Complex Lit Blog

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 ...

Federal District Court Should Look to Decisions of Other Circuits in the Absence of Guiding Authority in Its Own Circuit and Be Reluctant to Create a Circuit Split

United States v. Bryan Co., 2012 U.S. Dist. LEXIS 78407 (S.D. Miss. June 6, 2012): And although it is true that Fourth Circuit decisions are not binding in this judicial district, an "informed person" would expect this court "to look to the opinions of other circuits for persuasive guidance, always chary to create a circuit split." ...

United States v. Bryan Co., 2012 U.S. Dist. LEXIS 78407 (S.D. Miss. June 6, 2012): And although it is true that Fourth Circuit decisions are not binding in this judicial district, an “informed person” would expect this court “to look…

Arbitration — If Manifest Disregard Survives, What Does It Mean?

Cerone v. Bank of Am. Inv. Servs., 2012 U.S. Dist. LEXIS 76952 (D.N.J. June 4, 2012): Pursuant to the FAA, a district court may vacate an arbitration award only under a limited set of circumstances: (1) where the award was procured by corruption, fraud, or undue means; (2) where there was evident partiality or co ...

Commercial Litigation and Arbitration

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

Federal District Court Should Look to Decisions of Other Circuits in the Absence of Guiding Authority in Its Own Circuit and Be Reluctant to Create a Circuit Split

Arbitration — If Manifest Disregard Survives, What Does It Mean?

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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