Complex Lit Blog

Fact that RICO Claim Would Not Exist But for Plaintiff’s Entry into Contract Is Insufficient to Permit Non-Signatories to Assert Equitable Estoppel to Enforce Forum Selection Clause — Court Will Apply Law All Parties Assume Is Applicable

Bahamas Sales Assoc., LLC v. Ginn Fin’l Servs., LLC, 2012 U.S. App. LEXIS 24887 (11th Cir. Dec. 4, 2012): In late 2006, Donald Cameron Byers purchased a lot in the Bahamas. His purchase contract contains a provision that requires all disputes to be litigated in the Bahamas under Bahamian law. Byers financed the purchase with a mor ...

When Person Acts in Dual Capacity as Expert and Non-Expert, Any Ambiguity as to Role in Generating Documents — and, Potentially, Communications — Is Resolved in Favor of Party Seeking Discovery

Paradigm Biodevices, Inc. -v- Centinel Spine, Inc., 2013 U.S. Dist. LEXIS 7312 (S.D.N.Y. Jan. 17, 2013): By letter dated January 9, 2013, Defendants sought an order requiring Plaintiff to produce a draft report prepared by Zolfo Cooper (the "Report"), an entity appointed by an English court as liquidator of Surgicraft, and other communi ...

Even If Rule 11 Violated, Court Has Discretion to Deny Sanctions — § 1927 Requires “Conduct Constituting or Akin to Bad Faith” — Once Claim Is Adjudicated, Res Judicata Bars More Litigation under Different Theory or Seeking New Remedy

WD Music Prods., Inc. v. Muller, 2012 U.S. App. LEXIS 25990 (2d Cir. Dec. 20, 2012): We affirm the dismissal of WD Music's complaint for substantially the same reasons stated by the district court. In sum, WD Music's second state-court action was brought to a final conclusion by the New York State Supreme Court's dismissal on res judica ...

WD Music Prods., Inc. v. Muller, 2012 U.S. App. LEXIS 25990 (2d Cir. Dec. 20, 2012): We affirm the dismissal of WD Music’s complaint for substantially the same reasons stated by the district court. In sum, WD Music’s second state-court…

RICO: Freeze-Out Merger Does Not Constitute Fraud in the Sale of Securities within PSLRA Bar — Shareholder Cannot Show Proximate Cause If Injury Is Derivative of Harm to Corporation

Amos v. Franklin Fin’l Servs. Corp., 2011 WL 5903875 (M.D. Pa. November 22, 2011), aff’d, 2013 U.S. App. LEXIS 868 (3d Cir. Jan. 11, 2013) (the following is from the Court of Appeals’ affirmance): Matthew P. Amos and twenty four other plaintiffs have appealed the district court's order dismissing their first amended complaint for ...

Sanctions — Distinctive Rationales and Intertwined Applicability of Rule 11 and 35 U.S.C. § 285 in Patent Cases

Raylon, LLC. v. Complus Data Innovations, Inc., 700 F.3d 1361 (Fed. Cir. 2012) (Reyna, J., concurring): II. Distinct Rule 11 and § 285 Inquiries Rule 11 of the Federal Rules of Civil Procedure and 35 U.S.C. § 285 of the Patent Act offer courts distinct, yet overlapping, rationales for awarding an injured party relief. ...

“Purely Factual Material” in Work Product Document Not Subject to Production — Waiver of Privilege vs. Waiver of Work Product — Fed.R.Evid. 502 “Abolished the Dreaded Subject Matter Waiver”

Appleton Papers, Inc. v. EPA, 2012 U.S. App. LEXIS 26346 (7th Cir. Oct. 26, 2012): After the government alleged Appleton Papers Inc. ("API") and seven other companies caused $1 billion in contamination in the Fox River near Green Bay, Wisconsin, the government hired a consultant that prepared reports on the companies' responsibility fo ...

