Complex Lit Blog

No Fed.R.App.P. 38 Sanctions Absent Separate Motion — § 1927 Sanctions Particularly Apt for Groundless Appeal of Arbitration Award

From Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Whitney, 2011 U.S. App. LEXIS 7041 (10th Cir. April 4, 2011): Defendants-Appellants Pamela Whitney, the Estate of Mary Whitney, and the Estate of Suzanne Whitney appeal from the district court's order granting plaintiff Merrill Lynch's motion to confirm an arbitration award in this int ...

Email from Consumer to Trademark Plaintiff’s Customer Service Department Admissible on Issue of Confusion under State of Mind Exception to Hearsay Rule

From T. Marzetti Co. v. Roskam Baking Co., No. 2:90 CV 584, 2010 WL 909582, at *2 (S.D. Ohio March 11, 2010): Roskam's Email Motion in Limine to prevent Marzetti from using an email dated July 13, 2009, sent from Diane Meale to Roskam's Customer Service Department (the “Meale Email”) as evidence in the likelihood of confusion an ...

From T. Marzetti Co. v. Roskam Baking Co., No. 2:90 CV 584, 2010 WL 909582, at *2 (S.D. Ohio March 11, 2010): Roskam’s Email Motion in Limine to prevent Marzetti from using an email dated July 13, 2009, sent from…

Experts — Lack of Certification in Field Not Disqualifying — Expert’s Failure to Remember Every Document Reviewed Irrelevant, As Is Mistaken Understanding of Relevant Dates — Good Quote

From GE Capital Corp. v. Nichols, 2011 U.S. Dist. LEXIS 46095 (D. Conn. April 29, 2011): As an initial matter, Bodeker appears well-qualified to render an opinion in this case. He has spent sixteen years in the concrete pumping industry, primarily in sales but also in marketing. *** Bodeker has sold or supervised the sale of over 1000 c ...

Factors in Determining Whether to Exercise Supplemental Jurisdiction Once Federal Jurisdiction Has Been Found Lacking — Ninth Circuit Articulation

From Wadhwa v. Aurora Loan Servs., LLC, 2011 U.S. Dist. LEXIS 45489 (E.D. Cal. April 27, 2011): Under 28 U.S.C. § 1367(c)(3), a district court may decline to exercise supplemental jurisdiction over state law claims if "the district court has dismissed all claims over which it has original jurisdiction . . . ." 28 U.S.C. § 1367(c)(3); ...

Trial Subpoena Served on a Party Must Be Limited to Documents and Things Previously Disclosed, and Cannot Be Used to End Run Discovery Deadlines Set by Court

From Hatcher v. Precoat Metals, 271 F.R.D. 674, 675 (N.D. Ala. 2010): This matter is before the court for consideration of the motion of defendant Precoat Metals to quash a subpoena purportedly served in accord with the provisions of Rule 45, Federal Rules of Civil Procedure.... The subpoena seeks documents which, by their nature, are oth ...

Appeals — Affirming on Alternate Grounds Supported by the Record vs. Not Considering Issues that the District Court Did Not Reach

From New Mexico St. Investment Council v. Ernst & Young LLP, 2011 U.S. App. LEXIS 7680 (9th Cir. April 14, 2011): [Footnote] 1. EY argues this Court can affirm "on any ground supported by the record, even if the district court did not rely on the ground." Livid Holdings, Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 950 (9th C ...

From New Mexico St. Investment Council v. Ernst & Young LLP, 2011 U.S. App. LEXIS 7680 (9th Cir. April 14, 2011): [Footnote] 1. EY argues this Court can affirm “on any ground supported by the record, even if the district…

Neither State Action Doctrine Nor Implied Preemption Exemption to Antitrust Liability Apply to Actions/Regulatory Schemes of Foreign Nations

From In re Transpacific Passenger Air Transp. Antitrust Litig., 2011 U.S. Dist. LEXIS 49853 (N.D. Cal. May 9, 2011): This case involves allegations that 26 airlines engaged in a ten year international conspiracy to fix the prices of transpacific air passenger travel, in violation of Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1 ...

Patents May Be Held Unenforceable as Spoliation Sanction — -Subjective Bad Faith for Inherent Power (Not “Should Have Known”) — Crime-Fraud Exception to Attorney-Client Privilege Due to Spoliation (= Obstruction)

From Micron Tech., Inc. v. Rambus Inc., 2011 U.S. App. LEXIS 9730 (Fed. Cir. May 13, 2011): Rambus Inc. ("Rambus") appeals the decision of the United States District Court for the District of Delaware holding that the twelve Rambus patents asserted against Micron Technology, Inc., Micron Electronics, Inc., and Micron Semiconductor Produ ...

