Complex Lit Blog

Where Testifying Expert Is Salaried Employee, Compensation Disclosure Requirement of Rule 26(a)(2)(B) Does Not Apply unless Salary Is Tied to or Dependent on Opinions — Full-Time Employee Status Alone Sufficient to Show Bias

Securities and Exchange Commission v. Nadel, , 2012 U.S. Dist. LEXIS 53173 (E.D.N.Y. April 16, 2012): Dr. Porter is an Assistant Professor of Finance at Iowa State University who is currently serving at the SEC's Division of Risk, Strategy and Financial Innovation pursuant to an Intergovernmental Personnel Act agreement awarded in June 2 ...

Class Actions — Superiority — Circuit Split as to Whether, Where Predominance Is Lacking, Court May Certify Sub-Issues for Class Adjudication Even Though Claim as a Whole Does Not Satisfy Predominance — Does This Split Survive Dukes?

Oakley v. Verizon Commc’ns, Inc., 2012 U.S. Dist. LEXIS 12975 (S.D.N.Y. Feb. 1, 2012): Where predominance is lacking, a Court may certify sub-issues for class adjudication; in Nassau County [In re Nassau County Strip Search Cases, 461 F.3d 219 (2d Cir. 2006),] the Second Circuit acknowledged a split in Circuit caselaw, but sided wi ...

Is a Court Officer Entitled to Absolute Quasi-Judicial Immunity — or Only Qualified Immunity — When Using Excessive Force to Remove a Person from the Courtroom pursuant to a Judge’s Order? Circuit Split

Ingram v. Township of Deptford, 2012 U.S. Dist. LEXIS 34031 (D.N.J. Mar. 13, 2012): A Circuit split exists with respect to whether a court officer is entitled to absolute quasi-judicial immunity when the officer allegedly uses excessive force to remove a person from a courtroom pursuant to a judge's order. The Third Circuit has not addr ...

A Post-Trial Motion for Judgment as a Matter of Law under Rule 50(b) May Only be Made on the Same Specific Grounds as the Pre-Verdict Motion under Rule 50(a)

Lore v. City of Syracuse, 2012 U.S. App. LEXIS 1954 (2d Cir. Feb. 2, 2012): Rule 50 of the Federal Rules of Civil Procedure provides in part that "[a] motion for judgment as a matter of law may be made at any time before the case is submitted to the jury." Fed. R. Civ. P. 50(a)(2). The principal purpose of the requirement that any such ...

Lore v. City of Syracuse, 2012 U.S. App. LEXIS 1954 (2d Cir. Feb. 2, 2012): Rule 50 of the Federal Rules of Civil Procedure provides in part that “[a] motion for judgment as a matter of law may be made…

Fraud on the Court under Rule 60(d)(3) — Elements — Possible Circuit Split as to Standard of Review — No Fraud on the Court for Failure to Advise Judge of Side Settlement When Presenting Consent Judgment for Approval

General Medicine, PC v. Horizon/CMS Health Care Corp., 2012 U.S. App. LEXIS 7186 (6th Cir. April 10, 2012): This matter began as a contract dispute between General and Horizon in the Eastern District of Michigan.... HealthSouth acquired Horizon in 1997 during the pendency of this suit, but never became a party.... In 2001, while the cas ...

Communications with Unretained Experts, Unprotected by Rule 26(b)(B)(4)(C), Are Protected by Attorney-Client Privilege — Any Exceptions? — Affiants on Preliminary Injunction = Testifying Experts

Graco, Inc. v. PMC Global, Inc., 2011 WL 666056 (D.N.J. Feb. 14, 2011): In connection with Graco’s motion for a preliminary injunction *** and opposition to PMC’s motion for summary judgment ***, Graco submitted [numerous] affidavits.... The Court notes that Weinberger, Mulder, Farrow, and Pagano are Graco employees (collectivel ...

Updated Article on Internet & Email Evidence (Part 2)

Download associated file: Internet Email Social Media Evidence Part 2.pdf Part 2 of the updated version of Internet and Email Evidence, as published this month in The Practical Litigator, is linked above, in PDF format. Part 1 was published in February and is li ...

First-Filed Rule Bars Federal Declaratory Judgment Action Filed after State Court DJ Action — Brillhart-Wilton Appears to Be Decisive— Unclear Whether Court Would Apply First-Filed Rule in Non-DJ Context, Where Circuits Are Split

Catlin Specialty Ins. Co. v. Plato Constr. Corp., 2012 U.S. Dist. LEXIS 36494 (D.N.J. Mar. 19, 2012): a. General Applicability of the First-Filed Rule to Co-pending Parallel State and Federal Litigations Under the First-Filed Rule, "'[i]n all cases of federal concurrent jurisdiction, the court which first has possession ...

