Complex Lit Blog

However Liberally Construed, Pro Se Complaint Must Still Contain Sufficient Facts to Satisfy Twiqbal

Pieczenik v. Bayer Corp., 2012 U.S. App. LEXIS 5986 (Fed. Cir. Mar. 22, 2012) (RICO / copyright infringement action): In general, pro se litigants are held to a lesser standard than pleadings drafted by lawyers when determining whether a complaint should be dismissed for failure to state a claim. Hughes v. Rowe, 449 U.S. 5, 9-10 (1980). ...

Email Authentication Standards in New Hampshire (Applying Authentication Rule Identical to Fed.R.Evid. 901)

State v. Ruggiero, 163 N.H. 129, 35 A.3d 616 (2011): New Hampshire Rule of Evidence 901(a) provides that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." The proof necess ...

State v. Ruggiero, 163 N.H. 129, 35 A.3d 616 (2011): New Hampshire Rule of Evidence 901(a) provides that “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that…

Foreign Government Is Not a “Person” within 28 U.S.C. § 1782 from Whom Discovery May Be Compelled for Use in a Foreign or International Proceeding

Thai-Lao (Thailand) Co. v. Gov’t of the Lao People’s Democratic Rep., 2012 U.S. Dist. LEXIS 37915 (S.D.N.Y. Mar. 19, 2012): 28 U.S.C. § 1782(a) authorizes a federal district court to assist a foreign or international tribunal, or a person interested in a proceeding before such a tribunal, to obtain testimony, documents, or other di ...

While Negligence May Support an Adverse Inference for Spoliation in the Second Circuit, It Is within the District Court’s Discretion to Deny that Sanction

Twitty v. Salius, 2012 U.S. App. LEXIS 1115, 2-5 (2d Cir. Jan. 19, 2012): We first consider plaintiff's argument that the district court erred when it failed to give an adverse inference instruction in response to the erasure of the original intake videotape, which plaintiff characterizes as the "spoliation of the original intake video. ...

Twitty v. Salius, 2012 U.S. App. LEXIS 1115, 2-5 (2d Cir. Jan. 19, 2012): We first consider plaintiff’s argument that the district court erred when it failed to give an adverse inference instruction in response to the erasure of the…

Arbitration — Court May Proceed to Merits While Appeal of Denied Motion to Compel Is Pending, But Cannot Rule on Second Motion to Compel — Affidavit on Personal Knowledge Stating that Contract with Arbitration Clause Was Assigned Proves Assignment

From Grant v. Houser, 2012 U.S. App. LEXIS 6060 (5th Cir. Mar. 23, 2012): Before us are two interlocutory appeals from denials of motions to compel arbitration in this action. Primarily at issue is: whether the district court had jurisdiction to rule on the second motion after the appeal of the first denial; and whether sufficient evide ...

Internet Chat — Authenticated and Best Evidence Satisfied by Credible Testimony of One Participant in Chat

United States v. Lebowitz, 2012 U.S. App. LEXIS 6859 (11th Cir. April 5, 2012): III. AUTHENTICITY AND BEST EVIDENCE Lebowitz argues that the district court abused its discretion by admitting into evidence printouts of internet chat conversations between K.S. and Lebowitz. This court reviews a district court's evidentia ...

Sanctions — Inherent Power Dismissal for Perjury and Forged Document Requires No Prior Warning or Consideration of Lesser Sanctions — Mala in Se and Criminal in Nature — Severity of Sanction Should Be Proportional to Gravity of Offense (Good Quote)

Jackson v. Murphy, 2012 U.S. App. LEXIS 4993 (7th Cir. Mar. 7, 2012): We next turn to the district court's use of its inherent power to sanction Jackson by dismissing his remaining medical claims. We review that dismissal for abuse of discretion. Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 386 (7th Cir. 20 ...

