Complex Lit Blog

Claim Supported Only by Conclusory Assertions Inadequate to Prevent Entry of Summary Judgment

Jaso v. Coca Cola Co., 2013 U.S. App. LEXIS 16026 (5th Cir. Aug. 2, 2013): Appellant Omar Jaso appeals from the district court's summary judgment in favor of the defendants on his complaint for alleged copyright infringement, RICO violations, and Lanham Act violations. Jaso contends that he holds a Mexican copyright in a song ent ...

Does Rule 15(b) (Constructive Amendment of Pleadings at Trial with Permission or on Consent) Apply at Summary Judgment? Is That Rule the Last Word on Whether Issues Not Pled Can Be Litigated on Summary Judgment? Circuit Split

Tank v. Burlington Res. Oil & Gas Co., 2013 U.S. Dist. LEXIS 166382 (D.N.D. Nov. 22, 2013): But, even if the Amended Complaint did not include an alternative request for payment of royalty and penalty interest for the Lassen Well, defendants have argued from the outset that this was the more appropriate remedy over lease cancellation ...

Disqualification — Neither a Court’s Decision to Disqualify Counsel Nor Its Refusal to Do So Is an Appealable Final Order — Nor Is a Bankruptcy Judge’s Decision to Appoint Counsel, Or Not to Do So

In re Danner (Danner v. U.S. Trustee), 2013 U.S. App. LEXIS 24798 (9th Cir. Dec. 13, 2013): The debtors in separate bankruptcy proceedings appeal decisions of the bankruptcy appellate panel affirming orders of the bankruptcy court, which denied a law firm's applications to serve as counsel to the debtors. Becaus ...

In re Danner (Danner v. U.S. Trustee), 2013 U.S. App. LEXIS 24798 (9th Cir. Dec. 13, 2013): The debtors in separate bankruptcy proceedings appeal decisions of the bankruptcy appellate panel affirming orders of the bankruptcy court, which denied a law …

Experts, Privilege & Work Product — Testifying Expert’s Notes and Emails with Other Experts and Corporate Employee Not Protected by 2010 Expert Witness Amendments — Good Quotes on Statutory Interpretation — Eleventh Circuit

Republic of Ecuador v. Hinchee, 2013 U.S. App. LEXIS 25102 (11th Cir. Dec. 18, 2013) (note: this appeal affirms the decision excerpted in our posting of January 4, 2013): Respondent-Appellant Dr. Robert Hinchee ("Dr. Hinchee"), who resides in Florida, and Intervenor-Appellant Chevron Corporation ("Chevron&qu ...

“Terrorism Is the Modern-Day Equivalent of the Bubonic Plague: It Is an Existential Threat” — Good Quote

United States v. Mehanna, 2013 U.S. App. LEXIS 22893 (1st Cir. Nov. 13, 2013): “Terrorism is the modern-day equivalent of the bubonic plague: it is an existential threat.” ...

United States v. Mehanna, 2013 U.S. App. LEXIS 22893 (1st Cir. Nov. 13, 2013): “Terrorism is the modern-day equivalent of the bubonic plague: it is an existential threat.”

Reassignment of Case to Different Judge — Disagreement with Adverse Rulings ≠ Reason to Doubt Impartiality of District Judge or to Reassign Case — Good Quote — Recusal Not Sought — Obtaining Extension ≠ 1927 Violation

United States v. Gregory, 2013 U.S. App. LEXIS 24300 (11th Cir. Dec. 6 2013): Gregory moves for sanctions against counsel for the government and for reassignment of his case to a different judge on remand, but his motions lack merit. Gregory requests that we impose sanctions against opposing counsel for obtaining an extension of ti ...

In Predicting How State Court Would Decide Issue of First Impression, Federal Court Sitting in Diversity May Be Aided by Looking to Well-Reasoned Decisions from Other Jurisdictions — Learned Intermediary Doctrine — Erie

Saavedra v. Eli Lilly & Co., 2013 U.S. Dist. LEXIS 173055 (C.D. Cal. Feb. 26, 2013): The learned intermediary doctrine provides that a drug manufacturer has no duty to warn the ultimate consumer of potential side-effects of prescription medication, so long as adequate warnings are given to the prescribing physician. *** In tra ...

Email Summarizing Conference Call with 3d Party = Business Record — Regional Disapproval of Local Project = Verbal Act and Is Admissible for Impact on Locality and under Residual Exception — Handwritten Notes of Call = Present Sense Impression

Orix Public Fin., LLC v. Lake Cnty., MN, 2013 U.S. Dist. LEXIS 171547 (D. Minn. Dec. 5, 2013): In 2009, Defendant Lake County, Minnesota ("Lake County" or "the County") learned that it was eligible to participate in a federal loan and grant program that provides funding for the construction of broadband cable serv ...

