Complex Lit Blog

Monetary Sanctions Improperly Awarded Sua Sponte under Rule 11 Affirmed under § 1927

Mohtadi v. Homecomings Fin’l, LLC, 2014 U.S. App. LEXIS 2474 (9th Cir. Feb. 10, 2014): Sanctions were warranted. Rule 11, however, does not allow the district court to impose sanctions payable to a party on the basis of a sua sponte show cause order. See Fed. R. Civ. P. 11(c)(4); Advisory Committee's Notes to the 1993 Am ...

Mohtadi v. Homecomings Fin’l, LLC, 2014 U.S. App. LEXIS 2474 (9th Cir. Feb. 10, 2014): Sanctions were warranted. Rule 11, however, does not allow the district court to impose sanctions payable to a party on the basis of a sua …

Attorney-Client Privilege — Perlman Applies Outside of Grand Jury Context (Circuit Split) — Interlocutory Appellant Must Be a Non-Litigant — Fed.R.Evid. 410 Does Not Create a Privilege against Discovery of Plea Negotiations

Doe v. United States, 2014 U.S. App. LEXIS 7283 (11th Cir. April 18, 2014): This appeal requires us to decide two issues: whether we have jurisdiction over an interlocutory appeal by criminal defense attorneys and their client who intervened in a proceeding ancillary to a criminal investigation to claim a privilege that would ...

Doe v. United States, 2014 U.S. App. LEXIS 7283 (11th Cir. April 18, 2014): This appeal requires us to decide two issues: whether we have jurisdiction over an interlocutory appeal by criminal defense attorneys and their client who intervened in …

Facebook Authentication — Admission Erroneous Where Foundational Testimony Failed to Tie Defendant to His Facebook Page and Messages — Circumstantial Evidence Test Applied

Smith v. State, 2014 Miss. LEXIS 209 (Miss. Sup. Ct. April 17, 2014): P1. Scott Smith was convicted of capital murder for the death of seventeen-month-old Ally Waldrop and sentenced to life without the possibility of parole. Smith appealed his conviction to the Court of Appeals, arguing that the trial court erred in admitting ...

Smith v. State, 2014 Miss. LEXIS 209 (Miss. Sup. Ct. April 17, 2014): P1. Scott Smith was convicted of capital murder for the death of seventeen-month-old Ally Waldrop and sentenced to life without the possibility of parole. Smith appealed his …

§ 1927 Sanctions — Attorney Who Files a Frivolous Appeal Remains Subject to Sanction under § 1927 Even If Suspended from Practice and Forced to Proceed Pro Se during Pendency of Appeal

Yan v. Fu, 2014 U.S. App. LEXIS 5062 (9th Cir. Mar. 18, 2014): Appellees filed a motion under Federal Rule of Appellate Procedure 38 and 28 U.S.C. § 1927 requesting that we impose sanctions on Yan, an attorney, for filing a frivolous appeal. We grant Appellees' motion for sanctions for filing a frivolous appeal pursuant to Rule 3 ...

Spoliation — Fifth Circuit Requires Bad Faith as Prerequisite to Adverse Inference Instruction

Clayton v. Columbia Cas. Co., 2013 U.S. App. LEXIS 23969 (5th Cir. Nov. 26, 2013): A finding of spoliation requires the "bad faith" destruction of evidence relevant to the litigation. Condrey v. SunTrust Bank of Ga., 431 F.3d 191, 203 (5th Cir. 2005) ("The Fifth Circuit permits an adver ...

Clayton v. Columbia Cas. Co., 2013 U.S. App. LEXIS 23969 (5th Cir. Nov. 26, 2013): A finding of spoliation requires the "bad faith" destruction of evidence relevant to the litigation. Condrey v. SunTrust Bank of Ga., 431 F.3d 191,…

Summary Judgment — Failure to Diligently Pursue Discovery in the Past Is a Reason to Deny Further Discovery — Noncompliance with Rule 56(d) Also Warrants Denial of Request for Further Discovery

Long v. Playboy Enters. Int’l, Inc., 2014 U.S. App. LEXIS 5483 (9th Cir. Mar. 25, 2014): Nor did the district court err in rejecting Long's request for further discovery in order to authenticate screenshots from web sites showing discriminatory pricing for the party. Long had several months to conduct further discovery b ...

RICO — Failure to Allege Racketeering Activity as Enumerated in 18 U.S.C. § 1961(1) Is Fatal to RICO Claim — List of Predicate Acts in Statute Is Exhaustive

Ghosh v. Uniti Bank, 2014 U.S. App. LEXIS 6146 (9th Cir. Mar. 31, 2014): We first address Ghosh's claims. A civil RICO plaintiff must allege a pattern of racketeering activity in order to state a claim under 18 U.S.C. § 1962. Sedima S.P.R.L. v. Imrex Co., Inc, 473 U.S. 479, 481-82 (1985). Ghosh and Investments, h ...

