Complex Lit Blog

Writ of Mandamus vs. Writ of Prohibition — Advisory vs. Supervisory Mandamus and, Presumably, Prohibition

From United States v. Pleau, 2011 U.S. App. LEXIS 20734 (1st Cir. Oct. 13, 2011): The All Writs Act, 28 U.S.C. § 1651(a), empowers federal courts to issue extraordinary (or "prerogative") writs where "necessary or appropriate in aid of their respective jurisdictions." Writs of mandamus instruct lower courts to take certain specifie ...

From United States v. Pleau, 2011 U.S. App. LEXIS 20734 (1st Cir. Oct. 13, 2011): The All Writs Act, 28 U.S.C. § 1651(a), empowers federal courts to issue extraordinary (or “prerogative”) writs where “necessary or appropriate in aid of their…

Plaintiff Who Voluntarily Dismisses Action under Rule 41(a)(1)(A) May Have No Right to Relief under 60(b) — Tactical Decision Based on Misinterpretation of Rules Is Not Inadvertent or Type of Mistake 60(b) Addresses

From Nelson v. Napolitano, 2011 U.S. App. LEXIS 19033 (7th Cir. Sept. 15, 2011): Nelson, Decatur, Lawson and Carter were Federal Air Marshals. They charged DHS with race- and age-based discrimination, as well as retaliation against certain of the plaintiffs who complained about discriminatory practices. Approximately two years after fil ...

No Federal Subject Matter Jurisdiction Exists over Declaratory Judgment Brought by One Private Party against Another That Stands in the Shoes of a Public Official

Loyd’s Aviation, Inc. v. Center for Environmental Health, 2011 U.S. Dist. LEXIS 121134 (E.D. Cal. Oct. 19, 2011): Plaintiffs are a group of small businesses that distribute lead-containing aviation fuel ("Avgas") to air carriers and other aircraft operators at airports across California and the rest of the United States. On June 30, 2 ...

Loyd’s Aviation, Inc. v. Center for Environmental Health, 2011 U.S. Dist. LEXIS 121134 (E.D. Cal. Oct. 19, 2011): Plaintiffs are a group of small businesses that distribute lead-containing aviation fuel (“Avgas”) to air carriers and other aircraft operators at airports…

Court Generally Should Stay Action on Granting Motion to Compel Arbitration, Not Dismiss It — Judicially-Created Exception If Arbitration Will Clearly Resolve All Issues

From Green v. SuperShuttle Int’l, Inc., 2011 WL 3890326 (8th Cir. Sept. 6, 2011): Mack Green and other current or former shuttle bus drivers at the Minneapolis–St. Paul International Airport (collectively Green) brought suit against SuperShuttle International, Inc., SuperShuttle Franchise Corporation, and SuperShuttle of Minnesota, ...

No Sanctions for Litigant’s False Sworn Statement of Fact Resulting from Mistake, Not Bad Faith

From McCreary v. Wertanen, 2010 U.S. App. LEXIS 27404 (6th Cir. Dec. 8, 2010): McCreary brought his complaint asserting violations of his constitutional rights against various employees of the Baraga Maximum Correctional Facility, Michigan Attorney General Mike Cox, and Baraga County Prosecutor Joseph O'Leary. Pursuant to Federal Rule o ...

Textual Structure, Legislative History and the Absurdity Doctrine in Statutory Interpretation

Hall v. United States, 99 Fed. Cl. 223,2011 U.S. Claims LEXIS 1151 (Ct. Cl. June 21, 2011): Although statutory interpretation begins with the "plain text," a court turns to "the traditional tools of statutory construction, e.g., legislative history," if the intent and meaning of a statute are not clear from its plain text. Grapevine Imp ...

Hall v. United States, 99 Fed. Cl. 223,2011 U.S. Claims LEXIS 1151 (Ct. Cl. June 21, 2011): Although statutory interpretation begins with the “plain text,” a court turns to “the traditional tools of statutory construction, e.g., legislative history,” if the…

To Satisfy Daubert and 702, Proponent of Expert Testimony Must Present Objective Validation of Methodology and Not Just Rely on Assurances from the Expert — Good Quotes

From Cason v. State Farm Fire & Cas. Ins. Co., 2011 U.S. Dist. LEXIS 108534 (E.D. La. Sept. 21, 2011): When expert testimony is challenged under Daubert, the burden of proof rests with the party seeking to present the testimony. Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir. 1998). To meet this burden, a party cannot simp ...

