Complex Lit Blog

Suspension by State Authorities Does Not Disqualify Lawyer from Appearing in Federal Court

Jimenez v. Brazil Ethanol, Inc., 2011 U.S. Dist. LEXIS 137771 (S.D.N.Y. Nov. 29, 2011): ... Plaintiff's attorney is currently suspended from the practice of law in New York State. ... By an order issued by the Committee on Grievances of the Southern District of New York, [Plaintiff's attorney], also previously suspended from ...

Jimenez v. Brazil Ethanol, Inc., 2011 U.S. Dist. LEXIS 137771 (S.D.N.Y. Nov. 29, 2011): … Plaintiff's attorney is currently suspended from the practice of law in New York State. … By an order issued by the Committee on Grievances of…

Caselaw Split as to Whether to Permit Discovery of Financial Information Relevant to a Determination of Punitive Damages Prior to Summary Judgment

Pasternak v. Kim, 275 F.R.D. 461 (S.D.N.Y. 2011): The question then becomes whether the time is right for the discovery Pasternak seeks. As Magistrate Judge Francis recently noted, "[c]ourts in this circuit are split on the issue of allowing pretrial disclosure of financial information relevant to a determination of punitive damages. ...

Pasternak v. Kim, 275 F.R.D. 461 (S.D.N.Y. 2011): The question then becomes whether the time is right for the discovery Pasternak seeks. As Magistrate Judge Francis recently noted, “[c]ourts in this circuit are split on the issue of allowing pretrial…

Only U.S. Citizenship of Dual Citizen Counts for Diversity — No General Duty under Rule 11 to Withdraw (Just Not to Reassert), but Failure to Withdraw within Safe Harbor Exposes Target to Costs of Motion

Fuerst v. Fuerst, 2011 U.S. Dist. LEXIS 141873 (E.D.N.Y. Dec. 9, 2011): Wolfgang Fuerst ("Wolfgang" or "the Plaintiff") commenced this action against his now former wife Hannelore Fuerst ("Hannelore" or "the Defendant") seeking economic and emotional damages based on her alleged misconduct during their divorce proceeding. The Defendant ...

Fuerst v. Fuerst, 2011 U.S. Dist. LEXIS 141873 (E.D.N.Y. Dec. 9, 2011): Wolfgang Fuerst (“Wolfgang” or “the Plaintiff”) commenced this action against his now former wife Hannelore Fuerst (“Hannelore” or “the Defendant”) seeking economic and emotional damages based on her…

Simple Mutual Releases of Parties Do Not Release Sanctions Liability of Counsel — Ethics Implications of Negotiating a Release of Sanctions Exposure

Ferguson v. Valero Energy Corp., 2011 U.S. App. LEXIS 24167 (3d Cir. Dec. 6, 2011): John Ferguson died tragically from nitrogen asphyxiation while working as a boilermaker at an oil refinery. A wrongful death and survival action ensued against Valero Energy Corporation and Premcor Refining Group, Inc. The District Court made several evid ...

When an Unexplained Sanctions Ruling Does, or Does Not, Suffice to Permit Meaningful Appellate Review

Two Decisions 1. Arugu v. City of Plantation, 2011 U.S. App. LEXIS 22647 (11th Cir. Nov. 8, 2011) (Rule 11 and § 1927 sanctions): We review for abuse of discretion a district court's decision to deny sanctions, costs, and attorney's fees. *** "A district court abuses its discretion if it applies an incor ...

Two Decisions 1. Arugu v. City of Plantation, 2011 U.S. App. LEXIS 22647 (11th Cir. Nov. 8, 2011) (Rule 11 and § 1927 sanctions): We review for abuse of discretion a district court’s decision to deny sanctions, costs, and attorney’s…

Affidavit Authenticating Website Evidence Must State that Affiant Visited Site and Screen Shots Accurately Portray What Witness Saw — Authentication of Internet Archive Evidence

Sam’s Riverside, Inc. v. Intercon Solutions, Inc., 790 F. Supp. 2d 965 (S.D. Iowa 2011): An affidavit used to oppose a motion for summary judgment "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant . . . is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)( ...

