Complex Lit Blog

Allegedly False Representations Directed to Person in State Giving Rise to Claim Satisfy Minimum Contacts — Circuit Split as to Whether All Jurisdictionally Relevant Acts Must Be Aimed at State or Only Tortious Acts

Felland v. Clifton, 2012 U.S. App. LEXIS 11380 (7th Cir. June 6, 2012): While vacationing in Arizona, Robert and Linda Felland entered into a contract to purchase a condominium unit in a planned beachfront development in Puerto Peñasco, Mexico. The project was managed by a real-estate development firm owned by Patrick Clifton, an Arizo ...

Rule 11 Sanctions for Filing Claims Barred by Statute of Limitations (An Affirmative Defense) and § 1927 Sanctions for Filing Duplicative Lawsuits

Erwin v. Russ, 2012 U.S. App. LEXIS 11101 (5th Cir. June 1, 2012): Erwin, along with twenty-three other plaintiffs (collectively the "Plaintiffs") sued Bryan F. Russ, Jr. and fifty-three other defendants (collectively the "Defendants") for their roles in an alleged grand conspiracy involving a Texas state judge and Russ' law firm ("The ...

Erwin v. Russ, 2012 U.S. App. LEXIS 11101 (5th Cir. June 1, 2012): Erwin, along with twenty-three other plaintiffs (collectively the “Plaintiffs”) sued Bryan F. Russ, Jr. and fifty-three other defendants (collectively the “Defendants”) for their roles in an alleged…

Is Forum Selection Clause Substantive or Procedural for Choice of Law Purposes in Diversity Action? Circuit Split

Mid-American Benefits, Inc. v. Neb. Ass’n of Resource Dists., 2012 U.S. Dist. LEXIS 77609 (D. Neb. June 5, 2012): Because this is a diversity jurisdiction action, the Court must determine whether to treat the forum selection clause issue as substantive or procedural, which will, in turn, determine the choice of law. In Rainforest Caf� ...

Sanctions — What Constitutes Bad Faith for § 1927 and Inherent Power Purposes — Even Meritorious Arguments May Be Advanced in Bad Faith for Harassment Purposes — Award of Costs as Sanction

Save the Peaks Coalition v. U.S. Forest Serv., 2012 U.S. App. LEXIS 12666 (9th Cir. June 21, 2012): Intervenor-Defendant-Appellee Arizona Snowbowl Resort Limited Partnership (Snowbowl) has moved for attorney's fees and costs. The court is well aware that Plaintiffs-Appellants and Howard M. Shanker (Shanker), their counsel, grossly ab ...

Save the Peaks Coalition v. U.S. Forest Serv., 2012 U.S. App. LEXIS 12666 (9th Cir. June 21, 2012): Intervenor-Defendant-Appellee Arizona Snowbowl Resort Limited Partnership (Snowbowl) has moved for attorney’s fees and costs. The court is well aware that Plaintiffs-Appellants and…

RICO — Damage to Reputation from Defamation Is Personal, Not Injury to Business or Property, Even If It Results in a Loss of Income

Santana v. Cook Cnty. Board of Review, , 679 F.3d 614 (7th Cir. 2012): Finally, Santana alleges that the defendants' alleged racketeering activity--including bribery, money laundering, honest-services fraud, and extortion--injured him "in business or property" and therefore violated RICO, 18 U.S.C. § 1964(c). But Santana cannot state a ...

Santana v. Cook Cnty. Board of Review, , 679 F.3d 614 (7th Cir. 2012): Finally, Santana alleges that the defendants’ alleged racketeering activity–including bribery, money laundering, honest-services fraud, and extortion–injured him “in business or property” and therefore violated RICO, 18…

Inherent Power Sanctions — Voluntary Dismissal in Face of Summary Judgment Motion = Evidence of Awareness of Frivolousness/Subjective Bad Faith — Client’s Verification of Complaint No Defense to Attorney’s Filing Baseless Claim

Dubuc v. Green Oak Township, 2012 U.S. App. LEXIS 11334 (6th Cir. June 4, 2012): Dennis Dubuc has a long history of instigating lawsuits against his township. As chronicled in an opinion from the Michigan Supreme Court, Dubuc filed "at least ten lawsuits" between 1985 and 2000, when the opinion was written. Dubuc v. Green Oak Twp., 609 ...

