Complex Lit Blog

When a Later-Enacted Statute May Be Applied to Prior Conduct without Transgressing Rules against Retroactivity — Three-Step Analysis

From Gordon v. Pete’s Auto Serv. Of Denbigh, Inc., 2012 U.S. Dist. LEXIS 32262 (E.D. Va. Mar. 12, 2012): As the Fourth Circuit has previously noted in this case, "[retroactivity is not favored in the law." Gordon, 637 F.3d at 458 (quoting Bowen v. Georgetown Hosp., 488 U.S. 204, 208 (1988)). "This maxim is reflected in a presumption ...

From Gordon v. Pete’s Auto Serv. Of Denbigh, Inc., 2012 U.S. Dist. LEXIS 32262 (E.D. Va. Mar. 12, 2012): As the Fourth Circuit has previously noted in this case, “[retroactivity is not favored in the law.” Gordon, 637 F.3d at…

Burden of Proving Alteration of Email Evidence — Best Evidence Issues under Fed.R.Evid. 1008

Nelson v. Levy Home Entm’t, LLC, 2012 U.S. Dist. LEXIS 15320 (N.D. Ill. Feb. 8, 2012): Nelson testified that in her e-mail to Donohue, she wrote at the end that she "did not want to end up in jail like AMS employees or Adam Zoldan and his employees or something to that [e]ffect." Def. Ex. 3 at 42. Nelson also notes that Donohue stated ...

Nelson v. Levy Home Entm’t, LLC, 2012 U.S. Dist. LEXIS 15320 (N.D. Ill. Feb. 8, 2012): Nelson testified that in her e-mail to Donohue, she wrote at the end that she “did not want to end up in jail like…

Experts – 2010 Amendments – No Work Product Protection for Communications between Testifying and Consulting Experts, Among Consulting Experts, or Between Counsel and Consulting Experts

In re Application of Republic of Ecuador, 2012 U.S. Dist. LEXIS 32135 (N.D. Cal. Mar. 9, 2012) (magistrate judge's decision): Respondents label certain third party consultants (e.g., Golder Associates, NewFields, CH2M Hill, ENTRIX, Quantum Informe, GSI Environmental, Inc., Doug Reagan & Associates) as Chevron's "agents," seeking prot ...

In re Application of Republic of Ecuador, 2012 U.S. Dist. LEXIS 32135 (N.D. Cal. Mar. 9, 2012) (magistrate judge’s decision): Respondents label certain third party consultants (e.g., Golder Associates, NewFields, CH2M Hill, ENTRIX, Quantum Informe, GSI Environmental, Inc., Doug Reagan…

Interrogatories — What Are “Discrete Subparts” for Purposes of Limit of 25?

Carpenter v. Donegan, 2012 U.S. Dist. LEXIS 35176 (N.D.N.Y. Mar. 15, 2012): The permissible number of Interrogatories is controlled by Rule 33(a) which reads in part, "[u]nless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts [.]" ...

Carpenter v. Donegan, 2012 U.S. Dist. LEXIS 35176 (N.D.N.Y. Mar. 15, 2012): The permissible number of Interrogatories is controlled by Rule 33(a) which reads in part, “[u]nless otherwise stipulated or ordered by the court, a party may serve on any…

Personal Jurisdiction — Minimum Contracts Based on Cause of Action “Arising out of or Relating to” a Contract (Circuit Split) — Significance of Choice of Law Clause

SIPC v. Bernard L. Madoff Inv. Secs., 460 B.R. 106 (Bankr. S.D.N.Y. 2011): The Second Circuit has indicated that entering into a contract with a New York choice of law clause is "a significant factor in a personal jurisdiction analysis because the parties . . . invoke the benefits and protections of New York law." Sunward Elect ...

SIPC v. Bernard L. Madoff Inv. Secs., 460 B.R. 106 (Bankr. S.D.N.Y. 2011): The Second Circuit has indicated that entering into a contract with a New York choice of law clause is “a significant factor in a personal jurisdiction analysis…

Securities — SLUSA — Circuit Split over Meaning of “In Connection With”

From Roland v. Green, 2012 U.S. App. LEXIS 5672 (5th Cir. Mar. 19, 2012): Since Dabit, six of our sister circuit courts have tried to give dimension to the "coincide" requirement announced in SEC v. Zandford and brought into the SLUSA scheme in Dabit. Romano v. Kazacos, 609 F.3d 512 (2d Cir. 2010); Segal v. Fifth Third Bank, N.A., 581 ...

