Complex Lit Blog

Spoliation — The Evidentiary Rationale for the Adverse Inference — Impact on Summary Judgment

From Siggelko v. Kohl’s Dep’t Stores, Inc., 2009 U.S. Dist. LEXIS 21223 (E.D.N.Y. Mar. 16, 2009): A party's intentional destruction of evidence relevant to proof of an issue at trial can support an inference that the evidence would have been unfavorable to the party responsible for its destruction. See Kronisch v. United States, < ...

From Siggelko v. Kohl’s Dep’t Stores, Inc., 2009 U.S. Dist. LEXIS 21223 (E.D.N.Y. Mar. 16, 2009): A party’s intentional destruction of evidence relevant to proof of an issue at trial can support an inference that the evidence would have been…

RICO: Iqbal + Twombly + 9(b) = Dismissal of § 1962(c)-(d) Claims; Deception Mandatory for Mail/Wire Fraud; Allegations of Parallel Conduct Generally Insufficient to Show Conspiracy; 11th Circuit Declines to Decide If Conspiracy Claim Falls

From Am. Dental Ass’n v. Cigna Corp, 2010 U.S. App. LEXIS 9928 (11th Cir. May 14, 2010): Plaintiffs contracted with Defendants to provide dental services to Defendants' members through dental service managed care plans. Plaintiffs *** allege, on behalf of themselves and a putative class of similarly-situated dentists, that Defendants "e ...

From Am. Dental Ass’n v. Cigna Corp, 2010 U.S. App. LEXIS 9928 (11th Cir. May 14, 2010): Plaintiffs contracted with Defendants to provide dental services to Defendants’ members through dental service managed care plans. Plaintiffs *** allege, on behalf of…

Emails Authenticated by Production in Discovery — Evidence on Summary Judgment Usable If It Could be Reduced to Admissible Form at Trial

From United States v. Gray Ins. Co., 2010 U.S. Dist. LEXIS 27652 (N.D. Ga. Mar. 24, 2010): CCG's argument as to the authenticity of the exhibits is unavailing for several reasons. First, "there is no requirement that evidence be presented in admissible form as long as the evidence would be admissible at trial. The evidence at issue would ...

From United States v. Gray Ins. Co., 2010 U.S. Dist. LEXIS 27652 (N.D. Ga. Mar. 24, 2010): CCG’s argument as to the authenticity of the exhibits is unavailing for several reasons. First, “there is no requirement that evidence be presented…

No Appellate Review of Denial of Remand on Basis that Bankruptcy Removal Statute Trumps Anti-Removal Provision of Securities Act — Extent of Reliance on Unpublished Opinions

From N.J. Dep’t of Treasury v. Fuld, 2010 U.S. App. LEXIS 9991 (3d Cir. May 17, 2010): The State of New Jersey, Department of Treasury, Division of Investment ("New Jersey") appeals the District Court's order denying its motion to remand the action it brought under the Securities Act of 1933, a statute that specifically precludes remo ...

From N.J. Dep’t of Treasury v. Fuld, 2010 U.S. App. LEXIS 9991 (3d Cir. May 17, 2010): The State of New Jersey, Department of Treasury, Division of Investment (“New Jersey”) appeals the District Court’s order denying its motion to remand…

NFL Ticket Merely Affords Holder Right to View Game, Not Right to See Honest One — Patriots’ Spygate Scandal Causes No Cognizable Injury

From Mayer v. Belichick, 2010 U.S. App. LEXIS 10212 (3d Cir. May 19, 2010): 2. This case is brought by a New York Jets season ticket-holder on behalf of all similarly situated New York Jets season ticket-holders and other New York Jets ticket-holders against the Defendant New England Patriots and their coach, Defendant Bi ...

Can a Telephone Number Be the Subject of a Conversion Claim?

From Staton Holdings, Inc. v. First Data Corp, 2010 U.S. Dist. LEXIS 48688 (N.D. Tex. May 11, 2010): Plaintiff Staton Holdings, Inc. d/b/a Staton Wholesale ("Staton") is a business based in Dallas, Texas. Since the early 1990s, Staton has been the assignee and exclusive end-user subscriber of the toll-free telephone number (800) 888-8888 ...

