Complex Lit Blog

Appellate Jurisdiction and Review Standards on Appeal of Motion to Compel Arbitration

Berthel Fisher & Co. Fin. Servs., Inc. v. Larmon, 695 F.3d 749 (8th Cir. 2012): "We have jurisdiction to review the denial of a motion to compel arbitration as an interlocutory appeal within the scope of 28 U.S.C. § 1292(a)(1)." McNamara v. Yellow Transp., Inc., 570 F.3d 950, 954 (8th Cir. 2009). "We review de novo the denial of a mot ...

Berthel Fisher & Co. Fin. Servs., Inc. v. Larmon, 695 F.3d 749 (8th Cir. 2012): “We have jurisdiction to review the denial of a motion to compel arbitration as an interlocutory appeal within the scope of 28 U.S.C. § 1292(a)(1).”…

Parties Planning to Give Expert Testimony Must File Rule 26(a)(2)(C) Disclosure — Lack of Candor in Retained Expert’s Report Is Grounds for Exclusion under Daubert and Kumho

Martinez v. Garcia, 2012 U.S. Dist. LEXIS 158220 (N.D. Ill. Nov. 5, 2012) :Martinez's Dkt. No. 158 seeks to bar the two opinion witnesses designated by the "Medical Defendants," Dr. Parthasarathai Ghosh and LaTonya Williams ("Williams"). Those proposed witnesses comprise Dr. Bruce Doblin and the Medical Defendants themselves, and the g ...

Martinez v. Garcia, 2012 U.S. Dist. LEXIS 158220 (N.D. Ill. Nov. 5, 2012) :Martinez’s Dkt. No. 158 seeks to bar the two opinion witnesses designated by the “Medical Defendants,” Dr. Parthasarathai Ghosh and LaTonya Williams (“Williams”). Those proposed witnesses comprise…

The Danger of Taking Expert Depositions — Opening the Door to New Opinions — Expert Report’s Purported Reservation of the Right to Add or Amend Opinions Based on New Information Rejected

Goesel v. Boley Int’l (HK) Ltd,, 2012 U.S. Dist. LEXIS 152524 (N.D. Ill. Oct. 24, 2012): This action seeks to recover damages sustained by then five year old Cole Goesel ("Cole") when a plastic toy sword that he was playing with -- part of a toy product known as the "Boley Cosmic Robot" -- shattered and a piece of that sword pierced C ...

Goesel v. Boley Int’l (HK) Ltd,, 2012 U.S. Dist. LEXIS 152524 (N.D. Ill. Oct. 24, 2012): This action seeks to recover damages sustained by then five year old Cole Goesel (“Cole”) when a plastic toy sword that he was playing…

Prior Complaint for Same Conduct Inadmissible under Rule 404(b) Absent Prior Admission of Liability or Evidence the Acts Alleged Were Committed — Irrelevant on Intent or Awareness Conduct Was Unlawful

United States v. Bailey, 696 F.3d 794 (9th Cir 2012): Bailey was the President, Chief Executive Officer, and Chairman of the Board of Directors of Gateway, a small, public company involved in selling health and dietary supplements. In 2002, Bailey met Richard Owens, another businessman, and the two began doing business together. The nat ...

Unretained Expert Disclosure vs. Retained Expert Report — Who Bears Burden of Proof as to Which Is Required — Witness May Be Subject to Providing Both as to Different Portions of Testimony — When Treating Physician = Retained Expert

In re Denture Cream Products Liability Litigation, 2012 U.S. Dist. LEXIS 152277 (S.D. Fla. Oct. 22, 2012): Federal Rule of Civil Procedure 26(a) sets forth requirements for disclosing expert testimony. See Fed. R. Civ. P. 26(a)(2). Parties must identify any witnesses they "may use at trial to present evidence under Federal Rule of Evide ...

New Article — Interesting Circuit Splits on Federal Procedural Issues

A new article analyzing some procedural circuit splits of practical importance can be accessed here: Interesting Circuit Splits on Federal Procedural Issues. ...

A new article analyzing some procedural circuit splits of practical importance can be accessed here: Interesting Circuit Splits on Federal Procedural Issues.

“Tight Causal Relationship” Required to State Claim for Legal Malpractice Liability in New York

Farrell Family Ventures, LLC v. Sekas, 863 F. Supp. 2d 324 (S.D.N.Y. 2012): LEGAL MALPRACTICE CAUSE OF ACTION In order to state a claim for legal malpractice, a party must allege that (1) the attorney was negligent; (2) such negligence was a proximate cause of plaintiff's losses; and (3) actual damage. E.g., Flutie Bros ...

