Complex Lit Blog

Rule 37(c)(1) Sanctions — Exclusion of Critical Evidence Generally Requires Willful Deception or Flagrant Disregard of Court Order — Disclosure of Undisclosed Rule 26(a)(1)(A)(i) During Discovery Precludes Claim of Surprise or Prejudice (and Satisfies Rule 26(e)(1)(A))

Cost v. Borough of Dickson City, 2021 WL 2255505 (3d Cir. June 3, 2021) (unpublished): OPINION**

Cost v. Borough of Dickson City, 2021 WL 2255505 (3d Cir. June 3, 2021) (unpublished): OPINION** SHWARTZ, Circuit Judge. *1 Plaintiffs William Cost, Sr. and William Cost, Jr. brought claims under 42 U.S.C. § 1983 and Pennsylvania state…

Inherent Power Sanctions — Notice of Contemplated Sanctions against Client (in Motion and Show Cause Order) Did Not Provide Notice of Potential Sanctions against Counsel — Finding of Bad Faith Required for Inherent Power Sanctions

Miller v. Midland Credit Mgmt., Inc., 2021 WL 42(11th Cir. Sept. 17, 2021) (unpublished): Attorneys Daniel Zemel and Brian Giles appeal from the district court’s order imposing sanctions on them, arising out of their representation of plaintiff Deondra Miller in the district court. On appeal, the attorneys argue that the district court abused its discretion in sanction ...

Miller v. Midland Credit Mgmt., Inc., 2021 WL 42(11th Cir. Sept. 17, 2021) (unpublished): Attorneys Daniel Zemel and Brian Giles appeal from the district court’s order imposing sanctions on them, arising out of their representation of plaintiff Deondra Miller in…

Spoliation Sanctions: (1) Meaning of “Relevance” for Preservation vs. for Adverse Inference Purposes; (2) Only “Very Slight Showing” of Latter Required; (3) Adverse Inference Instruction OK for Negligent Spoliation of Tangible Evidence in D.C. Cir.; (4) Preponderance of Evidence for Adverse Inference Instruction vs. Clear & Convincing for Attorney’s Fees; (5) Wide Range of Inherent Power Sanctions Available; (6) Two Sets of Factors for Adverse Inference Instruction (D.C. Cir.) — Prerequisites and Propriety in the Circumstances; (7) Ordinary vs. Gross Negligence; (8) Cite

Paavola v. Hope Vill., 2021 U.S. Dist. LEXIS 168241, 2021 WL 4033101 (D.D.C. Sept. 4, 2021): MEMORANDUM OPINION Plaintiff Lana Paavola, individually and on behalf of the ...

Paavola v. Hope Vill., 2021 U.S. Dist. LEXIS 168241, 2021 WL 4033101 (D.D.C. Sept. 4, 2021): MEMORANDUM OPINION Plaintiff Lana Paavola, individually and on behalf of the estate of her late husband Joel D. Paavola and his beneficiaries, sued…

Rule 11 Sanctions Should Be Allocated Among Persons Responsible — Not Imposed Lightly As Misapplication Can Chill Counsel’s Enthusiasm and Stifle Creativity in Pursuing Novel Factual Or Legal Theories — Disgorgement of Fees into Court — Focus of Improper Purpose Inquiry Is On Objective Facts Supporting Inference Goal Was Harassment Or Unnecessary Delay — While Rule 11 Is Not Intended to Be Compensatory in First Instance, Effective Deterrence May Require Compensation of Victim — Rule 37 Sanctions: Where Case Has Been Dismissed after Violation, Best Sanction Is Award of Fees and Expenses Incurred in Bringing Motions to Compel and for Sanctions Against Client and Counsel Jointly

Upchurch v. O’Brien, 2021 WL 3617098 (W.D. Wis. Aug. 16, 2021): Before the court are three motions for sanctions filed against plaintiff Timothy Upchurch and his attorney, Timothy Alan Provis. (Dkt. #36, 67, 75.) Although the case has been voluntarily dismissed on the merits, the court retains jurisdiction to consider these motions. The first sanctions ...

Upchurch v. O’Brien, 2021 WL 3617098 (W.D. Wis. Aug. 16, 2021): Before the court are three motions for sanctions filed against plaintiff Timothy Upchurch and his attorney, Timothy Alan Provis. (Dkt. #36, 67, 75.) Although the case has been …

Rule 37(c) Preclusion for 26(a)(1) Non-Disclosure Requires Harm to Opponent, And Harm Doesn’t Require Preclusion — Preclusion Factors (1st Cir.) — “Substantially Justified” And “Harmless[ness]” Exceptions — Late Disclosure Can Be Harmless Even If It Follows Filing of Summary Judgment Motion

Zampierollo-Rheinfeldt v. Ingersoll-Rand De P.R., 2021 U.S. App. LEXIS 16146 (1st Cir. May 28, 2021): Trane Puerto Rico, LLC and its parent company, Ingersoll-Rand de Puerto Rico, Inc. (collectively "Trane") terminated the employment of Giorgio ...