Sam’s Riverside, Inc. v. Intercon Solutions, Inc., 790 F. Supp. 2d 965 (S.D. Iowa 2011): An affidavit used to oppose a motion for summary judgment “must be made on personal knowledge, set out facts that would be admissible in evidence,…

Reasonable Application of Governing Legal Standard to the Facts Satisfies Abuse-of-Discretion Standard

Doe v. Elmbrook School Dist., 658 F.3d 710 (7th Cir. 2011): "An abuse of discretion occurs if the district court reaches erroneous conclusions of law or premises its holding on a clearly erroneous assessment of the evidence." Gastineau v. Wright, 592 F.3d 747, 748 (7th Cir. 2010) (internal quotation marks omitted). In Pruitt v. Mote, 503 ...

Doe v. Elmbrook School Dist., 658 F.3d 710 (7th Cir. 2011): “An abuse of discretion occurs if the district court reaches erroneous conclusions of law or premises its holding on a clearly erroneous assessment of the evidence.” Gastineau v. Wright,…

Securities — Required Elements of Proof on Class Certification — Must Plaintiff Prove Materiality? Circuit Split

From Conn. Retirement Plans & Trust Funds v. Amgen, 2011 U.S. App. LEXIS 22540 (9th Cir. Nov. 8, 2011): To obtain class certification in a 10b-5 securities fraud case, the plaintiff, as required by Federal Rule of Civil Procedure 23(b)(3), must convince the district court that the element of reliance is common to the class. The Supreme ...

Appeal from Denial of Motion to Compel Arbitration Does Not Divest District Court of Jurisdiction to Proceed to Merits — Circuit Split

Weingarten Realty Inv. v. Miller, 2011 U.S. App. LEXIS 23649 (5th Cir. Nov. 1, 2011): Whether an appeal from a denial of a motion to compel arbitration divests the district court of jurisdiction to proceed to the merits is the subject of a circuit split. The Second and Ninth Circuits have held that a stay is not automatic. ...

Order Stating that Counsel’s Conduct Warranted Rule 11 Sanctions but Expressly Declining to Impose Any Is Not Appealable

Omega Claims Solutions, Inc. v. N’Site Solutions, Inc., 2011 U.S. App. LEXIS 23282 (5th Cir. Nov. 18, 2011): At the end of that order [confirming an arbitration award], the district court stated about Omega's counsel, Scott Rothenberg: As a final matter, and for the reasons discussed above, Omega has forced N'S ...

Commercial Litigation and Arbitration

Suspension by State Authorities Does Not Disqualify Lawyer from Appearing in Federal Court

Caselaw Split as to Whether to Permit Discovery of Financial Information Relevant to a Determination of Punitive Damages Prior to Summary Judgment

Only U.S. Citizenship of Dual Citizen Counts for Diversity — No General Duty under Rule 11 to Withdraw (Just Not to Reassert), but Failure to Withdraw within Safe Harbor Exposes Target to Costs of Motion

Simple Mutual Releases of Parties Do Not Release Sanctions Liability of Counsel — Ethics Implications of Negotiating a Release of Sanctions Exposure

When an Unexplained Sanctions Ruling Does, or Does Not, Suffice to Permit Meaningful Appellate Review

Affidavit Authenticating Website Evidence Must State that Affiant Visited Site and Screen Shots Accurately Portray What Witness Saw — Authentication of Internet Archive Evidence

Reasonable Application of Governing Legal Standard to the Facts Satisfies Abuse-of-Discretion Standard

Securities — Required Elements of Proof on Class Certification — Must Plaintiff Prove Materiality? Circuit Split

Appeal from Denial of Motion to Compel Arbitration Does Not Divest District Court of Jurisdiction to Proceed to Merits — Circuit Split

Order Stating that Counsel’s Conduct Warranted Rule 11 Sanctions but Expressly Declining to Impose Any Is Not Appealable

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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