Complex Lit Blog

District Court Retains Jurisdiction after Remand to Sanction under 28 U.S.C. § 1447(c) as Well as Rule 11

Desert Schools Federal Credit Union v. Johnson, 2012 U.S. App. LEXIS 12193 (9th Cir. June 15, 2011): The Supreme Court has long held that a district court retains jurisdiction to impose Rule 11 sanctions even after a case has been dismissed. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 394-98 (1990). Further, this court has held ...

Presumption of Access to Judicial Records Inapplicable to Those Filed under Seal with a Non-Dispositive Motion, But Daubert Motion Filed with Summary Judgment Motion May Be Dispositive

In re Midland Nat’l Life Ins. Co. Annuity Sales Pracs. Lit., 2012 U.S. App. LEXIS 15334 (9th Cir. July 25, 2012): The district court presided over four class action cases, each brought by the same plaintiffs' counsel. Plaintiffs asserted similar claims against each defendant for RICO violations and violations of state law based on the ...

Inherent Power Sanctions —Party’s Unfounded Attack on Settlement Agreement, Like Unfounded Attack on Arbitration Award, Is Vexatious — Settlement Agreement Predicated on Confidentiality of Terms Justifies Sealing Order

Seals v. Herzing Inc., 2012 U.S. App. LEXIS 13390 (5th Cir. June 29, 2012): A two-day arbitration hearing was scheduled. Seals proceeded pro se prior to the hearing, but he retained counsel for the hearing itself. On the hearing's second day, the parties agreed to settlement terms. The terms were read on the record at the arbitrati ...

Court May Appoint Arbitrator under FAA and New York Convention Any Time There Is a “Mechanical Breakdown” in the Arbitrator Selection Process unless an Integral Forum Selection Clause Has Failed

BP Exploration Libya Ltd. v. ExxonMobil Libya Ltd., 2012 U.S. App. LEXIS 15706 (5th Cir. July 30,2012): BP Exploration Libya Limited ("BP"), ExxonMobil Libya Limited ("Exxon"), and Noble North Africa Limited ("Noble") are entangled in a disagreement over the appointment of arbitrators to hear and decide their dispute related to the alle ...

BP Exploration Libya Ltd. v. ExxonMobil Libya Ltd., 2012 U.S. App. LEXIS 15706 (5th Cir. July 30,2012): BP Exploration Libya Limited (“BP”), ExxonMobil Libya Limited (“Exxon”), and Noble North Africa Limited (“Noble”) are entangled in a disagreement over the appointment…

Must Evidence Submitted at Class Certification Stage be Admissible into Evidence (Rule 56 Standard)? Circuit Split

Lujan v. Cabana Mgmt., Inc., 2012 U.S. Dist. LEXIS 104585 (E.D.N.Y. July 26, 2012): More problematic is the question whether a declaration submitted in connection with a Rule 23 motion to certify a class must be based on personal knowledge and free of inadmissible hearsay. Although defendants urge the Court to measure plaintiffs' Ru ...

Is an Expert Who Agrees to Testify for No Compensation but with Expense Reimbursement “Specially Employed” within 26(a)(2)(B) Requiring a Written Report?

Acree v. Watson Pharm., Inc., 2012 U.S. Dist. LEXIS 101697 (N.D. Ill. July 20, 2012): Plaintiff has moved to strike two witnesses on the ground that defendants disclosed them too late and insufficiently. The witnesses are two scientists who reside in Germany, a pathologist (Dr. Sven Anders) and a toxicologist (Dr. Hilke Andresen), who a ...

Sanctions — Lead Counsel Responsible for Discovery Failures, Cannot Shift Blame — Rule 37 Motion Puts Counsel on Notice of Personal Risk — No Defense That He Didn’t Instruct Client Not to Comply — No Right to Oral Argument in Second Circuit

Rates Technology, Inc. v. Mediatrix Telecom, Inc., 2012 U.S. App. LEXIS 15489 (Fed. Cir. July 26, 2012): This appeal arises from the imposition of discovery sanctions against James B. Hicks. Mr. Hicks was the lead attorney for Rates Technology, Inc. ("RTI"), the plaintiff in a patent infringement action. The two patents in suit relate ...

