Complex Lit Blog

Sanctions — Position Not Frivolous Where Supported by One, Out-of-Circuit, Lower Court, Minority-View Opinion and There Is No Binding Supreme Court Precedent

From Burns v. George Basilikas Trust, 2010 U.S. App. LEXIS 6290 (D.C. Cir. Mar. 26, 2010) (issue of statutory construction): In awarding sanctions, the bankruptcy court relied on the proposition that "§ 109(h)(3)(A), when read in the context of § 109(h) as a whole, cannot in any fashion be read to support" an interpretation that a pe ...

From Burns v. George Basilikas Trust, 2010 U.S. App. LEXIS 6290 (D.C. Cir. Mar. 26, 2010) (issue of statutory construction): In awarding sanctions, the bankruptcy court relied on the proposition that “§ 109(h)(3)(A), when read in the context of §…

RICO — Dilution of Minority Shareholders through Extra Compensation to Majority = Derivative, Not Direct, Injury; Abusive Litigation Tactics ≠ Extortion; PSLRA Bars Claim that Purpose of Squeeze-Out was to Bar Minority from Follow-Up Merger

From Bixler v. Foster, 596 F.3d 751 (10th Cir. 2010): According to the complaint, defendants Duncan, Sapper, and Malone were directors and majority shareholders of METCO, a New Mexico uranium mining company. ***[T]hey negotiated a trade of METCO's uranium mining claims to subsidiaries of defendant Uranium King, Ltd. (UKL), an Australian c ...

Securities — Bespeaks Caution vs. Duty to Update — 2d Circuit

From Ill. State Board of Inv. v. Authentidate Holdings Corp., 2010 U.S. App. LEXIS 5226 (2d Cir. Mar. 12, 2010) (summary order): The district court found the statement in the September 8 press release nonactionable, in part, because Authentidate noted that there was "no guarantee" that an agreement would be reached. We agree that the sta ...

Legal Malpractice — Continuing Representation Must Relate to the Specific Matter and Is Not Satisfied by Merely a “Continuing Relation”

From MIG, Inc. v. Paul Weiss Rifkin Wharton & Garrison, LLP, 2010 U.S. Dist. LEXIS 29548 (S.D.N.Y. Mar. 29, 2010): New York's statute of limitations for legal malpractice is three years. See N.Y. C.P.L.R. § 214(6). The claim accrues when the malpractice is committed. Shumsky v. Eisenstein, 96 N.Y.2d 164, 166 (2001). Ac ...

From MIG, Inc. v. Paul Weiss Rifkin Wharton & Garrison, LLP, 2010 U.S. Dist. LEXIS 29548 (S.D.N.Y. Mar. 29, 2010): New York’s statute of limitations for legal malpractice is three years. See N.Y. C.P.L.R. § 214(6). The claim accrues when…

Rule 15(c) Does Not Permit Relation Back of Amendment Adding New Plaintiffs Whose Claims Are Untimely, Except in Cases of Misnomer, of Misdescription, of Change in Capacity in Which Suit Is Brought, to Add Real-Party-in-Interest or in a Class Action

From Asher v. Unarco Material Handling, Inc., 596 F.3d 313 (6th Cir. 2010): The parties agree that the question of whether Rule 15(c) permits relation back of an amendment adding otherwise untimely plaintiffs and their claims to a timely-filed complaint is an issue of first impression for our circuit. Nevertheless, in urging Rule 15(c)'s ...

Rule 50(b) Motion for JMOL and 59(a) Motion for a New Trial — Impact of General Verdict: Is a Single Error Enough to Compel Reversal under Sunkist?

From BP Amoco Chem. Co. v. Flint Hills Resources, LLC, 2010 U.S. Dist. LEXIS 28477 (N.D. Ill. Mar. 25, 2010): BP Amoco seeks relief under both Federal Rule of Civil Procedure 50(b) and Federal Rule of Civil Procedure 59(a). The standard under both rules is difficult to satisfy. A. Judgment As a Matter of Law Pursuant to Rule 5 ...