Appleton Papers, Inc. v. EPA, 2012 U.S. App. LEXIS 26346 (7th Cir. Oct. 26, 2012): After the government alleged Appleton Papers Inc. (“API”) and seven other companies caused $1 billion in contamination in the Fox River near Green Bay, Wisconsin,…

Inherent Power Sanctions: Bad Faith Required in 5th Circuit — Raising Patently Frivolous Legal Argument and Threatening Further Meritless Litigation = Bad Faith — Pro Se Litigant — Vexatious Litigant Injunction Must Be Tailored

Terra Partners v. Rabo Agrifinance, Inc., 2012 U.S. App. LEXIS 26291 (5th Cir. Dec. 21, 2012): On September 20, 2012, Steve Veigel sought to file a pro se amicus brief in support of Terra Partners. Steve Veigel has an obvious interest in this case. He is an authorized managing agent for Terra Partners, is a corporate officer for all fo ...

Spoliation Claim Mooted by Court’s Assuming Truth of Party’s Factual Position

Lawler v. Montblanc N. Am., LLC, 2013 U.S. App. LEXIS 761 (9th Cir. Jan. 11, 2013): Finally, Lawler argues that the district court abused its discretion by declining to draw a negative inference of discrimination against Defendants because they "willfully" destroyed the August 5, 2009 security tape capturing the exchange between Schmitz ...

Transmittal of Letter Drafted by Counsel Does Not Waive Privilege as to Investigation and Communications Leading up to Letter — Lawyer’s Testimony as to Process Insufficient

Le v. City of Wilmington, 480 Fed. Appx. 678 (3d Cir. 2012): c) Attorney-client privilege Finally, Le asserts that the District Court erred in refusing to compel testimony from a former lawyer working in Wilmington's legal department, Mr. Mili. During a pre-trial deposition, Le asked Mili specific questions about hi ...

Voluntary Dismissal — with or without Prejudice — Renders Order Compelling Arbitration Appealable; Stay of Action Does Not

In re Pharmacy Benefit Managers Antitrust Litig,, 2012 U.S. App. LEXIS 23432 (3d Cir. Nov. 15, 2012): AdvancePCS questions our jurisdiction to hear this appeal. Under the FAA, a party may generally not appeal from an interlocutory order "compelling arbitration" or "granting a stay" pending arbitration. 9 U.S.C. § 16(b ...

Commercial Litigation and Arbitration

Fact that RICO Claim Would Not Exist But for Plaintiff’s Entry into Contract Is Insufficient to Permit Non-Signatories to Assert Equitable Estoppel to Enforce Forum Selection Clause — Court Will Apply Law All Parties Assume Is Applicable

When Person Acts in Dual Capacity as Expert and Non-Expert, Any Ambiguity as to Role in Generating Documents — and, Potentially, Communications — Is Resolved in Favor of Party Seeking Discovery

Even If Rule 11 Violated, Court Has Discretion to Deny Sanctions — § 1927 Requires “Conduct Constituting or Akin to Bad Faith” — Once Claim Is Adjudicated, Res Judicata Bars More Litigation under Different Theory or Seeking New Remedy

RICO: Freeze-Out Merger Does Not Constitute Fraud in the Sale of Securities within PSLRA Bar — Shareholder Cannot Show Proximate Cause If Injury Is Derivative of Harm to Corporation

Sanctions — Distinctive Rationales and Intertwined Applicability of Rule 11 and 35 U.S.C. § 285 in Patent Cases

“Purely Factual Material” in Work Product Document Not Subject to Production — Waiver of Privilege vs. Waiver of Work Product — Fed.R.Evid. 502 “Abolished the Dreaded Subject Matter Waiver”

Inherent Power Sanctions: Bad Faith Required in 5th Circuit — Raising Patently Frivolous Legal Argument and Threatening Further Meritless Litigation = Bad Faith — Pro Se Litigant — Vexatious Litigant Injunction Must Be Tailored

Spoliation Claim Mooted by Court’s Assuming Truth of Party’s Factual Position

Transmittal of Letter Drafted by Counsel Does Not Waive Privilege as to Investigation and Communications Leading up to Letter — Lawyer’s Testimony as to Process Insufficient

Voluntary Dismissal — with or without Prejudice — Renders Order Compelling Arbitration Appealable; Stay of Action Does Not

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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