Judicial Notice of Geographical Internet Evidence — Travel Distances to One Address from Various Locations — Drawn from Google Maps, World Atlas.com, MapQuest, Yahoo

Va. Innovation Sci., Inc. v. Samsung Elecs. Co., Ltd., 2014 U.S. Dist. LEXIS 44758 (E.D. Va. Mar. 31, 2014): A. Defendants' Request for Judicial Notice Federal Rule of Evidence 201 "governs judicial notice of . . . adjudicative fact[s]." Fed. R. Evid. 201(a). The Court is permit ...

Va. Innovation Sci., Inc. v. Samsung Elecs. Co., Ltd., 2014 U.S. Dist. LEXIS 44758 (E.D. Va. Mar. 31, 2014): A. Defendants' Request for Judicial Notice Federal Rule of Evidence 201 "governs judicial notice of . . . adjudicative fact[s]." Fed.…

Recusal — Unhappiness with Judge’s Rulings Is Not a Basis for Recusal — Alleged Bias and Prejudice Must Stem from an Extrajudicial Source and Result in a Merits Decision on Extrajudicial Basis

Watkins v. Smith, 2014 U.S. App. LEXIS 5968 (2d Cir. April 1, 2014): As for the plaintiff's motion for recusal, the fact that Plaintiff-Appellant and Appellants were unhappy with the district court's [*3] legal rulings and other case management decisions is not a basis for recusal, and under no circumstances ...

Watkins v. Smith, 2014 U.S. App. LEXIS 5968 (2d Cir. April 1, 2014): As for the plaintiff's motion for recusal, the fact that Plaintiff-Appellant and Appellants were unhappy with the district court's [*3] legal rulings and other case management decisions …

Appealability — An Order Holding a Party in Civil Contempt Order Is Interlocutory and Not Appealable by Party Except on Final Judgment

U.S. Bank N.A. v. Gunn, 2013 U.S. App. LEXIS 26080 (3d Cir. Sept. 10, 2013): The foregoing appellees' motion to dismiss is granted and the appeal is dismissed for lack of appellate jurisdiction. Civil contempt orders are interlocutory and not immediately appealable, Cromaglass Corp. v. Ferm, 500 F.2d 601, ...

U.S. Bank N.A. v. Gunn, 2013 U.S. App. LEXIS 26080 (3d Cir. Sept. 10, 2013): The foregoing appellees' motion to dismiss is granted and the appeal is dismissed for lack of appellate jurisdiction. Civil contempt orders are interlocutory and not …

Commercial Litigation and Arbitration

Monetary Sanctions Improperly Awarded Sua Sponte under Rule 11 Affirmed under § 1927

Attorney-Client Privilege — Perlman Applies Outside of Grand Jury Context (Circuit Split) — Interlocutory Appellant Must Be a Non-Litigant — Fed.R.Evid. 410 Does Not Create a Privilege against Discovery of Plea Negotiations

Facebook Authentication — Admission Erroneous Where Foundational Testimony Failed to Tie Defendant to His Facebook Page and Messages — Circumstantial Evidence Test Applied

§ 1927 Sanctions — Attorney Who Files a Frivolous Appeal Remains Subject to Sanction under § 1927 Even If Suspended from Practice and Forced to Proceed Pro Se during Pendency of Appeal

Spoliation — Fifth Circuit Requires Bad Faith as Prerequisite to Adverse Inference Instruction

Summary Judgment — Failure to Diligently Pursue Discovery in the Past Is a Reason to Deny Further Discovery — Noncompliance with Rule 56(d) Also Warrants Denial of Request for Further Discovery

RICO — Failure to Allege Racketeering Activity as Enumerated in 18 U.S.C. § 1961(1) Is Fatal to RICO Claim — List of Predicate Acts in Statute Is Exhaustive

Judicial Notice of Geographical Internet Evidence — Travel Distances to One Address from Various Locations — Drawn from Google Maps, World Atlas.com, MapQuest, Yahoo

Recusal — Unhappiness with Judge’s Rulings Is Not a Basis for Recusal — Alleged Bias and Prejudice Must Stem from an Extrajudicial Source and Result in a Merits Decision on Extrajudicial Basis

Appealability — An Order Holding a Party in Civil Contempt Order Is Interlocutory and Not Appealable by Party Except on Final Judgment

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