Complex Lit Blog

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 ...

Class Action Fairness Act — Parens Patriae Action Brought on Behalf of All State Citizens pursuant to State Statute Falls within CAFA’s General Public Exception and Must be Remanded to State Court

State ex rel. Hood v. AU Optronics Corp., 2012 U.S. Dist. LEXIS 62089 (S.D. Miss. May 3, 2012): On March 25, 2011, the State of Mississippi filed a complaint in the Chancery Court of Hinds County alleging that the defendants had engaged in price-fixing in violation of the Mississippi Consumer Protection Act ("MCPA"), Miss. Code § 75-24 ...

Social Media — Chats and Texts Authenticated by One Party to Conversations Who Lacked Motive to Falsify — Corroborating Circumstances for Text Authentication

United States v Lundy, 2012 WL 1021795 (5th Cir. Mar. 28, 2012): In August 2006, Lundy was a 23 year old attending Delta State College in Cleveland, Mississippi and residing in Hollandale, Mississippi. Using the name ‘Jarious Johnson’, Lundy made contact with and engaged in a string of sexually laced text message and phone conversat ...

Commercial Litigation and Arbitration

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

Class Action Fairness Act — Parens Patriae Action Brought on Behalf of All State Citizens pursuant to State Statute Falls within CAFA’s General Public Exception and Must be Remanded to State Court

Social Media — Chats and Texts Authenticated by One Party to Conversations Who Lacked Motive to Falsify — Corroborating Circumstances for Text Authentication

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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