Complex Lit Blog

How Much of an Explanation Must a District Court Provide in Certifying a Case for Immediate Appeal under Rule 54(b)? The Circuits Are Split, and the Right Answer Is None — A Result No Circuit Has Reached — Sutton, J., Concurring

Adler v. Elk Glenn, LLC, 2014 U.S. App. LEXIS 13044 (6th Cir. July 10, 2014) (Sutton, J., concurring) (note: Judge Sutton is Chair of the Standing Committee on Rules of Practice and Procedure of the United States Judicial Conference and a recognized scholar of the Federal Rules): SUTTON, J., concurring. When a ...

Adler v. Elk Glenn, LLC, 2014 U.S. App. LEXIS 13044 (6th Cir. July 10, 2014) (Sutton, J., concurring) (note: Judge Sutton is Chair of the Standing Committee on Rules of Practice and Procedure of the United States Judicial Conference…

Denial of Disqualification Motion Not Appealable under § 1291 before Final Judgment — Mandamus May Be Available in Exceptional Circumstances

Averhart v. CWA Union Local 1033, 2014 U.S. App. LEXIS 12609 (3d Cir. July 3, 2014): In his supplemental brief, Averhart concedes that this Court presently lacks jurisdiction under 28 U.S.C. § 1291 to review the District Court's denial of his request to disqualify counsel, and he has expressly withdrawn his appeal to that extent. ...

RICO — Proof of Predicate Acts That Are Criminal Is Essential to a Successful Civil RICO Claim

Southern Snow Mfg. Co. v. Snowizard Holdings, Inc., 2014 U.S. App. LEXIS 12242 (Fed. Cir. June 30, 2014): A snowball is a confection of ice shavings, flavored with various syrups and typically served in a cone-shaped paper cup. This appeal arises from the conclusion of four consolidated lawsuits in the United States District C ...

Southern Snow Mfg. Co. v. Snowizard Holdings, Inc., 2014 U.S. App. LEXIS 12242 (Fed. Cir. June 30, 2014): A snowball is a confection of ice shavings, flavored with various syrups and typically served in a cone-shaped paper cup. This appeal …

Appellate Practice — Failure to Develop Argument in Brief, Including a Single Conclusory Sentence, Forfeits Appellate Review

Schnader Harrison Segal & Lewis LLP, 2014 U.S. App. LEXIS 11647 (4th Cir. June 20, 2014): On appeal, Hershey also challenges the district court's order granting Schnader's motion for Rule 11 sanctions. "We review the decision to award sanctions for abuse of discretion." Newport News Holdings Corp. v. Virtual City ...

Offer of Judgment — Rule 68 Reverses Rule 54(d) and Requires a Prevailing Plaintiff to Pay a Defendant’s Post-Offer Cost If the Judgment Is Less Than the Unaccepted Offer, Even in Civil Rights Cases

Stanczyk v. City of N.Y., 752 F.3d 273 (2d Cir. June 3, 2014): On March 21, 2013, a jury in the United States District Court for the Eastern District of New York found City of New York police officers Richard DeMartino ("DeMartino") and Shaun Grossweiler ("Grossweiler") (the "Officers") liable under 42 U. ...

Sanctions — Due Process Satisfied Despite Lack of Notice Where Sanctioned Party, in Briefing Amount of Penalty, Argued Merits to Newly-Assigned Judge and Sought Reconsideration — Irrelevance No Defense to Noncompliance with Valid Discovery Order

McLaughlin v. Phelan Hallinan & Schmieg, LLP, 2014 U.S. App. LEXIS 12028 (3d Cir. June 26, 2014): Timothy McLaughlin had a mortgage. As a result of an error, the mortgage company believed that he was in default and referred the matter to the law firm Phelan Hallinan & Shmieg, LLP, whose lawyers include Lawrence T. Phelan, Fr ...

Following § 1404(a) Transfer, Does Transferee Court Apply Its Own Circuit’s Interpretation of Federal Law or That of Transferor Circuit? — Circuit Split

Klatte v. Buckman, Buckman & Reid, Inc., 2014 U.S. Dist. LEXIS 92286 (D.N.J. July 8, 2014): Because this action was transferred to this Court from a district court in another circuit, an additional [*13] preliminary layer of analysis is required before the Court may reach the question of who determines arbitrability ...

