Complex Lit Blog

Sanctions — Requiring Attorney to Notify any Court within Circuit before Which He Appears in Next Year of Sanctions Imposed in This Case — Leaving Open Other Remedies If Monetary Sanction Not Paid within 60 Days

From Gallop v. Cheney, 2011 U.S. App. LEXIS 20862 (2d Cir. Oct. 14, 2011) — imposing sanctions under § 1927, Rule 38, and the inherent power of the Court: *** (2) Gallop [client] is hereby ADMONISHED that the submission of future frivolous filings may result in sanctions. (3) Dennis Cunningham, Mustapha Ndanusa, and Wi ...

Non-Party May Not Intervene to Seek Relief Identical to That Already Being Sought by Party — Mere Fact That Lawsuit May Impede Non-Party’s Ability to Recover in Separate Suit Insufficient Grounds to Intervene — First-to File Rule

Worthington v. Bayer Healthcare LLC, 2011 U.S. Dist. LEXIS 144369 (D.N.J. Dec. 15, 2011): In these purported class actions brought in the above-captioned matters, Robert Worthington, Dino Rikos, and Troy Yuncker ("Plaintiffs") allege that Bayer Heathcare LLC ("Bayer") deceptively advertised and marketed several of Bayer's colon health p ...

Worthington v. Bayer Healthcare LLC, 2011 U.S. Dist. LEXIS 144369 (D.N.J. Dec. 15, 2011): In these purported class actions brought in the above-captioned matters, Robert Worthington, Dino Rikos, and Troy Yuncker (“Plaintiffs”) allege that Bayer Heathcare LLC (“Bayer”) deceptively advertised…

May District Court in District in Which Subpoena Issues Remit Motion to Quash to Court Presiding over Underlying Litigation? Circuit Split

Nat’l Benefit Programs, Inc. v. Express Scripts, Inc., 2011 U.S. Dist. LEXIS 137946 (E.D. Mo. Dec. 1, 2011): There is a split in the Circuits regarding whether the court sitting in the district where the subpoena issued may properly exercise its discretion to "remit" a motion to quash for ruling by the court where the underlying li ...

State Does Not Waive Sovereign Immunity by Removing Case to Federal Court unless Removal Confers Unfair Advantage — Circuit Split

Bergemann v. R.I. Dep’t of Envt’l Mgmt., 2011 U.S. App. LEXIS 25148 (1st Cir. Dec. 20, 2011): This appeal poses a question that has divided the circuits. The question, which is a matter of first impression for this court, is whether a state waives its sovereign immunity to a pleaded claim by removing that claim to the federal court ...

RICO — Financial Injury Wholly Derivative of Personal Injury ≠ Injury to Business or Property — Circuit Split as to Whether Certain Pecuniary Losses from Personal Injuries Confer RICO Standing

Alexander v Boone Hosp. Ctr., 2011 U.S. Dist. LEXIS 145354 (W.D. Mo. Dec. 19, 2011): On April 16, 2010, Plaintiff filed this lawsuit alleging receipt of a defective pacemaker manufactured by former defendant Medtronic, Inc., and implanted at Boone Hospital Center in 2007. *** Plaintiff brings two counts against current Defendants ...

Securities — Circuit Split as to Whether Plaintiff or Defendant Must Show Control Person’s Good/Bad Faith and Inducement, Vel Non, of Primary Violation under Section 20(a)

Poptech, LP v. Stewardship Credit Arbitrage Fund, LLC, 792 F. Supp. 2d 328 (D. Conn. 2011): Section 20(a) [of the Exchange Act, 15 U.S.C. § 78t(a),] provides that a controlling person is liable unless the defendant acted in good faith and did not induce the primary violation. See 15 U.S.C. § 78t(a). But Section 20(a) does ...

Removal — When Does a State Court Complaint that Fails to Recite a Damages Number over $75,000 Trigger § 1446(b)’s 30-Day Period? Caselaw Split

Napier v. Humana Marketpoint, Inc., 2011 U.S. Dist. LEXIS 139114 (N.D. Tex. Dec. 1, 2011): In Chapman [v. Powermatic, Inc., 939 F.2d 160], the Fifth Circuit held that a plaintiff's original complaint triggers 28 U.S.C. § 1446(b)'s thirty-day clock "only when [the] pleading affirmatively reveals on its face that the plaintiff is see ...

