Complex Lit Blog

Expert Reports — Distinguishing 26(a)(2)(B) Retained Experts from 26(a)(2)(C) Hybrid Witnesses — What “Facts” and “Opinions” Must Be Disclosed under 26(a)(2)(C)

Meredith v. Int’l Marine Underwriters, 2012 U.S. Dist. LEXIS 100972 (D. Md. July 20, 2012): Federal Rule of Civil Procedure 26(a)(2)(A) requires litigants to disclose "the identity of any witness [they] may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705." Fed.R.Civ.P. 26. Rule 26(a)(2)(B) further re ...

Meredith v. Int’l Marine Underwriters, 2012 U.S. Dist. LEXIS 100972 (D. Md. July 20, 2012): Federal Rule of Civil Procedure 26(a)(2)(A) requires litigants to disclose “the identity of any witness [they] may use at trial to present evidence under Federal…

Limited Scope of Fraud and Mistake as Grounds to Overturn Arbitration Award

Taylor v. Univ. of Phoenix/Apollo Group, 2012 U.S. App. LEXIS 18865 (5th Cir. Sept. 7, 2012): Taylor contends that the award should be vacated because it was procured by fraud. "The statute does not provide for vacatur in the event of any fraudulent conduct, but only 'where the award was procured by corruption, fraud, or un ...

Taylor v. Univ. of Phoenix/Apollo Group, 2012 U.S. App. LEXIS 18865 (5th Cir. Sept. 7, 2012): Taylor contends that the award should be vacated because it was procured by fraud. “The statute does not provide for vacatur in the event…

Designating as a Witness a Hybrid Non-Reporting Expert Who Has Percipient Knowledge of Facts Waives All Privilege and Work Product Protection for Communications between That Witness and Counsel

PacifiCorp v. Nw. Pipeline GP, 2012 U.S. Dist. LEXIS 98313 (D. Or. July 16, 2012): PacifiCorp seeks discovery of at least 76 communications authored by, received by, or copied to GTN non-retained experts on topics about which they intend to testify, many of which involved GTN's in-house and outside counsel. GTN objects that these ...

Unquantified Sanctions Award Is Not Appealable Unless It is Inextricably Intertwined with an Appealable Order or Review of It Is Necessary to Review the Appealable Order

Orenshteyn v. Citrix Sys., Inc., 2012 U.S. App. LEXIS 15507 (Fed. Cir. July 26, 2012): By statute, this court has jurisdiction over an appeal of a decision of a district court if it is "final" under 28 U.S.C. § 1295(a)(1) or if it is an interlocutory order as specified in 28 U.S.C. § 1292. The district court's decision on the merits * ...

Initial Taking of Property = RICO Injury — No Separate Accrual for Continuing Profit Earned by Defendant over Time — Failure to File Federal RICO Action for Six Years after State Court Claims Dismissed Precludes Equitable Tolling

Kecia v. Bach & Wasserman, LLC, 2012 U.S. App. LEXIS 18136 (5th Cir. Aug. 27, 2012): In May 2002, the Josephs received a settlement from a personal injury matter. They invested the money in different ventures, including several retail food trailers. They purchased two new food units for their business from Customs Sales ("Customs"), pay ...

§ 1927 Sanctions May Not Be Ordered Paid to the Court — Inherent Power Sanctions May Be Imposed Even If Rule 11 Procedural Requirements Violated — Post-Judgment Inherent Power Sanctions

Melliott v. MSN Commc’ns, Inc., 2012 U.S. App. LEXIS 15218 (10th Cir. July 24, 2012): John R. Olsen, who was the plaintiff's attorney in the underlying district-court action, and his law firm appeal a Fed. R. Civ. P. 11 sanction imposed on them. Although we sympathize with the district court's frustration with Mr. Olsen's conduct, the ...

Melliott v. MSN Commc’ns, Inc., 2012 U.S. App. LEXIS 15218 (10th Cir. July 24, 2012): John R. Olsen, who was the plaintiff’s attorney in the underlying district-court action, and his law firm appeal a Fed. R. Civ. P. 11 sanction…

Ninth Circuit Abandons Rule Requiring That Dismissed Claims Be Realleged in Amended Complaint or Forfeited — Ends Both Sanctions Exposure and Circuit Split

Lacey v. Maricopa Cnty., 2012 U.S. App. LEXIS 18320 (9th Cir. Aug. 29, 2012): Before we consider his claim to immunity, we must address whether the claims against Maricopa County Attorney Andrew Thomas are properly before us, as our circuit law appears to require that we consider the claims against Thomas to be waived. Thomas was na ...

“Whether or Not the Supreme Court Is Infallible, It Is Final” and Alone Entitled to Revisit Its Precedents — Good Quote

Woolsey v. Citibank, N.A., 2012 U.S. App. LEXIS 18597 (10th Cir. Sept. 4, 2012): Like so many these days, Stephanie and Kenneth Woolsey owe more money on their home than it's worth. In fact, the value of their home doesn't come close to covering the balance due on their first mortgage, much less the amount they owe on a second. And it's ...

