Complex Lit Blog

Website Evidence: Testimony of a Witness That She Downloaded Internet Postings and Confirmed Identities of Key Posters Suffices to Authenticate Them As Posted by Relevant Persons

Rivera v. Village of Farmingdale, 2013 U.S. Dist. LEXIS 181890 (E.D.N.Y. Dec. 31, 2013): In essence, Plaintiffs claim that, in violation of the Fair Housing Act, 42 U.S.C. §§ 3601 et seq., the Village carried out a redevelopment plan for an area populated predominantly by Latinos, intending to discriminate against or, ...

Removal — Fraudulent Joinder — Settlement Communications Subject to Rule 408 May Be Considered to Determine Whether Parties Properly Joined

King v. Pfizer, Inc., 2013 U.S. Dist. LEXIS 181702 (D. Neb. Nov. 26, 2013): This matter is before the court on the plaintiffs', Cathy and Steve King (Kings), Motion to Remand (Filing No. 22). *** On September 17, 2013, the pharmaceutical defendants removed this action from the District Court of Lancaster County, Nebraska, ...

Rule 26(g) Sanctions — Is a Pro Se Litigant Who Also Represents Another Party Eligible to Receive Attorneys’ Fees as a Discovery Sanction? — “Costs” Awardable to a Pro Se Litigant

Zalaski v. City of Hartford, 2013 U.S. App. LEXIS 14898 (2d Cir. July 23, 2013): Rule 26(g)(1) of the Rules of Civil Procedure provides that all discovery responses "must be signed by" an attorney of record, or by the party personally, if unrepresented, which signature certifies the accuracy of any disclosed information &qu ...

Do the Pleading Requirements of Iqbal and Twombly Apply to Affirmative Defenses? Circuit Split

Wells v. Hi Country Auto Group, 2013 U.S. Dist. LEXIS 162731 (D.N.M. Nov. 13, 2013): The Tenth Circuit has not yet ruled on whether the Iqbal/Twombly pleading standard applies to affirmative defenses. However, other courts in this circuit, this Court included, have held that the Iqbal/Twombly pleading standard does not apply ...

Wells v. Hi Country Auto Group, 2013 U.S. Dist. LEXIS 162731 (D.N.M. Nov. 13, 2013): The Tenth Circuit has not yet ruled on whether the Iqbal/Twombly pleading standard applies to affirmative defenses. However, other courts in this circuit, this Court …

Jury Trial Waiver — Circuit Split as to Which Party Bears Burden of Proving That Waiver Was, or Was Not, Knowing and Voluntary

Avants v. Prospect Mortgage, LLC, 2013 U.S. Dist. LEXIS 177990 (D. N.M. Dec. 17, 2013): "The right of trial by jury as declared by the Seventh Amendment to the Constitution--or as provided by a federal statute--is preserved to the parties inviolate." Fed. R. Civ. P. 38. The right to a jury trial in the federal courts is gov ...

Avants v. Prospect Mortgage, LLC, 2013 U.S. Dist. LEXIS 177990 (D. N.M. Dec. 17, 2013): "The right of trial by jury as declared by the Seventh Amendment to the Constitution–or as provided by a federal statute–is preserved to the parties…

Is a Dismissal on Grounds of Judicial Estoppel Reviewed De Novo or for Abuse of Discretion? — Circuit Split — Elements of Judicial Estoppel — Application to Administrative Proceedings — Prejudice Not Essential

Lia v. Saporito, 2013 U.S. App. LEXIS 20975 (2d Cir. Oct. 17, 2013): Plaintiff Don Lia appeals from the dismissal of his claims against defendants Michael Saporito and Jesse Armstead for specific performance, declaratory judgment, breach of fiduciary duty, constructive trust, unjust enrichment, and an accounting. Plaintiff Mobile M ...

No Bad Faith Required for § 1927 Sanctions in Sixth Circuit — Test Is Whether Lawyer Knew or Should Have Known Position Was Frivolous — No Separate (or Any) Motion Required — Request in Brief for § 1927 Sanctions Suffices

Meathe v. Ret, 2013 U.S. App. LEXIS 22295 (6th Cir. Oct. 29, 2013) Plaintiff Cullan Meathe appeals the district court's grant of summary judgment in this direct shareholder suit alleging breach of fiduciary duty, breach of contract, silent fraud, civil conspiracy, and minority shareholder oppression. Meathe argues that the dist ...