Re-Asserting Position Previously Rejected by the Courts, and Failing to Cite to Judicial Rejections (Including Those Handed Down during Pendency of Appeal), Sanctionable under § 1927

Parker v. CitiMortgage, Inc., 2012 U.S. App. LEXIS 21585 (10th Cir. Oct. 17, 2012): The only remaining issue is CitiMortgage's motion for sanctions against the trustee's lawyer. Title 28 of U.S.C. § 1927 provides in pertinent part that "[a]ny attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may ...

Parker v. CitiMortgage, Inc., 2012 U.S. App. LEXIS 21585 (10th Cir. Oct. 17, 2012): The only remaining issue is CitiMortgage’s motion for sanctions against the trustee’s lawyer. Title 28 of U.S.C. § 1927 provides in pertinent part that “[a]ny attorney…

SLUSA Does Not Permit Removal of a Federal Securities Class Action Originally Filed in State Court Stating Claims under the 1933 Act — Caselaw Split Partially Immune from Appellate Review — CAFA Split Also Noted — Good Quote: Statutory Construction

Niitsoo v. Alpha Natural Resources, Inc., 2012 U.S. Dist. LEXIS 158049 (S.D. W. Va. Nov. 5, 2012): Pending before the court is the plaintiff's Motion to Remand Case to the Circuit Court of Boone County [Docket 13]. The disposition of this motion depends on whether the Securities Act of 1933 ("Securities Act"), as amended by the Securiti ...

Niitsoo v. Alpha Natural Resources, Inc., 2012 U.S. Dist. LEXIS 158049 (S.D. W. Va. Nov. 5, 2012): Pending before the court is the plaintiff’s Motion to Remand Case to the Circuit Court of Boone County [Docket 13]. The disposition of…

Spoliation Found for Destruction of Records That Statute and Rules Required be Preserved in Circumstances Where Litigation or at Least Controversy Was Foreseeable (Residential Funding Standard) — No Sanctions Because Minimal Relevance

Johnson v. Metro. Gov’t of Nashville & Davidson Cnty., 2012 U.S. App. LEXIS 21793 (6th Cir. Oct. 18, 2012): I. Spoilation of Evidence Before addressing the merits, we turn first to Plaintiffs' claim that the district court erred in refusing to impose sanctions against Defendants for spoilation of evidence. Plaintiffs ...

Johnson v. Metro. Gov’t of Nashville & Davidson Cnty., 2012 U.S. App. LEXIS 21793 (6th Cir. Oct. 18, 2012): I. Spoilation of Evidence Before addressing the merits, we turn first to Plaintiffs’ claim that the district court erred in refusing…

Commercial Litigation and Arbitration

Appellate Jurisdiction and Review Standards on Appeal of Motion to Compel Arbitration

Parties Planning to Give Expert Testimony Must File Rule 26(a)(2)(C) Disclosure — Lack of Candor in Retained Expert’s Report Is Grounds for Exclusion under Daubert and Kumho

The Danger of Taking Expert Depositions — Opening the Door to New Opinions — Expert Report’s Purported Reservation of the Right to Add or Amend Opinions Based on New Information Rejected

Prior Complaint for Same Conduct Inadmissible under Rule 404(b) Absent Prior Admission of Liability or Evidence the Acts Alleged Were Committed — Irrelevant on Intent or Awareness Conduct Was Unlawful

Unretained Expert Disclosure vs. Retained Expert Report — Who Bears Burden of Proof as to Which Is Required — Witness May Be Subject to Providing Both as to Different Portions of Testimony — When Treating Physician = Retained Expert

New Article — Interesting Circuit Splits on Federal Procedural Issues

“Tight Causal Relationship” Required to State Claim for Legal Malpractice Liability in New York

Re-Asserting Position Previously Rejected by the Courts, and Failing to Cite to Judicial Rejections (Including Those Handed Down during Pendency of Appeal), Sanctionable under § 1927

SLUSA Does Not Permit Removal of a Federal Securities Class Action Originally Filed in State Court Stating Claims under the 1933 Act — Caselaw Split Partially Immune from Appellate Review — CAFA Split Also Noted — Good Quote: Statutory Construction

Spoliation Found for Destruction of Records That Statute and Rules Required be Preserved in Circumstances Where Litigation or at Least Controversy Was Foreseeable (Residential Funding Standard) — No Sanctions Because Minimal Relevance

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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