Motion for Leave to Amend Complaint after Adverse Judgment Not Decided under Liberal Standards of Rule 15 But Stricter Requirements of Rule 59 or 60

C & L Ward Bros. Co. v. Outsource Solutions, Inc., 2013 U.S. App. LEXIS 24468 (6th Cir. Dec. 3, 2013): I. MOTION FOR LEAVE TO AMEND THE COMPLAINT Ward claims that the district court should have granted its motion to amend the complaint brought in its Motion for Post-Judgment Relief, due to the liberal standar ...

C & L Ward Bros. Co. v. Outsource Solutions, Inc., 2013 U.S. App. LEXIS 24468 (6th Cir. Dec. 3, 2013): I. MOTION FOR LEAVE TO AMEND THE COMPLAINT Ward claims that the district court should have granted its motion to…

Spoliation — Destruction of One of Many Identical, Allegedly Infringing Machines after Adverse Party Has Examined It Causes No Prejudice and Does Not Constitute Actionable Spoliation

Vistan Corp. v. Fadei USA, Inc., 2013 U.S. App. LEXIS 24005 (Fed. Cir. Dec. 3, 2013): Appellant Vistan Corporation is the owner U.S. Patent No. 5,870,949 ("the '949 patent"), which is directed to an apparatus for pitting soft fruit, such as prunes and dates. Claims 5 and 12, the claims at issue in this case, recite a ...

Commercial Litigation and Arbitration

Claim Supported Only by Conclusory Assertions Inadequate to Prevent Entry of Summary Judgment

Does Rule 15(b) (Constructive Amendment of Pleadings at Trial with Permission or on Consent) Apply at Summary Judgment? Is That Rule the Last Word on Whether Issues Not Pled Can Be Litigated on Summary Judgment? Circuit Split

Disqualification — Neither a Court’s Decision to Disqualify Counsel Nor Its Refusal to Do So Is an Appealable Final Order — Nor Is a Bankruptcy Judge’s Decision to Appoint Counsel, Or Not to Do So

Experts, Privilege & Work Product — Testifying Expert’s Notes and Emails with Other Experts and Corporate Employee Not Protected by 2010 Expert Witness Amendments — Good Quotes on Statutory Interpretation — Eleventh Circuit

“Terrorism Is the Modern-Day Equivalent of the Bubonic Plague: It Is an Existential Threat” — Good Quote

Reassignment of Case to Different Judge — Disagreement with Adverse Rulings ≠ Reason to Doubt Impartiality of District Judge or to Reassign Case — Good Quote — Recusal Not Sought — Obtaining Extension ≠ 1927 Violation

In Predicting How State Court Would Decide Issue of First Impression, Federal Court Sitting in Diversity May Be Aided by Looking to Well-Reasoned Decisions from Other Jurisdictions — Learned Intermediary Doctrine — Erie

Email Summarizing Conference Call with 3d Party = Business Record — Regional Disapproval of Local Project = Verbal Act and Is Admissible for Impact on Locality and under Residual Exception — Handwritten Notes of Call = Present Sense Impression

Motion for Leave to Amend Complaint after Adverse Judgment Not Decided under Liberal Standards of Rule 15 But Stricter Requirements of Rule 59 or 60

Spoliation — Destruction of One of Many Identical, Allegedly Infringing Machines after Adverse Party Has Examined It Causes No Prejudice and Does Not Constitute Actionable Spoliation

Recent Posts

RICO Statute of Limitations — Storm Warnings, Not Thunder and Lightning (Good Quote)

Rule 37 Discovery Sanctions: Ninth Circuit’s Five-Factor Test for Gauging Appropriateness of Dismissal — The Limited Utility of Rule 12(f) Motions to Strike

Inherent Power Sanction of Dismissal — Preponderance of the Evidence Burden of Proof, Not Clear and Convincing Evidence (7th Circuit)

§ 1927 Sanctions — Must A Lawyer Who Unreasonably and Vexatiously Multiplies Federal Court Proceedings Be Acting “As An Attorney” When Committing the Misconduct To Be Subject to Sanction under § 1927?

Rule 37 Sanctions — Unfamiliarity With Litigation Process Does Not Excuse Intentional Disregard of Court Order — Also Affirming Rule 26(g) Sanctions on Clients and Counsel for False Representations That All Responsive Documents Had Been Produced

Supreme Court: Notice of Appeal Filed After The Original Deadline But Before Reopening by The District Court Is Timely — It Relates Forward to The Date of The Order Making The Appeal Possible — Second Notice of Appeal After Reopening Unnecessary

Rule 37 Default Judgment: Second Circuit’s Four-Factor Test for Imposing Defaults and Three-Factor Test for Lifting Them

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