Complex Lit Blog

Printout from Internet Archive Sufficiently Authenticated by Affidavit from Manager Explaining How Internet Archive Saves Old Web Pages

From SP Techs., LLC v. Garmin Int’l, Inc., 2009 U.S. Dist. LEXIS 110536 (N.D. Ill. Sept. 30, 2009) (on summary judgment motion; IP case): Plaintiff has moved to strike Defendant's Exhibit D, which consists of a print-out of a website showing the twenty lines of code that are in dispute. The website is maintained by the Internet Archive, ...

From SP Techs., LLC v. Garmin Int’l, Inc., 2009 U.S. Dist. LEXIS 110536 (N.D. Ill. Sept. 30, 2009) (on summary judgment motion; IP case): Plaintiff has moved to strike Defendant’s Exhibit D, which consists of a print-out of a website…

Sanctions — Pro Se Inmate’s Letter to Court Laced with Obscenities and Charges of Racism Directed at Judge and Court Reporter Sent with “Improper Purpose” of Harassment, within Rule 11(b)(1)

From Kelly v. Null, 2009 U.S. Dist. LEXIS 109356 (S.D. Ill. Nov. 23, 2009): [T]his is not a situation in which the Court is threatening to impose sanctions on Kelly for making a layperson's mistake of law; rather, as is aptly demonstrated by even a cursory glance at Kelly's October 19 letter, Kelly's abuse of the judicial process is gross ...

December 1, 2009: Immediate Changes to Federal Practice

Download associated file: 1 Dec 2009 Amendments to Federal Rules of Civil Procedure.pdf Federal practice changes substantially on December 1, 2009. Principal changes to the Federal Rules of Civil Procedure effective 12/1/09: 1. A complaint ...

Intervention — Piggyback Standing — Intervenor Cannot Establish Piggyback Standing Where the Court Has Retained Jurisdiction to Enforce Its Order but There Is No Pending Dispute between the Parties

From City of Colo. Springs v. Climax Molybdenum Co., 2009 U.S. App. LEXIS 25854 (10th Cir. Nov. 25, 2009): In this water law litigation, Climax Molybdenum Company ("Climax") appeals the district court's denial of its motion to intervene in a set of consolidated cases over which the district court retained jurisdiction after first deciding ...

From City of Colo. Springs v. Climax Molybdenum Co., 2009 U.S. App. LEXIS 25854 (10th Cir. Nov. 25, 2009): In this water law litigation, Climax Molybdenum Company (“Climax”) appeals the district court’s denial of its motion to intervene in a…

RICO — Proximate Cause Lacking Where Injury Results Not from Racketeering Acts but from Exposure or Disclosure of, or Government Crackdown on, Racketeering Activity

From McBrearty v. Vanguard Group, Inc., 2009 U.S. App. LEXIS 25675 (2d Cir. Nov. 20, 2009): To state a civil RICO claim, plaintiffs must show that they were injured "by reason of" the alleged racketeering activity, 18 U.S.C. § 1964(c), that is, that the defendant's RICO violation proximately caused plaintiffs' injuries.... In the RICO co ...

From McBrearty v. Vanguard Group, Inc., 2009 U.S. App. LEXIS 25675 (2d Cir. Nov. 20, 2009): To state a civil RICO claim, plaintiffs must show that they were injured “by reason of” the alleged racketeering activity, 18 U.S.C. § 1964(c),…

Failure to Assert Privilege in Initial Responses to Requests for Production ≠ Per Se Waiver

From Coalition for a Sustainable Delta v. Koch, 2009 U.S. Dist. LEXIS 100728 (E.D. Cal. Oct. 15, 2009): Plaintiffs complain (1) that Defendants failure to assert the deliberative process privilege in their initial responses to certain RFPs [Rule 34 requests for production] constitutes per se waiver, and (2) that Defendants' subseq ...

Non-FAA Arbitration — Order Denying Stay of Litigation in Case Outside Federal Arbitration Act Is Not Immediately Appealable — Circuit Split

From Sherwood v. Marquette Transp. Co., 2009 U.S. App. LEXIS 25581 (7th Cir. 2009): This leads Bluegrass Marine to invoke the collateral-order doctrine. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949). The last decision treating the denial of a stay as an appealable collateral or ...

