Complex Lit Blog

Arbitration — Applying Vaden to Look Through a Freestanding FAA Petition Where No Complaint Exists — State Law Discovery Sanction Striking Arbitration Clause Precludes Motion to Compel in Federal Court

From Community State Bank v. Strong, 2011 U.S. App. LEXIS 17767 (11th Cir. Aug. 25, 2011): This resilient case has arrived back in our Court after the Supreme Court's opinion in Vaden v. Discover Bank, 556 U.S. 49, 129 S. Ct. 1262, 173 L. Ed. 2d 206 (2009), and following a detour through our en banc Court. Again we are asked to navigate ...

From Community State Bank v. Strong, 2011 U.S. App. LEXIS 17767 (11th Cir. Aug. 25, 2011): This resilient case has arrived back in our Court after the Supreme Court’s opinion in Vaden v. Discover Bank, 556 U.S. 49, 129 S.…

Disqualification of Opposing Lawyer, Who Was a Key Participant in Failed Contract Negotiations, Denied — No Right to Call Opposing Counsel to Corroborate Own Witnesses’ Testimony

From Lincoln Provision, Inc., v.Aron Puretz, PMP LLC, 2011 U.S. Dist. LEXIS 86475 (D. Neb. Aug. 4, 2011): The Defendants moved to disqualify Plaintiff's counsel, David Domina, on the theory that Domina is a necessary witness in this action***. Defendants note that Domina participated in unsuccessful negotiations for an operat ...

From Lincoln Provision, Inc., v.Aron Puretz, PMP LLC, 2011 U.S. Dist. LEXIS 86475 (D. Neb. Aug. 4, 2011): The Defendants moved to disqualify Plaintiff’s counsel, David Domina, on the theory that Domina is a necessary witness in this action***. Defendants…

§ 1292(b) Certification Is Not Appropriate Simply Because the Interlocutory Decision Addresses an Issue of First Impression or Complex, Difficult Statutory Interpretation

From Lang v. Crocker Park, LLC, 2011 U.S. Dist. LEXIS 83451 (N.D. Ohio July 29, 2011): B. Substantial Ground for Difference of Opinion Is Not Present Defendants posit that the language used by the court in its Order is intentionally equivocal in recognition of the fact that certain provisions of the ADAAG [Americans with Disabil ...

Sanctions — Order Finding Lawyer Violated Ethical Rule Is Appealable Even Though Unaccompanied by Formal Reprimand or Monetary Penalty

From Adams v. Ford Motor Co., 2011 U.S. App. LEXIS 16127 (3d Cir. Aug. 5, 2011): Vincent A. Colianni appeals from the magistrate judge's order finding that he violated ABA Model Rule of Professional Conduct Rule 3.5 by initiating post-verdict contact with a juror. *** Appellant Yolanda Adams filed suit in the District Court of t ...

From Adams v. Ford Motor Co., 2011 U.S. App. LEXIS 16127 (3d Cir. Aug. 5, 2011): Vincent A. Colianni appeals from the magistrate judge’s order finding that he violated ABA Model Rule of Professional Conduct Rule 3.5 by initiating post-verdict…

Standard for Discovery of Mediation Communications = Standard for Relief from a Protective Order — Note Alternative of Targeted Discovery and Seeming Openness to Interrogatories or Depositions to Obtain Same Evidence

From Savage & Assocs., PC v. K&L Gates LLP, 640 F.3d 53 (2d Cir. 2011): Appeal and cross-appeal from an order of the United States District Court for the Southern District of New York (Castel, J.) affirming the order of the bankruptcy court (Bernstein, C.B.J.), which denied K&L Gates LLP's ("K& L Gates") motion to lift two protective ord ...

Unsolicited Email Received from Someone Whom the Recipient Has Never Been in Contact with Not Sufficiently Authenticated (Linked to Sender) Simply by Recipient’s Testimony

From Jimena v. UBS AG Bank, Inc., 2011 U.S. Dist. LEXIS 68560 (E.D. Cal. June 24, 2011): "When a letter, signed with the purported signature of X, is received 'out of the blue,' with no previous correspondence, the traditional 'show me' skepticism of the common law prevails, and the purported signature is not sufficient as authenticatio ...

