Complex Lit Blog

Defendant Cannot Moot Class Action by Making a Rule 68 Offer of Judgment to the Named Plaintiff before Class Certification Motion Is Filed — Case Law Split

From Hrivnak v. NCO Portfolio Mgmt., Inc., 723 F. Supp. 2d 1020 (N.D. Ohio 2010): The question posed by Javitch's Motion for Reconsideration is whether a defendant in a putative class-action may moot that action by presenting an offer of judgment under Rule 68 two days after the suit is removed to federal court. *** At issue is "[t]he i ...

From Hrivnak v. NCO Portfolio Mgmt., Inc., 723 F. Supp. 2d 1020 (N.D. Ohio 2010): The question posed by Javitch’s Motion for Reconsideration is whether a defendant in a putative class-action may moot that action by presenting an offer of…

§ 1927 Sanctions Imposed on Counsel for 868-Entry Deposition Errata Sheet — Case Law Split on Propriety of Substantive Deposition Errata — § 1927 Award May Include Costs Incurred on Sanctions Motion (Circuit Split) — Good Quotes

From Norelus v. Denny’s, Inc., 2010 U.S. App. LEXIS 26286 (11th Cir. Dec. 28, 2010) (Note: This is a 2-1 decision with the 1 being a concurrence in part and Judge Tflojat dissenting): No one's memory is perfect. People forget things or get confused, and anyone can make an innocent misstatement or two. Or maybe even three ...

FTC Suit for Unfair or Deceptive Acts under 15 U.S.C. § 45(a)(1) Is Subject to Rule 9(b) — Case Law Split

From Federal Trade Commission v. Lights of Am., Inc., 2010 U.S. Dist. LEXIS 137088 (C.D. Cal. Dec. 17, 2010): The FTC Act prohibits "unfair or deceptive acts or practices in or affecting commerce." 15 U.S.C. § 45(a)(1). In resolving the FTC's motion to dismiss, the central issue is whether the FTC's claim that the Vakils engaged in "unfa ...

From Federal Trade Commission v. Lights of Am., Inc., 2010 U.S. Dist. LEXIS 137088 (C.D. Cal. Dec. 17, 2010): The FTC Act prohibits “unfair or deceptive acts or practices in or affecting commerce.” 15 U.S.C. § 45(a)(1). In resolving the…

The 10 Most Important Developments in Civil Practice: 2000-2010

1. Federal Rule of Evidence 502 (9/19/2008) 2. Twiqbal (2007 / 2009) 3. Expert Discovery Rules Amendments (12/1/2010) 4. The Rise of Spoliation 5. Amendments to Evidence Rules 701-703 (12/1/2000) 6. FRAP. 32.1 (12/1/2006) 7. 2000 ...

Arbitration — Presumption that Duty to Arbitrate Survives Contract — Ambiguity Resolved in Favor of Arbitrating

From West Liberty Foods, LLC v. Moroni Feed Co., 2010 U.S. Dist. LEXIS 125137 (S.D. Iowa Oct. 20, 2010): The issue in this case is not whether the parties agreed to arbitrate in the first place; rather, the issue is whether the parties agreed that the obligation to arbitrate would end upon termination of the marketing agreement. "Even i ...

PSLRA Sanctions — Statute of Limitations Dismissal Is a “Final Adjudication” Triggering Rule 11 Inquiry (Standing Dismissal, Maybe Not) — Declining Jurisdiction over State Law Claims Irrelevant to “Final Adjudication” Trigger

From Libaire v. Kaplan, 2010 U.S. App. LEXIS 20594 (2d Cir. Oct. 6, 2010): The PSLRA [Private Securities Litigation Reform Act] states that "[i]n any private action arising under this chapter, upon final adjudication of the action, the court shall include in the record specific findings regarding compliance by each party and each attorney ...