Woolsey v. Citibank, N.A., 2012 U.S. App. LEXIS 18597 (10th Cir. Sept. 4, 2012): Like so many these days, Stephanie and Kenneth Woolsey owe more money on their home than it’s worth. In fact, the value of their home doesn’t…

Rule 11 — Plaintiffs’ Failure to Consider Obvious Affirmative Defenses before Filing Complaint Is Sanctionable

Petrella v. Metro-Goldwyn-Mayer, Inc., 2012 U.S. App. LEXIS 18322 (9th Cir. Aug. 29, 2012): The defendants contend they are entitled to sanctions under Rule 11 and attorney's fees for Petrella's alleged unjustified filing and prosecution of this action, and ask that we remand for the district court to reconsider its denial of their sanc ...

Petrella v. Metro-Goldwyn-Mayer, Inc., 2012 U.S. App. LEXIS 18322 (9th Cir. Aug. 29, 2012): The defendants contend they are entitled to sanctions under Rule 11 and attorney’s fees for Petrella’s alleged unjustified filing and prosecution of this action, and ask…

RICO — Filed-Rate Doctrine Does Not Preclude Action against Utility for Paying Unlawful Rebates to Large Customers in Return for Withdrawal of Objections to a Rate-Stabilization Plan for Which State Approval Was Being Sought

Williams v. Duke Energy Int’l, Inc., 681 F.3d 788 (6th Cir. 2012): Plaintiffs appeal the dismissal of their case pursuant to Fed. R. Civ. P. 12(b)(1). The district court, following a hearing, found that the "filed-rate doctrine" denied the court federal question subject-matter jurisdiction. The district court also found that the Publi ...

Commercial Litigation and Arbitration

Expert Reports — Distinguishing 26(a)(2)(B) Retained Experts from 26(a)(2)(C) Hybrid Witnesses — What “Facts” and “Opinions” Must Be Disclosed under 26(a)(2)(C)

Limited Scope of Fraud and Mistake as Grounds to Overturn Arbitration Award

Designating as a Witness a Hybrid Non-Reporting Expert Who Has Percipient Knowledge of Facts Waives All Privilege and Work Product Protection for Communications between That Witness and Counsel

Unquantified Sanctions Award Is Not Appealable Unless It is Inextricably Intertwined with an Appealable Order or Review of It Is Necessary to Review the Appealable Order

Initial Taking of Property = RICO Injury — No Separate Accrual for Continuing Profit Earned by Defendant over Time — Failure to File Federal RICO Action for Six Years after State Court Claims Dismissed Precludes Equitable Tolling

§ 1927 Sanctions May Not Be Ordered Paid to the Court — Inherent Power Sanctions May Be Imposed Even If Rule 11 Procedural Requirements Violated — Post-Judgment Inherent Power Sanctions

Ninth Circuit Abandons Rule Requiring That Dismissed Claims Be Realleged in Amended Complaint or Forfeited — Ends Both Sanctions Exposure and Circuit Split

“Whether or Not the Supreme Court Is Infallible, It Is Final” and Alone Entitled to Revisit Its Precedents — Good Quote

Rule 11 — Plaintiffs’ Failure to Consider Obvious Affirmative Defenses before Filing Complaint Is Sanctionable

RICO — Filed-Rate Doctrine Does Not Preclude Action against Utility for Paying Unlawful Rebates to Large Customers in Return for Withdrawal of Objections to a Rate-Stabilization Plan for Which State Approval Was Being Sought

Recent Posts

Practice of Seeking Leave to Amend after The Case Is Dismissed Is Discouraged

RICO: Release Executed After Alleged RICO Violations Extinguishes RICO Claim — Eighth Circuit Declines to Address Enforceability of A Release “That Is An Integral Part of An Alleged RICO Scheme Or That Immunizes Future RICO Conduct

Pleading — “Civil pleadings are supposed to mark the boundaries for discovery; discovery is not supposed to substitute for definite pleading” (Good Quote) — Shotgun Pleadings (11th Circuit): Four Categories/Types

Rule 37(c)(1) Exclusion of Untimely Expert Report: Failure to Argue Harmlessness Essentially Waives Issue

Rule 37(b) Sanctions — Exclusion of Supplemental Expert Report for Advancing New Opinions — Third Circuit Exclusion Factors — “Importance of Excluded Evidence:” If, As Proponent Argues, There Is Nothing New, Then Exclusion Doesn’t Harm Proponent; If There Is, It Harms Opponent

RICO Pleading: Generic Allegations of Fraud (Failing Even to Set Forth Any False Representation) And Extortion (Failing to Describe Actual Threats) Too Conclusory to State a Claim

RICO Pleading: Statutory Directive That RICO Be Liberally Construed Does Not Extend to More Liberal Pleading Requirements

FRAP 38 Sanctions Imposed Due to the “Striking Legal Emptiness” of Brief/Appeal, “A Legal Nothingburger” — Bad Faith Not Required: An Appeal “May Also Be Frivolous If It Is Filed Out Of Sheer Obstinacy” (Good Quotes)

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