From Jimena v. UBS AG Bank, Inc., 2011 U.S. Dist. LEXIS 68560 (E.D. Cal. June 24, 2011): “When a letter, signed with the purported signature of X, is received ‘out of the blue,’ with no previous correspondence, the traditional ‘show…

Seventh Circuit Rules that a Letter Satisfies the Motion Requirement of Rule 11(c)(1)(A) and that Post-Judgment Motion Is Timely Despite Safe Harbor (Circuit Split)

From Matrix IV, Inc. v. Am. Nat’l Bank & Trust Co. of Chi., 2011 U.S. App. LEXIS 15537 (7th Cir. July 28, 2011): Before taking up the merits of Gateway's argument for sanctions, we address certain concerns raised below and reiterated here that the motion for sanctions was procedurally defective. Rule 11(c)(2) provides that a motion fo ...

From Matrix IV, Inc. v. Am. Nat’l Bank & Trust Co. of Chi., 2011 U.S. App. LEXIS 15537 (7th Cir. July 28, 2011): Before taking up the merits of Gateway’s argument for sanctions, we address certain concerns raised below and…

Removing Defendant May Be Awarded Fees under § 1447(c) for Frivolous Removal Caused by Plaintiff’s Misconduct

From Micrometl Corp. v. Tranzact Techs., Inc., 2011 U.S. App. LEXIS 17693 (7th Cir. Aug. 24, 2011): After Micrometl Corp. filed suit in state court against Tranzact Technologies, Inc., alleging overbillings in excess of $100,000, Tranzact removed to federal court. The parties are of diverse citizenship, and so jurisdiction appeared secu ...

No Rule 11 Sanctions for Cat-and-Mouse Evasion of Service or Failure to File Answer, but Inherent Power Sanctions May Be Warranted

From Ali v. Tolbert, 636 F.3d 622 (D.C. Cir. 2011): By its terms, Rule 11 applies to "[r]epresentations to the Court" made in "presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper." Fed R. Civ. P. 11(b) (2006). In Hilton Hotels Corp. v. Banov, 899 F.2d 40, 283 ...

From Ali v. Tolbert, 636 F.3d 622 (D.C. Cir. 2011): By its terms, Rule 11 applies to “[r]epresentations to the Court” made in “presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or…

Counsel’s Orally Reading to SEC Her Notes of Internal Investigation Interviews Waived Work Product Protection Even Though Done Pursuant to Confidentiality Agreement

From Securities and Exchange Commission v. Vitesse Semiconductor Corp., 2011 U.S. Dist. LEXIS 77538 (S.D.N.Y. July 13, 2011): [N]on-party Nu Horizons Electronic Corporation ("NuHo") moved to quash the subpoenas issued by defendants Tomasetta and Hovanec requesting the production of handwritten notes taken during NuHo's internal investig ...

From Securities and Exchange Commission v. Vitesse Semiconductor Corp., 2011 U.S. Dist. LEXIS 77538 (S.D.N.Y. July 13, 2011): [N]on-party Nu Horizons Electronic Corporation (“NuHo”) moved to quash the subpoenas issued by defendants Tomasetta and Hovanec requesting the production of handwritten…

Commercial Litigation and Arbitration

Arbitration — Applying Vaden to Look Through a Freestanding FAA Petition Where No Complaint Exists — State Law Discovery Sanction Striking Arbitration Clause Precludes Motion to Compel in Federal Court

Disqualification of Opposing Lawyer, Who Was a Key Participant in Failed Contract Negotiations, Denied — No Right to Call Opposing Counsel to Corroborate Own Witnesses’ Testimony

§ 1292(b) Certification Is Not Appropriate Simply Because the Interlocutory Decision Addresses an Issue of First Impression or Complex, Difficult Statutory Interpretation

Sanctions — Order Finding Lawyer Violated Ethical Rule Is Appealable Even Though Unaccompanied by Formal Reprimand or Monetary Penalty

Standard for Discovery of Mediation Communications = Standard for Relief from a Protective Order — Note Alternative of Targeted Discovery and Seeming Openness to Interrogatories or Depositions to Obtain Same Evidence

Unsolicited Email Received from Someone Whom the Recipient Has Never Been in Contact with Not Sufficiently Authenticated (Linked to Sender) Simply by Recipient’s Testimony

Seventh Circuit Rules that a Letter Satisfies the Motion Requirement of Rule 11(c)(1)(A) and that Post-Judgment Motion Is Timely Despite Safe Harbor (Circuit Split)

Removing Defendant May Be Awarded Fees under § 1447(c) for Frivolous Removal Caused by Plaintiff’s Misconduct

No Rule 11 Sanctions for Cat-and-Mouse Evasion of Service or Failure to File Answer, but Inherent Power Sanctions May Be Warranted

Counsel’s Orally Reading to SEC Her Notes of Internal Investigation Interviews Waived Work Product Protection Even Though Done Pursuant to Confidentiality Agreement

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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