From Micron Tech., Inc. v. Rambus Inc., 2011 U.S. App. LEXIS 9730 (Fed. Cir. May 13, 2011): Rambus Inc. (“Rambus”) appeals the decision of the United States District Court for the District of Delaware holding that the twelve Rambus patents…

Filing of Complaint May Violate § 1927 — Circuit Split

From Schaefer Salt Recovery, Inc., 2011 Bankr. LEXIS 1778 (Bankr. D.N.J. Jan. 21, 2011): Sanctions may be properly awarded against Khoudary and SSR under ... § 1927, as the Chapter 7 petition was plainly filed for an improper purpose. The Chapter 7 case was filed only 37 days after the dismissal of SSR's Chapter 11 case. Khoudary and ...

From Schaefer Salt Recovery, Inc., 2011 Bankr. LEXIS 1778 (Bankr. D.N.J. Jan. 21, 2011): Sanctions may be properly awarded against Khoudary and SSR under … § 1927, as the Chapter 7 petition was plainly filed for an improper purpose. The…

Notice of Appeal from Judgment Encompasses All Prior Rulings and Orders Where Appellant Does Not Designate Specific Determinations Only — Reference to One Order Does Not Preclude Appeal from Others

From Bentkowski v. Scene Magazine, 2011 U.S. App. LEXIS 7912 (6th Cir. April 19, 2011): Bentkowski claims that the district court abused its discretion by denying his motion for an extension of time to conduct discovery and by striking his first amended complaint as a sanction. Appellees claim that we lack jurisdiction over these ap ...

Commercial Litigation and Arbitration

No Fed.R.App.P. 38 Sanctions Absent Separate Motion — § 1927 Sanctions Particularly Apt for Groundless Appeal of Arbitration Award

Email from Consumer to Trademark Plaintiff’s Customer Service Department Admissible on Issue of Confusion under State of Mind Exception to Hearsay Rule

Experts — Lack of Certification in Field Not Disqualifying — Expert’s Failure to Remember Every Document Reviewed Irrelevant, As Is Mistaken Understanding of Relevant Dates — Good Quote

Factors in Determining Whether to Exercise Supplemental Jurisdiction Once Federal Jurisdiction Has Been Found Lacking — Ninth Circuit Articulation

Trial Subpoena Served on a Party Must Be Limited to Documents and Things Previously Disclosed, and Cannot Be Used to End Run Discovery Deadlines Set by Court

Appeals — Affirming on Alternate Grounds Supported by the Record vs. Not Considering Issues that the District Court Did Not Reach

Neither State Action Doctrine Nor Implied Preemption Exemption to Antitrust Liability Apply to Actions/Regulatory Schemes of Foreign Nations

Patents May Be Held Unenforceable as Spoliation Sanction — -Subjective Bad Faith for Inherent Power (Not “Should Have Known”) — Crime-Fraud Exception to Attorney-Client Privilege Due to Spoliation (= Obstruction)

Filing of Complaint May Violate § 1927 — Circuit Split

Notice of Appeal from Judgment Encompasses All Prior Rulings and Orders Where Appellant Does Not Designate Specific Determinations Only — Reference to One Order Does Not Preclude Appeal from Others

Recent Posts

RICO: Mail and Wire Fraud: Act of Emailing Transcript of Court Proceedings Containing Allegedly False Statements Made in Court ≠ Wire Fraud — Mailing (Serving on Opposing Party) Declarations Allegedly Containing False Statements ≠ Mail Fraud

FRAP 38 Sanctions — Sixth Circuit Usually Declines to Impose FRAP 38 Sanctions Unless An Improper Purpose Was Behind the Appeal

FRAP 38: Permissible for Appeals Court to Affirm Sanctions But Deny FRAP 38 Sanctions for Appeal — A Defendant’s Voluntary Cessation of Complained of Behavior Does Not Moot a Case Unless It Is Clear That The Behavior Could Not Reasonably Be Expected to Recur

Rule 11: Violation of 21 Day Safe Harbor “Overlook[ed]” As Non-Prejudicial by First Circuit — “Rule 11 Monetary Sanctions Must Be Reasonable” (Good Quote) — Rule 11(c)(4) Requires Consideration of Offender’s Ability to Pay

Temporary Restraining Order = Preliminary Injunction: 3 Supreme Court Cases (TRO=PI x 3)

Rule 37(c)(1) Sanctions — Exclusion of Untimely Expert Report — Eighth Circuit’s 4-Factor Test

RICO: So Insubstantial A Claim As to Fail to Confer Subject Matter Jurisdiction

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