Complex Lit Blog

Rule 11 – Unequivocal Request to Withdraw Action Without Prejudice Within 21 Days of Motion Satisfies Safe Harbor, Even If Action Not Formally Dismissed Until After 21-Day Period Has Expired – No Requirement to Agree to Dismiss With Prejudice

Thompson v. Steinberg, 2023 U.S. App. LEXIS 1603 (2d Cir. Jan. 23, 2023) (unpublished): Key Takeaways: We generally review a decision resolving a motion for

Thompson v. Steinberg, 2023 U.S. App. LEXIS 1603 (2d Cir. Jan. 23, 2023) (unpublished): Key Takeaways: We generally review a decision resolving a motion for Rule 11 sanctions for abuse discretion. …. However, within that framework, we review de novo …

Merely Not Following Through With Notice To File Rule 11 Motion Is An Insufficient Basis on Which to Conclude That The Threat Was Meritless — But It Is Some Evidence

Pocket Plus, LLC v. Pike Brands, LLC, 53 F.4th 425 (8th Cir. 2022): *1 Pocket Plus, LLC, sued Pike Brands, LLC (“Running Buddy”) for trade-dress infringement of Pocket Plus’s portable pouch. The district court1 granted summary judgment to Running Buddy and awarded it a portion of its requested attorne ...

Spoliation – Rule 37(e) – Even If Document Retention Policy Violated, Additional Evidence of Bad Faith May Be Required for an Adverse Inference Instruction

Lear Corp. v. NHK Seating of Am. Inc., 2022 U.S. Dist. LEXIS 212542, 2022 WL 17176836 (E.D. Mich. Nov. 23, 2022): OPINION AND ORDER DENYING THE DEFENDANTS' [*2] MOTION FOR SANCTIONS BASED ON LEAR'S SPOLIATION OF EVIDENCE [280]

Lear Corp. v. NHK Seating of Am. Inc., 2022 U.S. Dist. LEXIS 212542, 2022 WL 17176836 (E.D. Mich. Nov. 23, 2022): OPINION AND ORDER DENYING THE DEFENDANTS’ [*2] MOTION FOR SANCTIONS BASED ON LEAR’S SPOLIATION OF EVIDENCE [280] Lear…

Inherent Power: Does the Clear-and-Convincing Standard Apply to the Inherent Power to Sanction or Only to the Inherent Power to Vacate a Judgment for Fraud on the Court? — Only the Latter in the Sixth Circuit

Jaiyeola v. Toyota Motor N. Am., Inc., 2022 WL 18401018 (6th Cir. 2022) (unpublished): ORDER *1 Ganiyu Ayinla Jaiyeola, a pro se California resident, appeals the district court’s order denying his motion for sanctions against two defense attorneys. Jaiyeola has filed two motions asking this court take judicial notice that he is suing a third defe ...

Spoliation — “Intent” for purposes of Rule 37(e)(2) Is Satisfied If It Is Reasonable to Infer That the Alleged Spoliator Purposefully destroyed evidence to Avoid Its Litigation Obligations

Estate of Moreno v. Corr. Healthcare Cos., 2020 U.S. Dist. LEXIS 108370, 2020 WL 5740265 (E.D. Wash. June 1, 2020): ORDER GRANTING PLAINTIFFS'

Estate of Moreno v. Corr. Healthcare Cos., 2020 U.S. Dist. LEXIS 108370, 2020 WL 5740265 (E.D. Wash. June 1, 2020): ORDER GRANTING PLAINTIFFS’ RULE 37(e) MOTION FOR DEFAULT JUDGMENT BEFORE THE COURT is Plaintiffs’ Rule 37(e) Motion…

Sixth Circuit Joins Seventh in Holding That The Inherent Power Sanctions May Be Imposed on Third-Party Non-Lawyer (Here, Ex-Lawyer) Engaged in The Unauthorized Practice of Law

United States v. Jones, 2023 U.S. App. LEXIS 3317 (6th Cir. Feb. 9, 2023) (unpublished): *1 Following a trial by jury, Defendant Elmer Jones appeals his conviction on four counts of possession with intent to distribute controlled substances in violation of

Fourfold Purpose of Rule 37 Sanctions

Sensiva Health, L.L.C. v. Universal Meditech, Inc., 2022 U.S. Dist. LEXIS 223074, *13, 2022 WL 17576345, *5 (E.D. La. Nov. 18, 2022) (Report and Recommendation), modified and adopted (sanction affirmed), Sensiva Health, L.L.C. v. Universal Meditech, Inc., ...

Eleventh Circuit: A district court may not sanction a party because of misconduct by its attorney that is not fairly attributable to the party.

Carter v. Wal-Mart Stores E., LP, 2023 U.S. App. LEXIS 1244, 2023 WL 309034 (11th Cir. Jan. 19, 2023) ...

Carter v. Wal-Mart Stores E., LP, 2023 U.S. App. LEXIS 1244, 2023 WL 309034 (11th Cir. Jan. 19, 2023) (per curiam): *1 Victoria Carter sued Wal-Mart Stores East, LP, after she slipped and fell in a puddle on the…

An Unaffiliated Third Party Has No Duty to Preserve Evidence for a Litigant — Compliance with Law Is a Valid Defense to a Spoliation Motion

Brown v. Nolen, 2022 U.S. App. LEXIS 35917 (D.C. Cir. Dec. 29, 2022) (unpublished): JUDGMENT This petition for review was considered on the record from the National Transportation Safety Board and on the briefs and or ...