The Five Most Significant Developments in Federal Practice in 2013

1. The amendments to federal subpoena practice (discussed in the article posted here). 2. The Tenth and Eleventh Circuit decisions strictly limiting the protection of the 2010 Expert Witness ...

1. The amendments to federal subpoena practice (discussed in the article posted here). 2. The Tenth and Eleventh Circuit decisions strictly limiting the protection of the 2010 Expert Witness amendments to (i) communications between lawyers and testifying experts, and…

Requirements for Case-Ending Sanctions (Fifth Circuit) — Lesser Sanctions Must Be Inadequate — Disregard of Prior Orders Shows Inadequacy, Permits Inference of Willfulness — Due Process Requirements That Sanction Be Just and Tied to Misconduct

Keybank N.A. v. Perkins Rowe Assocs., LLC, 2013 U.S. App. LEXIS 17544 (5th Cir. Aug. 21, 2013): Plaintiff-Appellee KeyBank National Association ("KeyBank") provided Defendants-Appellants, collectively referred to as "Perkins Rowe," with a loan for $170 million to construct a mixed-use development in Baton Rouge, L ...

Daubert — “It Is Not the Role of the District Court to Make Ultimate Conclusions as to … Persuasiveness” — Good Quote — Qualifications of Expert to Analyze Statistical Data to Render Opinion in Expert’s Field Is for Jury

United States v. Reddy, 2013 U.S. App. LEXIS 17018 (11th Cir. Aug. 16, 2013): It is important to note, however, that "it is not the role of the district court to make ultimate conclusions as to the persuasiveness of the proffered evidence." Quiet Tech. DC--8, Inc. v. Hurel--Dubois UK Ltd., 326 F.3d 1333, 1 ...

United States v. Reddy, 2013 U.S. App. LEXIS 17018 (11th Cir. Aug. 16, 2013): It is important to note, however, that "it is not the role of the district court to make ultimate conclusions as to the persuasiveness of the …

Commercial Litigation and Arbitration

Website Evidence: Testimony of a Witness That She Downloaded Internet Postings and Confirmed Identities of Key Posters Suffices to Authenticate Them As Posted by Relevant Persons

Removal — Fraudulent Joinder — Settlement Communications Subject to Rule 408 May Be Considered to Determine Whether Parties Properly Joined

Rule 26(g) Sanctions — Is a Pro Se Litigant Who Also Represents Another Party Eligible to Receive Attorneys’ Fees as a Discovery Sanction? — “Costs” Awardable to a Pro Se Litigant

Do the Pleading Requirements of Iqbal and Twombly Apply to Affirmative Defenses? Circuit Split

Jury Trial Waiver — Circuit Split as to Which Party Bears Burden of Proving That Waiver Was, or Was Not, Knowing and Voluntary

Is a Dismissal on Grounds of Judicial Estoppel Reviewed De Novo or for Abuse of Discretion? — Circuit Split — Elements of Judicial Estoppel — Application to Administrative Proceedings — Prejudice Not Essential

No Bad Faith Required for § 1927 Sanctions in Sixth Circuit — Test Is Whether Lawyer Knew or Should Have Known Position Was Frivolous — No Separate (or Any) Motion Required — Request in Brief for § 1927 Sanctions Suffices

The Five Most Significant Developments in Federal Practice in 2013

Requirements for Case-Ending Sanctions (Fifth Circuit) — Lesser Sanctions Must Be Inadequate — Disregard of Prior Orders Shows Inadequacy, Permits Inference of Willfulness — Due Process Requirements That Sanction Be Just and Tied to Misconduct

Daubert — “It Is Not the Role of the District Court to Make Ultimate Conclusions as to … Persuasiveness” — Good Quote — Qualifications of Expert to Analyze Statistical Data to Render Opinion in Expert’s Field Is for Jury

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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