary, a district court may issue reasonable sanctions and re ...

Stetson v. Edmonds, 2023 U.S. App. LEXIS 30361 (10th Cir. Nov. 15, 2023) When a party to litigation seeks to intentionally deceive the court and its adversary, a district court may issue reasonable sanctions and require the deceitful party to…

Experts: “Post Hoc, Ergo Propter Hoc Is Neither A Rule Of Legal Causation,, Nor Typically A Sufficient Methodological Basis For An Expert Opinion On Causation” (Good Quote) – Medical Testimony on Diagnosis vs. Etiology (Cause of Symptoms vs. Cause of Disorder)

Finley v. Mora, 2023 U.S. App. LEXIS 30407 (6th Cir. Nov. 14, 2023): While attempting to park his tractor-trailer at a rest stop, Manuel Mora collided with Jake Finley's already-parked tractor-trailer. Finley sued Mora and Nina Transport, Inc.,

Finley v. Mora, 2023 U.S. App. LEXIS 30407 (6th Cir. Nov. 14, 2023): While attempting to park his tractor-trailer at a rest stop, Manuel Mora collided with Jake Finley’s already-parked tractor-trailer. Finley sued Mora and Nina Transport, Inc.,1 Mora’s…

(1) Experts: 701 vs. 702 Testimony — Business Owner/Officer May Offer Lay Opinion of Value or Future Profits Based on Particularized Knowledge Derived from Position And Straightforward, Common Sense Calculations — (2) CFO’s Testimony Based on Previous Professional Experience Creating Budget Forecasts and Utilizing Complex, Sophisticated Formulas Improperly Admitted Under 701, Constituted 702 Testimony — (3) Contract Interpretation: A Broad Heading Cannot Override the Specific Language of a Particular Clause — (4) If Appellant Does Not Challenge Trial Court’s Alternate Ground for Its Ruling, Appellate Court May Affirm

Lambland, Inc. v. Heartland Biogas, LLC, 2023 U.S. App. LEXIS 25502 (10th Cir. Sept. 27, 2023) (unpublished) ORDER AND JUDGMENT* At its most b ...

Lambland, Inc. v. Heartland Biogas, LLC, 2023 U.S. App. LEXIS 25502 (10th Cir. Sept. 27, 2023) (unpublished) ORDER AND JUDGMENT* At its most basic level, this case involves a breach of contract and the resulting damages. But to determine…

Contract Formation Online — When Is A Customer Bound by Unread/Unclicked-On Terms And Conditions? — 2-Part Test: Inquiry Notice & Unambiguous Manifestation of Consent — What Is A “Reasonably Prudent” Internet User? — When Is That Person on Inquiry Notice? — What Constitutes An Unambiguous Manifestation of Consent?

Edmundson v. Klarna, Inc., 2023 U.S. App. LEXIS 29285 (2d Cir. Nov. 3, 2023): Defendant-appellant Klarna, Inc. ("Klarna") provides a "buy now, pay later" service that allows shoppers to buy a product and pay for it in four equal installments over t ...

Edmundson v. Klarna, Inc., 2023 U.S. App. LEXIS 29285 (2d Cir. Nov. 3, 2023): Defendant-appellant Klarna, Inc. (“Klarna”) provides a “buy now, pay later” service that allows shoppers to buy a product and pay for it in four equal installments…

Federal Court of Appeals Is Bound by Decisions of State Intermediate Appellate Courts Absent Persuasive Evidence The State’s Highest Court Would Reach a Different Decision

Sanchez v. Clipper Realty, Inc., 2023 U.S. App. LEXIS 29283 (2d Cir. Nov. 3, 2023) (unpublished): "We are bound, as was the district court, to apply the law as interpreted by New York's intermediate appellate courts . . . unless we find persuasive ...

Sanchez v. Clipper Realty, Inc., 2023 U.S. App. LEXIS 29283 (2d Cir. Nov. 3, 2023) (unpublished): “We are bound, as was the district court, to apply the law as interpreted by New York’s intermediate appellate courts . . . unless…

Rule 37 Sanctions – Default Judgment: (1) 4-Factor Test for Litigation-Ending Sanctions for Discovery Abuse (Fifth Circuit); (2) Deletion and Manipulation of Source Code As Spoliation; (3) Detailed Consideration of Lesser Sanctions Excused Where It Is Clear Lesser Sanctions Would Have Been Futile—Especially Where the Misconduct Was Egregious And Repeated, And There Has Been A Warning; (4) Giving A Second Or Third Chance Before Imposing Litigation-Ending Sanctions Itself Amounts to a Lesser Sanction; (5) A Default Judgment Is Sometimes The Only Practicable Solution; (6) Where Party Appealing Denial of Rule 60(b) Motion for Reconsideration Failed to Object to the R&R Adopted by the District Court, Appellate Review Is for Plain Error Only

Calsep A/S v. Dabral, 84 F.4th 304 (5th Cir. 2023): One company, alleging that another company stole the code for its software product, filed a lawsuit. During discovery, the alleged thief destroyed electronic evidence. That was a violation of several court orders and the Federal Rules of Civil Procedure. So, the district court sanctioned the spoliator by entering a default judg ...