Brown v. Nolen, 2022 U.S. App. LEXIS 35917 (D.C. Cir. Dec. 29, 2022) (unpublished): JUDGMENT This petition for review was considered on the record from the National Transportation Safety Board and on the briefs and oral argument of the parties.…

$500 Sanction Under Rule 16(f)(1) Does Not Require Full Criminal Contempt Procedures, Goodyear Notwithstanding — Due Process Failure If Sanctions Imposed For Reasons Not Set Forth in Order to Show Cause — Rule 16(f) Does Not Authorize Sanctions for Lack of Candor, Unlike Rule 11

Banks v. Whambo! Enter., LLC, 2022 U.S. App. LEXIS 31400, 2022 WL 16918023 (9th Cir. Nov. 14, 2022) (unpublished) Key Takeaways: “Taibi’s reliance on

Banks v. Whambo! Enter., LLC, 2022 U.S. App. LEXIS 31400, 2022 WL 16918023 (9th Cir. Nov. 14, 2022) (unpublished) Key Takeaways: “Taibi’s reliance on Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178 (2017), is misplaced. …

Commercial Litigation and Arbitration

Rule 11 – Unequivocal Request to Withdraw Action Without Prejudice Within 21 Days of Motion Satisfies Safe Harbor, Even If Action Not Formally Dismissed Until After 21-Day Period Has Expired – No Requirement to Agree to Dismiss With Prejudice

Merely Not Following Through With Notice To File Rule 11 Motion Is An Insufficient Basis on Which to Conclude That The Threat Was Meritless — But It Is Some Evidence

Spoliation – Rule 37(e) – Even If Document Retention Policy Violated, Additional Evidence of Bad Faith May Be Required for an Adverse Inference Instruction

Inherent Power: Does the Clear-and-Convincing Standard Apply to the Inherent Power to Sanction or Only to the Inherent Power to Vacate a Judgment for Fraud on the Court? — Only the Latter in the Sixth Circuit

Spoliation — “Intent” for purposes of Rule 37(e)(2) Is Satisfied If It Is Reasonable to Infer That the Alleged Spoliator Purposefully destroyed evidence to Avoid Its Litigation Obligations

Sixth Circuit Joins Seventh in Holding That The Inherent Power Sanctions May Be Imposed on Third-Party Non-Lawyer (Here, Ex-Lawyer) Engaged in The Unauthorized Practice of Law

Fourfold Purpose of Rule 37 Sanctions

Eleventh Circuit: A district court may not sanction a party because of misconduct by its attorney that is not fairly attributable to the party.

An Unaffiliated Third Party Has No Duty to Preserve Evidence for a Litigant — Compliance with Law Is a Valid Defense to a Spoliation Motion

$500 Sanction Under Rule 16(f)(1) Does Not Require Full Criminal Contempt Procedures, Goodyear Notwithstanding — Due Process Failure If Sanctions Imposed For Reasons Not Set Forth in Order to Show Cause — Rule 16(f) Does Not Authorize Sanctions for Lack of Candor, Unlike Rule 11

Recent Posts

§ 1927 Sanctions — Must A Lawyer Who Unreasonably and Vexatiously Multiplies Federal Court Proceedings Be Acting “As An Attorney” When Committing the Misconduct To Be Subject to Sanction under § 1927?

Rule 37 Sanctions — Unfamiliarity With Litigation Process Does Not Excuse Intentional Disregard of Court Order — Also Affirming Rule 26(g) Sanctions on Clients and Counsel for False Representations That All Responsive Documents Had Been Produced

Supreme Court: Notice of Appeal Filed After The Original Deadline But Before Reopening by The District Court Is Timely — It Relates Forward to The Date of The Order Making The Appeal Possible — Second Notice of Appeal After Reopening Unnecessary

Rule 37 Default Judgment: Second Circuit’s Four-Factor Test for Imposing Defaults and Three-Factor Test for Lifting Them

RICO: Cover-Up Within Limitations Period of Untimely RICO Violation “Was Merely A Continuation” Of The Original Injury And Could Not Be Used “As A ‘Bootstrap’ To Salvage [The] Time-Barred Claims–Declining to Apply Pinkerton Doctrine to Civil RICO Claims

Inherent Power — Circumstantial Evidence — Fact That Bad Faith May Be Shown by Establishing That Conduct Was So Egregious It Was Necessarily Committed in Bad Faith Does Not Mean That Bad Faith Must Be The Sole Explanation for The Bad Conduct

RICO Causation: Testing Labs’ Misstatements As to Alcohol Tests’ Efficacy Not Communicated to Plaintiffs’ Employers Did Not Cause Plaintiffs’ Professional Harm

Rule 37(d) Sanctions — For Failure to Serve Answers, Objections, Or Written Response to Discovery Requests — Are Not Limited to Intentional Misconduct; Even Innocent Mistakes May Be Covered

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