Complex Lit Blog

CAFA — Court Is Limited to Face of Complaint in Determining Whether Certain Elements of “Local Controversy” Exception Apply — “Relief Sought” and “Alleged Conduct”

From Coleman v. Estes Express Lines, Inc., 2011 U.S. App. LEXIS 1538 (9th Cir. Jan. 25, 2011): Under the Class Action Fairness Act of 2005 ("CAFA"), Pub. L. No. 109-2, 119 Stat. 4 (2005), defendants may remove a diversity class action from state to federal court when, among other conditions, the parties are minimally diverse and the amo ...

From Coleman v. Estes Express Lines, Inc., 2011 U.S. App. LEXIS 1538 (9th Cir. Jan. 25, 2011): Under the Class Action Fairness Act of 2005 (“CAFA”), Pub. L. No. 109-2, 119 Stat. 4 (2005), defendants may remove a diversity class…

Inadvertent Waiver Cannot Effect a Subject Matter Waiver under Rule 502 — State Law Governs Privilege in Diversity Case but Federal Law Determines Waiver

From Seyler v. T-Sys. N. Am., Inc., 2011 U.S. Dist. LEXIS 6065 (S.D.N.Y. Jan. 20, 2011): On December 14, 2009, the plaintiff filed suit against T-Systems, her former employer, and Mihallik, her former manager, *** alleging state-law claims of a hostile work environment, retaliation, and intentional infliction of emotional distress. ***< ...

Removal — Fourth Circuit Declines to Adopt Last-Served Defendant Rule, Adheres to Intermediate Rule, Requiring the First-Served Defendant to Remove within 30 Days and Every Later-Served Defendant to Do So, Too

From Barbour v. Int’l Union, UAW, 2011 U.S. App. LEXIS 1695 (4th Cir. Jan. 27, 2011) (en banc) (Note: this decision reverses the panel decision summarized in our post of February 8, 2010): Section 1446 of Title 28 describes the appropriate removal procedure to invoke federal jurisdiction, and requires the defendant seeking remov ...

Removal — Ninth Circuit Adopts Later-Served Defendant Rule; While All Served Defendants Must Consent to Removal before Entry of Judgment, Unserved Defendants Need Not; Dismissal of FDIC as Defendant Is Not Jurisdiction-Stripping

From Destfino v. Reiswig, 2011 U.S. App. LEXIS 1375 (9th Cir. Jan. 21, 2011): [First- vs. Later-Served Defendant Rule.] Does the first-served defendant's thirty-day clock run for all subsequently served defendants (the first-served rule), or does each defendant get his own thirty days to remove after being served (the later-serve ...

From Destfino v. Reiswig, 2011 U.S. App. LEXIS 1375 (9th Cir. Jan. 21, 2011): [First- vs. Later-Served Defendant Rule.] Does the first-served defendant’s thirty-day clock run for all subsequently served defendants (the first-served rule), or does each defendant get his…

Standard of Review of Magistrate Judge’s Discovery Decisions — Common Interest Doctrine Applies to Legal Advice Shared between Parent and Sub

From Weber v. Fujifilm Med. Sys. USA, Inc., 2011 U.S. Dist. LEXIS 6199 (D. Conn. Jan. 21, 2011): II. Standard of Review "Matters concerning discovery generally are considered 'nondispositive' of the litigation . . . [and] are committed to the discretion of the magistrate, reviewable by the district court under the 'clea ...

From Weber v. Fujifilm Med. Sys. USA, Inc., 2011 U.S. Dist. LEXIS 6199 (D. Conn. Jan. 21, 2011): II. Standard of Review “Matters concerning discovery generally are considered ‘nondispositive’ of the litigation . . . [and] are committed to the…

New Delaware Chancery Court Guidelines for Preservation of Electronically Stored Information — Spoliation/Electronic Discovery

The Delaware Court of Chancery has adopted new Guidelines for the Preservation of Electronically-Stored Information effective January 18, 2011. They include the directive that: In most cases ... a party and its counsel (in-house and outside) s ...