Inherent Power Sanctions for Failing to Return Confidential Information as Required by Settlement Agreement and in Violation of Court Order — Jurisdiction to Sanction via Subpoena under Rule 45

Johnson v. Hankook Tire Mfg. Co., 2011 U.S. App. LEXIS 20868 (5th Cir. Oct. 13, 2011): This matter arises from an attorney's improper retention of confidential materials after settlement of a case in a Texas state court. The appellant, Wesley Todd Ball (Ball), represented various plaintiffs in a case which was settled with the ap ...

Johnson v. Hankook Tire Mfg. Co., 2011 U.S. App. LEXIS 20868 (5th Cir. Oct. 13, 2011): This matter arises from an attorney’s improper retention of confidential materials after settlement of a case in a Texas state court. The appellant, Wesley…

Is Leave to Amend Complaint between Liability and Damages Phases of Bifurcated Trial Governed by Liberal Standard of Rule 15(a) or Tighter Standard of Rule 15(b)?

From SRI Int’l Inc. v. Internet Security Sys., Inc., 2011 U.S. Dist. LEXIS 114178 (D. Del. Oct. 4, 2011): Symantec's motion presents what appears to be an issue of first impression: whether leave to amend between the liability and damages phases of a bifurcated patent trial is subject to the liberal standard set forth in Federal Rule ...

From SRI Int’l Inc. v. Internet Security Sys., Inc., 2011 U.S. Dist. LEXIS 114178 (D. Del. Oct. 4, 2011): Symantec’s motion presents what appears to be an issue of first impression: whether leave to amend between the liability and damages…

RICO — Competitors as Members of an Associated-in-Fact Enterprise

From Negrete v. Allianz Life Ins. Co. of N. Am., 2011 U.S. Dist. LEXIS 118529 (C.D. Cal. Oct. 13, 2011): Allianz next contends that because each FMO competes "aggressively, and at cross-purposes" with every other FMO, plaintiffs are unable to prove the "common purpose" element required by Boyle. Specifically, Allianz argues that "'[i]f ...

From Negrete v. Allianz Life Ins. Co. of N. Am., 2011 U.S. Dist. LEXIS 118529 (C.D. Cal. Oct. 13, 2011): Allianz next contends that because each FMO competes “aggressively, and at cross-purposes” with every other FMO, plaintiffs are unable to…

Commercial Litigation and Arbitration

Writ of Mandamus vs. Writ of Prohibition — Advisory vs. Supervisory Mandamus and, Presumably, Prohibition

Plaintiff Who Voluntarily Dismisses Action under Rule 41(a)(1)(A) May Have No Right to Relief under 60(b) — Tactical Decision Based on Misinterpretation of Rules Is Not Inadvertent or Type of Mistake 60(b) Addresses

No Federal Subject Matter Jurisdiction Exists over Declaratory Judgment Brought by One Private Party against Another That Stands in the Shoes of a Public Official

Court Generally Should Stay Action on Granting Motion to Compel Arbitration, Not Dismiss It — Judicially-Created Exception If Arbitration Will Clearly Resolve All Issues

No Sanctions for Litigant’s False Sworn Statement of Fact Resulting from Mistake, Not Bad Faith

Textual Structure, Legislative History and the Absurdity Doctrine in Statutory Interpretation

To Satisfy Daubert and 702, Proponent of Expert Testimony Must Present Objective Validation of Methodology and Not Just Rely on Assurances from the Expert — Good Quotes

Inherent Power Sanctions for Failing to Return Confidential Information as Required by Settlement Agreement and in Violation of Court Order — Jurisdiction to Sanction via Subpoena under Rule 45

Is Leave to Amend Complaint between Liability and Damages Phases of Bifurcated Trial Governed by Liberal Standard of Rule 15(a) or Tighter Standard of Rule 15(b)?

RICO — Competitors as Members of an Associated-in-Fact Enterprise

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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