Complex Lit Blog

Rule 802(d)(2) Admissions in Employment Actions — Employee-Speaker Must Have Been Involved in the Decision-Making Process

From Cypert v. Indep. School Dist. No. 1-050, 2010 U.S. Dist. LEXIS 90057 (N.D. Okla. Aug. 30, 2010): "[A]n employee's statements are not attributable to his employer as a party-opponent admission in an employment dispute unless the employee was 'involved in the decisionmaking process affecting the employment action' at issue." Johns ...

From Cypert v. Indep. School Dist. No. 1-050, 2010 U.S. Dist. LEXIS 90057 (N.D. Okla. Aug. 30, 2010): “[A]n employee’s statements are not attributable to his employer as a party-opponent admission in an employment dispute unless the employee was ‘involved…

Fraudulent Joinder Standard Is More Deferential to Plaintiff than 12(b)(6) Standard — “Any Reasonable Possibility” vs. “Any Possibility”

From Sanders v. DJO, LLC, 2010 U.S. Dist. LEXIS 89652 (D.N.M. July 7, 2010): Defendants claiming that fraudulent joinder has occurred bear the burden of establishing that fact. This burden is a heavy one. See, e.g., Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752, 764 (7th Cir. 2009); Montano v. Allstate Indemnity, 2 ...

Arbitration Agreement’s Selection of State Arbitration Act Does Not Entirely Displace FAA or Effect Waiver of Right to Remove — Intent to Apply State Vacatur Standards Must be Clear

From Pepper Hamilton, LLP v. Underwriting Members of Syndicate 53 at Lloyd's, 2010 U.S. App. LEXIS 17195 (3d Cir. Aug. 18, 2010): The FAA is divided into three chapters, two of which are implicated here. Chapter 1 (the "domestic FAA"), 9 U.S.C. §§ 1-16, is a set of default rules "designed 'to overrule the judiciary's longstanding refu ...

From Pepper Hamilton, LLP v. Underwriting Members of Syndicate 53 at Lloyd’s, 2010 U.S. App. LEXIS 17195 (3d Cir. Aug. 18, 2010): The FAA is divided into three chapters, two of which are implicated here. Chapter 1 (the “domestic FAA”),…

Delay of 4 Months before Serving Rule 11 Motion and 13 Months before Filing Is Not Undue, If Safe Harbor Honored — Calculating Non-Specific Attorneys’ Fees by Percentage of Frivolous Counts

From Golden v. Helen Sigman & Assocs., Ltd., 2010 U.S. App. LEXIS 13585 (7th Cir. July 2, 2010): Sigman and Thomas delayed filing their Rule 11 motions for approximately a year after they filed their motions to dismiss. Golden submits that this lassitude should have led to a dismissal of the request. Sigman and Thomas counter that Golde ...

Defendant May Implead Contractual Indemnitor as Third-Party Defendant without Awaiting Determination of Its Liability vis-à-vis Plaintiff

From Frontier Commc’ns Corp. v. Barrett Paving Materials, Inc., 2010 U.S. Dist. LEXIS 87990 (D. Me. June 25, 2010): In something of a false-start, the City argues that the Railroad's third-party complaint can be dismissed as premature because, assuming an indemnification agreement exists, it has not yet been breached. In the City's vie ...

From Frontier Commc’ns Corp. v. Barrett Paving Materials, Inc., 2010 U.S. Dist. LEXIS 87990 (D. Me. June 25, 2010): In something of a false-start, the City argues that the Railroad’s third-party complaint can be dismissed as premature because, assuming an…

Existing Jury Instructions Against Use of Social Networks, Google, Internet Research, Etc.

The Going Paperless blog of Molly DiBianca collects the jury instructions proposed by the U.S. Judicial Conference and those adopted by 10 states, 3 Circuits and the Northern District of Iowa. See SOCIAL MEDIA RESEARCH REPOSITORY. It is extremely useful. ...

