Complex Lit Blog

Spoliation — Dismissal, Adverse Inference, Disclosure to Jury Inapt Where Adulterated Evidence Was Directed to Issues Ruled Substantively Irrelevant — Eleventh Circuit Sanctions Dismissal Standards

SunTrust Mortgage, Inc. v. United Guaranty Residential Ins. Co. of N.C., 2013 U.S. App. LEXIS 2349 (4th Cir. Feb. 1, 2013): SunTrust Mortgage makes mortgage loans on real property. At the heart of this dispute are "IOF Combo 100 Loans," certain second lien loans with an interest-only option. In 1998, SunTrust Mortgage and United ...

New York Legal Malpractice Standards — Shifting Burdens on Summary Judgment

Valley Ventures, LLC v. Joseph J. Haspel, PLLC, 2013 N.Y. App. Div. LEXIS 466 (2d Dept. Jan. 30, 2013): "In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that ...

Valley Ventures, LLC v. Joseph J. Haspel, PLLC, 2013 N.Y. App. Div. LEXIS 466 (2d Dept. Jan. 30, 2013): “In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary…

Sanctions —Failure to File Reply Brief as Evidence of Frivolousness — “Close Call” Ruling by District Court as Notice of Frivolousness of Appeal — § 1927 and FRAP 38

Scherer v. JP Morgan Chase & Co., 2012 U.S. App. LEXIS 25516 (6th Cir. Dec. 11, 2012): Under 28 U.S.C. § 1927, we have discretion to impose "costs, expenses, and attorney fees" personally on an attorney "who . . . multiplies the proceedings in any case unreasonably and vexatiously." Waeschle v. Dragovic, 687 F.3d 292, 296 (6th Cir. 201 ...

Scherer v. JP Morgan Chase & Co., 2012 U.S. App. LEXIS 25516 (6th Cir. Dec. 11, 2012): Under 28 U.S.C. § 1927, we have discretion to impose “costs, expenses, and attorney fees” personally on an attorney “who . . .…

Court, Not Arbitrator, Should Decide Whether Signatory Agreed to Arbitrate Arbitrability with Non-Signatory — Irrelevant That Agreement States Arbitrator to Decide Because Non-Signatory Not a Party — Equitable Estoppel as Basis to Compel Arbitration

Kramer v. Toyota Motor Corp., 2013 U.S. App. LEXIS 2090 (9th Cir. Jan. 30, 2013): Toyota Motor Corporation and Toyota Motor Sales, U.S.A., Inc. (collectively "Toyota" or "Defendants") seek review of the district court's denial of their motion to compel arbitration. The district court held that Toyota, a nonsignatory to several agreement ...

Kramer v. Toyota Motor Corp., 2013 U.S. App. LEXIS 2090 (9th Cir. Jan. 30, 2013): Toyota Motor Corporation and Toyota Motor Sales, U.S.A., Inc. (collectively “Toyota” or “Defendants”) seek review of the district court’s denial of their motion to compel…

Spoliation — Eighth Adopts Requirement That District Court Make Explicit Findings of Bad Faith and Prejudice before It May Issue Adverse Inference Instruction

Hallmark Cards, Inc. v. Murley, 2013 U.S. App. LEXIS 917 (8th Cir. Jan. 15, 2013): Hallmark Cards, Inc. ("Hallmark") sued its former employee, Janet Murley, for a breach of the parties' separation agreement and won a $860,000 jury verdict on its breach of contract claim. The district court denied Murley's motion for a new trial. Murley ...

Hallmark Cards, Inc. v. Murley, 2013 U.S. App. LEXIS 917 (8th Cir. Jan. 15, 2013): Hallmark Cards, Inc. (“Hallmark”) sued its former employee, Janet Murley, for a breach of the parties’ separation agreement and won a $860,000 jury verdict on…

Joint Defense / Common Interest — When the Common Interest Must Exist — Elements of Advice of Counsel Defense— Waiver of Attorney-Client Privilege vs. Waiver of Work Product Protection

SEC v. Reserve Mgmt. Co., 2012 U.S. Dist. LEXIS 147723 (S.D.N.Y. Sept. 12, 2012): ● “The common interest rule is concerned with the relationship between the transferor and the transferee at the time that the confidential information is disclosed. The fact that the parties’ interests have diverged over the course of t ...

Federal Common Law, Not State Law, Provides the Meaning of “Arbitration” in the Federal Arbitration Act — Circuit Split

Bakoss v Certain Underwriters at Lloyd's, 2013 U.S. App. LEXIS 1527 (2d Cir. Jan. 23, 2013): The parties entered into a Certificate of Insurance ("Certificate"), which they agree is an enforceable contract. Bakoss, 2011 U.S. Dist. LEXIS 110834, 2011 WL 4529668, at *7. The Certificate provided for the payment of a benefit to Bakoss in th ...

