Complex Lit Blog

The United States Has Not Waived Sovereign Immunity for Civil RICO Claims

From Partain v. Isgur, 2010 U.S. App. LEXIS 15730 (5th Cir. July 28, 2010): [T]o the extent Partain seeks to recover against the United States under the RICO statute, no waiver of the government's immunity extends to such laws. See McNeily v. United States, 6 F.3d 343, 350 (5th Cir. 1993).

Standard of Review of Magistrate Judge Discovery Decisions

From Moore v. Napolitano, 2010 U.S. Dist. LEXIS 70892 (D.D.C. July 15, 2010): Federal Rule of Civil Procedure 72(a) and [D.D.C.] Local Civil Rule 72.2(b) allow a party to seek reconsideration of a magistrate judge's decision in a discovery dispute. "On review, the magistrate judge's decision is entitled to great deference unless it is cl ...

Rule 54(b) Standards for Entering Partial Judgment — Ordinarily No 54(b) for Denial of Summary Judgment — Ninth Circuit 10b-5 Scienter Standard

From Securities and Exchange Commission v. Platforms Wireless Int’l Corp., 2010 U.S. App. LEXIS 15328 (9th Cir. July 27, 2010): [Rule 54(b)] Platforms questions the propriety of the district court's Rule 54(b) judgment resting on the underlying partial summary judgment. Rule 54(b) permits a district court to enter judgme ...

From Securities and Exchange Commission v. Platforms Wireless Int’l Corp., 2010 U.S. App. LEXIS 15328 (9th Cir. July 27, 2010): [Rule 54(b)] Platforms questions the propriety of the district court’s Rule 54(b) judgment resting on the underlying partial summary judgment.…

Rule 11 and Res Judicata — Eleventh Circuit’s Three-Part Test for § 1927 Sanctions

From Meidinger v. Healthcare Indus. Oligopoly, 2010 U.S. App. LEXIS 16448 (11th Cir. Aug. 9, 2010): [Rule 11 and Res Judicata] "A plaintiff may be sanctioned under Rule 11 for filing claims barred by res judicata." Thomas [v. Evans, 880 F.2d 1235, 1240 (11th Cir. 1989). [Note: Because res j ...

From Meidinger v. Healthcare Indus. Oligopoly, 2010 U.S. App. LEXIS 16448 (11th Cir. Aug. 9, 2010): [Rule 11 and Res Judicata] “A plaintiff may be sanctioned under Rule 11 for filing claims barred by res judicata.” Thomas [v. Evans, 880…

RICO — Pleading Enterprise, Operation and Management and Conspiracy after Boyle and Twombly

From In re Ins. Brokerage Antitrust Litig., 2010 U.S. App. LEXIS 17107 (3d Cir. Aug. 16, 2010): 1. Legal Standards a. Section 1962(c) i. The Enterprise Element ***After the District Court had dismissed plaintiffs' claims, and after we had heard argument in this appeal, the Supreme Court decided Boyle v. ...

Failure to Disclose a Judgment as Required by Statute Is Sanctionable under Inherent Power without Bad Faith— Amount of Sanction Is Unaffected by Median Income or Criminal Penalties

From In re Plumeri, 2010 U.S. Dist. LEXIS 80256 (S.D.N.Y. Aug. 2, 2010): Bankruptcy debtor Saundra Plumeri ("Debtor") and her attorney, Richard D. Lamborn ("Lamborn"), appeal from an Order of the Honorable Martin Glenn, United States Bankruptcy Judge, imposing sanctions against Lamborn and awarding attorney's fees to appellee 64th Stree ...

From In re Plumeri, 2010 U.S. Dist. LEXIS 80256 (S.D.N.Y. Aug. 2, 2010): Bankruptcy debtor Saundra Plumeri (“Debtor”) and her attorney, Richard D. Lamborn (“Lamborn”), appeal from an Order of the Honorable Martin Glenn, United States Bankruptcy Judge, imposing sanctions…

Antitrust — When Municipal Entities and Officials May Invoke the State Action Doctrine

From Rectrix Aerodrome Ctrs., Inc. v. Barnstable Municipal Airport Comm’n, 610 F.3d 8 (1st Cir. 2010): Rectrix claims that restricting Rectrix from selling jet fuels at the airport violates section 2 of the Sherman Act, which forbids monopolization, attempted monopolization and conspiracies to monopolize. 15 U.S.C. § 2. The district ...

Burdens, Pleadings and Proof on 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction

From SDS Korea Co. v. SDS USA, Inc., 2010 U.S. Dist. LEXIS 80223 (S.D. Cal. Aug. 4, 2010): Under Rule 12(b)(2) of the Federal Rules of Civil Procedure, a defendant may move to dismiss for lack of personal jurisdiction. The plaintiff then bears the burden of demonstrating that jurisdiction exists. Schwarzenegger v. Fred Martin Motor C ...

Removal — Fraudulent Joinder — Fifth Circuit Test and Procedure

From Moore v. Goodyear Tire & Rubber Co., 2010 U.S. Dist. LEXIS 80703 (N.D. Tex. Aug. 10, 2010): "[T]he burden on the removing party is to prove that the joinder of the in-state parties was improper- -that is, to show that sham defendants were added to defeat jurisdiction." Smallwood v. I11. Cent. R.R. Co., 385 F.3d 568, 575 (5th ...

From Moore v. Goodyear Tire & Rubber Co., 2010 U.S. Dist. LEXIS 80703 (N.D. Tex. Aug. 10, 2010): “[T]he burden on the removing party is to prove that the joinder of the in-state parties was improper- -that is, to show…

Scope of Statutory Privilege for Documents Created “Specifically for [PCAOB ]” — Issue of First Impression — Log Required — Categorical Log Rejected

From Silverman vs. Motorola, Inc., 2010 U.S. Dist. LEXIS 81671 (N.D. Ill. June 29, 2010): In its motion, KPMG seeks to quash the subpoenas issued to it by Plaintiffs and to preclude Plaintiffs from questioning KPMG, through Mr. Pratt and Mr. Parrott, regarding the PCAOB inspection process. Resolution of KPMG's motion turns on the statut ...

Commercial Litigation and Arbitration

The United States Has Not Waived Sovereign Immunity for Civil RICO Claims

Standard of Review of Magistrate Judge Discovery Decisions

Rule 54(b) Standards for Entering Partial Judgment — Ordinarily No 54(b) for Denial of Summary Judgment — Ninth Circuit 10b-5 Scienter Standard

Rule 11 and Res Judicata — Eleventh Circuit’s Three-Part Test for § 1927 Sanctions

RICO — Pleading Enterprise, Operation and Management and Conspiracy after Boyle and Twombly

Failure to Disclose a Judgment as Required by Statute Is Sanctionable under Inherent Power without Bad Faith— Amount of Sanction Is Unaffected by Median Income or Criminal Penalties

Antitrust — When Municipal Entities and Officials May Invoke the State Action Doctrine

Burdens, Pleadings and Proof on 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction

Removal — Fraudulent Joinder — Fifth Circuit Test and Procedure

Scope of Statutory Privilege for Documents Created “Specifically for [PCAOB ]” — Issue of First Impression — Log Required — Categorical Log Rejected

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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