Complex Lit Blog

Fugitive Disentitlement Doctrine Narrowly Applied in Civil Cases — “Necessity” Vital — Indignity, Deterrence Inapt — Prejudice, Delay, Frustration, Unenforceability of Judgment Key — Dodging Prosecution Not Enough

Mastro v. Rigby, 2014 U.S. App. LEXIS 16255 (9th Cir. August 22, 2014): I. James Rigby (the "Trustee"), in his capacity as Trustee for the Chapter 7 bankruptcy estate of Linda's husband, Michael Mastro ("Michael"), filed an adversary proceeding against Linda. The Trustee alleged, int ...

The Risk of Deposing Unretained Experts (They Can Testify Despite Inadequte Disclosures) — Hybrid Witnesses and Rule 26(a)(2)(C)

Burreson v. BASF Corp., 2014 U.S. Dist. LEXIS 117590 (E.D. Cal. Aug. 22, 2014): The disclosure requirements of Rule 26(a)(2)(B) have, at times, led to tension regarding when disclosure is triggered. In Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011), the Ninth Circuit addressed the si ...

RICO — Statute of Limitations Accrues When Plaintiff Is Aware of Its Injury, Even If Not the Identity of the Wrongdoer — Must Exercise Diligence to Determine Identity and Commence Suit within 4 Years

Rob’t L. Kroenlein Trust v. Kirchhefer, 2014 U.S. App. LEXIS 16296 (10th Cir. Aug. 25, 2014): The Robert L. Kroenlein Trust owns and operates J&B Liquors, a business in Torrington, Wyoming. In 2005, a salesman for one of J&B's beer distributors, Gary Kirchhefer, began stealing beer from J&B's account and reselling th ...

Rob’t L. Kroenlein Trust v. Kirchhefer, 2014 U.S. App. LEXIS 16296 (10th Cir. Aug. 25, 2014): The Robert L. Kroenlein Trust owns and operates J&B Liquors, a business in Torrington, Wyoming. In 2005, a salesman for one of J&B's beer …

Contractual Duty to “Reimburse” Attorneys’ Fees “Incurred” by Victorious Party Doesn’t Require Payment of Fees That New Employer Agreed to Cover for Employee-Defendants — Contract ≠ Rule 37 / Statutes or Rules Generally (Good Quotes)

TruGreen Cos., LLC v. Mower Bros., Inc., 2014 U.S. App. LEXIS 12513 (10th Cir. July 2, 2014): Back in 2006 TruGreen managers felt betrayed when a handful of employees left to work for a rival lawn care company. TruGreen sued, charging its former employees with breaching their employment contracts. In the end, the company lost that cla ...

Inherent Power Sanctions — 2-Pronged Test: Baselessness and Bad Faith — Meritless Motion for Reconsideration Containing Unsupported Attacks on Opponent

Smith v. Westchester Cnty. Dep’t of Corr., 2014 U.S. App. LEXIS 16494 (2d Cir. Aug. 26, 2014): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,$ ADJUDGED AND DECREED that the judgment of the district court be and hereby is AFFIRMED. Appellant Michael A. Deem appeals from orders dated September ...

Smith v. Westchester Cnty. Dep’t of Corr., 2014 U.S. App. LEXIS 16494 (2d Cir. Aug. 26, 2014): UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,$ ADJUDGED AND DECREED that the judgment of the district court be and hereby is AFFIRMED. Appellant…

Removal—§1447(d)’s Appeal Bar Doesn’t Apply If District Court Lacked Authority to Remand under §1447(c)—§1446(b)’s 1-Year Time Limit to Remove Diversity Case Is Procedural & Waivable, Like 30-Day Initial Removal Period

Smith v. Mylan, Inc., 2014 U.S. App. LEXIS 14978 (9th Cir. August 4, 2014): A state court action may not be removed to federal court on the basis of diversity jurisdiction more than one year after the action was filed. See 28 U.S.C. § 1446(b) (current version at 28 U.S.C. § 1446(c)).

Smith v. Mylan, Inc., 2014 U.S. App. LEXIS 14978 (9th Cir. August 4, 2014): A state court action may not be removed to federal court on the basis of diversity jurisdiction more than one year after the action was filed. …

NJ Adopts Broad Common Interest Rule— A Common Purpose Suffices—No Litigation Needed—Counsel May Speak to Another’s Client

O’Boyle v. Borough of Longport, 2014 N.J. LEXIS 787 (N.J. Sup. Ct. July 21, 2014): This appeal allows the Court to address the application of the common interest rule, which extends the confidentiality of attorney-client communications and attorney work product to information shared with attorneys representing separate clients, in t ...