From Staton Holdings, Inc. v. First Data Corp, 2010 U.S. Dist. LEXIS 48688 (N.D. Tex. May 11, 2010): Plaintiff Staton Holdings, Inc. d/b/a Staton Wholesale (“Staton”) is a business based in Dallas, Texas. Since the early 1990s, Staton has been…

Distinguishing Rule 701 from 702 Testimony — Failure to Provide Report Bars Expert Testimony under 702 but Not Lay Opinion under 701 — Amended 26(a)(1) Disclosure Filed After Discovery But Within Pretrial Order Deadline Is Timely

From Braun Builders, Inc. v. Kancherlapalli, 2010 U.S. Dist. LEXIS 48691 (E.D. Mich. May 18, 2010): Braun's first motion in limine seeks to exclude the testimony of Gregory Guza, contending that Guza should not be permitted to testify as an expert at trial because he was not timely disclosed as a witness and an expert report was not pr ...

From Braun Builders, Inc. v. Kancherlapalli, 2010 U.S. Dist. LEXIS 48691 (E.D. Mich. May 18, 2010): Braun’s first motion in limine seeks to exclude the testimony of Gregory Guza, contending that Guza should not be permitted to testify as an…

Authenticated Website Evidence Excluded as Hearsay

From Osborn v. Butler, 2010 U.S. Dist. LEXIS 46083 (D. Idaho May 11, 2010): [Plaintiff filed a] motion to strike Exhibit 1 and paragraph 3 of the Skinner Affidavit on the grounds that the exhibit, which purports to be a website prepared by Plaintiff Michael Osborn, contains inadmissible hearsay and the factual assertions based thereon a ...

Mandamus Granted to Reverse Order Finding Blanket, Subject Matter Waiver of Attorney-Client Privilege and Work Product — Mohawk Supports Mandamus (i) by Foreclosing Appeal and (ii) Because Blanket Waiver Order Is “Particularly Injurious”

From Hernandez v. Tanninen, 2010 U.S. App. LEXIS 9681 (9th Cir. May 12, 2010): Hernandez was initially represented by Ferguson. During their initial meeting, Hernandez told Ferguson that Tanninen witnessed the discrimination and would corroborate Hernandez's story. In the course of investigating Hernandez's claims, Ferguson had a series ...

RICO — Foreseeability, Alone, Insufficient to State Causation After Hemi Group

From Couch v. Cate, 2010 U.S. App. LEXIS 9956 (9th Cir. May 14, 2010)(unpublished): Officers Couch, Jimenez, and Torres, all corrections officers at the California Department of Corrections and Rehabilitation ("CDCR"), appeal from the district court's Rule 12(b)(6) dismissal of their two causes of action under 42 U.S.C. § 1983 and their ...

From Couch v. Cate, 2010 U.S. App. LEXIS 9956 (9th Cir. May 14, 2010)(unpublished): Officers Couch, Jimenez, and Torres, all corrections officers at the California Department of Corrections and Rehabilitation (“CDCR”), appeal from the district court’s Rule 12(b)(6) dismissal of…

Commercial Litigation and Arbitration

Spoliation — The Evidentiary Rationale for the Adverse Inference — Impact on Summary Judgment

RICO: Iqbal + Twombly + 9(b) = Dismissal of § 1962(c)-(d) Claims; Deception Mandatory for Mail/Wire Fraud; Allegations of Parallel Conduct Generally Insufficient to Show Conspiracy; 11th Circuit Declines to Decide If Conspiracy Claim Falls

Emails Authenticated by Production in Discovery — Evidence on Summary Judgment Usable If It Could be Reduced to Admissible Form at Trial

No Appellate Review of Denial of Remand on Basis that Bankruptcy Removal Statute Trumps Anti-Removal Provision of Securities Act — Extent of Reliance on Unpublished Opinions

NFL Ticket Merely Affords Holder Right to View Game, Not Right to See Honest One — Patriots’ Spygate Scandal Causes No Cognizable Injury

Can a Telephone Number Be the Subject of a Conversion Claim?

Distinguishing Rule 701 from 702 Testimony — Failure to Provide Report Bars Expert Testimony under 702 but Not Lay Opinion under 701 — Amended 26(a)(1) Disclosure Filed After Discovery But Within Pretrial Order Deadline Is Timely

Authenticated Website Evidence Excluded as Hearsay

Mandamus Granted to Reverse Order Finding Blanket, Subject Matter Waiver of Attorney-Client Privilege and Work Product — Mohawk Supports Mandamus (i) by Foreclosing Appeal and (ii) Because Blanket Waiver Order Is “Particularly Injurious”

RICO — Foreseeability, Alone, Insufficient to State Causation After Hemi Group

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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