New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration

Complex Lit Blog

Sanctions Denied Where Rule 11 Motion Served More Than a Year Before It Was Filed —Despite Absence of Time Limit in Rule, Perhaps Too Long a Delay in Filing

From Rural Water Dist. No. 4 v. City of Eudora, 2009 U.S. Dist. LEXIS 50293 (D. Kan. June 16, 2009): Plaintiff moves for Rule 11 sanctions against defendant City of Eudora, Kansas, arguing that defendant filed its counterclaim with no legitimate factual basis upon which to rely. Plaintiff claims that the defendant acted in bad faith in m ...
From Rural Water Dist. No. 4 v. City of Eudora, 2009 U.S. Dist. LEXIS 50293 (D. Kan. June 16, 2009): Plaintiff moves for Rule 11 sanctions against defendant City of Eudora, Kansas, arguing that defendant filed its counterclaim with no…
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Experts — When an Evidentiary Daubert Hearing Is Unnecessary

From Capellupo v. Nassau Health Care Corp., 2009 U.S. Dist. LEXIS 50523 (E.D.N.Y. June 16, 2009): Although a Rule 104(a) pretrial evidentiary hearing is often necessary to address Daubert issues, such hearings are unnecessary if the objections to the testimony being raised do not turn on factual issues and, thus, can be decided bas ...
From Capellupo v. Nassau Health Care Corp., 2009 U.S. Dist. LEXIS 50523 (E.D.N.Y. June 16, 2009): Although a Rule 104(a) pretrial evidentiary hearing is often necessary to address Daubert issues, such hearings are unnecessary if the objections to the testimony…
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Excusable Neglect (Untimeliness) — Factors — Departure from Local Rules

The defense filed two motions for summary judgment in Nesselrotte v. Allegheny Energy, Inc., 2009 U.S. Dist. LEXIS 8232 (W.D. Pa. Jan. 30, 2009), and plaintiffs’ counsel failed to respond in a timely fashion to one of the two statements of undisputed material facts (“SUMF”), filed pursuant to local rule in connection with the motions. Plaintiffs’ cou ...
The defense filed two motions for summary judgment in Nesselrotte v. Allegheny Energy, Inc., 2009 U.S. Dist. LEXIS 8232 (W.D. Pa. Jan. 30, 2009), and plaintiffs’ counsel failed to respond in a timely fashion to one of the two statements…
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Judicial Review of Presidential Proclamations under the Administrative Procedure Act

From Western Watersheds Project v. Bureau of Land Management, 2009 U.S. Dist. LEXIS 50382 (D. Ariz. June 12, 2009): [Footnote 2] The Court emphasizes that this is a unique case; it is one of first impression. The Court has discovered no case in which the plaintiff's claims for relief were asserted solely under a presiden ...
From Western Watersheds Project v. Bureau of Land Management, 2009 U.S. Dist. LEXIS 50382 (D. Ariz. June 12, 2009): [Footnote 2] The Court emphasizes that this is a unique case; it is one of first impression. The Court has discovered…
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Family Members in Family-Owned Business Owe Fiduciary Duties to Each Other

From Braddock v. Braddock, 60 A.D.3d 84871 N.Y.S.2d 68 (1st Dept. 2009): [S]ince David and John are cousins, John's reliance on David's good faith may be found to be reasonable even where it might not be reasonable in the context of an arm's length transaction with a stranger. Family members stand in a fiduciary relationship toward on ...
From Braddock v. Braddock, 60 A.D.3d 84871 N.Y.S.2d 68 (1st Dept. 2009): [S]ince David and John are cousins, John’s reliance on David’s good faith may be found to be reasonable even where it might not be reasonable in the context…
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Grable-Based Federal Jurisdiction Not Conferred by Potentially Unconstitutional Punitive Damages Claim Authorized by State Statute

From Sullivan v. Novartis Pharm. Corp., 602 F. Supp. 2d 527 (D.N.J. 2009): Just one year after Grable [& Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 125 S. Ct. 2363, 162 L. Ed. 2d 257 (2005)] was decided, the Supreme Court had occasion to explore the considerations underlying that decision. See Empire He ...
From Sullivan v. Novartis Pharm. Corp., 602 F. Supp. 2d 527 (D.N.J. 2009): Just one year after Grable [& Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 125 S. Ct. 2363, 162 L. Ed. 2d 257…
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Notice of Appeal of Final Judgment Preserves for Review All Interlocutory Orders, Incluiding Order Excluding Expert Testimony under Rules 26(a)(2)(B) and 37(c)(1)

From Martinez-Serrano v. Quality Health Servs. of P.R., 2009 U.S. App. LEXIS 12302 (1st Cir. June 8, 2009): On appeal, the plaintiffs maintain that the district court ... abused its discretion in precluding Dr. Colon's expert.... A. Expert Testimony. Before considering the plaintiffs' preclusion claim, we must de ...
From Martinez-Serrano v. Quality Health Servs. of P.R., 2009 U.S. App. LEXIS 12302 (1st Cir. June 8, 2009): On appeal, the plaintiffs maintain that the district court … abused its discretion in precluding Dr. Colon’s expert…. A. Expert Testimony. Before…
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Public Records on Dismissal Motions — Eighth Circuit

From Vacanti v. Sunset Fin. Servs., Inc., 2009 U.S. Dist. LEXIS 23173 (D. Neb. Mar. 23, 2009): In deciding the issues raised by the Motion to Dismiss, the Court is "not precluded in [its] review of the complaint from taking notice of items in the public record." Papasan v. Allain, 478 U.S. 265, 269 n. 1, 106 S. Ct. 2932, 92 L. Ed ...
From Vacanti v. Sunset Fin. Servs., Inc., 2009 U.S. Dist. LEXIS 23173 (D. Neb. Mar. 23, 2009): In deciding the issues raised by the Motion to Dismiss, the Court is “not precluded in [its] review of the complaint from taking…
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Supreme Court Decisions Affecting Federal Civil Practice — 2009

