Complex Lit Blog

Standards for Judgment as a Matter of Law and Setting Aside a Verdict as Against the Weight of the Evidence in New York State Courts

From Christ v. Law Offices of Wm. F. Levine & Michael B. Grossman, 72 A.D.3d 721, 898 N.Y.S.2d 648 (2d Dep’t 2010): To be awarded judgment as a matter of law pursuant to CPLR 4404(a), a defendant has the burden of establishing that there is no rational process by which the jury could find for the plaintiff against the moving defendant... ...

Factors Rendering a Finding Clearly Erroneous — Application of Equitable Defenses / Equitable Doctrines Reviewed under Abuse of Discretion Standard

From Seller Agency Council, Inc. v. Kennedy Ctr. for Real Estate Educ., Inc., 2010 U.S. App. LEXIS 18446 (9th Cir. Sept. 3, 2010): To the extent that Appellants challenge the district court's factual findings, such findings are reviewed for clear error. Fed. R. Civ. P. 52(a)(6). A district court's finding of fact is clearly erroneous ...

From Seller Agency Council, Inc. v. Kennedy Ctr. for Real Estate Educ., Inc., 2010 U.S. App. LEXIS 18446 (9th Cir. Sept. 3, 2010): To the extent that Appellants challenge the district court’s factual findings, such findings are reviewed for clear…

The Law of the Case Doctrine

From Wike v. Vertrue, 2010 U.S. Dist. LEXIS 90366 (M.D. Tenn. Aug. 30, 2010): "'As most commonly defined, [the doctrine of the law of the case] posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'" Christianson v. Colt Indus. Operati ...

From Wike v. Vertrue, 2010 U.S. Dist. LEXIS 90366 (M.D. Tenn. Aug. 30, 2010): “‘As most commonly defined, [the doctrine of the law of the case] posits that when a court decides upon a rule of law, that decision should…

Spoliation — Intent Critical — Mere Delay in Production Remedied by Continuance — Relevance of Lost Files Assessed by Comparison to Those Produced — No Prejudice Where Lost Documents Not Sought from Third Parties

From Gallagher v. City of St. Paul, 2010 U.S. App. LEXIS 18245 (8th Cir. Sept. 1, 2010): Appellants challenge both denials of sanctions, arguing that the City abused the discovery process by failing to place a litigation hold on the destruction of emails and TISH reports. They request an inference that "the evidence destroyed was unfav ...

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. ...

Commercial Litigation and Arbitration

Standards for Judgment as a Matter of Law and Setting Aside a Verdict as Against the Weight of the Evidence in New York State Courts

Factors Rendering a Finding Clearly Erroneous — Application of Equitable Defenses / Equitable Doctrines Reviewed under Abuse of Discretion Standard

The Law of the Case Doctrine

Spoliation — Intent Critical — Mere Delay in Production Remedied by Continuance — Relevance of Lost Files Assessed by Comparison to Those Produced — No Prejudice Where Lost Documents Not Sought from Third Parties

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.

Recent Posts

Extrinsic Fraud Exception to Rooker-Feldman — Where Defendants’ Perjury, False Evidence, Flawed Legal Arguments Prevented Plaintiffs from Presenting Their Claim in State Court

Federal Jurisdiction: Party Can Waive Subject Matter Jurisdiction — While Federal Courts Must Ensure They Do Not Lack Subject Matter Jurisdiction, There Is No Duty to Find and Exercise It

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

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