Bakoss v Certain Underwriters at Lloyd’s, 2013 U.S. App. LEXIS 1527 (2d Cir. Jan. 23, 2013): The parties entered into a Certificate of Insurance (“Certificate”), which they agree is an enforceable contract. Bakoss, 2011 U.S. Dist. LEXIS 110834, 2011 WL…

Spoliation: Permissive Adverse Inference Instruction Typically Appropriate for Negligent Destruction of Evidence Where Opponent Not Denied Ability to Make or Defend Its Case — Severity of Sanction Should Correspond to Degree of Fault

Arch Ins. Co. v. Broan-Nutone, LLC, 2012 U.S. App. LEXIS 26464 (6th Cir. Dec. 21, 2012): This case arises out of a fire that occurred at Montgomery County Fire Station 1 in Mt. Sterling, Kentucky, on September 17, 2007. Plaintiff Montgomery County Fire Protection District 1 was compensated for the resulting property damage by its insura ...

Sixth Circuit Spoliation Standards for Adverse Inference Instruction

Stocker v. United States, 2013 U.S. App. LEXIS 1089 (6th Cir. Jan. 17, 2013): [A] "party seeking an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed wi ...

Stocker v. United States, 2013 U.S. App. LEXIS 1089 (6th Cir. Jan. 17, 2013): [A] “party seeking an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an…

RICO Does Not Provide for Nationwide Personal Jurisdiction (Circuit Split) — “Transacts His Affairs” in RICO and Clayton Acts Are Synonymous

Pincione v. D’Alfonso, 2012 U.S. App. LEXIS 25986 (2d Cir. Dec. 20, 2012): RICO's "Venue and Process" section, § 1965(a), "does not provide for nationwide personal jurisdiction over every defendant in every civil RICO case, no matter where the defendant is found." PT United Can Co. Ltd. v. Crown Cork & Seal Co., Inc., 138 F. ...

Pincione v. D’Alfonso, 2012 U.S. App. LEXIS 25986 (2d Cir. Dec. 20, 2012): RICO’s “Venue and Process” section, § 1965(a), “does not provide for nationwide personal jurisdiction over every defendant in every civil RICO case, no matter where the defendant…

Commercial Litigation and Arbitration

Spoliation — Dismissal, Adverse Inference, Disclosure to Jury Inapt Where Adulterated Evidence Was Directed to Issues Ruled Substantively Irrelevant — Eleventh Circuit Sanctions Dismissal Standards

New York Legal Malpractice Standards — Shifting Burdens on Summary Judgment

Sanctions —Failure to File Reply Brief as Evidence of Frivolousness — “Close Call” Ruling by District Court as Notice of Frivolousness of Appeal — § 1927 and FRAP 38

Court, Not Arbitrator, Should Decide Whether Signatory Agreed to Arbitrate Arbitrability with Non-Signatory — Irrelevant That Agreement States Arbitrator to Decide Because Non-Signatory Not a Party — Equitable Estoppel as Basis to Compel Arbitration

Spoliation — Eighth Adopts Requirement That District Court Make Explicit Findings of Bad Faith and Prejudice before It May Issue Adverse Inference Instruction

Joint Defense / Common Interest — When the Common Interest Must Exist — Elements of Advice of Counsel Defense— Waiver of Attorney-Client Privilege vs. Waiver of Work Product Protection

Federal Common Law, Not State Law, Provides the Meaning of “Arbitration” in the Federal Arbitration Act — Circuit Split

Spoliation: Permissive Adverse Inference Instruction Typically Appropriate for Negligent Destruction of Evidence Where Opponent Not Denied Ability to Make or Defend Its Case — Severity of Sanction Should Correspond to Degree of Fault

Sixth Circuit Spoliation Standards for Adverse Inference Instruction

RICO Does Not Provide for Nationwide Personal Jurisdiction (Circuit Split) — “Transacts His Affairs” in RICO and Clayton Acts Are Synonymous

Recent Posts

RICO: Mail and Wire Fraud: Act of Emailing Transcript of Court Proceedings Containing Allegedly False Statements Made in Court ≠ Wire Fraud — Mailing (Serving on Opposing Party) Declarations Allegedly Containing False Statements ≠ Mail Fraud

FRAP 38 Sanctions — Sixth Circuit Usually Declines to Impose FRAP 38 Sanctions Unless An Improper Purpose Was Behind the Appeal

FRAP 38: Permissible for Appeals Court to Affirm Sanctions But Deny FRAP 38 Sanctions for Appeal — A Defendant’s Voluntary Cessation of Complained of Behavior Does Not Moot a Case Unless It Is Clear That The Behavior Could Not Reasonably Be Expected to Recur

Rule 11: Violation of 21 Day Safe Harbor “Overlook[ed]” As Non-Prejudicial by First Circuit — “Rule 11 Monetary Sanctions Must Be Reasonable” (Good Quote) — Rule 11(c)(4) Requires Consideration of Offender’s Ability to Pay

Temporary Restraining Order = Preliminary Injunction: 3 Supreme Court Cases (TRO=PI x 3)

Rule 37(c)(1) Sanctions — Exclusion of Untimely Expert Report — Eighth Circuit’s 4-Factor Test

RICO: So Insubstantial A Claim As to Fail to Confer Subject Matter Jurisdiction

Archives

New York Office