Complex Lit Blog

A Sine Qua Non of Spoliation Is That the Alleged Spoliator Be on Notice That the Evidence Is Potentially Relevant to Litigiation

Wyatt Tech. Corp. v. Malvern Instruments, Inc., 2013 U.S. App. LEXIS 9843 (9th Cir. May 16, 2013): The heft of Wyatt's claims against Malvern--specifically, Wyatt's copyright infringement claims--required Wyatt to proffer some evidence that Malvern's software was substantially similar to Dynamics. L.A. Printex Indus., Inc. v. Aeropostal ...

Wyatt Tech. Corp. v. Malvern Instruments, Inc., 2013 U.S. App. LEXIS 9843 (9th Cir. May 16, 2013): The heft of Wyatt’s claims against Malvern–specifically, Wyatt’s copyright infringement claims–required Wyatt to proffer some evidence that Malvern’s software was substantially similar to…

Severe vs. Lesser Sanctions — Fifth Circuit Standards for Each — Deeming Facts Admitted Is a Lesser Sanction That Need Only Be “Just and Fair”

Alexsam, Inc. v. IDT Corp., 2013 U.S. App. LEXIS 10009 (Fed. Cir. May 20, 2013): In January 2011, following the close of discovery, Alexsam moved for sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure, alleging that IDT had failed to disclose information suggesting that the miscellaneous systems infringe Alexsam's pat ...

Admissibility of Intrinsic vs. Extrinsic Evidence of Other Bad Acts under Federal Rule of Evidence 404(b) — ABA Judicial Recusal Standards

United States v. Ciavarella, 2013 U.S. App. LEXIS 10513 (3d Cir. May 24, 2013): Mark Ciavarella, a former state judge, was convicted by a jury in the Middle District of Pennsylvania of racketeering, honest services mail fraud, money laundering conspiracy, filing false tax returns, and several other related crimes. The charges resulted f ...

Once Arbitration Compelled, District Court Lacks Ability to Stay It — The Question Is for the Arbitrator

C. Stay Pending a Decision from the Supreme Court Smith v. ServiceMaster Holding Corp., 2013 U.S. Dist. LEXIS 71661 (W.D. Tenn. May 21, 2013): Defendants assert that "this Court should stay the arbitration until the Supreme Court clarifies the standard of review for vacating [arbitration] clause construction awards." ( ...

C. Stay Pending a Decision from the Supreme Court Smith v. ServiceMaster Holding Corp., 2013 U.S. Dist. LEXIS 71661 (W.D. Tenn. May 21, 2013): Defendants assert that “this Court should stay the arbitration until the Supreme Court clarifies the standard…

Sanctions: If Rule or Statutory Power (Including § 1927) Available, Court Should Not Invoke Inherent Power — D.C. Circuit State of Mind for § 1927 Unsettled But Clear & Convincing Proof Required — Law Firm Vicarious Liability

Animal Welfare Inst. v. Feld Entm’t, Inc., 2013 U.S. Dist. LEXIS 68522 (D.D.C. Mar. 29, 2013): B. Inherent Authority In addition to powers deriving from rule or statute, courts also have inherent authority to sanction litigation misconduct when a party has "acted in bad faith, vexatiously, wantonly, or for oppressive ...

Rule 11 — “Unusual Circumstances” Warranting Fees Most Likely for Improper Purpose —Rule 1.6(b)(5) in Sanctions Proceedings — Good Quote on Counsel’s Right to Rely on Client — Judicial Endorsement of Position Augurs against Sanctions

Philos Techs., Inc. v. Philos & D, Inc., 2013 U.S. Dist. LEXIS 66048 (N.D. Ill. May 8, 2013) PLS Tech Korea ("PLS Tech") is a South Korean company, founded by Jong Ho Philos Ko ("J. Ko"), that specializes in heat treatment technology (F. ¶1). On December 20, 2007 Don-Hee and Jaehee Park (referred to singularly by their first names and collecti ...

Philos Techs., Inc. v. Philos & D, Inc., 2013 U.S. Dist. LEXIS 66048 (N.D. Ill. May 8, 2013) PLS Tech Korea (“PLS Tech”) is a South Korean company, founded by Jong Ho Philos Ko (“J. Ko”), that specializes in heat…

Sanctions — Dismissal or Default under Rule 37 — Bad Faith Required — Tenth Circuit’s 3-Part Test — Pro Se Defaulted — Sanction Must Be Just and Related to Claim at Issue (Good Quote)

Klein-Becker USA, LLC v. Englert, 2013 U.S. App. LEXIS 6191 (10th Cir. Mar. 27, 2013): Klein-Becker USA and Klein-Becker IP Holdings (collectively "Klein-Becker") sued Patrick Englert and Mr. Finest, Inc., for trademark infringement, copyright infringement, false advertising, and unfair competition under the Lanham Act; false advertisin ...

