Complex Lit Blog

Supreme Court on Personal Jurisdiction — General Jurisdiction over Foreign Corporation Exists Only If Its Affiliations with the State Are So Continuous and Systematic As to Render It “Essentially at Home in the Forum State

Daimler AG v. Bauman, 2014 U.S. LEXIS 644 (U.S. Jan. 14, 2014): This case concerns the authority of a court in the United States to entertain a claim brought by foreign plaintiffs against a foreign defendant based on events occurring entirely outside the United States. The litigation commenced in 2004, when twen ...

Personal Jurisdiction & Default Judgments — Who Bears the Burden of Proving Personal Jurisdiction on a Motion to Vacate a Default Judgment? Circuit Split

Arpaio v. Dupre, 527 F. App'x 108 (3d Cir. 2013): Footnote 4. We note the circuit split regarding which party bears the burden of proof in establishing personal jurisdiction in a motion to vacate a default judgment. Bally Exp. Corp. v. Balicar, Ltd., 804 F.2d 398, 401 (7th Cir. 1986) ("There is not agree ...

Arpaio v. Dupre, 527 F. App'x 108 (3d Cir. 2013): Footnote 4. We note the circuit split regarding which party bears the burden of proof in establishing personal jurisdiction in a motion to vacate a default judgment. Bally Exp. Corp.…

RICO — Elements of Associated-in-Fact Enterprise — Failure to Identify Common Purpose or Course of Conduct Vitiates RICO Claim for Failure to State “Ongoing Criminal Enterprise”

Crowe v. Clark, 2014 U.S. App. LEXIS 504 (10th Cir. Jan. 10, 2014): Vicki Dillard Crowe, proceeding pro se, appeals the dismissal of her civil rights complaint alleging constitutional and statutory violations stemming from the foreclosure of her Denver, Colorado home and her subsequent eviction from it. The district ...

Crowe v. Clark, 2014 U.S. App. LEXIS 504 (10th Cir. Jan. 10, 2014): Vicki Dillard Crowe, proceeding pro se, appeals the dismissal of her civil rights complaint alleging constitutional and statutory violations stemming from the foreclosure of her Denver, Colorado …

Scope and Limits of Judicial Immunity — District Court Retains Jurisdiction to Impose Sanctions after Notice of Appeal Filed — Vexatious Litigant Injunction

Rodriguez v. Doe, 2013 U.S. App. LEXIS 24613 (4th Cir. Dec. 11, 2013): "[J]udicial immunity is an immunity from suit, not just from ultimate assessment of damages." Mireles v. Waco, 502 U.S. 9, 11, 112 S.Ct. 286, 288 (1991). Judicial immunity can be overcome only where: (1) the judge engaged in ...

Rodriguez v. Doe, 2013 U.S. App. LEXIS 24613 (4th Cir. Dec. 11, 2013): "[J]udicial immunity is an immunity from suit, not just from ultimate assessment of damages." Mireles v. Waco, 502 U.S. 9, 11, 112 S.Ct. 286, 288 (1991). Judicial …

Email May Constitute “Signed Writing” within Statute of Frauds

Warshaw Burstein Cohen Schlesinger & Kuh, LLP v. Birnbaum, 2011 N.Y. Misc. LEXIS 6836 (Sup. Ct. N.Y. Cnty. May 5, 2011): In this action to recover for attorneys' fees allegedly due and owing, defendants Arthur ("Mr. Birnbaum") and Beth Birnbaum ("Mrs. Birnbaum") (collectively, "defendant ...

Warshaw Burstein Cohen Schlesinger & Kuh, LLP v. Birnbaum, 2011 N.Y. Misc. LEXIS 6836 (Sup. Ct. N.Y. Cnty. May 5, 2011): In this action to recover for attorneys' fees allegedly due and owing, defendants Arthur ("Mr. Birnbaum") and Beth Birnbaum…

Good Samaritan Doctrine — Rescuers Are Liable Only If They Fail to Exercise Reasonable Care in a Way That Worsens the Position of the Victim, Either by Increasing the Risk or Inducing Reliance, by the Victim or Other Rescuers

Turner v. United States, 2013 U.S. App. LEXIS 23349 (4th Cir. Nov. 20, 2013): The USCG's [U.S. Coast Guard’s] enabling statute, 14 U.S.C. § 88, authorizes the USCG to undertake rescue efforts, but does not impose any affirmative duty to commence such rescue operations. See Hurd v. United States, 34 F. App'x 77, 81 (4th Cir ...