From Libaire v. Kaplan, 2010 U.S. App. LEXIS 20594 (2d Cir. Oct. 6, 2010): The PSLRA [Private Securities Litigation Reform Act] states that “[i]n any private action arising under this chapter, upon final adjudication of the action, the court shall…

The One-Year Limit on Removal in 28 U.S.C. § 1446(b) Is Not Subject to an Equitable Exception — Case Law Split

From Cole v. Amerigon Inc., 2010 U.S. Dist. LEXIS 134745 (E.D. Mo. Dec. 21, 2010): If a case is not removable as initially pled, "a notice of removal may be filed within thirty days after the receipt...of a copy of an amended pleading, motion, order or other paper" that alerts the defendant that the action is removable. [28 U.S.C. § 144 ...

From Cole v. Amerigon Inc., 2010 U.S. Dist. LEXIS 134745 (E.D. Mo. Dec. 21, 2010): If a case is not removable as initially pled, “a notice of removal may be filed within thirty days after the receipt…of a copy of…

Defendants Who Were Aware of Allegedly Dangerous Condition But Had No Control over It Cannot be Subject to Adverse Inference for Failing to Document or Preserve Scene

From Willis v. Indian Harbor SS Co., 790 N.W.2d 177 (Minn. App. 2010): On August 27, 2004, while working as a crewman of the vessel Joseph L. Block, Willis was injured on a dock in the Duluth harbor owned by respondent Duluth, Missabe & Iron Range Railway Company (DM&IR). Willis was handling one of the Block's mooring lines used to secu ...

Dismissal Standards in New York State Court — CPLR 3211(a)(7) (Failure to State a Claim) and 3211(a)(1) (Documentary Evidence) — Affidavits May Cure Pleading Deficiencies — What Constitutes “Documentary Evidence”

From MBIA Ins. Corp. v Royal Bank of Canada, 28 Misc. 3d 1225A, 2010 N.Y. Misc. LEXIS 3958, 2010 NY Slip Op 51490U (Sup. Ct. Westchester County Aug. 19, 2010): The legal standards to be applied in evaluating a motion to dismiss pursuant to CPLR 3211(a)(7) are well-settled. In determining whether a complaint is sufficient to withsta ...

Refusal to Grant Attorneys’ Fees as Inherent Power Sanction Upheld Even Though Intentional Spoliation May Have Been Found by Jury

From Union Pump Co. v. Centrifugal Tech. Inc., 2010 U.S. App. LEXIS 25761 (5th Cir. Dec. 16, 2010): Plaintiff, Union Pump Company, sued three of its former employees after the former employees formed a competing business. Union Pump alleged that the defendants misappropriated its trade secrets and engaged in unfair competition because t ...

Commercial Litigation and Arbitration

Defendant Cannot Moot Class Action by Making a Rule 68 Offer of Judgment to the Named Plaintiff before Class Certification Motion Is Filed — Case Law Split

§ 1927 Sanctions Imposed on Counsel for 868-Entry Deposition Errata Sheet — Case Law Split on Propriety of Substantive Deposition Errata — § 1927 Award May Include Costs Incurred on Sanctions Motion (Circuit Split) — Good Quotes

FTC Suit for Unfair or Deceptive Acts under 15 U.S.C. § 45(a)(1) Is Subject to Rule 9(b) — Case Law Split

The 10 Most Important Developments in Civil Practice: 2000-2010

Arbitration — Presumption that Duty to Arbitrate Survives Contract — Ambiguity Resolved in Favor of Arbitrating

PSLRA Sanctions — Statute of Limitations Dismissal Is a “Final Adjudication” Triggering Rule 11 Inquiry (Standing Dismissal, Maybe Not) — Declining Jurisdiction over State Law Claims Irrelevant to “Final Adjudication” Trigger

The One-Year Limit on Removal in 28 U.S.C. § 1446(b) Is Not Subject to an Equitable Exception — Case Law Split

Defendants Who Were Aware of Allegedly Dangerous Condition But Had No Control over It Cannot be Subject to Adverse Inference for Failing to Document or Preserve Scene

Dismissal Standards in New York State Court — CPLR 3211(a)(7) (Failure to State a Claim) and 3211(a)(1) (Documentary Evidence) — Affidavits May Cure Pleading Deficiencies — What Constitutes “Documentary Evidence”

Refusal to Grant Attorneys’ Fees as Inherent Power Sanction Upheld Even Though Intentional Spoliation May Have Been Found by Jury

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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