Jackson v. Murphy, 2012 U.S. App. LEXIS 4993 (7th Cir. Mar. 7, 2012): We next turn to the district court’s use of its inherent power to sanction Jackson by dismissing his remaining medical claims. We review that dismissal for abuse…

Unjust Enrichment — California Courts Are Split as to Whether It States a Separate Cause of Action

Cortez v. New Century Mortgage Corp., 2012 U.S. Dist. LEXIS 13469 (N.D. Cal. Feb. 3, 2012): California courts are split as to whether there is an independent cause of action for unjust enrichment. Baggett v. Hewlett-Packard Co., 582 F. Supp. 2d 1261, 1270-71 (C.D. Cal. 2007) (applying California law). One view is that it is a general pr ...

Court May Award Injunctive Relief While Arbitration Is Pending If Contract Permits Recourse to Court — Circuit Split as to Whether Judicial Injunctive Relief Awardable under FAA Absent Contractual Provision Authorizing It

Digital Generation, Inc. v. Boring, 2012 U.S. Dist. LEXIS 57272 (N.D. Tex. April 24, 2012): [T]he parties disagree whether their arbitration agreement permits the court, at this stage, to consider DG's request for injunctive relief, before the arbitrator has determined whether Boring violated the employment agreement. The arbitration ag ...

Digital Generation, Inc. v. Boring, 2012 U.S. Dist. LEXIS 57272 (N.D. Tex. April 24, 2012): [T]he parties disagree whether their arbitration agreement permits the court, at this stage, to consider DG’s request for injunctive relief, before the arbitrator has determined…

Class Actions — Cy Pres Doctrine Applicable Only Where Plaintiffs Fully Compensated — Reasonable Approximation Test — Unlimited Judicial Discretion Inadvisable

In Re: Lupron Mktg. & Sales Practices Litig., 2012 U.S. App. LEXIS 8263 (1st Cir. April 24, 2012): Appellants, a small dissident group ("the Samsell plaintiffs"), are within a larger class of medical patient consumers in a case alleging fraud in overcharging for the medication Lupron. These plaintiffs, along with insurers and private he ...

In Re: Lupron Mktg. & Sales Practices Litig., 2012 U.S. App. LEXIS 8263 (1st Cir. April 24, 2012): Appellants, a small dissident group (“the Samsell plaintiffs”), are within a larger class of medical patient consumers in a case alleging fraud…

Commercial Litigation and Arbitration

However Liberally Construed, Pro Se Complaint Must Still Contain Sufficient Facts to Satisfy Twiqbal

Email Authentication Standards in New Hampshire (Applying Authentication Rule Identical to Fed.R.Evid. 901)

Foreign Government Is Not a “Person” within 28 U.S.C. § 1782 from Whom Discovery May Be Compelled for Use in a Foreign or International Proceeding

While Negligence May Support an Adverse Inference for Spoliation in the Second Circuit, It Is within the District Court’s Discretion to Deny that Sanction

Arbitration — Court May Proceed to Merits While Appeal of Denied Motion to Compel Is Pending, But Cannot Rule on Second Motion to Compel — Affidavit on Personal Knowledge Stating that Contract with Arbitration Clause Was Assigned Proves Assignment

Internet Chat — Authenticated and Best Evidence Satisfied by Credible Testimony of One Participant in Chat

Sanctions — Inherent Power Dismissal for Perjury and Forged Document Requires No Prior Warning or Consideration of Lesser Sanctions — Mala in Se and Criminal in Nature — Severity of Sanction Should Be Proportional to Gravity of Offense (Good Quote)

Unjust Enrichment — California Courts Are Split as to Whether It States a Separate Cause of Action

Court May Award Injunctive Relief While Arbitration Is Pending If Contract Permits Recourse to Court — Circuit Split as to Whether Judicial Injunctive Relief Awardable under FAA Absent Contractual Provision Authorizing It

Class Actions — Cy Pres Doctrine Applicable Only Where Plaintiffs Fully Compensated — Reasonable Approximation Test — Unlimited Judicial Discretion Inadvisable

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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