Complex Lit Blog

While Failure to Object to Magistrate Judge’s Report within 14 Days Waives Review of That Decision If the Report Explicitly So States (with Citations), the Waiver Rule Is Non-Jurisdictional and May Be Excused

Zaretsky v. Maxi Aids, Inc., 2013 U.S. App. LEXIS 14312 (2d Cir. July 16, 2013): Appellants Feige Zaretsky and Aaron Berlin, pro se, appeal from a final judgment dismissing their amended complaint pursuant to Federal Rules of Civil Procedure 16(f), for failure to comply with a court order, and 41(b), for failure to prosecute. Appellants ...

When Summary Judgment Allowed on Claims Requiring Proof of Intent — RICO Enterprise of Affiliated and Unaffiliated Entities and Employees Upheld — Prejudgment Interest Plus Punitive Damages Permitted, and at Higher State Rate — Good Quotes

In re ClassicStar Mare Lease Litig., 2013 U.S. App. LEXIS 14518 (6th Cir. July 18, 2013): Defendants argue that summary judgment was inappropriate because there are disputed issues of fact as to whether they intended to defraud Plaintiffs through the Mare Lease Program. Defendants assert that the district court improperly relied only on ...

Default Judgment for Discovery Violations — Factors for Review of Rule 37 Sanctions — Severe & Otherwise — Second Circuit

Guggenheim Capital, LLC v. Birnbaum, 2013 U.S. App. LEXIS 14195 (2d Cir. July 15, 2013): "If a party . . . fails to obey an order to provide or permit discovery," the district court may impose sanctions, including "rendering a default judgment against the disobedient party." Fed. R. Civ. P. 37(b)(2)(A)(vi). Certain Rule 37 remedies ...

Guggenheim Capital, LLC v. Birnbaum, 2013 U.S. App. LEXIS 14195 (2d Cir. July 15, 2013): “If a party . . . fails to obey an order to provide or permit discovery,” the district court may impose sanctions, including “rendering a…

Circuit Split: Can Defendant Moot Class Action by Offering Full Individual Relief before Certification Motion Filed? — Impact of Supreme Court’s 2013 Genesis Decision — “Inherently Transitory” Rationale Inapt

Keim v. ADF Midatlantic, LLC, 2013 U.S. Dist. LEXIS 98373 (S.D. Fla. July 12, 2013): "To allow a case, not certified as a class action and with no motion for class certification even pending, to continue in federal court when the sole plaintiff no longer maintains a personal stake defies the limits on federal jurisdiction expressed ...

Keim v. ADF Midatlantic, LLC, 2013 U.S. Dist. LEXIS 98373 (S.D. Fla. July 12, 2013): “To allow a case, not certified as a class action and with no motion for class certification even pending, to continue in federal court when…

RICO — Enterprise Consisting of Corporate President, His Assistant and His Off-the-Books Wholly-Owned Entity Satisfies Distinctiveness Requirement of § 1962(c) Where All 3 Are Also Defendants

Mega Concrete, Inc. v. Smith, 2013 U.S. Dist. LEXIS 98660 (E.D. Pa. July 15, 2013): This lawsuit involves allegations that two former employees of the plaintiff construction companies, defendants Michael Smith and Kimberly Lawson, conspired and collaborated with others to steal the plaintiffs' resources, manpower, business opportunities ...

Standards for Dismissal under Rules 37 and 41(b) — Rule 37 Factors Not Exhaustive — Each Need Not Be Satisfied If Order Is “Just” — Pro Se Must Be Warned before Sanction of Dismissal Imposed — 41(b) Dismissal May Be Sua Sponte

Manigaulte v. C.W. Post of Long Island Univ., 2013 U.S. App. LEXIS 14096 (2d Cir. July 12, 2013): While "dismissal with prejudice is a harsh remedy to be used only in extreme situations, and then only when a court finds willfulness, bad faith, or any fault by the non-compliant litigant," Agiwal, 555 F.3d at 302 (internal quotat ...

Manigaulte v. C.W. Post of Long Island Univ., 2013 U.S. App. LEXIS 14096 (2d Cir. July 12, 2013): While “dismissal with prejudice is a harsh remedy to be used only in extreme situations, and then only when a court finds…

Governmental Entity (Municipal Corporation) Cannot Be Sued under RICO Because Treble Damage Remedy Is Primarily Punitive

Tengood v. City of Philadelphia, 2013 U.S. App. LEXIS 12151 (3d Cir. June 17, 2013): Appellant challenges the district court's entry of summary judgment in favor of the City on Counts 1 and 2 of the Complaint, alleging it was error to conclude that the City cannot be subject to RICO liability. This argument is foreclosed by our decision ...

Tengood v. City of Philadelphia, 2013 U.S. App. LEXIS 12151 (3d Cir. June 17, 2013): Appellant challenges the district court’s entry of summary judgment in favor of the City on Counts 1 and 2 of the Complaint, alleging it was…

Duty Imposed by Contract Clause Requiring “Best Efforts” — Good Faith and Fair Dealing Claim Redundant of Breach of Contract Claim

Cruz v. FXDirectDealer, LLC, 2013 U.S. App. LEXIS 12448 (2d Cir. June 19, 2013): C. Breach of Contract Claim Cruz claims that FXDD breached the Agreement by failing to use its "best efforts" to execute customer trade orders. FXDD responds that Cruz's breach of contract claim fails because the Agreement warns that FXDD ma ...