Reformation Due to Mutual Mistake Requires “Exceptional Circumstances” Where Sophisticated Parties Entered Detailed, Heavily-Negotiated Agreement — No Unjust Enrichment If Written Contract

Simkin v. Blank, 2012 N.Y. LEXIS 618 (N.Y. Ct. App. April 3, 2012): The parties, represented by counsel, spent two years negotiating a detailed 22-page settlement agreement, executed in June 2006. In August 2006, the settlement agreement was incorporated, but not merged, into the parties' final judgment of divorce. The settleme ...

Bad Faith Conduct Need Not Cause Harm to be Sanctionable — § 1927 Sanctions Imposable on Law Firms — District Court May Sanction Frivolous Appeals That Are Withdrawn — Entire Cost of Sanctions Motion Awardable Even If Denied in Part

Enmon v. Arnold & Itkin LLP, 2012 U.S. App. LEXIS 6986 (2d Cir. April 6, 2012): The sanctions imposed on Arnold & Itkin arose out of Michael Enmon's attempts to obtain a subordinated loan from Prospect to complete his acquisition of Caprock Pipe & Supply LP ("Caprock LP"), a company in the business of purchasing, refurbishing ...

Enmon v. Arnold & Itkin LLP, 2012 U.S. App. LEXIS 6986 (2d Cir. April 6, 2012): The sanctions imposed on Arnold & Itkin arose out of Michael Enmon’s attempts to obtain a subordinated loan from Prospect to complete his acquisition…

Commercial Litigation and Arbitration

Where Testifying Expert Is Salaried Employee, Compensation Disclosure Requirement of Rule 26(a)(2)(B) Does Not Apply unless Salary Is Tied to or Dependent on Opinions — Full-Time Employee Status Alone Sufficient to Show Bias

Class Actions — Superiority — Circuit Split as to Whether, Where Predominance Is Lacking, Court May Certify Sub-Issues for Class Adjudication Even Though Claim as a Whole Does Not Satisfy Predominance — Does This Split Survive Dukes?

Is a Court Officer Entitled to Absolute Quasi-Judicial Immunity — or Only Qualified Immunity — When Using Excessive Force to Remove a Person from the Courtroom pursuant to a Judge’s Order? Circuit Split

A Post-Trial Motion for Judgment as a Matter of Law under Rule 50(b) May Only be Made on the Same Specific Grounds as the Pre-Verdict Motion under Rule 50(a)

Fraud on the Court under Rule 60(d)(3) — Elements — Possible Circuit Split as to Standard of Review — No Fraud on the Court for Failure to Advise Judge of Side Settlement When Presenting Consent Judgment for Approval

Communications with Unretained Experts, Unprotected by Rule 26(b)(B)(4)(C), Are Protected by Attorney-Client Privilege — Any Exceptions? — Affiants on Preliminary Injunction = Testifying Experts

Updated Article on Internet & Email Evidence (Part 2)

First-Filed Rule Bars Federal Declaratory Judgment Action Filed after State Court DJ Action — Brillhart-Wilton Appears to Be Decisive— Unclear Whether Court Would Apply First-Filed Rule in Non-DJ Context, Where Circuits Are Split

Reformation Due to Mutual Mistake Requires “Exceptional Circumstances” Where Sophisticated Parties Entered Detailed, Heavily-Negotiated Agreement — No Unjust Enrichment If Written Contract

Bad Faith Conduct Need Not Cause Harm to be Sanctionable — § 1927 Sanctions Imposable on Law Firms — District Court May Sanction Frivolous Appeals That Are Withdrawn — Entire Cost of Sanctions Motion Awardable Even If Denied in Part

Recent Posts

RICO: Indirect Purchasers (Car Buyers/Renters) Lack Standing to Sue Manufacturers for RICO Violations Even Though Intermediaries (Auto Dealer Direct Purchasers) Lack Any Damages

RICO: Statutory Requirement that RICO Be Liberally Construed Does Not Establish a More Liberal Pleading Standard for RICO Claims — “To Be Sure, Adequately Pleading a RICO Claim Can Be Challenging” (Good Quote) — Court May Dismiss Action Pursuant to Rule 41(b) Absent A Motion

For An Appeal to Be Timely, A Motion for Reconsideration in The District Court (A Rule 59(e) Motion) Must Be Filed, And Not Just Served within 30 Days of The Decision, to Toll The 30-Day Period for Filing An Appeal

There Is No Good-Faith Defense For Issuing An Overly Burdensome Subpoena

Purposes of Rule 37 and Section 1927 Sanctions

While Rule 11 Doesn’t Apply to Appellate Proceedings (Unless It Has Been Incorporated in Local Appellate Rules), Rule 11 Caselaw Is Looked to for Guidance in Interpreting Applicable Sanctions Powers on Appeal

Rule 11 Sanctions & Appellate Review: Abuse of Discretion Standard Applies Unless Sanctions Are Based Solely (Not Just in Part) on Legal Issues, in Which Case Review Is De Novo

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