From Roland v. Green, 2012 U.S. App. LEXIS 5672 (5th Cir. Mar. 19, 2012): Since Dabit, six of our sister circuit courts have tried to give dimension to the “coincide” requirement announced in SEC v. Zandford and brought into the…

Class Actions — Can Court Use Rule 23(c)(4) to Certify a (b)(3) Class as to Parts of a Claim without Finding That Whole Claim Satisfies Predominance Requirement? Circuit Split

In re Motor Fuel Temperature Sales Practices Litig., 2012 U.S. Dist. LEXIS 6433 (D. Kan. Jan. 19, 2012): III. Rule 23 Requirements Rule 23, Fed. R. Civ. P., governs class certification. Under Rule 23(a), the party seeking class certification must first demonstrate that: (1) the class is ...

Service of Process by Mail on Canadian Permitted by Hague Conventions

Dierig v. Lees Leisure Indus., 2012 U.S. Dist. LEXIS 26181 (E.D. Ky. Feb. 28, 2012): Defendant Lees Leisure, a business entity organized under the laws of Canada, asserts that service was not made in accordance with the Hague Convention and is therefore ineffective, meriting dismissal. (Doc. # 11-1 at 16).*** Footn ...

May District Court Transfer Part of an Action pursuant to 28 U.S.C. § 1631? Circuit Split

Johnson v. Mitchell, 2012 U.S. Dist. LEXIS 28051 (E.D. Cal. Mar. 2, 2012): Finally, in light of the court's conclusion that it lacks personal jurisdiction over defendant Thomas, the only issue remaining is whether plaintiff's claims against defendant Thomas should be dismissed or transferred to the District of Colorado where Thomas resi ...

Johnson v. Mitchell, 2012 U.S. Dist. LEXIS 28051 (E.D. Cal. Mar. 2, 2012): Finally, in light of the court’s conclusion that it lacks personal jurisdiction over defendant Thomas, the only issue remaining is whether plaintiff’s claims against defendant Thomas should…

New York State Spoliation Law — Negligence Suffices for Case-Ending Sanction If Prejudice Is Severe Enough

Jamindar v. Uniondale Union Free School Dist., 90 A.D.3d 610, 933 N.Y.S.2d 735 (2d Dep’t 2011): "When a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading" ...

Jamindar v. Uniondale Union Free School Dist., 90 A.D.3d 610, 933 N.Y.S.2d 735 (2d Dep’t 2011): “When a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense,…

Commercial Litigation and Arbitration

When a Later-Enacted Statute May Be Applied to Prior Conduct without Transgressing Rules against Retroactivity — Three-Step Analysis

Burden of Proving Alteration of Email Evidence — Best Evidence Issues under Fed.R.Evid. 1008

Experts – 2010 Amendments – No Work Product Protection for Communications between Testifying and Consulting Experts, Among Consulting Experts, or Between Counsel and Consulting Experts

Interrogatories — What Are “Discrete Subparts” for Purposes of Limit of 25?

Personal Jurisdiction — Minimum Contracts Based on Cause of Action “Arising out of or Relating to” a Contract (Circuit Split) — Significance of Choice of Law Clause

Securities — SLUSA — Circuit Split over Meaning of “In Connection With”

Class Actions — Can Court Use Rule 23(c)(4) to Certify a (b)(3) Class as to Parts of a Claim without Finding That Whole Claim Satisfies Predominance Requirement? Circuit Split

Service of Process by Mail on Canadian Permitted by Hague Conventions

May District Court Transfer Part of an Action pursuant to 28 U.S.C. § 1631? Circuit Split

New York State Spoliation Law — Negligence Suffices for Case-Ending Sanction If Prejudice Is Severe Enough

Recent Posts

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

Sanctions: (1) Rule 11 Does Not Apply to Litigation Papers Initially Filed in State Court — Only Reaffirmance in Federal Court Post-Removal Is Subject to Sanction — (2) “The Fact That A Legal Theory Is A Long-Shot Does Not Necessarily Mean It Is Sanctionable” (Good Quote)

Supreme Court: Relief under Rule 60(b)(6) Requires Extraordinary Circumstances Even If It Is Invoked to Allow Amendment of The Complaint–Rule 15’s Liberal Approach to Amendment Does Not Change That (Reversing Second Circuit)

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