Rule 12(f) Does Not Authorize Court to Strike Damages Claim on Ground Damages Are Precluded as a Matter of Law — Issue of First Impression

From Whittlestone, Inc. v. Handi-Craft Co., 2010 U.S. App. LEXIS 1713 (9th Cir. Aug. 17, 2010): In this case of first impression, we hold that Rule 12(f) of the Federal Rules of Civil Procedure does not authorize a district court to strike a claim for damages on the ground that such damages are precluded as a matter of law. *** Rul ...

Diminution in Value of Limited Partnership Interests As a Derivative, Not a Direct, Injury

From Continental Cas. Co. v. PricewaterhouseCoopers, LLP, 2010 WL 2569187 (N.Y. Ct. App. June 29, 2010): In these actions, plaintiffs, former limited partners of Lipper Convertibles, LP, assert direct claims of fraud against PricewaterhouseCoopers, LLP (PwC), the auditor of Lipper Convertibles' annual financial statements for the years 19 ...

Range of Available Sanctions for Spoliation

From D'Onofrio v. SFX Sports Group, Inc., 2010 U.S. Dist. LEXIS 86711 (D.D.C. Aug. 24, 2010): The Federal Rules of Civil Procedure do not contain a provision specifying a remedy for the failure to preserve evidence. The trial court, nevertheless, has a great deal of discretion in exercising its inherent powers to fashion an appropriate ...

From D’Onofrio v. SFX Sports Group, Inc., 2010 U.S. Dist. LEXIS 86711 (D.D.C. Aug. 24, 2010): The Federal Rules of Civil Procedure do not contain a provision specifying a remedy for the failure to preserve evidence. The trial court, nevertheless,…

Sanctions — Ninth Circuit Declines to Resolve whether Finding of Bad Faith Must be Supported by Clear and Convincing Evidence

From Lahiri v. Universal Music & Video Dist. Corp., 606 F.3d 1216 (9th Cir. 2010): An attorney who unreasonably and vexatiously "multiplies the proceedings" may be required to pay the excess fees and costs caused by his conduct. 28 U.S.C. § 1927. Recklessness suffices for § 1927 sanctions, but sanctions imposed under the district court ...

From Lahiri v. Universal Music & Video Dist. Corp., 606 F.3d 1216 (9th Cir. 2010): An attorney who unreasonably and vexatiously “multiplies the proceedings” may be required to pay the excess fees and costs caused by his conduct. 28 U.S.C.…

Commercial Litigation and Arbitration

Rule 802(d)(2) Admissions in Employment Actions — Employee-Speaker Must Have Been Involved in the Decision-Making Process

Fraudulent Joinder Standard Is More Deferential to Plaintiff than 12(b)(6) Standard — “Any Reasonable Possibility” vs. “Any Possibility”

Arbitration Agreement’s Selection of State Arbitration Act Does Not Entirely Displace FAA or Effect Waiver of Right to Remove — Intent to Apply State Vacatur Standards Must be Clear

Delay of 4 Months before Serving Rule 11 Motion and 13 Months before Filing Is Not Undue, If Safe Harbor Honored — Calculating Non-Specific Attorneys’ Fees by Percentage of Frivolous Counts

Defendant May Implead Contractual Indemnitor as Third-Party Defendant without Awaiting Determination of Its Liability vis-à-vis Plaintiff

Existing Jury Instructions Against Use of Social Networks, Google, Internet Research, Etc.

Rule 12(f) Does Not Authorize Court to Strike Damages Claim on Ground Damages Are Precluded as a Matter of Law — Issue of First Impression

Diminution in Value of Limited Partnership Interests As a Derivative, Not a Direct, Injury

Range of Available Sanctions for Spoliation

Sanctions — Ninth Circuit Declines to Resolve whether Finding of Bad Faith Must be Supported by Clear and Convincing Evidence

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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