Complex Lit Blog

Contempt for Violation of Protective Order under Rule 37(c) — Standards for Contempt

Dorsett v. County of Nassau, 2012 U.S. Dist. LEXIS 71445 (E.D.N.Y. May 22, 2012): Presently before the Court is a motion to intervene by non-party the Police Benevolent Association of the Police Department of the County of Nassau, New York, Inc. ("PBA"), to enforce this Court's December 15, 2011 Confidentiality Order ("Confidentiality O ...

Collateral Estoppel — Default Judgment Entered as a Sanction for Refusal to Comply with Discovery Order Has Preclusive Effect

Sartin v. Macik, 535 F.3d 284 (4th Cir. 2008): [E]very federal circuit court to consider the question has held that a default judgment entered as a sanction for refusal to comply with discovery orders has preclusive effect. See In re Ansari, 113 F.3d 17, 19 (4th Cir. 1997) (applying Virginia law); In re Docteroff, 133 F.3d 210, 215 (3d C ...

Class Actions — Impact of 2003 Amendment to Rule 23 Allowing Parties to Settle or Dismiss without Judicial Approval: Court Must Grant Stipulated Motion to Dismiss (Here, without Prejudice)

Sample v. Qwest Commc’ns Co., LLC, 2012 U.S. Dist. LEXIS 70927 (D. Ariz. May 22, 2012): On May 26, 2011, the parties to this action submitted a Joint Motion for Certification of Settlement Class, Preliminary Approval of Class-Action Settlement, and Approval of Form and Notice (Doc. 57). The proposed settlement sought to resolve trespa ...

Does Rule 9(b) Apply to Claims of Negligent Misrepresentation? Circuit Split

From W&W Steel, LLC v. BSC Steel, Inc., 2012 U.S. Dist. LEXIS 69432 (D. Kan. May 18, 2012): Footnote 14. See D&K Ventures, LLC v. MGC, LLC, No. 09-2084, 2009 WL 1505539, at *8 (D. Kan. May 27, 2009) (recognizing a circuit split with regard to whether Rule 9(b) applies to negligent misrepresentation claims and noting the Tenth Circui ...

Text Messages Insufficiently Authenticated Where Cell Owner Did Not Author All Texts on Her Phone and No Corroborating Evidence Was Offered to Show Her Authorship of Messages at Issue

Commonwealth v. Koch, 2011 PA Super 201, 39 A.3d 996 (Pa.Super. 2011): Appellant alleges first that the trial court erred in admitting text messages into evidence that were not properly authenticated. Appellant insists there was no evidence substantiating that she was the author of the text messages, nor evidence that drug-related texts ...

Supremacy Clause Bars State Work Comp Statute from Preempting RICO — Fraudulent Deprivation of Work Comp Benefits (i.e., a Statutory Entitlement) = Injury to Property — State vs. Federal Law’s Role in Determining “Property”

Brown v. Cassens Transp. Co., 2012 U.S. App. LEXIS 6929 (6th Cir. April 6, 2012): We hold that the Supremacy Clause prevents the Michigan legislature from preempting a RICO remedy by declaring its worker's compensation scheme to be exclusive of federal remedies. An expected entitlement to benefits under the WDCA [Michigan's Worker's ...

Can Employees Be Unretained Experts under Rule 26(b)(4)(D)? Caselaw Split — Work Product & Employees — New Evidence on Reply Waived — Failure to Produce Evidence = Adverse Inference — Good Quotes on Protective Orders, Experts, Plain Meaning

Tellabs Operations, Inc. v. Fujitsu Ltd., 2012 U.S. Dist. LEXIS 60749 (N.D. Ill. May 1, 2012): In January 2008, Fujitsu Limited ("Fujitsu") filed suit against Tellabs Operations, Inc. ("Tellabs") in the Eastern District of Texas, charging it with infringing three of Fujitsu's patents for optical amplifiers. 1 A few months later, in June ...

Tellabs Operations, Inc. v. Fujitsu Ltd., 2012 U.S. Dist. LEXIS 60749 (N.D. Ill. May 1, 2012): In January 2008, Fujitsu Limited (“Fujitsu”) filed suit against Tellabs Operations, Inc. (“Tellabs”) in the Eastern District of Texas, charging it with infringing three…

Emails as Business Records — Admissibility Standards

Rogers v. Oregon Trail Elec. Consumers Coop., Inc., 2012 U.S. Dist. LEXIS 65883 (D. Or. May 8, 2012): In Monotype Corp. PLC v. International Typeface Corp., the Ninth Circuit held that emails were not automatically admissible under the business records hearsay exception. 43 F.3d 443, 450 (9th Cir. 1994). The court reasoned tha ...

Attorney-Client Privilege — Ninth Circuit Rejects Selective Waiver, Even If Party Has Confidentiality Agreement with Government Agency Receiving Privileged Information

In re Pacific Pictures Corp., 2012 U.S. App. LEXIS 9691 (9th Cir. May 10, 2012): A Petitioners' primary contention is that because Toberoff disclosed these documents to the government, as opposed to a civil litigant, his actions did not waive the privilege as to the world at large. That is, they urge that we adopt the theory ...

In re Pacific Pictures Corp., 2012 U.S. App. LEXIS 9691 (9th Cir. May 10, 2012): A Petitioners’ primary contention is that because Toberoff disclosed these documents to the government, as opposed to a civil litigant, his actions did not waive…

Circuit Split as to Whether District Court May Partially Transfer an Action pursuant to 28 U.S.C. § 1631

Johnson v. Mitchell, 2012 U.S. Dist. LEXIS 65934 (E.D. Cal. May 10, 2012): The Circuits are split regarding whether the language of 28 U.S.C. § 1631 permits federal courts to partially transfer an action. See United States v. County of Cook, Ill., 170 F.3d 1084 (Fed. Cir. 1999) (approving transfer of some, but not all, claims); FDIC v. ...

Commercial Litigation and Arbitration

Contempt for Violation of Protective Order under Rule 37(c) — Standards for Contempt

Collateral Estoppel — Default Judgment Entered as a Sanction for Refusal to Comply with Discovery Order Has Preclusive Effect

Class Actions — Impact of 2003 Amendment to Rule 23 Allowing Parties to Settle or Dismiss without Judicial Approval: Court Must Grant Stipulated Motion to Dismiss (Here, without Prejudice)

Does Rule 9(b) Apply to Claims of Negligent Misrepresentation? Circuit Split

Text Messages Insufficiently Authenticated Where Cell Owner Did Not Author All Texts on Her Phone and No Corroborating Evidence Was Offered to Show Her Authorship of Messages at Issue

Supremacy Clause Bars State Work Comp Statute from Preempting RICO — Fraudulent Deprivation of Work Comp Benefits (i.e., a Statutory Entitlement) = Injury to Property — State vs. Federal Law’s Role in Determining “Property”

Can Employees Be Unretained Experts under Rule 26(b)(4)(D)? Caselaw Split — Work Product & Employees — New Evidence on Reply Waived — Failure to Produce Evidence = Adverse Inference — Good Quotes on Protective Orders, Experts, Plain Meaning

Emails as Business Records — Admissibility Standards

Attorney-Client Privilege — Ninth Circuit Rejects Selective Waiver, Even If Party Has Confidentiality Agreement with Government Agency Receiving Privileged Information

Circuit Split as to Whether District Court May Partially Transfer an Action pursuant to 28 U.S.C. § 1631

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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