Section 1927 Sanctions: (1) While Review Is Generally Abuse-of-Discretion, It Is De Novo When Exercise of Discretion Depends on a Purely Legal Issue; (2) 4. Survival on Rule 56 and 52 Motions On The Same Grounds Used Later To Sanction Plaintiffs’ Counsel Shows That They Didn’t Pursue Their Claims Recklessly; (3) Absent a Misrepresentation to the Court, Parties May Rely on Success in Rule 56 and 52 Motions As Indicators That Their Claims Were Objectively Reasonable and Suitable for Trial, Although Court Notes That Survival on Rule 52 and 56 Motions Doesn’t Automatically Preclude § 1927 Sanctions; Court Cannot Impose § 1927 Sanctions For Failing To Sustain Burden Of Proof Where Court Accepted That Quantum Of Evidence As Sufficient On Summary Judgment; Survival on Daubert Motion Precludes § 1927 Sanctions for Continued Reliance on Expert to Proceed to Trial

Obeslo v. Empower Capital Mgmt., 2023 U.S. App. LEXIS 28812 (10th Cir. Oct. 31, 2023):

Obeslo v. Empower Capital Mgmt., 2023 U.S. App. LEXIS 28812 (10th Cir. Oct. 31, 2023): *1 Two law firms that represented Plaintiffs in this litigation, Schlichter Bogard & Denton LLP (“SBD”) and Schneider Wallace Cottrell Konecky LLP (“SWCK”), appeal the…

Inherent Power Sanctions: (1) Court May Enter Dismissal on the Merits Even If It Lacks Subject Matter Jurisdiction — (2) Bad Faith or Willful Abuse of Judicial process Required in Fifth Circuit — (3) Opposing Party Need Not Be Prejudiced — (4) All Aspects of Inherent Power Sanctions Award, Including Invocation of Power, Reviewed for Abuse of Discretion — (5) District Court Must Sufficiently Articulate Reasons for Sanctions Award

Ben. E. Keith Co. v. Dining All., Inc., 2023 U.S. App. LEXIS 24114 (5th Cir. Sept. 12, 2023) < ...

Ben. E. Keith Co. v. Dining All., Inc., 2023 U.S. App. LEXIS 24114 (5th Cir. Sept. 12, 2023) Opinion *1 Although modern business entities may organize in complex ways unknown in the past, the criteria for diversity of citizenship jurisdiction…

Inherent Power Sanctions — (1) Deeming Facts Admitted for Violations of Discovery Orders by Corporate Defendants, Leading to Entry of Judgment Against Them and Associated Individual Defendant — (2) May Issue Both Case-Terminating and Financial Sanctions for Same Discovery Misconduct (Concealing Financial Information) — 9th Circuit Factors for Terminating Sanctions

URS Holdings, Inc. v. Topolewski, 2023 U.S. App. LEXIS 24660, 2023 WL 6058825 (9th Cir. Sept. 18, 202 ...

URS Holdings, Inc. v. Topolewski, 2023 U.S. App. LEXIS 24660, 2023 WL 6058825 (9th Cir. Sept. 18, 2023) (unpublished): MEMORANDUM* *1 Defendant Gary Topolewski and Defendants Morrison Knudsen Corporation, Morrison-Knudsen Company, Inc., Morrison-Knudsen Services, Inc., and Morrison-Knudsen International…

Commercial Litigation and Arbitration

(1) Section 1927 Sanctions Precluded by Denial of Summary Judgment; (2) Filing of Complaint Found Meritless on Appeal Not Automatically Sanctionable under § 1927 (Sixth Circuit); (3) Post-Judgment Rule 11 Motion Fails for Failure to Provide 21-Day Safe Harbor

Experts: “Post Hoc, Ergo Propter Hoc Is Neither A Rule Of Legal Causation,, Nor Typically A Sufficient Methodological Basis For An Expert Opinion On Causation” (Good Quote) – Medical Testimony on Diagnosis vs. Etiology (Cause of Symptoms vs. Cause of Disorder)

Federal Court of Appeals Is Bound by Decisions of State Intermediate Appellate Courts Absent Persuasive Evidence The State’s Highest Court Would Reach a Different Decision

Recent Posts

Temporary Restraining Order = Preliminary Injunction: 3 Supreme Court Cases (TRO=PI x 3)

Rule 37(c)(1) Sanctions — Exclusion of Untimely Expert Report — Eighth Circuit’s 4-Factor Test

RICO: So Insubstantial A Claim As to Fail to Confer Subject Matter Jurisdiction

RICO: Distinctiveness Issues Most Likely to Appear When The Enterprise Is An Entity Capable of Being Sued, Like A Corporation

FRAP 38 Sanctions: Eleventh Circuit Generally Declines to Impose FRAP 38 Sanctions on Pro Se Appellants Absent a History of Frivolous Litigation or an Explicit Warning

Paul Weiss Did The Right Thing

RICO: Unsettled Whether Legal Expenses Constitute Injury to Business or Property in Ninth Circuit — Leave to Amend Must Be Granted Unless 1 or More of 5 Factors Is Present — Request for Judicial Notice of Wikipedia Articles Fails to Satisfy The Standards Fed. R. Evid. 201

FRAP 38 Sanctions Denied Without Prejudice for Lack of Separate Motion

Archives

New York Office