A new article on the Recent Articles page (Supreme Court on Civil Practice 2009) analyzes the four most significant Supreme Court decisions this term affecting federal civil practice. ...
A new article on the Recent Articles page (Supreme Court on Civil Practice 2009) analyzes the four most significant Supreme Court decisions this term affecting federal civil practice.
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Reverse 404(b) Evidence — Character of Non-Party

From United States v. Duran-Moreno, 2009 U.S. Dist. LEXIS 47150 (D.N.M. April 20, 2009): The United States Court of Appeals for the Tenth Circuit has held that rule 404(b)'s prohibition applies to a defendant who wishes to introduce evidence of wrongdoing by another to establish his innocence. See United States v. Puckett, 692 F.2 ...
From United States v. Duran-Moreno, 2009 U.S. Dist. LEXIS 47150 (D.N.M. April 20, 2009): The United States Court of Appeals for the Tenth Circuit has held that rule 404(b)’s prohibition applies to a defendant who wishes to introduce evidence of…
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Recent Posts

Inherent Power Sanctions — Dismissal for Threatening Defendant and Magistrate Judge — No First Amendment Right to Threaten Violence

RICO: Domestic Injury — Delivery of Fraudulently Non-Conforming Goods FOB Los Angeles for Shipment to China Means Injury Arose Domestically When Purchaser Took Title —Other Relevant Factors Include That The Non-Conforming Goods Were Sourced and Made in the U.S. and The Racketeering Activity (Mail/Wire Fraud) Occurred in, and Was Directed from, the United States — Irrelevant to Domestic Injury Inquiry Whether Property Is Tangible or Intangible — 7th Circuit’s “Injury-Felt” Test of Domestic Injury Rejected by Supreme Court — RICO Standing Requires Concrete Financial Loss, Not Merely Injury to Valuable Intangible Property Interest (9th Circuit)

RICO Causation: Parents of Children with Disabilities Deprived In-Person Education and Services during the Pandemic Were Not Causally Injured by Teachers’ False Assurances to Federal Authorities That IDEA-Complaint Policies Were in Place, Which Caused Funds to Issue But Not to the Benefit of the Disabled Children — Damages Too Indirect — Proper Plaintiff Is U.S. Government — Private Injunctive Relief Under RICO Uncertain in Third Circuit

Sanctions: Rule 37(b)(2) Dismissal — Sixth Circuit Factors

Inherent Power Sanctions — Extrajudicial Misconduct: Sanctions Power Extends to Conduct Intended to Sabotage Court’s Ability to Adjudicate the Case Before It, Here, By Commencing State Court Actions Seeking to Enjoin the Federal Plaintiffs from Proceeding with Their Federal Litigation — Sanctions Fee Awards: The Factors Used For Calculating A Fee Award To A Prevailing Party Do Not Govern — Under Goodyear, the Relevant Inquiry Is Whether There Is A Sufficient Causal Link Between The Sanctioned Misconduct And The Fees Awarded

RICO: Members of Association-in-Fact Enterprise Must Act with a Common Purpose—Mere Allegation That Various Defendants Agreed at Different Times to Engage in Various Fraudulent Schemes Does Not Plausibly Support the Essential Inference, That They Acted with s Sufficiently Common Purpose

RICO Causation: (1) State’s Misrepresentation to Federal Government That It Was Providing Plaintiffs with Mandated Special Education Did Not Cause Plaintiffs’ Injury Because The Failure to Provide The Education Was Not Caused by the Fraud on the Federal Government — (2) The Three Factors for Assessing RICO Causation — (3) Limits of the Second Circuit’s Decision in Alix v. McKinsey That Causation Can Be Established Where A Fraud On The Judiciary “Or Other Governmental Entity” Resulted In A Resource Going To Someone Less Deserving

Rule 41(b): Five Factors to Be Weighed in Deciding Whether Dismissal Is Appropriate (Second Circuit) — Is A Finding of Bad Faith or Fault Required if Dismissal Is Without Prejudice? — Undecided If Truly Without Prejudice But It Is Required If the Without Prejudice Dismissal Will Act as a Dismissal on the Merits (Here, Because of the Statute of Limitations) — Failure To Consider A Lesser Sanction Than Dismissal Is Generally An Abuse Of Discretion

Spoliation Sanctions/Mootness: Stipulation Resolving “All Pending Discovery Disputes,” Which Are Enumerated, Does Not Moot Subsequent Sanctions Motion for ESI Spoliation — Postjudgment Sanctions Order Is Appealable When District Court Has Finally Disposed of Both Liability and Amount

Rule 37 Default Judgment Sanction: (1) Default Judgment Appropriate Only As a Last Resort, When Less Drastic Sanctions Would Not Ensure Compliance with the Court’s Orders — (2) Default Judgment Sanction Requires Willful or Bad Faith Failure to Obey Discovery Order — (3) Fugitive Defendant’s Failure to Appear at Court-Ordered, Remote Deposition Despite Court Warning That Sanctions Could Follow Disobedience Warrants Default Judgment — (4) District Court Afforded Wide Discretion in Interpreting Its Own Orders — (5) Filing a Notice of Appeal from a Non-Appealable Order (Here, a Discovery Order) Does Not Deprive the District Court of Jurisdiction over the Case

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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

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