RICO v. Art. III Standing—Paper Filed with No Inquiry May Not Be Sanctionable If Facts Prove True and Filer Prevails — Lengthy Investigation Satisfies Rule 11 Even If It Turns Up Little — Staying Rule 11 Motion Pending State Remand

Fiala v. B&B Enters., 2013 U.S. App. LEXIS 25705 (7th Cir. Dec. 26, 2013): This appeal arises out of a RICO class action suit that the district judge dismissed without deciding whether to certify it as a class action. The appeal is from the judge's denial of the defendants' application for an award of their attorneys' fee ...

Impact of Including in a Rule 56.1 Statement of Uncontested Facts a Reservation of Rights to Contest Issues at Trial Not Disputed on Summary Judgment

Berbick v. Precinct 42, 2013 U.S. Dist. LEXIS 143955 (S.D.N.Y. Sept. 27, 2013): 2. The Rule 56.1 Statement Footnote A Rule 56.1 statement is "a short and concise statement . . . of the material facts as to which the moving party contends there is no genuine issue to be tried." Local R. Civ. P. 56.1( ...

Berbick v. Precinct 42, 2013 U.S. Dist. LEXIS 143955 (S.D.N.Y. Sept. 27, 2013): 2. The Rule 56.1 Statement Footnote A Rule 56.1 statement is "a short and concise statement . . . of the material facts as to which the…

Texts — Authentication Standards for Text Messages = Same as for Emails — Testimony from Memory of One Party, Refreshed by Looking at Own Cell Phone, Suffices — Others’ Access to Phone Goes to Weight

State v. Elseman, 287 Neb. 134 (2014): Ryan M. Elseman appeals his convictions in the district court for Douglas County of first degree murder and use of a deadly weapon to commit a felony. Elseman claims that the court erroneously admitted evidence regarding the content of certain text messages.*** The Content of ...

Unconscionability of Arbitration Clause — Like Arbitrability Generally — Is Issue for Court, Even If Other Portions of Contract Are Also Challenged, As Long As Crux of Complaint Is Not Challenge to Contract As a Whole

Smith v. JEM Grp., 737 F.3d 636 (9th Cir. 2013): JEM argues that an arbitrator, rather than the district court, should have determined whether the arbitration clause is unconscionable. JEM argues under Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S. Ct. 1204, 163 L. Ed. 2d 1038 (2006), and Na ...

Commercial Litigation and Arbitration

Supreme Court on Personal Jurisdiction — General Jurisdiction over Foreign Corporation Exists Only If Its Affiliations with the State Are So Continuous and Systematic As to Render It “Essentially at Home in the Forum State

Personal Jurisdiction & Default Judgments — Who Bears the Burden of Proving Personal Jurisdiction on a Motion to Vacate a Default Judgment? Circuit Split

RICO — Elements of Associated-in-Fact Enterprise — Failure to Identify Common Purpose or Course of Conduct Vitiates RICO Claim for Failure to State “Ongoing Criminal Enterprise”

Scope and Limits of Judicial Immunity — District Court Retains Jurisdiction to Impose Sanctions after Notice of Appeal Filed — Vexatious Litigant Injunction

Email May Constitute “Signed Writing” within Statute of Frauds

Good Samaritan Doctrine — Rescuers Are Liable Only If They Fail to Exercise Reasonable Care in a Way That Worsens the Position of the Victim, Either by Increasing the Risk or Inducing Reliance, by the Victim or Other Rescuers

RICO v. Art. III Standing—Paper Filed with No Inquiry May Not Be Sanctionable If Facts Prove True and Filer Prevails — Lengthy Investigation Satisfies Rule 11 Even If It Turns Up Little — Staying Rule 11 Motion Pending State Remand

Impact of Including in a Rule 56.1 Statement of Uncontested Facts a Reservation of Rights to Contest Issues at Trial Not Disputed on Summary Judgment

Texts — Authentication Standards for Text Messages = Same as for Emails — Testimony from Memory of One Party, Refreshed by Looking at Own Cell Phone, Suffices — Others’ Access to Phone Goes to Weight

Unconscionability of Arbitration Clause — Like Arbitrability Generally — Is Issue for Court, Even If Other Portions of Contract Are Also Challenged, As Long As Crux of Complaint Is Not Challenge to Contract As a Whole

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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