Complex Lit Blog

Rule 19(b) — Indispensability of Necessary Party — Circuit Split over Standard of Appellate Review: Abuse of Discretion vs. De Novo

Marvel Characters, Inc. v. Kirby, 2013 U.S. App. LEXIS 16396 (2d Cir. Aug. 8, 2013): A. Federal Rule of Civil Procedure 19 Rule 19 recognizes exceptional circumstances in which the plaintiff's choice of parties or forum must give way because of an absent party's interest in the outcome of the action or involvement in t ...

Marvel Characters, Inc. v. Kirby, 2013 U.S. App. LEXIS 16396 (2d Cir. Aug. 8, 2013): A. Federal Rule of Civil Procedure 19 Rule 19 recognizes exceptional circumstances in which the plaintiff’s choice of parties or forum must give way because…

Injunctions and Circuit Splits — Federal Court Should Not Issue Nationwide Injunction Where One Would Not Issue under the Law of Another Circuit

Fox TV Stations, Inc. v. BarryDriller Content Sys., PLC, 915 F. Supp. 2d 1138 (C.D. Cal. 2012): B. Geographical Reach of Injunction Where Circuit Split Present Courts should not issue nationwide injunctions where the injunction would not issue under the law of another circuit. Principles of comity ...

Discovery Sanctions — Rule 37 — Meaning of “Substantially Justified” — Requirements for Civil Contempt and Adverse Factual Determinations — Court May Not Sanction Foreign Instrumentality for Violations Committed by Its Sovereign

Thai Lao Lignite (Thailand) Co., Ltd. v. Gov’t of Lao People’s Democratic Republic, 2013 U.S. Dist. LEXIS 110353 (S.D.N.Y. Aug. 2, 2013): On August 5, 2011, this Court entered a judgment in favor of Thai-Lao Lignite (Thailand) Co., Ltd. and Hongsa Lignite (Lao PDR) Co., Ltd. (collectively, "Petitioners"), enforcing a $56 million arb ...

Arbitration Panel’s Award of Interest on One Part of Award Does Not Foreclose District Court from Awarding Interest on Other Parts as to Which Award Is Silent

Lagstein v. Certain Underwriters at Lloyd’s, 2013 U.S. App. LEXIS 16114 (9th Cir. Aug. 5, 2013): After undergoing major heart surgery in 2001, Dr. Zev Lagstein, a nuclear cardiologist, made a claim on a disability insurance policy he had purchased from Certain Underwriters at Lloyd's of London. Lloyd's pussyfooted for years only to ev ...

Unavailability of Designated Arbitral Forum Does Not Preclude Judicial Appointment of Substitute Forum — Apparent Caselaw Split as to Whether Designation of Forum Is “Integral” to Agreement to Arbitrate May Be Short-Lived

Green v. U.S. Cash Advance Ill., LLC, 2013 U.S. App. LEXIS 15565 (7th Cir. July 30, 2013): Joyce Green contends that U.S. Cash Advance, from which she borrowed money, misstated the loan's annual percentage rate and so violated the Truth in Lending Act, 15 U.S.C. §1606. The lender asked the district judge to stay the litigation and dire ...

Green v. U.S. Cash Advance Ill., LLC, 2013 U.S. App. LEXIS 15565 (7th Cir. July 30, 2013): Joyce Green contends that U.S. Cash Advance, from which she borrowed money, misstated the loan’s annual percentage rate and so violated the Truth…

Rule 11 and § 1927 Sanctions Reversed Because Appellate Court Finds Position Deemed “Frivolous” by District Court to be “Substantial” and Potentially Meritorious

Leveski v. ITT Educ. Servs., Inc., 2013 U.S. App. LEXIS 13722 (7th Cir. July 8, 2013): Given our finding that Leveski's allegations are sufficiently distinguishable from Graves--not to mention our finding that she has direct and independent knowledge of her allegations--our sanctions analysis becomes quite easy. The district judge s ...

Leveski v. ITT Educ. Servs., Inc., 2013 U.S. App. LEXIS 13722 (7th Cir. July 8, 2013): Given our finding that Leveski’s allegations are sufficiently distinguishable from Graves–not to mention our finding that she has direct and independent knowledge of her…

Arbitration — Order Compelling Arbitration and Administratively Closing, But Not Dismissing, Action Is Appealable As a “Final Decision” within FAA § 16(a)(3)

Montero v. Carnival Corp., 2013 U.S. App. LEXIS 14141 (11th Cir. July 12, 2013): As an initial matter, Carnival contends that we lack jurisdiction because the district court's order compelling arbitration was a non-appealable interlocutory order, instead of an appealable final decision, because it did not dismiss Montero's claims. A ...

