Complex Lit Blog

Sanctions — Reasonable Prefiling Investigation May Negate Bad Faith — Misconduct in Another Court Sanctionable Only If It Is in Direct Defiance of Sanctioning Court — Relationship between Rule 11 and 35 U.S.C. § 285

Highmark, Inc. v. Allcare Health Mgmt. Sys., Inc., 2012 U.S. App. LEXIS 16450 (Fed Cir. Aug. 7, 2012): Allcare Health Management Systems, Inc. ("Allcare") appeals from an order of the United States District Court for the Northern District of Texas finding this case exceptional under 35 U.S.C. § 285 and awarding attorneys' fees and cost ...

Highmark, Inc. v. Allcare Health Mgmt. Sys., Inc., 2012 U.S. App. LEXIS 16450 (Fed Cir. Aug. 7, 2012): Allcare Health Management Systems, Inc. (“Allcare”) appeals from an order of the United States District Court for the Northern District of Texas…

Posthumous Waiver of Attorney-Client Privilege Must Be in the Interest of the Decedent or the Estate — Reputational Damage to Decedent Benefitting Personal Representative / Executor Precludes Waiver

United States v. Yielding, 657 F.3d 688 (8th Cir. 2011): A jury found Geffrey A. Yielding guilty of two federal offenses: one count of aiding and abetting a violation of the so-called Medicare anti-kickback statute, in violation of 42 U.S.C. § 1320a-7b(b)(2) and 18 U.S.C. § 2, and one count of aiding and abetting the falsification of ...

Sanctions — Power to Disbar Should be Exercised with Great Caution

Parker v. Jacobs (In re Parker), 2012 U.S. App. LEXIS 16552 (11th Cir. Aug. 9, 2012): On February 17, 2011, Teresa Jacobs, the bankruptcy administrator for the Middle District of Alabama, moved for the bankruptcy court to impose sanctions on Parker. Jacobs alleged that, over the course of several cases, Parker committed numerous violati ...

Party Resisting Confirmation of Arbitration Award Is Entitled to Judicial Determination of Arbitrability Absent Clear and Unmistakable Evidence That Parties Agreed to Arbitrate Or Submit Issue to Arbitrator

Schneider v. Kingdom of Thailand, 2012 U.S. App. LEXIS 16508 (2d Cir. Aug. 8, 2012): "The question whether the parties have submitted a particular dispute to arbitration, i.e., the 'question of arbitrability,' is 'an issue for judicial determination [u]nless the parties clearly and unmistakably provide otherwise.'" Ho ...

Schneider v. Kingdom of Thailand, 2012 U.S. App. LEXIS 16508 (2d Cir. Aug. 8, 2012): “The question whether the parties have submitted a particular dispute to arbitration, i.e., the ‘question of arbitrability,’ is ‘an issue for judicial determination [u]nless the…

Spoliation — Adverse Inference Requires Bad Faith in Tenth Circuit — Allowing Witnesses to be Questioned about Spoliation Constitutes a Lesser Sanction

Dalcour v. City of Lakewood, 2012 U.S. App. LEXIS 16303 (10th Cir. Aug. 6, 2012): Before jury selection on the claims of unconstitutional seizure and use of excessive force by the Officers, the district court ruled on several motions in limine, including Plaintiffs' motion alleging spoliation of evidence related to the city's TASER logs ...

Propriety of Motion in Limine to Admit, Rather Than Exclude, Evidence

Bond Pharmacy, Inc. v. AnazaoHealth Corp., 2012 U.S. Dist. LEXIS 103373 (S.D. Miss. July 25, 2012): Anazao's motion in limine states that the letters in question contain information it learned from CMS officials and through CMS documents. *** Anazao requests a pretrial ruling from the Court on the admissibility of that information, name ...

Bond Pharmacy, Inc. v. AnazaoHealth Corp., 2012 U.S. Dist. LEXIS 103373 (S.D. Miss. July 25, 2012): Anazao’s motion in limine states that the letters in question contain information it learned from CMS officials and through CMS documents. *** Anazao requests…

PIN Text Messages Authenticated for Rule 104(a) Purposes by Affidavit from Service Provider and Distinctive Characteristics, Primarily from Contents — Jury Is Ultimate Decisionmaker under Rule 104(b)

United States v. Kilpatrick, 2012 U.S. Dist. LEXIS 110166 (E.D. Mich. Aug. 7, 2012): The government seeks a preliminary pretrial ruling on the authenticity of relevant text message exchanges pursuant to Federal Rule of Evidence 104(a) and (b). The evidence at issue is comprised of text messages exchanged between and among Defendants and ...