The Delaware Court of Chancery has adopted new Guidelines for the Preservation of Electronically-Stored Information effective January 18, 2011. They include the directive that: In most cases … a party and its counsel (in-house and outside) should: • Take a…

Procedural Untimeliness Forgivable on Grounds of “Excusable Neglect” under Rule 6(b)(1) — Factors — Delay Caused by Obtaining Needed Permission to File Affidavit

From Cedar Petrochemicals, Inc. v. Dongbu Hannong Chemical Co., 2011 U.S. Dist. LEXIS 4768 (S.D.N.Y. Jan. 14, 2011): ***Dongbu argues for the exclusion of the Declaration of Erik Gijbels because it was untimely under Local Civil Rule 6.1. *** Cedar concedes that the Gijbels Affidavit is untimely but argues that the untimeliness "did not ...

Factors in Deciding Whether to Exclude an Untimely Expert Report under Rule 37(c)(1)

From Cedar Petrochemicals, Inc. v. Dongbu Hannong Chemical Co., 2011 U.S. Dist. LEXIS 4768 (S.D.N.Y. Jan. 14, 2011): Under Rule 26 of the Federal Rules of Civil Procedure, expert witnesses must submit a written report that includes, among other things, "a complete statement of all opinions the witness will express and the basis and reas ...

Jury Comprehension of Civil RICO — Good Quote

From Mayfield SWD, LLC. v. Hampton, 2011 U.S. Dist. LEXIS 5617 (W.D. Okla. Jan. 19, 2011): It is sometimes difficult to envision how, even after a detailed and thorough explanation of the fine points of RICO's "enterprises," "patterns," and the like, a properly instructed jury's reaction could be other than a blank stare. ...

Judicial Immunity Extends Even to Malicious or Ultra Vires Acts Taken in a Judicial Capacity — Extends to Court Clerks, Too

From Ceparano v. Southampton Justice Court, 2011 U.S. App. LEXIS 233 (2d Cir. Jan. 5, 2011): "A judge defending against a section 1983 suit is entitled to absolute immunity from damages for actions performed in his judicial capacity." Fields v. Soloff, 920 F.2d 1114, 1119 (2d Cir. 1990). Whether a judge acted in a "judicial ca ...

From Ceparano v. Southampton Justice Court, 2011 U.S. App. LEXIS 233 (2d Cir. Jan. 5, 2011): “A judge defending against a section 1983 suit is entitled to absolute immunity from damages for actions performed in his judicial capacity.” Fields v.…

Commercial Litigation and Arbitration

CAFA — Court Is Limited to Face of Complaint in Determining Whether Certain Elements of “Local Controversy” Exception Apply — “Relief Sought” and “Alleged Conduct”

Inadvertent Waiver Cannot Effect a Subject Matter Waiver under Rule 502 — State Law Governs Privilege in Diversity Case but Federal Law Determines Waiver

Removal — Fourth Circuit Declines to Adopt Last-Served Defendant Rule, Adheres to Intermediate Rule, Requiring the First-Served Defendant to Remove within 30 Days and Every Later-Served Defendant to Do So, Too

Removal — Ninth Circuit Adopts Later-Served Defendant Rule; While All Served Defendants Must Consent to Removal before Entry of Judgment, Unserved Defendants Need Not; Dismissal of FDIC as Defendant Is Not Jurisdiction-Stripping

Standard of Review of Magistrate Judge’s Discovery Decisions — Common Interest Doctrine Applies to Legal Advice Shared between Parent and Sub

New Delaware Chancery Court Guidelines for Preservation of Electronically Stored Information — Spoliation/Electronic Discovery

Procedural Untimeliness Forgivable on Grounds of “Excusable Neglect” under Rule 6(b)(1) — Factors — Delay Caused by Obtaining Needed Permission to File Affidavit

Factors in Deciding Whether to Exclude an Untimely Expert Report under Rule 37(c)(1)

Jury Comprehension of Civil RICO — Good Quote

Judicial Immunity Extends Even to Malicious or Ultra Vires Acts Taken in a Judicial Capacity — Extends to Court Clerks, Too

Recent Posts

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)

RICO: Hobbs Act does not apply when the alleged extortion is meant to benefit the state

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