Montero v. Carnival Corp., 2013 U.S. App. LEXIS 14141 (11th Cir. July 12, 2013): As an initial matter, Carnival contends that we lack jurisdiction because the district court’s order compelling arbitration was a non-appealable interlocutory order, instead of an appealable…

Failure to Identify Sanctioned Counsel as Appellant Forgiven Where Intent of Appeal Obvious and No Prejudice Shown — Aspects of Appeal Waived for Failure to Develop Arguments in Brief

Olson v. Bank of America, N.A., 2013 U.S. App. LEXIS 13289 (8th Cir. June 28, 2013): Attorney William Butler appeals from the district court's order imposing sanctions against him under Federal Rule of Civil Procedure 11. We affirm. Footnote 2. Although the Appellees make no mention of it, we note that neit ...

Olson v. Bank of America, N.A., 2013 U.S. App. LEXIS 13289 (8th Cir. June 28, 2013): Attorney William Butler appeals from the district court’s order imposing sanctions against him under Federal Rule of Civil Procedure 11. We affirm. Footnote 2.…

May the District Court Consider New Evidence when Reviewing De Novo a Magistrate Judge’s Findings and Recommendation? — Circuit Split — Even If It May, Doing So Is Discretionary

B&K Livestock Auction, Inc. v. Or. Dep’t of Envtl. Quality, 2013 U.S. Dist. LEXIS 107254 (D. Or. July 31, 2013): Plaintiff raised new arguments in its objections to the Findings and Recommendation. Defendants argue that this Court should exercise its discretion and decline to consider Plaintiff's new arguments. The Magistrate's Act ...

Electronic Discovery — Almost No ESI-Related Costs Are Recoverable as “Costs” under 28 U.S.C. § 1920 — Meaning of “Making Copies” and “Exemplification”

Country Vintner of NC, LLC v. E & J Gallo Winery, Inc., 718 F.3d 249 (4th Cir. 2013): In this case we clarify what expenses related to electronically stored information ("ESI") are taxable under the federal taxation-of-costs statute as "[f]ees for exemplification and the costs of making copies of any materials where the copies are neces ...

Country Vintner of NC, LLC v. E & J Gallo Winery, Inc., 718 F.3d 249 (4th Cir. 2013): In this case we clarify what expenses related to electronically stored information (“ESI”) are taxable under the federal taxation-of-costs statute as “[f]ees…

Commercial Litigation and Arbitration

Rule 19(b) — Indispensability of Necessary Party — Circuit Split over Standard of Appellate Review: Abuse of Discretion vs. De Novo

Injunctions and Circuit Splits — Federal Court Should Not Issue Nationwide Injunction Where One Would Not Issue under the Law of Another Circuit

Discovery Sanctions — Rule 37 — Meaning of “Substantially Justified” — Requirements for Civil Contempt and Adverse Factual Determinations — Court May Not Sanction Foreign Instrumentality for Violations Committed by Its Sovereign

Arbitration Panel’s Award of Interest on One Part of Award Does Not Foreclose District Court from Awarding Interest on Other Parts as to Which Award Is Silent

Unavailability of Designated Arbitral Forum Does Not Preclude Judicial Appointment of Substitute Forum — Apparent Caselaw Split as to Whether Designation of Forum Is “Integral” to Agreement to Arbitrate May Be Short-Lived

Rule 11 and § 1927 Sanctions Reversed Because Appellate Court Finds Position Deemed “Frivolous” by District Court to be “Substantial” and Potentially Meritorious

Arbitration — Order Compelling Arbitration and Administratively Closing, But Not Dismissing, Action Is Appealable As a “Final Decision” within FAA § 16(a)(3)

Failure to Identify Sanctioned Counsel as Appellant Forgiven Where Intent of Appeal Obvious and No Prejudice Shown — Aspects of Appeal Waived for Failure to Develop Arguments in Brief

May the District Court Consider New Evidence when Reviewing De Novo a Magistrate Judge’s Findings and Recommendation? — Circuit Split — Even If It May, Doing So Is Discretionary

Electronic Discovery — Almost No ESI-Related Costs Are Recoverable as “Costs” under 28 U.S.C. § 1920 — Meaning of “Making Copies” and “Exemplification”

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)

Archives

New York Office