Complex Lit Blog

Motion to Dismiss for Lack of Standing Properly Brought under Rule 12(b)(1) and Decided under 12(b)(6) Standards — Elements of Article III Standing

In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 2012 U.S. App. LEXIS 9832 (3d Cir. May 16, 2012): Under Fed. R. Civ. P. 12(b)(1), a court must grant a motion to dismiss if it lacks subject-matter jurisdiction to hear a claim. "A motion to dismiss for want of standing is . . . properly brought pursuant to Rule 12(b) ...

Inherent Power Sanctions — Bad Faith Requires Something More Than Mere Pursuit of Meritless Claim — 3-Part Test — Sixth Circuit Questions Whether Inherent Power to Sanction Exists in Criminal Cases

United States v. Aleo, 681 F.3d 290 (6th Cir. 2012): On April 13, 2010, Freeman filed a motion to compel. The motion requested that the court order the prosecutor to file "a formal motion, with notice to defense counsel, seeking permission for the child complainant's mother to speak at ]prosecutor had refused to do as he asked that he ...

United States v. Aleo, 681 F.3d 290 (6th Cir. 2012): On April 13, 2010, Freeman filed a motion to compel. The motion requested that the court order the prosecutor to file “a formal motion, with notice to defense counsel, seeking…

Unretained Experts — Broad, Summary Disclosures under Rule 26(a)(2)(C) Sufficient

Estate of Lance v. Lewisville Indep. School Dist., 2012 U.S. Dist. LEXIS 66190 (E.D. Tex. May 11, 2012): Dr. Walker will testify regarding the provision of special education services to students, and specifically how those services were provided to Montana Lance. Dr. Alexander will testify regarding psychological and special education a ...

Tenth Circuit Requires Bad Faith to Support an Adverse Inference for Spoliation, Absent Motion for Rule 37 Sanctions

Toppins v. Minn. Life Ins. Co., 2012 U.S. App. LEXIS 1897 (10th Cir. Feb. 2, 2012): [Plaintiff’s] assertion that Mr. Jolly's destruction of his interview notes entitles her to an adverse inference is unavailing. She has not shown that she sought sanctions under Fed. R. Civ. P. 37; accordingly, she is limited to "seek[ing] sanction ...

Toppins v. Minn. Life Ins. Co., 2012 U.S. App. LEXIS 1897 (10th Cir. Feb. 2, 2012): [Plaintiff’s] assertion that Mr. Jolly’s destruction of his interview notes entitles her to an adverse inference is unavailing. She has not shown that she…

In Forma Pauperis Lawsuits Should Generally Not be Dismissed for Lack of Venue, but Rather Transferred — Error Harmless, However, Where No Conceivable Basis for Venue and No Prejudice

Day v. City of Galveston, 2012 U.S. App. LEXIS 9592 (3d Cir. May 11, 2012): District courts generally should not dismiss IFP [in forma pauperis] complaints sua sponte for improper venue. As we explained: 28 U.S.C. § 1915 [the IFP statute] contains no express authorization for a dismissal for lack of venue. In th ...

Federal Circuit Extends Federal Jurisdiction to All Patent-Related Legal Malpractice Claims, Even Where No Patent Has Issued and No Actual Patent Rights Are at Stake

Byrne v. Wood, Herron & Evans, LLP, 2012 U.S. App. LEXIS 6021 (Fed. Cir. Mar. 22, 2012) (denial of petition for rehearing en banc): Dyk, J., Concurring Under the Supreme Court's decision in Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 809 (1988), federal jurisdiction under 28 U.S.C. § 1338 exist ...