Klatte v. Buckman, Buckman & Reid, Inc., 2014 U.S. Dist. LEXIS 92286 (D.N.J. July 8, 2014): Because this action was transferred to this Court from a district court in another circuit, an additional [*13] preliminary layer of analysis is required…

Internet Evidence — Medical Article Pulled from Web by Author Who Has Not Examined Plaintiff Inadmissible to Prove Incurability of Plaintiff’s Medical Condition

Debbie Flo, Inc. v. Shuman, 2014 U.S. Dist. LEXIS 14526; 2014 AMC 840 (D.N.J. Feb. 5, 2014): This matter comes before the Court on the motion of Debbie Flo, Inc. ("Plaintiff") to terminate maintenance and cure, or in the alternative to suspend maintenance until advances are recouped. For the reasons expressed herein, Plainti ...

Disclosure of Work Product to Adversary during Settlement Talks Waives Protection Despite Common Goal of Reaching Quick Settlement — No Common Law Privilege for Plea Negotiations — Presumption against Creating New Privileges

Doe v. United States, 749 F.3d 999 (11th Cir. 2014): 2. The Intervenors Waived Any Work-Product Privilege. The intervenors next contend that the correspondence falls under the work-product privilege, but the finding of the district court that the intervenors waived any privilege when they voluntarily sent the ...

Doe v. United States, 749 F.3d 999 (11th Cir. 2014): 2. The Intervenors Waived Any Work-Product Privilege. The intervenors next contend that the correspondence falls under the work-product privilege, but the finding of the district court that the intervenors waived…

When Is Mandamus Available to Review Order Denying Attorney-Client Privilege? — Factors — Error Must Be “Clear and Indisputable” and Review “Appropriate” — Mandamus Not Precluded by Mohawk

In re Kellogg, Brown & Root, Inc., 2014 U.S. App. LEXIS 12115 (D.C. Cir. June 27, 2014) (Note: The Court’s privilege analysis was excerpted in our post of July 3, 2014): Having concluded that the District Court's privilege ruling constituted error, we still must decide whether that error justifies a writ of ma ...

In re Kellogg, Brown & Root, Inc., 2014 U.S. App. LEXIS 12115 (D.C. Cir. June 27, 2014) (Note: The Court’s privilege analysis was excerpted in our post of July 3, 2014): Having concluded that the District Court's privilege…

Commercial Litigation and Arbitration

How Much of an Explanation Must a District Court Provide in Certifying a Case for Immediate Appeal under Rule 54(b)? The Circuits Are Split, and the Right Answer Is None — A Result No Circuit Has Reached — Sutton, J., Concurring

Denial of Disqualification Motion Not Appealable under § 1291 before Final Judgment — Mandamus May Be Available in Exceptional Circumstances

RICO — Proof of Predicate Acts That Are Criminal Is Essential to a Successful Civil RICO Claim

Appellate Practice — Failure to Develop Argument in Brief, Including a Single Conclusory Sentence, Forfeits Appellate Review

Offer of Judgment — Rule 68 Reverses Rule 54(d) and Requires a Prevailing Plaintiff to Pay a Defendant’s Post-Offer Cost If the Judgment Is Less Than the Unaccepted Offer, Even in Civil Rights Cases

Sanctions — Due Process Satisfied Despite Lack of Notice Where Sanctioned Party, in Briefing Amount of Penalty, Argued Merits to Newly-Assigned Judge and Sought Reconsideration — Irrelevance No Defense to Noncompliance with Valid Discovery Order

Following § 1404(a) Transfer, Does Transferee Court Apply Its Own Circuit’s Interpretation of Federal Law or That of Transferor Circuit? — Circuit Split

Internet Evidence — Medical Article Pulled from Web by Author Who Has Not Examined Plaintiff Inadmissible to Prove Incurability of Plaintiff’s Medical Condition

Disclosure of Work Product to Adversary during Settlement Talks Waives Protection Despite Common Goal of Reaching Quick Settlement — No Common Law Privilege for Plea Negotiations — Presumption against Creating New Privileges

When Is Mandamus Available to Review Order Denying Attorney-Client Privilege? — Factors — Error Must Be “Clear and Indisputable” and Review “Appropriate” — Mandamus Not Precluded by Mohawk

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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