Circuit Split: District Court Lacks Jurisdiction to Modify Protective Order after Rule 41(a)(1) Dismissal (11th Cir. (2-1))— Not a “Collateral Matter” over Which Jurisdiction Remains (Like Costs, Fees, Contempt Sanctions, Rule 11 Sanctions, and Motions to Confirm Arbitral Awards) — Stipulated Protective Order Is an Enforceable Contract, Subject to Post-Dismissal Lawsuit — Strong Dissenting Opinion

Absolute Activist Value Master Fund v. Devine, 2021 U.S. App. LEXIS 16110 (11th Cir. May 28, 2021): Susan Devine, who was sued for her alleged involvement in money laundering and market manipulation schemes, appeals the District Court's denial o ...

“The purpose of a Rule 11 sanction is to punish ‘unprofessional conduct in litigation'” — Bankruptcy: Automatic Stay Does Not Preclude Imposition of Contempt Sanctions: “‘[a] litigant should not be allowed to delay the imposition of sanctions indefinitely by the expedient of declaring bankruptcy'”

Kupperstein v. Schall (In re Kupperstein), 2021 U.S. App. LEXIS 11944 (1st Cir. April 22, 2021): BAC ...

Kupperstein v. Schall (In re Kupperstein), 2021 U.S. App. LEXIS 11944 (1st Cir. April 22, 2021): BACKGROUND The short story, sticking with only what is relevant here, is that years ago, Donald C. Kupperstein, with the help of his comrade, …

Rule 11 Sanctions: Attorney May Not Rely on Clients When Objectively Unreasonable — Cannot Rely on Discovery to Bring Claims with No Factual Basis — Specific Identification Requirement — $10,000 Deterrent Penalty OK — Factors from Adv. Comm. Note Adopted

Goldman v. Barrett, 825 Fed. Appx. 35 (2d Cir. Sept. 10, 2020) (unpublished): [*36]

Goldman v. Barrett, 825 Fed. Appx. 35 (2d Cir. Sept. 10, 2020) (unpublished): [*36] SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Plaintiffs-Appellants Robert M. Goldman…

Rule 37 Sanctions for Impeding, Delaying, Frustrating Deposition — Intricacies of Remote Deposition Protocols and 30(b)(6) Witnesses Using Notes — No Duty to ID Which 30(b)(6) Topic a Question Relates to — When a Protective Order Is a R. 37(b) Order — Sanctions Must Be Proportional to Offense — Motion to Strike = Objection — When Inherent Power Sanctions for Deposition Misconduct Are Apt

John Doe I v. Exxon Mobil Corp., 2021 U.S. Dist. LEXIS 87596, 2021 WL 1840649 (D.D.C. May 7, 2021): *1 At his deposition, the corporate representative of defendant Exxon Mobil Oil of Indonesia (“EMOI”) refused to ans ...

John Doe I v. Exxon Mobil Corp., 2021 U.S. Dist. LEXIS 87596, 2021 WL 1840649 (D.D.C. May 7, 2021): *1 At his deposition, the corporate representative of defendant Exxon Mobil Oil of Indonesia (“EMOI”) refused to answer most of …

Rule 37 Sanctions: Second Circuit Factors — Exclusion of Witness Not Disclosed Per 26(a) Apt — “Interviewing a Witness Late in the Process Does Not Provide Cover for a Revised Disclosure” — Reconsideration Factors

Irish v. Tropical Emerald Llc & Rainbow United States, 2021 U.S. Dist. LEXIS 87946 (E.D.N.Y. May 6, 2021): ...

Irish v. Tropical Emerald Llc & Rainbow United States, 2021 U.S. Dist. LEXIS 87946 (E.D.N.Y. May 6, 2021): After a series of failed attempts to follow this Court’s rules, including those on page limitations, Defendants filed a motion for reconsideration …

Commercial Litigation and Arbitration

Rule 37(c)(1) Sanctions — Exclusion of Critical Evidence Generally Requires Willful Deception or Flagrant Disregard of Court Order — Disclosure of Undisclosed Rule 26(a)(1)(A)(i) During Discovery Precludes Claim of Surprise or Prejudice (and Satisfies Rule 26(e)(1)(A))

Inherent Power Sanctions — Notice of Contemplated Sanctions against Client (in Motion and Show Cause Order) Did Not Provide Notice of Potential Sanctions against Counsel — Finding of Bad Faith Required for Inherent Power Sanctions

Rule 11 Sanctions: Attorney May Not Rely on Clients When Objectively Unreasonable — Cannot Rely on Discovery to Bring Claims with No Factual Basis — Specific Identification Requirement — $10,000 Deterrent Penalty OK — Factors from Adv. Comm. Note Adopted

Rule 37 Sanctions: Second Circuit Factors — Exclusion of Witness Not Disclosed Per 26(a) Apt — “Interviewing a Witness Late in the Process Does Not Provide Cover for a Revised Disclosure” — Reconsideration Factors

Recent Posts

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)

FRAP 38 Sanctions — Eleventh Circuit Generally Does Not Impose FRAP 38 Sanctions on Pro Se Litigants, But May Do So If They Have Persisted Despite Judicial Warnings of Frivolousness

Inherent Power Sanctions: No Dismissal with Prejudice If Lesser Sanctions Will Suffice — The Liberal Pleading Standard of Swierkiewicz “Is Still Good Law”

Statements in Briefs As Judicial Admissions

Supreme Court: TRO As Appealable Order — And District Court Inaction As Tantamount to Refusing An Injunction And Thus Appealable

“Slow-Playing Discovery” in Response to Court Order, Prejudicing Opponent, Violates Rule 37(b)(2)(A)

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