Complex Lit Blog

Telephone Call to Number Assigned to Business Is Self-Authenticating, But Not to Number Posted on Extinct Website —- Hearsay Excludable on Summary Judgment — Foreign Business Website Not Self-Authenticating under Rule 902(5)

Hansen v. PT Bank Negara Indonesia (Persero), 2013 U.S. App. LEXIS 2523 (10th Cir. Feb. 5, 2013): Plaintiffs-Appellants Theodore L. Hansen, Interstate Energy Corp. and Triple M, L.L.C., appeal from the district court's judgment in favor of Defendant-Appellee PT. Bank Negara Indonesia (Persero) Tbk. ("BNI"). BNI is a banking corporation ...

Hansen v. PT Bank Negara Indonesia (Persero), 2013 U.S. App. LEXIS 2523 (10th Cir. Feb. 5, 2013): Plaintiffs-Appellants Theodore L. Hansen, Interstate Energy Corp. and Triple M, L.L.C., appeal from the district court’s judgment in favor of Defendant-Appellee PT. Bank…

Examined Party (i.e., Plaintiff) Must Show Exceptional Circumstances to Depose Non-Testifying Physician Who Performs Rule 35 Examination (Caselaw Split) — Mere Fact a Testifying Physician References Non-Testifier’s Report Not Enough

Downs v. River City Group, LLC, 2013 U.S. Dist. LEXIS 14018 (D. Nev. Feb. 1, 2013): Rule 35 governs physical and mental examinations in cases where a party's physical or mental condition is at issue. This rule provides that the party who moved for such an examination must provide a copy of the examiner's report which contains the examin ...

Downs v. River City Group, LLC, 2013 U.S. Dist. LEXIS 14018 (D. Nev. Feb. 1, 2013): Rule 35 governs physical and mental examinations in cases where a party’s physical or mental condition is at issue. This rule provides that the…

Passing Reference to Issue in Appellate Brief Waives It for Failure of Argument — Liberal Construction of Pro Se Pleadings — Disregard of Court Order Justifies Rule 41(b) Dismissal

Levinson v. WEDU-TV, 2013 U.S. App. LEXIS 2242 (11th Cir. Feb. 1, 2013): We review dismissals for failure to comply with a court order, pursuant to Fed. R. Civ. P. 41(b), for abuse of discretion. Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985). If a plaintiff fails to comply with a court order, this Circuit has held that a di ...

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…

Commercial Litigation and Arbitration

Telephone Call to Number Assigned to Business Is Self-Authenticating, But Not to Number Posted on Extinct Website —- Hearsay Excludable on Summary Judgment — Foreign Business Website Not Self-Authenticating under Rule 902(5)

Examined Party (i.e., Plaintiff) Must Show Exceptional Circumstances to Depose Non-Testifying Physician Who Performs Rule 35 Examination (Caselaw Split) — Mere Fact a Testifying Physician References Non-Testifier’s Report Not Enough

Passing Reference to Issue in Appellate Brief Waives It for Failure of Argument — Liberal Construction of Pro Se Pleadings — Disregard of Court Order Justifies Rule 41(b) Dismissal

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

Recent Posts

Rule 37 Discovery Sanctions: Ninth Circuit’s Five-Factor Test for Gauging Appropriateness of Dismissal — The Limited Utility of Rule 12(f) Motions to Strike

Inherent Power Sanction of Dismissal — Preponderance of the Evidence Burden of Proof, Not Clear and Convincing Evidence (7th Circuit)

§ 1927 Sanctions — Must A Lawyer Who Unreasonably and Vexatiously Multiplies Federal Court Proceedings Be Acting “As An Attorney” When Committing the Misconduct To Be Subject to Sanction under § 1927?

Rule 37 Sanctions — Unfamiliarity With Litigation Process Does Not Excuse Intentional Disregard of Court Order — Also Affirming Rule 26(g) Sanctions on Clients and Counsel for False Representations That All Responsive Documents Had Been Produced

Supreme Court: Notice of Appeal Filed After The Original Deadline But Before Reopening by The District Court Is Timely — It Relates Forward to The Date of The Order Making The Appeal Possible — Second Notice of Appeal After Reopening Unnecessary

Rule 37 Default Judgment: Second Circuit’s Four-Factor Test for Imposing Defaults and Three-Factor Test for Lifting Them

RICO: Cover-Up Within Limitations Period of Untimely RICO Violation “Was Merely A Continuation” Of The Original Injury And Could Not Be Used “As A ‘Bootstrap’ To Salvage [The] Time-Barred Claims–Declining to Apply Pinkerton Doctrine to Civil RICO Claims

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