Cruz v. FXDirectDealer, LLC, 2013 U.S. App. LEXIS 12448 (2d Cir. June 19, 2013): C. Breach of Contract Claim Cruz claims that FXDD breached the Agreement by failing to use its “best efforts” to execute customer trade orders. FXDD responds…

While Intra-Circuit Splits Ordinarily May Be Resolved Only En Banc, a Three-Judge Panel May Overrule One Line of Cases Clearly Irreconcilable with Intervening Supreme Court Decision

United States ex rel. Air Control Techs., Inc. v. Pre Con Indus., Inc., 2013 U.S. App. LEXIS 13314 (9th Cir. June 28, 2013): Ordinarily, intra-circuit splits may only be resolved by an en banc panel. Atonio v. Wards Cove Packing Co., Inc., 810 F.2d 1477, 1478-79 (9th Cir. 1987) (en banc). But when intervening higher authori ...

RICO — Enterprise of 2 Companies and Personnel Fails — Acts Were Taken by Members Conducting Their Own Affairs, Not Enterprise’s — Mere Violation of Predicate Acts Insufficient — Good Quotes

United Food And Commercial Workers Unions And Employers Midwest Health Benefits Fund v. Walgreen Co., 2013 U.S. App. LEXIS 13711 (7th Cir. July 8, 2013): The United Food and Commercial Workers Unions and Employers Midwest Health Benefits Fund (the Fund), an employee benefit plan that provides healthcare benefits to its participants, is ...

Commercial Litigation and Arbitration

While Failure to Object to Magistrate Judge’s Report within 14 Days Waives Review of That Decision If the Report Explicitly So States (with Citations), the Waiver Rule Is Non-Jurisdictional and May Be Excused

When Summary Judgment Allowed on Claims Requiring Proof of Intent — RICO Enterprise of Affiliated and Unaffiliated Entities and Employees Upheld — Prejudgment Interest Plus Punitive Damages Permitted, and at Higher State Rate — Good Quotes

Default Judgment for Discovery Violations — Factors for Review of Rule 37 Sanctions — Severe & Otherwise — Second Circuit

Circuit Split: Can Defendant Moot Class Action by Offering Full Individual Relief before Certification Motion Filed? — Impact of Supreme Court’s 2013 Genesis Decision — “Inherently Transitory” Rationale Inapt

RICO — Enterprise Consisting of Corporate President, His Assistant and His Off-the-Books Wholly-Owned Entity Satisfies Distinctiveness Requirement of § 1962(c) Where All 3 Are Also Defendants

Standards for Dismissal under Rules 37 and 41(b) — Rule 37 Factors Not Exhaustive — Each Need Not Be Satisfied If Order Is “Just” — Pro Se Must Be Warned before Sanction of Dismissal Imposed — 41(b) Dismissal May Be Sua Sponte

Governmental Entity (Municipal Corporation) Cannot Be Sued under RICO Because Treble Damage Remedy Is Primarily Punitive

Duty Imposed by Contract Clause Requiring “Best Efforts” — Good Faith and Fair Dealing Claim Redundant of Breach of Contract Claim

While Intra-Circuit Splits Ordinarily May Be Resolved Only En Banc, a Three-Judge Panel May Overrule One Line of Cases Clearly Irreconcilable with Intervening Supreme Court Decision

RICO — Enterprise of 2 Companies and Personnel Fails — Acts Were Taken by Members Conducting Their Own Affairs, Not Enterprise’s — Mere Violation of Predicate Acts Insufficient — Good Quotes

Recent Posts

Rule 37(d) Sanctions — For Failure to Serve Answers, Objections, Or Written Response to Discovery Requests — Are Not Limited to Intentional Misconduct; Even Innocent Mistakes May Be Covered

Sanctions: (1) Rule 11 Does Not Apply to Litigation Papers Initially Filed in State Court — Only Reaffirmance in Federal Court Post-Removal Is Subject to Sanction — (2) “The Fact That A Legal Theory Is A Long-Shot Does Not Necessarily Mean It Is Sanctionable” (Good Quote)

Supreme Court: Relief under Rule 60(b)(6) Requires Extraordinary Circumstances Even If It Is Invoked to Allow Amendment of The Complaint–Rule 15’s Liberal Approach to Amendment Does Not Change That (Reversing Second Circuit)

FRAP 38 Sanctions — Eleventh Circuit Generally Does Not Impose FRAP 38 Sanctions on Pro Se Litigants, But May Do So If They Have Persisted Despite Judicial Warnings of Frivolousness

Inherent Power Sanctions: No Dismissal with Prejudice If Lesser Sanctions Will Suffice — The Liberal Pleading Standard of Swierkiewicz “Is Still Good Law”

Statements in Briefs As Judicial Admissions

Supreme Court: TRO As Appealable Order — And District Court Inaction As Tantamount to Refusing An Injunction And Thus Appealable

“Slow-Playing Discovery” in Response to Court Order, Prejudicing Opponent, Violates Rule 37(b)(2)(A)

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