Experts: Abuse of Discretion Standard Applies Even If Exclusion Determines Outcome — Not Ipse Dixit If Qualified Expert Applies Reliable Tools — Industry-Promulgated, Result-Oriented Expert Guidelines Rejected — Bias Is for Jury

Adams v. Lab. Corp. of Am., 2014 U.S. App. LEXIS 14471 (11th Cir. July 29, 2014): Christina and Christopher Adams ("the Adamses") filed a lawsuit against Laboratory Corporation of America ("LabCorp"), alleging that its cytotechnologists were negligent in failing to identify abnormalities in Ms. Adams's ...

Adams v. Lab. Corp. of Am., 2014 U.S. App. LEXIS 14471 (11th Cir. July 29, 2014): Christina and Christopher Adams ("the Adamses") filed a lawsuit against Laboratory Corporation of America ("LabCorp"), alleging that its cytotechnologists were negligent in failing to …

Requests for Admission (RFAs) — Party Whose Discovery Efforts Lead Adversary to Concede Fact First Denied “Makes the Proof,” Is Entitled to Rule 37(c)(2) Sanctions — Including Fees for 37(c)(2) Fee Application

McCarthy v. Ameritech Publishing, Inc., 2014 U.S. App. LEXIS 15519 (6th Cir. Aug. 13, 2014): Kathleen McCarthy filed suit against Ameritech Publishing, Inc. (API) and AT&T, her former employers, to recover damages for [**2] claims related to the August 2008 termination of her employment. The merits of those claims ...

RICO Violations Didn’t Cause Plaintiffs’ Loss of Property Where They Lacked the Funds to Cover Mortgage Payments or Taxes — Merely “Peripheral References” to Issue in Rule 50(a) Motion Fails to Preserve It

Uni-Rty Corp. v. Guangdon Building, Inc., 2014 U.S. App. LEXIS 12478 (2d Cir. July 2, 2014): Plaintiffs-counterclaim-defendants-appellants-cross-appellees Uni-Rty Corp. and Golden Plaza Limited Partnership ("GPLP") (collectively, "plaintiffs") appeal from the January 16, 2013 amended judgment of the United States D ...

Commercial Litigation and Arbitration

Fugitive Disentitlement Doctrine Narrowly Applied in Civil Cases — “Necessity” Vital — Indignity, Deterrence Inapt — Prejudice, Delay, Frustration, Unenforceability of Judgment Key — Dodging Prosecution Not Enough

The Risk of Deposing Unretained Experts (They Can Testify Despite Inadequte Disclosures) — Hybrid Witnesses and Rule 26(a)(2)(C)

RICO — Statute of Limitations Accrues When Plaintiff Is Aware of Its Injury, Even If Not the Identity of the Wrongdoer — Must Exercise Diligence to Determine Identity and Commence Suit within 4 Years

Contractual Duty to “Reimburse” Attorneys’ Fees “Incurred” by Victorious Party Doesn’t Require Payment of Fees That New Employer Agreed to Cover for Employee-Defendants — Contract ≠ Rule 37 / Statutes or Rules Generally (Good Quotes)

Inherent Power Sanctions — 2-Pronged Test: Baselessness and Bad Faith — Meritless Motion for Reconsideration Containing Unsupported Attacks on Opponent

Removal—§1447(d)’s Appeal Bar Doesn’t Apply If District Court Lacked Authority to Remand under §1447(c)—§1446(b)’s 1-Year Time Limit to Remove Diversity Case Is Procedural & Waivable, Like 30-Day Initial Removal Period

NJ Adopts Broad Common Interest Rule— A Common Purpose Suffices—No Litigation Needed—Counsel May Speak to Another’s Client

Experts: Abuse of Discretion Standard Applies Even If Exclusion Determines Outcome — Not Ipse Dixit If Qualified Expert Applies Reliable Tools — Industry-Promulgated, Result-Oriented Expert Guidelines Rejected — Bias Is for Jury

Requests for Admission (RFAs) — Party Whose Discovery Efforts Lead Adversary to Concede Fact First Denied “Makes the Proof,” Is Entitled to Rule 37(c)(2) Sanctions — Including Fees for 37(c)(2) Fee Application

RICO Violations Didn’t Cause Plaintiffs’ Loss of Property Where They Lacked the Funds to Cover Mortgage Payments or Taxes — Merely “Peripheral References” to Issue in Rule 50(a) Motion Fails to Preserve It

Recent Posts

RICO: Indirect Injury Unrecoverable — Indirect Purchaser Rule Imported from Antitrust

RICO: No Causation Where Harm Flowed Several Steps After the Fraudulent Acts — RICO Causation Same As Antitrust Causation

Sanctions vs. Automatic Stay: Imposition of Sanctions (Here, Inherent Power Sanctions) Is Subject to the Police Power Exception to the Automatic Stay in Bankruptcy

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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