Klein-Becker USA, LLC v. Englert, 2013 U.S. App. LEXIS 6191 (10th Cir. Mar. 27, 2013): Klein-Becker USA and Klein-Becker IP Holdings (collectively “Klein-Becker”) sued Patrick Englert and Mr. Finest, Inc., for trademark infringement, copyright infringement, false advertising, and unfair competition…

Derivative Actions — State Law Sets Demand Requirement in Diversity Action — Also in Federal Question Case If Federal Policies Not Frustrated — State-Law Demand Requirement Applies in RICO Action

Gomes v. Am. Century Cos., 2013 U.S. App. LEXIS 6184 (8th Cir. Mar. 28, 2013): Nelson Gomes, an investor in the American Century International Discovery Fund ("the Fund"), brought Maryland common-law claims and federal racketeering claims for violations of 18 U.S.C. §§ 1962(c) and (d) against the appellees, who are the Fund's fiduciari ...

Gomes v. Am. Century Cos., 2013 U.S. App. LEXIS 6184 (8th Cir. Mar. 28, 2013): Nelson Gomes, an investor in the American Century International Discovery Fund (“the Fund”), brought Maryland common-law claims and federal racketeering claims for violations of 18…

MTD for Lack of Standing Is under 12(b)(1) (No Subject Matter Jurisdiction), Not 12(b)(6) — Dismissal Is Not on Merits and Is Presumptively without Prejudice — Complaint Must Allege Non-Conclusory Facts Showing Jurisdiction

Allstate Ins. Co. v. Global Med. Billing, Inc., 2013 U.S. App. LEXIS 7277 (6th Cir. April 8, 2013): We review a dismissal for lack of standing de novo. McGlone v. Bell, 681 F.3d 718, 728 (6th Cir. 2012) (citing Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 348 (6th Cir. 2007)). Although the parties and the district court con ...

Spoliation Sanctions — Eleventh Circuit’s Five-Factor Test — Prejudice and Practical Importance of Destroyed Evidence Are Critical

McLeod v. Wal-Mart Stores, Inc., 2013 U.S. App. LEXIS 6669 (11th Cir. April 3, 2013): Debra Kathleen McLeod appeals the district court's grant of summary judgment in favor of Defendants Wal-Mart Stores, Inc., Wal-Mart Stores East, LP, and Wal-Mart Associates, Inc. ("Wal-Mart") in her suit for false arrest, malicious prosecution, and int ...

McLeod v. Wal-Mart Stores, Inc., 2013 U.S. App. LEXIS 6669 (11th Cir. April 3, 2013): Debra Kathleen McLeod appeals the district court’s grant of summary judgment in favor of Defendants Wal-Mart Stores, Inc., Wal-Mart Stores East, LP, and Wal-Mart Associates,…

Commercial Litigation and Arbitration

A Sine Qua Non of Spoliation Is That the Alleged Spoliator Be on Notice That the Evidence Is Potentially Relevant to Litigiation

Severe vs. Lesser Sanctions — Fifth Circuit Standards for Each — Deeming Facts Admitted Is a Lesser Sanction That Need Only Be “Just and Fair”

Admissibility of Intrinsic vs. Extrinsic Evidence of Other Bad Acts under Federal Rule of Evidence 404(b) — ABA Judicial Recusal Standards

Once Arbitration Compelled, District Court Lacks Ability to Stay It — The Question Is for the Arbitrator

Sanctions: If Rule or Statutory Power (Including § 1927) Available, Court Should Not Invoke Inherent Power — D.C. Circuit State of Mind for § 1927 Unsettled But Clear & Convincing Proof Required — Law Firm Vicarious Liability

Rule 11 — “Unusual Circumstances” Warranting Fees Most Likely for Improper Purpose —Rule 1.6(b)(5) in Sanctions Proceedings — Good Quote on Counsel’s Right to Rely on Client — Judicial Endorsement of Position Augurs against Sanctions

Sanctions — Dismissal or Default under Rule 37 — Bad Faith Required — Tenth Circuit’s 3-Part Test — Pro Se Defaulted — Sanction Must Be Just and Related to Claim at Issue (Good Quote)

Derivative Actions — State Law Sets Demand Requirement in Diversity Action — Also in Federal Question Case If Federal Policies Not Frustrated — State-Law Demand Requirement Applies in RICO Action

MTD for Lack of Standing Is under 12(b)(1) (No Subject Matter Jurisdiction), Not 12(b)(6) — Dismissal Is Not on Merits and Is Presumptively without Prejudice — Complaint Must Allege Non-Conclusory Facts Showing Jurisdiction

Spoliation Sanctions — Eleventh Circuit’s Five-Factor Test — Prejudice and Practical Importance of Destroyed Evidence Are Critical

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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