Non-Binding Arbitration ≠ Mediation — Proceedings Not Protected from Discovery Even If Federal Mediation Privilege Exists (Undecided)

Kimberly-Clark Worldwide, Inc. v. First Quality Baby Prods., LLC, 447 Fed. Appx. 217 (Fed. Cir. 2011): Kimberly-Clark Worldwide, Inc. ("K-C") appeals from the district court's orders compelling discovery relating to three alternative dispute resolution agreements and the proceedings that occurred pursuant to those agreements. ***

Kimberly-Clark Worldwide, Inc. v. First Quality Baby Prods., LLC, 447 Fed. Appx. 217 (Fed. Cir. 2011): Kimberly-Clark Worldwide, Inc. (“K-C”) appeals from the district court’s orders compelling discovery relating to three alternative dispute resolution agreements and the proceedings that occurred…

Personal Knowledge Regarding Business Records May Be Inferred from Witness’s Position with Company, and Custodian May Testify as Corporate Representative — No Such Inference of Personal Knowledge Where Counsel Sponsors Internet Exhibit

Lusk v . Wells Fargo N.A., 2012 U.S. Dist. LEXIS 70369 (E.D. Tex. May 21, 2012): This is a dispute over an attempted foreclosure on certain real property located at 6738 County Road 593, Nevada, Collin County, Texas. *** First, Plaintiffs object to portions of the affidavit of Jennifer Robinson*** Federal Rule of Civil Pro ...

Social Media — Jurors Complaints About Jury Service on Facebook, Receipt of Commiserating Messages, and Friending Other Jurors Not Grounds for New Trial Absent Evidence of Extraneous Influence — No Right to Discovery from Facebook

Commonwealth v. Werner, 81 Mass. App. Ct. 689, 967 N.E.2d 159 (2012): After the defendant, Clare Werner, was convicted at a jury trial of twelve counts of larceny in excess of $250, in violation of G. L. c. 266, § 30(1), her defense counsel visited Facebook, a social networking Web site, and reviewed public postings by two jurors mad ...

Rule 11 Safe Harbor Satisfied by Service of Naked Motion — Unnecessary to Serve Accompanying Brief and Affidavit — Judge’s Warning that Proposed Motion May Trigger Sanctions Proper

Star Mark Mgmt., Inc. v. Koon Chun Hing K&E Soy & Sauce Factory, Ltd., 2012 U.S. App. LEXIS 12002 (2d Cir. June 13, 2012): The safe-harbor provision is a strict procedural requirement. Perpetual Sec., Inc. v. Tang, 290 F.3d 132, 142 n.4 (2d Cir. 2002); see also Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1327-29 (2d Cir. 1995). An ...

Commercial Litigation and Arbitration

Allegedly False Representations Directed to Person in State Giving Rise to Claim Satisfy Minimum Contacts — Circuit Split as to Whether All Jurisdictionally Relevant Acts Must Be Aimed at State or Only Tortious Acts

Rule 11 Sanctions for Filing Claims Barred by Statute of Limitations (An Affirmative Defense) and § 1927 Sanctions for Filing Duplicative Lawsuits

Is Forum Selection Clause Substantive or Procedural for Choice of Law Purposes in Diversity Action? Circuit Split

Sanctions — What Constitutes Bad Faith for § 1927 and Inherent Power Purposes — Even Meritorious Arguments May Be Advanced in Bad Faith for Harassment Purposes — Award of Costs as Sanction

RICO — Damage to Reputation from Defamation Is Personal, Not Injury to Business or Property, Even If It Results in a Loss of Income

Inherent Power Sanctions — Voluntary Dismissal in Face of Summary Judgment Motion = Evidence of Awareness of Frivolousness/Subjective Bad Faith — Client’s Verification of Complaint No Defense to Attorney’s Filing Baseless Claim

Non-Binding Arbitration ≠ Mediation — Proceedings Not Protected from Discovery Even If Federal Mediation Privilege Exists (Undecided)

Personal Knowledge Regarding Business Records May Be Inferred from Witness’s Position with Company, and Custodian May Testify as Corporate Representative — No Such Inference of Personal Knowledge Where Counsel Sponsors Internet Exhibit

Social Media — Jurors Complaints About Jury Service on Facebook, Receipt of Commiserating Messages, and Friending Other Jurors Not Grounds for New Trial Absent Evidence of Extraneous Influence — No Right to Discovery from Facebook

Rule 11 Safe Harbor Satisfied by Service of Naked Motion — Unnecessary to Serve Accompanying Brief and Affidavit — Judge’s Warning that Proposed Motion May Trigger Sanctions Proper

Recent Posts

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)

RICO: Hobbs Act does not apply when the alleged extortion is meant to benefit the state

RICO: Indirect Injury Unrecoverable — Indirect Purchaser Rule Imported from Antitrust

RICO: No Causation Where Harm Flowed Several Steps After the Fraudulent Acts — RICO Causation Same As Antitrust Causation

Sanctions vs. Automatic Stay: Imposition of Sanctions (Here, Inherent Power Sanctions) Is Subject to the Police Power Exception to the Automatic Stay in Bankruptcy

The Word “Include” May Be A Word of Limitation As Opposed to a Word of Enlargement, Depending on the Context

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