Complex Lit Blog

Experts & Work Product — Materials Provided to Reporting Expert by Anyone Other than Counsel or Client Are Unprotected

United States v. Veolia Environnement N.A. Operations, Inc., 2013 U.S. Dist. LEXIS 153245 (D. Del. Oct. 25, 2013): II. Materials Relied On By Experts The parties dispute whether certain materials pertaining to the creation of the appraisal reports by XRoads and Duff & Phelps must be disclosed by the T ...

United States v. Veolia Environnement N.A. Operations, Inc., 2013 U.S. Dist. LEXIS 153245 (D. Del. Oct. 25, 2013): II. Materials Relied On By Experts The parties dispute whether certain materials pertaining to the creation of the appraisal reports by XRoads …

Judicial Notice of Non-Governmental Websites — Procedure — Judicial Notice of Fact That Assertions Are Made vs. Judicial Notice of Content of Those Assertions — Right to Be Heard

United States v. Kane, 2013 U.S. Dist. LEXIS 154248 (D. Nev. Oct. 28, 2013): Before the court is Defendant Steven Carr's motion to dismiss the Government's indictment for lack of jurisdiction (#60). *** This matter involves the alleged extortion and beating of L.T. (hereinafter "the victim") and the prosecuti ...

Judicial Notice of Reliability of GPS Evidence — Foundational Testimony from Company Representative — Corroborating Evidence — Tracking Reports as Business Records

United States v. Brooks, 715 F.3d 1069 (8th Cir. 2013): This case arises out of Robin Brooks's conviction for offenses related to a bank robbery in Des Moines, Iowa.*** On May 13, 2011, a man entered the Tradesman Community Credit Union in Des Moines, Iowa, approached the teller, and handed her a note stating that he had a ...

Should a Litigation That Is Referred to Arbitration Be Stayed or Dismissed under the Federal Arbitration Act? Circuit Split

Bookins v. Superior Mgmt. Grp., Inc., 2013 U.S. Dist. LEXIS 154629 (D. Kan. Oct. 29, 2013): The final issue to decide is whether to stay the proceedings or dismiss Brookins' lawsuit. Superior contends that the lawsuit should be dismissed because all the issues raised must be submitted to arbitration, citing to appellate cases f ...

Absolute Prosecutorial Immunity Does Not Extend to Civil RICO Suit Filed by County Prosecutors Essentially Enjoying No Status Different from Private Lawyers Filing Such Suits

Stapley v. Pestalozzi, 2013 U.S. App. LEXIS 17044 (9th Cir. Aug. 16, 2013): Former prosecutors Andrew Thomas and Lisa Aubuchon, and their spouses, ("Defendants") appeal the district court's partial denial of their motions to dismiss. Former Maricopa County Board of Supervisors member Donald T. Stapley, Jr. and his spous ...

Experts — Method of Gatekeeping Is Discretionary But Court Must Apply Daubert – Inadmissibility of Certain Hedonic and Credit Expectancy Damages

Smith v. Dorchester Real Estate, Inc., 2013 U.S. App. LEXIS 20785 (1st Cir. Oct. 15, 2013): This case arises out of a fraudulent real estate mortgage scheme that involved inducing a schizophrenic trash collector into acting as a straw buyer for two overvalued residential properties in Massachusetts. That person, Robert Smith, sued var ...

Requirements for Case-Ending Sanctions (Seventh Circuit) — Finding of Bad Faith May Be Implicit — No Need for Lesser Sanctions First — Meaning of “Abuse of Discretion” — Failure to Develop Argument on Appeal Waives It

Wellness Int’l Network, Ltd. v. Sharif, 2013 U.S. App. LEXIS 17553 (7th Cir. Aug. 21, 2013): Sharif challenges the district court's affirmance of both the default judgment and the award of attorney's fees to WIN as discovery sanctions, see Fed. R. Civ. P. 37(b); see also Fed. R. Bankr. P. 7037 (rendering Fed. R. Civ. P. 37 ...

Rule 11 Sanctions Apt for Failing to Dismiss Claim after Becoming Aware They Lack Merit

Baker v. Chevron USA Inc., 2013 U.S. App. LEXIS 16219 (6th Cir. Aug. 2, 2013): Rule 11 sanctions are appropriate when an attorney refuses to dismiss a claim after becoming aware that it lacks merit. See Merritt, 613 F.3d at 627 ("Rule 11 imposes a continual obligation on attorneys to refrain from pursing meritl ...

Baker v. Chevron USA Inc., 2013 U.S. App. LEXIS 16219 (6th Cir. Aug. 2, 2013): Rule 11 sanctions are appropriate when an attorney refuses to dismiss a claim after becoming aware that it lacks merit. See Merritt, 613 F.3d at…

Arbitration — Fourth Circuit Vacates Award for “Manifest Disregard of the Law,” Recognizing Circuit Split as to Whether That Ground Is Viable after Hall Street — FAA Trumps State Arbitration Law in Any Dispute “Involving Commerce”

Kiran M. Dewan, CPA, PA v. Walia, 2013 U.S. App. LEXIS 21970 (4th Cir. Oct. 28, 2013): Kiran Dewan and his close corporation, Kiran M. Dewan, CPA, P.A. ("the Company") (collectively, "Appellants"), appeal from the district court's confirmation of an arbitral award in favor of the Company's former employe ...

With Rare Exception, District Court Has No Duty to Consider a Potential Statute of Limitations Defense Sua Sponte — District Court Has Broad Discretion to Interpret Its Local Rules

O'Connell v. Fernandez-Pol, 2013 U.S. App. LEXIS 19964 (9th Cir. Sept. 30, 2013): Defendant Dr. Jose Fernandez-Pol ("Dr. Pol") appeals the district court's order granting Plaintiffs' motion for judgment on the pleadings after the district court struck Dr. Pol's answer as a discovery sanction under Federal ...

Commercial Litigation and Arbitration

Experts & Work Product — Materials Provided to Reporting Expert by Anyone Other than Counsel or Client Are Unprotected

Judicial Notice of Non-Governmental Websites — Procedure — Judicial Notice of Fact That Assertions Are Made vs. Judicial Notice of Content of Those Assertions — Right to Be Heard

Judicial Notice of Reliability of GPS Evidence — Foundational Testimony from Company Representative — Corroborating Evidence — Tracking Reports as Business Records

Should a Litigation That Is Referred to Arbitration Be Stayed or Dismissed under the Federal Arbitration Act? Circuit Split

Absolute Prosecutorial Immunity Does Not Extend to Civil RICO Suit Filed by County Prosecutors Essentially Enjoying No Status Different from Private Lawyers Filing Such Suits

Experts — Method of Gatekeeping Is Discretionary But Court Must Apply Daubert – Inadmissibility of Certain Hedonic and Credit Expectancy Damages

Requirements for Case-Ending Sanctions (Seventh Circuit) — Finding of Bad Faith May Be Implicit — No Need for Lesser Sanctions First — Meaning of “Abuse of Discretion” — Failure to Develop Argument on Appeal Waives It

Rule 11 Sanctions Apt for Failing to Dismiss Claim after Becoming Aware They Lack Merit

Arbitration — Fourth Circuit Vacates Award for “Manifest Disregard of the Law,” Recognizing Circuit Split as to Whether That Ground Is Viable after Hall Street — FAA Trumps State Arbitration Law in Any Dispute “Involving Commerce”

With Rare Exception, District Court Has No Duty to Consider a Potential Statute of Limitations Defense Sua Sponte — District Court Has Broad Discretion to Interpret Its Local Rules

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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