Complex Lit Blog

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 ...

Rule 68 Offer of Judgment Exceeding Putative Class Representative’s Individual Claim Does Not Moot Class Action If Offer Is Made after Class Certification Motion Made

Tocco v. Real Time Resolutions, Inc., 2014 U.S. Dist. LEXIS 112492 (S.D.N.Y. Aug. 13, 2014): Rule 68 permits a defendant to "serve on an opposing party an offer to allow judgment on specific terms." Fed. R. Civ. P. 68(a). When an offer of judgment exceeds the amount the plaintiff could recover, the plaintiff's claim is m ...

Taxation of Costs: Video Deposition Editing, In-Court Technical Support, Equipment Rental Not Taxable under § 1920 (Circuit Split, New S.Ct. Case Unfavorable) — Demonstrative Boards Not Necessary

Fowler v. Cal. Hwy. Patrol, 2014 U.S. Dist. LEXIS 112540 (N.D. Cal. Aug. 13, 2014): Defendants move the Court to review and tax two discrete costs disallowed by the Clerk: (1) exemplification costs related to video presentations used at trial and (2) fees for [*6] deposition transcripts. Based on a de novo review of these ch ...

Fowler v. Cal. Hwy. Patrol, 2014 U.S. Dist. LEXIS 112540 (N.D. Cal. Aug. 13, 2014): Defendants move the Court to review and tax two discrete costs disallowed by the Clerk: (1) exemplification costs related to video presentations used at trial …

Securities — Satisfaction of Morrison’s 2-Part Test Is Necessary, But Not Sufficient, to Support Invocation of 10b-5 — If Application of 10b-5 Would Be Incompatible with Foreign Regulation, 10b-5 Inapt

Parkcentral Global Hub Ltd. v. Porsche Auto. Holdings, SE, 2014 U.S. App. LEXIS 15758 (2d Cir. Aug. 15, 2014): In Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010), the Supreme Court established that, by virtue of the presumption against extraterritorial application of U.S. statutes, § 10(b) of the Sec ...

§ 1927 Sanctions — Failure to Respond to Portions of Summary Judgment Motion Directed to Claims Plaintiff Choose to Abandon Is Not Sanctionable — Duty Is to Abandon Unsustainable Claims

Adams v. Austal, USA, LLC, 2014 U.S. App. LEXIS 11318 (11th Cir. June 17, 2014): Defendant-Appellant Austal USA, LLC appeals the March 2, 2012 order of the United States District Court for the Southern District of Alabama denying Austal's motion for attorneys' fees and sanctions against Plaintiff-Appellee Gloria Sullivan and h ...

Spoliation—Losing Evidence Suspiciously = Intentional—Stricter Review for Dismissal, Default—Discovery Not Limited to Relevant, Admissible Evidence, Is Fluid as Case Evolves—OK to Impose More Than Minimally Punitive Sanction (Good Quotes)

Sentis Group, Inc. v. Shell Oil Co., 2014 U.S. App. LEXIS 15597 (8th Cir. Aug. 14, 2014) (Note: This is the second Sentis opinion by the Eighth Circuit. See our post of April 23, 2009, for excerpts from the earlier opinion): Plaintiffs Sentis Group, Inc., and Coral Group, Inc., sued Defendants Sh ...

Sentis Group, Inc. v. Shell Oil Co., 2014 U.S. App. LEXIS 15597 (8th Cir. Aug. 14, 2014) (Note: This is the second Sentis opinion by the Eighth Circuit. See our post of April 23, 2009, for excerpts from the…

Vexatious Litigant Injunctions — Factors — 2 Cases Too Few; Motion Practice Inadequate — “A Successful Motion Is Neither Baseless Nor Frivolous” — Limitations on Orders — Invited Briefs Not to Be Held against Filer (Good Quotes)

Ringgold-Lockhart v. Cnty. of L.A., 2014 U.S. App. LEXIS 14979 (9th Cir. Aug. 4, 2014): This appeal requires us to consider the limits of a federal court's authority to impose pre-filing restrictions against so-called vexatious litigants. The case arises from one of many episodes in a legal saga involving Nina Ringgold and the Los ...