Party (as Opposed to Non-Party) May Not Immediately Appeal Civil (as Opposed to Criminal) Contempt Order to Obtain Review of Adverse Attorney-Client Privilege Decision

From United States v. Myers, 593 F.3d 338 (4th Cir. 2010) (procedural posture: Myers withheld documents subject to subpoena; on this appeal she challenges the District Court order directing her (1) to produce any missing items she conceded were not protected by the Fifth Amendment and (2) to give all other missing items to the United States privilege team fo ...

Federal Jurisdiction — The Current Status of Grable

From Stern v. Baldwin, 2010 U.S. Dist. LEXIS 27709 (D.N.J. Mar. 24, 2010): This matter comes before the Court on Plaintiff Bernard Stern's motion for remand, pursuant to 28 U.S.C. § 1447(c). *** On June 9, 2009, Plaintiff Bernard Stern, a shareholder of Quest Diagnostics, Inc. ("Quest"), filed a derivative suit against the directo ...

From Stern v. Baldwin, 2010 U.S. Dist. LEXIS 27709 (D.N.J. Mar. 24, 2010): This matter comes before the Court on Plaintiff Bernard Stern’s motion for remand, pursuant to 28 U.S.C. § 1447(c). *** On June 9, 2009, Plaintiff Bernard Stern,…

Text Message Adequately Authenticated by Sender’s Name as Stored on Cell Phone Atop Message, Sender’s Customary Signature, and Her Testimony That She “Could Have” Sent It

From State v. Thompson, 777 N.W.2d 617 (N.D. Sup. Ct. 2010) (construing North Dakota Rule of Evidence 901(a), which is identical to Federal Rule of Evidence 901(a)) (assault prosecution): At trial, the complainant testified on direct examination about several text messages sent to him on October 31, 2008. He testified he knew the text m ...

Electronic Spoliation — Failure to Initiate Litigation Hold in 2003-04 Merely Negligent — Trigger Date for Preservation Duty Different for Individuals Than for Entity Defendant

From Field Day, LLC v. County of Suffolk, 2010 U.S. Dist. LEXIS 28476 (E.D.N.Y. Mar. 25, 2010): Plaintiffs Field Day LLC f/k/a/ New York Music Festival and AEG Live LLC f/k/a/ AEG Concerts LLC *** commenced this action for money damages and injunctive relief against the County of Suffolk and the Suffolk County Department of Health Service ...

Commercial Litigation and Arbitration

Sanctions — Position Not Frivolous Where Supported by One, Out-of-Circuit, Lower Court, Minority-View Opinion and There Is No Binding Supreme Court Precedent

RICO — Dilution of Minority Shareholders through Extra Compensation to Majority = Derivative, Not Direct, Injury; Abusive Litigation Tactics ≠ Extortion; PSLRA Bars Claim that Purpose of Squeeze-Out was to Bar Minority from Follow-Up Merger

Securities — Bespeaks Caution vs. Duty to Update — 2d Circuit

Legal Malpractice — Continuing Representation Must Relate to the Specific Matter and Is Not Satisfied by Merely a “Continuing Relation”

Rule 15(c) Does Not Permit Relation Back of Amendment Adding New Plaintiffs Whose Claims Are Untimely, Except in Cases of Misnomer, of Misdescription, of Change in Capacity in Which Suit Is Brought, to Add Real-Party-in-Interest or in a Class Action

Rule 50(b) Motion for JMOL and 59(a) Motion for a New Trial — Impact of General Verdict: Is a Single Error Enough to Compel Reversal under Sunkist?

Party (as Opposed to Non-Party) May Not Immediately Appeal Civil (as Opposed to Criminal) Contempt Order to Obtain Review of Adverse Attorney-Client Privilege Decision

Federal Jurisdiction — The Current Status of Grable

Text Message Adequately Authenticated by Sender’s Name as Stored on Cell Phone Atop Message, Sender’s Customary Signature, and Her Testimony That She “Could Have” Sent It

Electronic Spoliation — Failure to Initiate Litigation Hold in 2003-04 Merely Negligent — Trigger Date for Preservation Duty Different for Individuals Than for Entity Defendant

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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