Byrne v. Wood, Herron & Evans, LLP, 2012 U.S. App. LEXIS 6021 (Fed. Cir. Mar. 22, 2012) (denial of petition for rehearing en banc): Dyk, J., Concurring Under the Supreme Court’s decision in Christianson v. Colt Industries Operating Corp., 486…

“Confusing Overlap” of Contempt vs. Other Sanctions Powers — Higher Burden of Proof If Contempt — Judge’s Duty to Justify Sanctions Imposed (Good Quote)

Securities and Exchange Commission v. First Choice Mgmt. Servs., Inc., 2012 U.S. App. LEXIS 8788 (7th Cir. May 1, 2012): So the order was violated; but was the sanction proper? Judges have inherent authority to impose sanctions for misconduct by litigants, their lawyers, witnesses, and others who participate in a lawsuit over which the j ...

Email Admissibility — Double Hearsay Satisfied by (1) Business Record Incorporating (2) Admission — 801(d)(2)(B) Does Not Require Employee Have Ability to Bind Employer — Junior Status of Employee Goes to Weight

In re Tribune Co., 2012 Bankr. LEXIS 1563 (Bankr. D. Del. April 9, 2012): In preparing his response to the Bigelow Email, Peter Cohen of JPMorgan contacted another JPMorgan employee, Joachim Sonne, who advised by email: Talked to EGI, Chris Hochschild, and he confirmed that they see their security as the most jun ...

Testimony Based on Newspaper Reports Is Hearsay — Documents Seized from PLO Not Admissible under Residual Exception —Rule 807 Standards — Lay Opinion May Not Include Specialized Knowledge or Legal Opinion

United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011): In this consolidated case, we address the appeals of five individuals and one corporate defendant convicted of conspiracy and substantive offenses for providing material aid and support to a designated terrorist organization. The terrorist organization at issue is Hamas, which in ...

Rule 408 Exclusion of Attorney Conversation Erroneous Where There Was No Pending Dispute — Note Importance of Announcing Intent to Maintain Settlement Offers Confidential

MCI Commc’ns Servs., Inc. v. Hagan, 641 F.3d 112; 2011 U.S. App. LEXIS 9699 (5th Cir. 2011): This case arises from a January 20, 2006 incident in which an underground cable owned by plaintiff-appellant MCI was allegedly severed. MCI filed suit against defendants-appellees Wayne Hagan and James Joubert, alleging that Joubert was neglig ...

Commercial Litigation and Arbitration

Motion to Dismiss for Lack of Standing Properly Brought under Rule 12(b)(1) and Decided under 12(b)(6) Standards — Elements of Article III Standing

Inherent Power Sanctions — Bad Faith Requires Something More Than Mere Pursuit of Meritless Claim — 3-Part Test — Sixth Circuit Questions Whether Inherent Power to Sanction Exists in Criminal Cases

Unretained Experts — Broad, Summary Disclosures under Rule 26(a)(2)(C) Sufficient

Tenth Circuit Requires Bad Faith to Support an Adverse Inference for Spoliation, Absent Motion for Rule 37 Sanctions

In Forma Pauperis Lawsuits Should Generally Not be Dismissed for Lack of Venue, but Rather Transferred — Error Harmless, However, Where No Conceivable Basis for Venue and No Prejudice

Federal Circuit Extends Federal Jurisdiction to All Patent-Related Legal Malpractice Claims, Even Where No Patent Has Issued and No Actual Patent Rights Are at Stake

“Confusing Overlap” of Contempt vs. Other Sanctions Powers — Higher Burden of Proof If Contempt — Judge’s Duty to Justify Sanctions Imposed (Good Quote)

Email Admissibility — Double Hearsay Satisfied by (1) Business Record Incorporating (2) Admission — 801(d)(2)(B) Does Not Require Employee Have Ability to Bind Employer — Junior Status of Employee Goes to Weight

Testimony Based on Newspaper Reports Is Hearsay — Documents Seized from PLO Not Admissible under Residual Exception —Rule 807 Standards — Lay Opinion May Not Include Specialized Knowledge or Legal Opinion

Rule 408 Exclusion of Attorney Conversation Erroneous Where There Was No Pending Dispute — Note Importance of Announcing Intent to Maintain Settlement Offers Confidential

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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