Failure to Plead Affirmative Defense Does Not Waive It Absent Prejudice to Plaintiff

Garofalo v. Village of Hazel Crest, 2014 U.S. App. LEXIS 11087 (7th Cir. June 12, 2014): Plaintiff-Appellants Michael Garofalo and Mark Peers appeal from the district court's grant of summary judgment in favor of Defendant-Appellees, the Village of Hazel Crest and its individual officers, in their race discrimination case. Garofal ...

Rule 11 Sanctions for Pursuing Issue of First Impression — Tenuous Nature of Legal Theory Coupled with Inadequate Factual Investigation — Rule 11 Factors (Eleventh Circuit)

Walther v. McIntosh, 2014 U.S. App. LEXIS 13987 (11th Cir. July 23, 2014): Dorothy Walther, Howard Walther, and Phillips P. O'Shaughnessy appeal the district court's order imposing sanctions against O'Shaughnessy under Federal Rule of Civil Procedure 11 for his conduct in pursuing a lawsuit in the district [*2]

Does a Magistrate Judge Have Authority to Decide a Motion for Spoliation Sanctions under Rule 37 or the Court’s Inherent Power? As with Rule 11, the Case Law Is Split

In re Estate of Jackson v. Cnty. of Suffolk, 2014 U.S. Dist. LEXIS 96355 (E.D.N.Y. July 15, 2014)): Plaintiff the Estate of Willie Jackson ("plaintiff" or the "Estate") brings this action against numerous defendants associated with Suffolk County (the "County Defendants") based on an incident on April 2, ...

Commercial Litigation and Arbitration

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

Rule 68 Offer of Judgment Exceeding Putative Class Representative’s Individual Claim Does Not Moot Class Action If Offer Is Made after Class Certification Motion Made

Taxation of Costs: Video Deposition Editing, In-Court Technical Support, Equipment Rental Not Taxable under § 1920 (Circuit Split, New S.Ct. Case Unfavorable) — Demonstrative Boards Not Necessary

Securities — Satisfaction of Morrison’s 2-Part Test Is Necessary, But Not Sufficient, to Support Invocation of 10b-5 — If Application of 10b-5 Would Be Incompatible with Foreign Regulation, 10b-5 Inapt

§ 1927 Sanctions — Failure to Respond to Portions of Summary Judgment Motion Directed to Claims Plaintiff Choose to Abandon Is Not Sanctionable — Duty Is to Abandon Unsustainable Claims

Spoliation—Losing Evidence Suspiciously = Intentional—Stricter Review for Dismissal, Default—Discovery Not Limited to Relevant, Admissible Evidence, Is Fluid as Case Evolves—OK to Impose More Than Minimally Punitive Sanction (Good Quotes)

Vexatious Litigant Injunctions — Factors — 2 Cases Too Few; Motion Practice Inadequate — “A Successful Motion Is Neither Baseless Nor Frivolous” — Limitations on Orders — Invited Briefs Not to Be Held against Filer (Good Quotes)

Failure to Plead Affirmative Defense Does Not Waive It Absent Prejudice to Plaintiff

Rule 11 Sanctions for Pursuing Issue of First Impression — Tenuous Nature of Legal Theory Coupled with Inadequate Factual Investigation — Rule 11 Factors (Eleventh Circuit)

Does a Magistrate Judge Have Authority to Decide a Motion for Spoliation Sanctions under Rule 37 or the Court’s Inherent Power? As with Rule 11, the Case Law Is Split

Recent Posts

RICO: Mail and Wire Fraud: Act of Emailing Transcript of Court Proceedings Containing Allegedly False Statements Made in Court ≠ Wire Fraud — Mailing (Serving on Opposing Party) Declarations Allegedly Containing False Statements ≠ Mail Fraud

FRAP 38 Sanctions — Sixth Circuit Usually Declines to Impose FRAP 38 Sanctions Unless An Improper Purpose Was Behind the Appeal

FRAP 38: Permissible for Appeals Court to Affirm Sanctions But Deny FRAP 38 Sanctions for Appeal — A Defendant’s Voluntary Cessation of Complained of Behavior Does Not Moot a Case Unless It Is Clear That The Behavior Could Not Reasonably Be Expected to Recur

Rule 11: Violation of 21 Day Safe Harbor “Overlook[ed]” As Non-Prejudicial by First Circuit — “Rule 11 Monetary Sanctions Must Be Reasonable” (Good Quote) — Rule 11(c)(4) Requires Consideration of Offender’s Ability to Pay

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

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