Federal, Not State, Law Governs Spoliation Sanctions

Sherman v. Rinchem Co., 2012 U.S. App. LEXIS 16283 (8th Cir. Aug. 6, 2012): A. Spoliation of Evidence In seeking summary judgment as a sanction for spoliation of evidence, Sherman argued that he had specifically requested that Rinchem produce "[a]ny and all documents relating to Plaintiff and the investigation of the P ...

Counsel’s Improper Influence over Deposition Errata Sheets — Effecting Substantive Changes to Conform Deposition to Complaint — in Order to Push Meritless Case to Trial Warrants § 1927 Sanctions

Gonzalez v. Fresenius Med. Care N. Am., 2012 U.S. App. LEXIS 15704 (5th Cir. July 30, 2012): Relator's counsel also appeals the district court's award of sanctions under § 1927 in connection with Relator's retaliation suit. *** Section 1927 sanctions are not to be awarded lightly. They require "evidence of bad faith, i ...

Gonzalez v. Fresenius Med. Care N. Am., 2012 U.S. App. LEXIS 15704 (5th Cir. July 30, 2012): Relator’s counsel also appeals the district court’s award of sanctions under § 1927 in connection with Relator’s retaliation suit. *** Section 1927 sanctions…

Plaintiff May Not Voluntarily Dismiss Petition to Compel Arbitration — Rule 41(a)(1)(A)(i) Does Not Apply — It Is “Rare Case” in which District Judge’s Refusal to Recuse Is Reversed

ISC Holding AG v.- Nobel Biocare Finance AG, 2012 U.S. App. LEXIS 15402 (2d Cir. July 25, 2012): Petitioner-Appellant ISC Holding AG ("ISC") appeals from a November 23, 2010 order of the United States District Court for the Southern District of New York (Stanton, J.) vacating its voluntary notice of dismissal and from a judgment, entere ...

ISC Holding AG v.- Nobel Biocare Finance AG, 2012 U.S. App. LEXIS 15402 (2d Cir. July 25, 2012): Petitioner-Appellant ISC Holding AG (“ISC”) appeals from a November 23, 2010 order of the United States District Court for the Southern District…

Commercial Litigation and Arbitration

Sanctions — Reasonable Prefiling Investigation May Negate Bad Faith — Misconduct in Another Court Sanctionable Only If It Is in Direct Defiance of Sanctioning Court — Relationship between Rule 11 and 35 U.S.C. § 285

Posthumous Waiver of Attorney-Client Privilege Must Be in the Interest of the Decedent or the Estate — Reputational Damage to Decedent Benefitting Personal Representative / Executor Precludes Waiver

Sanctions — Power to Disbar Should be Exercised with Great Caution

Party Resisting Confirmation of Arbitration Award Is Entitled to Judicial Determination of Arbitrability Absent Clear and Unmistakable Evidence That Parties Agreed to Arbitrate Or Submit Issue to Arbitrator

Spoliation — Adverse Inference Requires Bad Faith in Tenth Circuit — Allowing Witnesses to be Questioned about Spoliation Constitutes a Lesser Sanction

Propriety of Motion in Limine to Admit, Rather Than Exclude, Evidence

PIN Text Messages Authenticated for Rule 104(a) Purposes by Affidavit from Service Provider and Distinctive Characteristics, Primarily from Contents — Jury Is Ultimate Decisionmaker under Rule 104(b)

Federal, Not State, Law Governs Spoliation Sanctions

Counsel’s Improper Influence over Deposition Errata Sheets — Effecting Substantive Changes to Conform Deposition to Complaint — in Order to Push Meritless Case to Trial Warrants § 1927 Sanctions

Plaintiff May Not Voluntarily Dismiss Petition to Compel Arbitration — Rule 41(a)(1)(A)(i) Does Not Apply — It Is “Rare Case” in which District Judge’s Refusal to Recuse Is Reversed

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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