Misdirected Email Sent to Person Outside the Privilege Due to Autofill Addressing Function Does Not Effect Waiver under Rule 502(b)

From Multiquip Inc. v. Water Mgmt. Sys. LLC, 2009 U.S. Dist. LEXIS 109148 (D. Idaho Nov. 23, 2009): On March 31, 2009, Defendants' counsel, Rick Klingbeil, wrote an email to his client, Defendant David Muhs.... On April 8, 2009, Mr. Muhs responded to Mr. Klingbeil via email, also directing his correspondence (with the underlying March 31, ...

From Multiquip Inc. v. Water Mgmt. Sys. LLC, 2009 U.S. Dist. LEXIS 109148 (D. Idaho Nov. 23, 2009): On March 31, 2009, Defendants’ counsel, Rick Klingbeil, wrote an email to his client, Defendant David Muhs…. On April 8, 2009, Mr.…

Class Action Settlement Agreement May Establish Cy Pres Fund for Charitable Purposes — Issue of First Impression for 1st Circuit

From In re Pharma. Indus. Average Wholesale Price Litig. 2009 U.S. App. LEXIS 25536 (1st Cir. Nov. 19, 2009): This circuit has not had occasion to consider whether settlement agreements in class actions may establish cy pres funds. Other circuits have approved agreements that provide for cy pres funds, particularly those negotiated at ar ...

Supplemental Jurisdiction — When to Retain or Relinquish Jurisdiction over State Law Claims after Federal Claims Dismissed

From Graham v. Barriger, 2009 U.S. Dist. LEXIS 107967 (S.D.N.Y. Nov. 17, 2009) (securities laws claims dismissed; breach of contract and common law fraud claims remained): [In] Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003), ... the Second Circuit held that the district court abused its discretion by exercisin ...

Commercial Litigation and Arbitration

Printout from Internet Archive Sufficiently Authenticated by Affidavit from Manager Explaining How Internet Archive Saves Old Web Pages

Sanctions — Pro Se Inmate’s Letter to Court Laced with Obscenities and Charges of Racism Directed at Judge and Court Reporter Sent with “Improper Purpose” of Harassment, within Rule 11(b)(1)

December 1, 2009: Immediate Changes to Federal Practice

Intervention — Piggyback Standing — Intervenor Cannot Establish Piggyback Standing Where the Court Has Retained Jurisdiction to Enforce Its Order but There Is No Pending Dispute between the Parties

RICO — Proximate Cause Lacking Where Injury Results Not from Racketeering Acts but from Exposure or Disclosure of, or Government Crackdown on, Racketeering Activity

Failure to Assert Privilege in Initial Responses to Requests for Production ≠ Per Se Waiver

Non-FAA Arbitration — Order Denying Stay of Litigation in Case Outside Federal Arbitration Act Is Not Immediately Appealable — Circuit Split

Misdirected Email Sent to Person Outside the Privilege Due to Autofill Addressing Function Does Not Effect Waiver under Rule 502(b)

Class Action Settlement Agreement May Establish Cy Pres Fund for Charitable Purposes — Issue of First Impression for 1st Circuit

Supplemental Jurisdiction — When to Retain or Relinquish Jurisdiction over State Law Claims after Federal Claims Dismissed

Recent Posts

RICO: Mail and Wire Fraud: Act of Emailing Transcript of Court Proceedings Containing Allegedly False Statements Made in Court ≠ Wire Fraud — Mailing (Serving on Opposing Party) Declarations Allegedly Containing False Statements ≠ Mail Fraud

FRAP 38 Sanctions — Sixth Circuit Usually Declines to Impose FRAP 38 Sanctions Unless An Improper Purpose Was Behind the Appeal

FRAP 38: Permissible for Appeals Court to Affirm Sanctions But Deny FRAP 38 Sanctions for Appeal — A Defendant’s Voluntary Cessation of Complained of Behavior Does Not Moot a Case Unless It Is Clear That The Behavior Could Not Reasonably Be Expected to Recur

Rule 11: Violation of 21 Day Safe Harbor “Overlook[ed]” As Non-Prejudicial by First Circuit — “Rule 11 Monetary Sanctions Must Be Reasonable” (Good Quote) — Rule 11(c)(4) Requires Consideration of Offender’s Ability to Pay

Temporary Restraining Order = Preliminary Injunction: 3 Supreme Court Cases (TRO=PI x 3)

Rule 37(c)(1) Sanctions — Exclusion of Untimely Expert Report — Eighth Circuit’s 4-Factor Test

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