Motions in Limine — Standards

Mahaney v. Novartis Pharm. Corp., 835 F. Supp. 2d 299 (W.D. Ky. 2011): Motions in limine provided in advance of trial are appropriate if they eliminate evidence that has no legitimate use at trial for any purpose. Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997); Bouchard v. Am. Home Products Corp., 213 F. S ...

28 U.S.C. § 1782 Contains No Requirement That the Evidence Sought Be Admissible in the Foreign Proceeding — Good Quote on Abuse of Discretion Standard

Brandi-Dohrn v. IKB Deutsche Insustriebank AG, 673 F.3d 76 (2d Cir. 2012): Petitioner-Appellant Anselm Brandi-Dohrn appeals from an Order dated November 16, 2011 *** granting Respondent-Appellee IKB Deutsche Industriebank AG's motion to quash subpoenas issued pursuant to 28 U.S.C. § 1782. Under section 1782, a district court is permitt ...

Brandi-Dohrn v. IKB Deutsche Insustriebank AG, 673 F.3d 76 (2d Cir. 2012): Petitioner-Appellant Anselm Brandi-Dohrn appeals from an Order dated November 16, 2011 *** granting Respondent-Appellee IKB Deutsche Industriebank AG’s motion to quash subpoenas issued pursuant to 28 U.S.C. §…

Circuit Split as to Whether Bankruptcy Court or District Court Has Jurisdiction over Claims Arising out of Violation of the Automatic Stay

Roberts v. Am. Bank & Trust Co., 835 F. Supp. 2d 183 (E.D. La. 2011): The American Bank Defendants have moved to dismiss Plaintiff's claims of violation of the automatic stay, arguing that this Court lacks jurisdiction to hear the claim and that Plaintiff fails to state a claim upon which relief can be granted. The United States ...

Roberts v. Am. Bank & Trust Co., 835 F. Supp. 2d 183 (E.D. La. 2011): The American Bank Defendants have moved to dismiss Plaintiff’s claims of violation of the automatic stay, arguing that this Court lacks jurisdiction to hear the…

Commercial Litigation and Arbitration

District Court Retains Jurisdiction after Remand to Sanction under 28 U.S.C. § 1447(c) as Well as Rule 11

Presumption of Access to Judicial Records Inapplicable to Those Filed under Seal with a Non-Dispositive Motion, But Daubert Motion Filed with Summary Judgment Motion May Be Dispositive

Inherent Power Sanctions —Party’s Unfounded Attack on Settlement Agreement, Like Unfounded Attack on Arbitration Award, Is Vexatious — Settlement Agreement Predicated on Confidentiality of Terms Justifies Sealing Order

Court May Appoint Arbitrator under FAA and New York Convention Any Time There Is a “Mechanical Breakdown” in the Arbitrator Selection Process unless an Integral Forum Selection Clause Has Failed

Must Evidence Submitted at Class Certification Stage be Admissible into Evidence (Rule 56 Standard)? Circuit Split

Is an Expert Who Agrees to Testify for No Compensation but with Expense Reimbursement “Specially Employed” within 26(a)(2)(B) Requiring a Written Report?

Sanctions — Lead Counsel Responsible for Discovery Failures, Cannot Shift Blame — Rule 37 Motion Puts Counsel on Notice of Personal Risk — No Defense That He Didn’t Instruct Client Not to Comply — No Right to Oral Argument in Second Circuit

Motions in Limine — Standards

28 U.S.C. § 1782 Contains No Requirement That the Evidence Sought Be Admissible in the Foreign Proceeding — Good Quote on Abuse of Discretion Standard

Circuit Split as to Whether Bankruptcy Court or District Court Has Jurisdiction over Claims Arising out of Violation of the Automatic Stay

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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