Complex Lit Blog

District Courts Are Bound by Circuit Precedent No Matter How Erroneous They Perceive It to Be

Nakal v. Personal Probation Officer, 2012 U.S. Dist. LEXIS 14856 (C.D. Cal. Feb. 6, 2012): As petitioner's counsel must realize, however, this court sits in the Ninth Circuit and is bound by Ninth Circuit precedent. Zuniga v. United Can Co., 812 F.2d 443 (9th Cir. 1987) ("District courts are, of course, bound by the law of their own ...

Nakal v. Personal Probation Officer, 2012 U.S. Dist. LEXIS 14856 (C.D. Cal. Feb. 6, 2012): As petitioner’s counsel must realize, however, this court sits in the Ninth Circuit and is bound by Ninth Circuit precedent. Zuniga v. United Can Co.,…

If an Arbitration Award Is Overturned Because the Arbitrator Exceeded His or Her Powers, It Should be Reheard by a Different Arbitrator

Muskegon Central Dispatch 911 v. Tiburon, Inc., 2012 U.S. App. LEXIS 2149 (6th Cir. Feb. 2, 2012) (reviewing a Federal Arbitration Act arbitration): The Michigan Court Rules permit a court to vacate an arbitration order and remand for rehearing. Mich. Comp. Laws § 3.602(J). However, the functus officio doctrine provides the circums ...

Circuit Split: May a State Court Litigant against an Insured Intervene in a Federal Declaratory Judgment Action Brought by Insurer against Insured?

Am. Cas. Co. of Reading, Pa. v. Continental Properties, Inc., 2012 U.S. Dist. LEXIS 21949 (S.D. Ohio Feb. 22, 2012): There is a split in circuit authority on the issue of whether a state court litigant against an insurance company's insured may intervene in a federal court declaratory judgment action brought by the insurance company ...

Circuit Split as to Whether 404(b) Ruling Is Reviewed De Novo or under Abuse-of-Discretion Standard (Criminal Case)

Davis v. Swarthout, 2012 U.S. Dist. LEXIS 15630 (E.D. Cal. Feb. 7, 2012): Federal Rule of Evidence 404, as does its counterpart, California Evidence Code § 1101, generally prohibits the introduction of evidence of extrinsic acts that might adversely reflect on the actor's character, unless that evidence bears upon a relevant issue in t ...

Incorporation of Arbitration Clause By Reference in Agreement with Non-Signatory — Circuit Split as to Degree of Specificity Required

Pineda v. Coverall No. Am., Inc., 2012 U.S. Dist. LEXIS 16742 (D. Mass. Feb. 10, 2012): Contract law recognizes that incorporation by reference is generally effective to accomplish its intended purpose, and that arbitration agreements may be incorporated by reference. A non-signatory may compel arbitration against a party to an arbi ...

RICO — Fact that Criminal Prosecution Interrupted Racketeering Activity Irrelevant in Assessing Open-Ended Continuity

Heinrich v. Waiting Angels Adoption Servs., Inc., 2012 U.S. App. LEXIS 2390 (6th Cir. Feb. 7, 2012): The plaintiffs are seven couples who enlisted the assistance of the Waiting Angels Adoption Services, Inc. ("Waiting Angels") in an attempt to adopt children from Guatemala. Believing that they were defrauded in the course of their adopt ...

Plain Language Trumps Interpretative Conventions — “Confronted with … Paeans to the Precepts of Statutory Construction … We Are Reminded That Even ‘[T]he Devil Can Cite Scripture for His Purpose’” — RICO/ Hobbs Act — (Good Quote)

Ambulance Ass’n of Pa. v. Highmark, Inc., 2012 U.S. App. LEXIS 1648 (3d Cir. Jan 23, 2012): The parties place a single, dispositive issue before us: whether Act 68 requires direct payment to non-participating providers. The Association brings to bear several canons of statutory construction to support its view that Act 68 does, in fac ...

Arbitration — “Manifest Disregard” Survives in Fourth Circuit

Wachovia Securities, LLC v. Brand, 2012 U.S. App. LEXIS 3047 (4th Cir. Feb. 16, 2012): We find that the Supreme Court's more recent decision in Stolt-Nielsen sheds further light on the operation of "manifest disregard" post-Hall Street. Footnote 7 Our sister circuits have split into three camps about the mea ...

Wachovia Securities, LLC v. Brand, 2012 U.S. App. LEXIS 3047 (4th Cir. Feb. 16, 2012): We find that the Supreme Court’s more recent decision in Stolt-Nielsen sheds further light on the operation of “manifest disregard” post-Hall Street. Footnote 7 Our…

Arbitration: Circuit Split on Manifest Disregard — Adhesion Contract Shortening Statute of Limitations Is Void on Public Policy Grounds If It Leaves Plaintiff Too Little Time to Investigate Her Claim

Tucker v. Sterling Jewelers, Inc., 2012 U.S. Dist. LEXIS 16666 (E.D. Mich. Feb. 10, 2012): In this case, Plaintiff's principal argument is that the arbitrator acted in contravention of the court's holding in Thurman v. DaimlerChrysler, Inc., 397 F.3d 352 (6th Cir. 2004). Specifically, the arbitrator did not recognize that "an agreem ...

Tucker v. Sterling Jewelers, Inc., 2012 U.S. Dist. LEXIS 16666 (E.D. Mich. Feb. 10, 2012): In this case, Plaintiff’s principal argument is that the arbitrator acted in contravention of the court’s holding in Thurman v. DaimlerChrysler, Inc., 397 F.3d 352…

RICO — Minority Member of LLC May Bring Direct (Not Derivative) Action for Injury Resulting from Harm to Entity — Relevance of State Law — Analogy to Close Corporations Noted

Cameron v. Rohn, 2012 U.S. Dist. LEXIS 18986 (D.V.I. Feb. 14, 2012): This dispute arises out of the relationship between Rohn and Cameron and the breakup of their former law partnership, The Law Offices of Rohn and Cameron, LLC ("the Law Office"). *** Although Cameron and Rohn never signed a written partnership agreement or a written LLC ...

Commercial Litigation and Arbitration

District Courts Are Bound by Circuit Precedent No Matter How Erroneous They Perceive It to Be

If an Arbitration Award Is Overturned Because the Arbitrator Exceeded His or Her Powers, It Should be Reheard by a Different Arbitrator

Circuit Split: May a State Court Litigant against an Insured Intervene in a Federal Declaratory Judgment Action Brought by Insurer against Insured?

Circuit Split as to Whether 404(b) Ruling Is Reviewed De Novo or under Abuse-of-Discretion Standard (Criminal Case)

Incorporation of Arbitration Clause By Reference in Agreement with Non-Signatory — Circuit Split as to Degree of Specificity Required

RICO — Fact that Criminal Prosecution Interrupted Racketeering Activity Irrelevant in Assessing Open-Ended Continuity

Plain Language Trumps Interpretative Conventions — “Confronted with … Paeans to the Precepts of Statutory Construction … We Are Reminded That Even ‘[T]he Devil Can Cite Scripture for His Purpose’” — RICO/ Hobbs Act — (Good Quote)

Arbitration — “Manifest Disregard” Survives in Fourth Circuit

Arbitration: Circuit Split on Manifest Disregard — Adhesion Contract Shortening Statute of Limitations Is Void on Public Policy Grounds If It Leaves Plaintiff Too Little Time to Investigate Her Claim

RICO — Minority Member of LLC May Bring Direct (Not Derivative) Action for Injury Resulting from Harm to Entity — Relevance of State Law — Analogy to Close Corporations Noted

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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