Complex Lit Blog

§ 1927 Sanctions Are Imposable for, But Not Limited to, Dilatory Conduct

B. Willis CPA, Inc. v. Public Serv. Co. of Okla., 511 F. App'x 753 (10th Cir. 2013): Under a heading titled "The District Court Lacked Jurisdiction To Consider a Motion For Sanctions," Aplt. Opening Br. at 17, Mr. Dickson makes several arguments. First, he argues that "Section 1927 targets the vexatious and unreaso ...

Does a Complete Offer of Settlement Made Prior to Class Certification Moot a Class Action? — Circuit Split — Impact of Genesis — District Court Decision Not Binding on Other District Courts

Kensington Physical Therapy, Inc. v. Jackson Therapy Partners, LLC, 2013 U.S. Dist. LEXIS 142527 (D. Md. Oct. 2, 2013): Plaintiff Kensington Physical Therapy, Inc. ("Plaintiff") brings this action against Defendant Jackson Therapy Partners, LLC ("Defendant"). Plaintiff asserts a putative class action claim under the Telepho ...

Rule 11 Sanctions Not Intended to Deter Novel or First Impression Arguments (Good Quote) — Local Counsel Allocated 25% of Penalty for Signing Frivolous Pleading — Acrimony as Requiring Greater Factual Inquiry

Walther v. McIntosh, 2013 U.S. Dist. LEXIS 144730 (M.D. Fla. Oct. 4, 2013): Dorothy B. Walther is the income beneficiary of the James Walther Revocable Life Insurance Trust. (Doc. 5, ¶ 14.) Howard Walther, her son, is a contingent remainderman beneficiary of the Trust. (Id.) These Plaintiffs brought suit in ...

Walther v. McIntosh, 2013 U.S. Dist. LEXIS 144730 (M.D. Fla. Oct. 4, 2013): Dorothy B. Walther is the income beneficiary of the James Walther Revocable Life Insurance Trust. (Doc. 5, ¶ 14.) Howard Walther, her son, is a contingent remainderman …

Experts — The Helpfulness Threshold of Rule 702 Is Low — The District Court, Not the Court of Appeals, Is the Primary Gatekeeper

EEOC v. Boh Bros. Constr. Co., LLC, 2013 U.S. App. LEXIS 19867 (5th Cir. Sept. 27, 2013): Footnote 14. The EEOC presented testimony by Dr. Liza Gold--a medical-school professor, board-certified psychiatrist, and author of a treatise on sexual harassment--regarding the nature of same-sex harassment from a psychological perspective ...

EEOC v. Boh Bros. Constr. Co., LLC, 2013 U.S. App. LEXIS 19867 (5th Cir. Sept. 27, 2013): Footnote 14. The EEOC presented testimony by Dr. Liza Gold–a medical-school professor, board-certified psychiatrist, and author of a treatise on sexual harassment–regarding the…

Applicability of Daubert at Class Certification — Circuit Split — Dicta of the Supreme Court “Should Be Very Persuasive” (Good Quote)

Moore v. Napolitano, 926 F. Supp. 2d 8 (D.D.C. 2013): Footnote 2. In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2553-54, 180 L. Ed. 2d 374 (2011), the Supreme Court suggested that a court should probably determine whether expert testimony is admissible under Rule 702 and Daubert at the cla ...

Appellate Review Is Waived as to Any Non-Dispositive Magistrate Judge Order Not Timely Objected to before District Court

Seto v. Thielen, 519 Fed. Appx. 966; 2013 U.S. App. LEXIS 3953 (9th Cir. 2013): A motion for leave to amend is a nondispositive motion which a magistrate judge may properly decide. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); U.S. Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099, 1102 & n.1 (9th Cir. 1985), supers ...

Class Actions — Adequacy of Representation Must Be Judge Independently of Fairness of Settlement — Utility of Subclasses — Civil RICO Liability Is Based on Predicate Criminal Conduct, Requires Conscious Wrongdoing

Charron v. Wiener, 2013 U.S. App. LEXIS 19977 (2d Cir. Sept. 30, 2012): B. Adequacy of Representation Federal Rule of Civil Procedure 23(a)(4) requires that in a class action, "the interests of the class" must be "fairly and adequately protect[ed]." Fed. R. Civ. P. 23(a)(4). To ensure that ...

Charron v. Wiener, 2013 U.S. App. LEXIS 19977 (2d Cir. Sept. 30, 2012): B. Adequacy of Representation Federal Rule of Civil Procedure 23(a)(4) requires that in a class action, "the interests of the class" must be "fairly and adequately protect[ed]."…

§ 1927 Sanctions: A case may be weak, but as long as it is not without circumstantial foundation, it is not frivolous (Good Quote)

Barnhart v. Lamar Advertising Co., 2013 U.S. App. LEXIS 14174 911th Cir. July 15, 2013): Section 1927 provides, in relevant part, that "[a]ny attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' ...

“Exceptional Circumstances” Relieving a Law Firm of Rule 11 Liability for Misconduct of Its Lawyers — Good Quotes

Catton v. Defense Tech. Sys. Inc., 2013 U.S. App. LEXIS 19771 (2d Cir. Sept. 27, 2013): Todtman, Nachamie, Spizz & Johns, P.C. ("Todtman") and John Brady both appeal from the February 29, 2012, and August 2, 2012, orders issued by the United States District Court for the Southern District of New York (Zilly, J.) imposing sa ...

After All Federal Claims Dismissed, District Court May Exercise Supplemental Jurisdiction over State Law Claims, As to Which There Is No Independent Federal Jurisdiction, Where to Do So Would Promote Judicial Economy

Hinterberger v. Kaleida Health, 2013 U.S. App. LEXIS 17469 (2d Cir. Aug. 21, 2013): The employees argue that once the district court dismissed their RICO claim, it should have declined to exercise supplemental jurisdiction over their remaining claims. We disagree. The Supreme Court has made it abundantly clear--in a case that ...

Commercial Litigation and Arbitration

§ 1927 Sanctions Are Imposable for, But Not Limited to, Dilatory Conduct

Does a Complete Offer of Settlement Made Prior to Class Certification Moot a Class Action? — Circuit Split — Impact of Genesis — District Court Decision Not Binding on Other District Courts

Rule 11 Sanctions Not Intended to Deter Novel or First Impression Arguments (Good Quote) — Local Counsel Allocated 25% of Penalty for Signing Frivolous Pleading — Acrimony as Requiring Greater Factual Inquiry

Experts — The Helpfulness Threshold of Rule 702 Is Low — The District Court, Not the Court of Appeals, Is the Primary Gatekeeper

Applicability of Daubert at Class Certification — Circuit Split — Dicta of the Supreme Court “Should Be Very Persuasive” (Good Quote)

Appellate Review Is Waived as to Any Non-Dispositive Magistrate Judge Order Not Timely Objected to before District Court

Class Actions — Adequacy of Representation Must Be Judge Independently of Fairness of Settlement — Utility of Subclasses — Civil RICO Liability Is Based on Predicate Criminal Conduct, Requires Conscious Wrongdoing

§ 1927 Sanctions: A case may be weak, but as long as it is not without circumstantial foundation, it is not frivolous (Good Quote)

“Exceptional Circumstances” Relieving a Law Firm of Rule 11 Liability for Misconduct of Its Lawyers — Good Quotes

After All Federal Claims Dismissed, District Court May Exercise Supplemental Jurisdiction over State Law Claims, As to Which There Is No Independent Federal Jurisdiction, Where to Do So Would Promote Judicial Economy

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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