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 ...

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 United States v. Apex Oil Co., 2008 U.S. Dist. LEXIS 59964 (S.D. Ill. July 28, 2008): In the previous orders, the Court noted that other courts have held that the Rule 702 inquiry may vary slightly in the case of a bench trial. As the Seventh Circuit has held: It is not that evidence may be less reliable during a ...

From Tierno v. Rite Aid Corp., 2008 U.S. Dist. LEXIS 58748 (N.D. Cal. July 31, 2008): Rite Aid correctly argues that the seven-factor Zubulake test which Judge Larson applied is intended solely for electronic discovery, not for discovery of paper documents. The Zubulake opinion sought to refine a set of factors which had b ...

From Newman v. State Farm Fire & Cas. Co., 2008 U.S. App. LEXIS 16690 (10th Cir. Aug. 5, 2008): Before considering the facts and issues in this appeal, we address a preliminary matter concerning State Farm's improper citation in the fact section of its brief, and throughout other parts of its brief to a lesser extent, to transcript and d ...

From Hodak v. Madison Capital Mgmt., LLC, 2008 U.S. Dist. LEXIS 57289 (N.D. Ill. July 28, 2008): Advice of counsel is not placed “in issue” during litigation simply because it is mentioned by a party. Advice is not in issue merely because it is relevant, and does not necessarily become in issue merely because the ...

From Florio v. City of New York, 2008 U.S. Dist. LEXIS 59022 (S.D.N.Y. Aug. 5, 2008) (Scheindlin, J.): It is a "basic tenet of federal law to delay appellate review until a final judgment has been entered." However, a court, in its discretion, may certify an interlocutory order for appeal if the order "[1] involves a controlling questi ...

Deciding what it described as an issue of first impression in the Circuit, the Ninth Circuit held in In re Hanford Nuclear Reservation Lit., 2008 U.S. App. LEXIS 16479 (9th Cir. July 29, 2008), that Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974) tolls the statute of limitations for a plaintiff who files a separate action pending class certificatio ...

In California Dept. of Water Resources v. Powerex Corp., 2008 U.S. App. LEXIS 16252 (9th Cir. July 22, 2008), the Ninth Circuit held that 28 U.S.C. § 1447(d) does not foreclose appellate review of a district court's decision to decline to exercise supplemental jurisdiction under § 1367(c). The Powerex Court held that the right to appeal lie ...

In In re Hanford Nuclear Reservation Lit., 2008 U.S. App. LEXIS 16479 (9th Cir. July 29, 2008), the defendants succeeded in barring expert 1 (Dr. Ruttenber) from testifying. Plaintiffs instead called expert 2 (Dr. Davies), who never read the report or deposition of expert 1, but did rely on expert 1’s dosage estimates. At trial, defense counsel on cross-e ...