Napier v. Humana Marketpoint, Inc., 2011 U.S. Dist. LEXIS 139114 (N.D. Tex. Dec. 1, 2011): In Chapman [v. Powermatic, Inc., 939 F.2d 160], the Fifth Circuit held that a plaintiff’s original complaint triggers 28 U.S.C. § 1446(b)’s thirty-day clock “only…

Simple Mistake, Corrected when Realized, Forms No Ground for Rule 11 Sanctions

Boone v. JP Morgan Chase Bank, N.A., 2011 U.S. App. LEXIS 23813 (11th Cir. Nov. 30, 2011): We review a district court's decision regarding sanctions under 28 U.S.C. § 1927 and Rule 11 for an abuse of discretion. Nicholson v. Shafe, 558 F.3d 1266, 1270 (11th Cir. 2009); Jones v. Int'l Riding Helmets, Ltd., 49 F.3d 692, 694 (11th Cir. 19 ...

Boone v. JP Morgan Chase Bank, N.A., 2011 U.S. App. LEXIS 23813 (11th Cir. Nov. 30, 2011): We review a district court’s decision regarding sanctions under 28 U.S.C. § 1927 and Rule 11 for an abuse of discretion. Nicholson v.…

Inherent Power Sanctions against Third Party Entered after End of Case on Merits Is Dispositive and Requires De Novo Review of Magistrate Judge’s Decision

Reddick v. White, 2011 U.S. App. LEXIS 23937 (4th Cir. Dec. 1, 2011): A magistrate judge's power is derived from 28 U.S.C. § 636, which provides two general types of referrals by a district court. Section 636(b)(1)(A) provides that a district court may "designate a magistrate judge to hear and determine any pretrial matter pending ...

Reddick v. White, 2011 U.S. App. LEXIS 23937 (4th Cir. Dec. 1, 2011): A magistrate judge’s power is derived from 28 U.S.C. § 636, which provides two general types of referrals by a district court. Section 636(b)(1)(A) provides that a…

Non-Pretextual, Compensatory Payment to Former Employee for Time as Deponent and in Preparation Ethical, As Is Representation by Former Employer’s Counsel

Chicago Ins. Co. v. Capwill, 2011 U.S. Dist. LEXIS 143333 (N.D. Ohio Dec. 13, 2011): [C]ounsel for the defendants ..., alleges that [plaintiff’s counsel] improperly paid a witness and attempted to influence his testimony in violation of 18 U.S.C. §§ 201(b)(3), (c)(2), O.R.C. § 2921.02(E), and Rule 3.4 of the Ohio Rules of Professio ...

Chicago Ins. Co. v. Capwill, 2011 U.S. Dist. LEXIS 143333 (N.D. Ohio Dec. 13, 2011): [C]ounsel for the defendants …, alleges that [plaintiff’s counsel] improperly paid a witness and attempted to influence his testimony in violation of 18 U.S.C. §§…

Commercial Litigation and Arbitration

Sanctions — Requiring Attorney to Notify any Court within Circuit before Which He Appears in Next Year of Sanctions Imposed in This Case — Leaving Open Other Remedies If Monetary Sanction Not Paid within 60 Days

Non-Party May Not Intervene to Seek Relief Identical to That Already Being Sought by Party — Mere Fact That Lawsuit May Impede Non-Party’s Ability to Recover in Separate Suit Insufficient Grounds to Intervene — First-to File Rule

May District Court in District in Which Subpoena Issues Remit Motion to Quash to Court Presiding over Underlying Litigation? Circuit Split

State Does Not Waive Sovereign Immunity by Removing Case to Federal Court unless Removal Confers Unfair Advantage — Circuit Split

RICO — Financial Injury Wholly Derivative of Personal Injury ≠ Injury to Business or Property — Circuit Split as to Whether Certain Pecuniary Losses from Personal Injuries Confer RICO Standing

Securities — Circuit Split as to Whether Plaintiff or Defendant Must Show Control Person’s Good/Bad Faith and Inducement, Vel Non, of Primary Violation under Section 20(a)

Removal — When Does a State Court Complaint that Fails to Recite a Damages Number over $75,000 Trigger § 1446(b)’s 30-Day Period? Caselaw Split

Simple Mistake, Corrected when Realized, Forms No Ground for Rule 11 Sanctions

Inherent Power Sanctions against Third Party Entered after End of Case on Merits Is Dispositive and Requires De Novo Review of Magistrate Judge’s Decision

Non-Pretextual, Compensatory Payment to Former Employee for Time as Deponent and in Preparation Ethical, As Is Representation by Former Employer’s Counsel

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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