Complex Lit Blog

Spoliation — Good Quote

"Aside perhaps from perjury, no act serves to threaten the integrity of the judicial process more than the spoliation of evidence. Our adversarial process is designed to tolerate human failings — erring judges can be reversed, uncooperative counsel can be shepherded, and recalcitrant witnesses compelled to testify. But, when critical documents go mi ...

“Aside perhaps from perjury, no act serves to threaten the integrity of the judicial process more than the spoliation of evidence. Our adversarial process is designed to tolerate human failings — erring judges can be reversed, uncooperative counsel can be…

Federal Arbitration Act and Diversity Jurisdiction — Determining the Amount in Controversy

Resolving a matter of first impression in the D.C. Circuit, Karsner v. Lothian, 532 F.3d 876 (D.C. Cir. 2008), adopts the “demand” approach to determining federal jurisdiction over arbitration proceedings brought pursuant to the Federal Arbitration Act: Although the Federal Arbitration Act (FAA) constitutes federal law, "the Supreme C ...

RICO — Lawyer Performing Legal Services Does Not Satisfy Reves Test Even if Named Part of Association-in-Fact Enterprise with Client

The plaintiff trust beneficiary alleged that his sister and her lawyer (who also represented the trust) comprised an association-in-fact RICO enterprise pillaging the trust. The Ninth Circuit held that the lawyer could not be held liable under 18 U.S.C. § 1962(c) because her rendering of legal services did not satisfy the operation-and-management test of Reves ...

Summary Judgment — Declarations from Witnesses Not Disclosed Per Rule 26(a)(1) Excluded Pursuant to Rule 37(c)(1)

From Marin v. Evans, 2008 U.S. Dist. LEXIS 61922 (E.D. Wash. July 23, 2008) (a class action): In response to the Court's invitation to file a sur-reply to Defendants' Motion for Summary Judgment, Plaintiffs filed Declarations from both name-Plaintiffs, as well as Declarations from individuals who were not previously disclosed to Defendan ...

From Marin v. Evans, 2008 U.S. Dist. LEXIS 61922 (E.D. Wash. July 23, 2008) (a class action): In response to the Court’s invitation to file a sur-reply to Defendants’ Motion for Summary Judgment, Plaintiffs filed Declarations from both name-Plaintiffs, as…

Privilege and Waiver — Drafts of Disclosure Documents — Public Relations Firms

Professor Daniel J. Capra of Fordham, the Reporter to the Advisory Committee on the Federal Rule of Evidence, issued a very useful privilege opinion as Special Master in In re New York Renu with Moisureloc Prod. Liab. Litig., WL 2338552 (D.S.C. May 8, 2008). Drafts of Disclosure Documents. The opinion explores the split in the case law concer ...

Special Litigation Committees — How Much Deference? — Minnesota Supreme Court Adopts New York’s Auerbach Standard Over Delaware’s Less Deferential Zapata Approach

The Minnesota Supreme Court in In re UnitedHealth Group Inc. Shareholder Deriv. Litig.,2008 Minn. LEXIS 419 (Minn. S.Ct. Aug. 14, 2008), answering a certified question from the United States District Court for the District of Minnesota, adopted the highly deferential standard of Auerbach v. Bennett, 47 N.Y.2d 619, 393 N.E.2d 994, 999-1000, 419 N.Y.S.2 ...

RICO — First Amendment Defense to RICO Liability and Damages Allegations

Plaintiff Michael Savage in Savage v. Council on Am.-Islamic Relations, Inc., 2008 U.S. Dist. LEXIS 60545 (N.D. Cal. July 25, 2008), a talk show host, filed a RICO suit based on the defendant’s (i) having posted on its website a four minute clip from the plaintiff’s broadcast together with extensive criticism of what the plaintiff said, and (ii) sending p ...

Expert Testimony Should Not Be Excluded Because the Court Credits One Version of the Facts rather than Another

From Mater of the Complaint of Atl. Marine Prop. Holding Co., 2008 U.S. Dist. LEXIS 61026 (S.D. Ala. Aug. 11, 2008): Expert testimony should not be excluded "on the ground that the court believes one version of the facts and not the other." Allstate Insurance Co. v. Hugh Cole Builder Inc., 137 F.Supp.2d 1283, 1285 (M.D. Ala. 2001) ...

From Mater of the Complaint of Atl. Marine Prop. Holding Co., 2008 U.S. Dist. LEXIS 61026 (S.D. Ala. Aug. 11, 2008): Expert testimony should not be excluded “on the ground that the court believes one version of the facts and…

Sanctions — $5.4 Million Default Judgment for Discovery Abuse Affirmed

The Sixth Circuit affirmed one of the largest sanctions awards in history — a default judgment in the amount of approximately $5.4 million in favor of Allstate Insurance Company — for rampant discovery abuse in Grange Mut. Cas. Co. v. Mack, 270 F. App’x 372 (6th Cir. 2008). The four-part test applied by the Court in assessing the propriety of a defaul ...

RICO and Twombly

From CSX Transportation, Inc. v. Meserole Street Recycling, Inc., 2008 U.S. Dist. LEXIS 61376 (E.D. Mich. Aug. 12, 2008): In this case, the Court finds that Plaintiff has failed to "nudge [its RICO continuity] claim[] across the line from conceivable to plausible." As did Twombly, this case involves a federal statute under whi ...

From CSX Transportation, Inc. v. Meserole Street Recycling, Inc., 2008 U.S. Dist. LEXIS 61376 (E.D. Mich. Aug. 12, 2008): In this case, the Court finds that Plaintiff has failed to “nudge [its RICO continuity] claim[] across the line from conceivable…

Commercial Litigation and Arbitration

Spoliation — Good Quote

Federal Arbitration Act and Diversity Jurisdiction — Determining the Amount in Controversy

RICO — Lawyer Performing Legal Services Does Not Satisfy Reves Test Even if Named Part of Association-in-Fact Enterprise with Client

Summary Judgment — Declarations from Witnesses Not Disclosed Per Rule 26(a)(1) Excluded Pursuant to Rule 37(c)(1)

Privilege and Waiver — Drafts of Disclosure Documents — Public Relations Firms

Special Litigation Committees — How Much Deference? — Minnesota Supreme Court Adopts New York’s Auerbach Standard Over Delaware’s Less Deferential Zapata Approach

RICO — First Amendment Defense to RICO Liability and Damages Allegations

Expert Testimony Should Not Be Excluded Because the Court Credits One Version of the Facts rather than Another

Sanctions — $5.4 Million Default Judgment for Discovery Abuse Affirmed

RICO and Twombly

Recent Posts

Practice of Seeking Leave to Amend after The Case Is Dismissed Is Discouraged

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)

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