Complex Lit Blog

Rule 37(c)(1) Sanctions — Failure to Exclude Unnecessary Evidence That Was Improperly Undisclosed Properly Not Sanctioned Due to Absence of Prejudice [= Evidence of Harmlessness]

Janet Walcott appeals the district court's grant of summary judgment to the government on her claim that the Internal Revenue Service (IRS) failed to send her the required notices of deficiency before it levied on her income to collect taxes and penalties. Exercising jurisdiction under

RICO: Separate Roles Performed in Concert ≠ Enterprise — Must Factually Allege Structural Features Like Common Purpose, Relationship & Longevity Needed to Pursue Enterprise’s Purpose — Conclusory Allegations Insufficient

Sheikh v. Wheeler, 2019 U.S. App. LEXIS 31093 (7th Cir. Oct. 18, 2019) (unpublished): Zafar Sheikh obtained a loan to purchase a supermarket. He fell behind with the mortgage payments, and the bank initiate ...

RICO: Plaintiff Must Plausibly Allege Common Purpose to State Associated-in-Fact Enterprise — Sanctions: Vexatious Litigant Injunction Factors (2d Circuit)

Vidurek v. Koskinen, 2019 WL 5152509 (2d Cir. Oct. 15, 2019) (unpublished): ohn Vidurek and Kimberly Vidurek, pro se, appeal from a judgment of the District Court (Briccetti, J.), granting the Defendants-appellees’ motions to dismiss under

Civil Contempt Sanction of $1,000/Day until Discovery Order Honored — Disc’y per Rules 34(a), 45 & in Ch. 15 Bkcy Case Not Limited to Docs in U.S. — Issue Is Practical Ability to Obtain Them (“Control”) — Factors for Contempt & Coercive Sanction

In re Markus, 2019 Bankr. LEXIS 3276, 2019 WL 5257902 (S.D.N.Y. Bankr. Oct. 16, 2019): On October 8, 2019, the Court entered an Order imposing sanctions on Victor A. Worms, Esq. (“Worms”), couns ...

In re Markus, 2019 Bankr. LEXIS 3276, 2019 WL 5257902 (S.D.N.Y. Bankr. Oct. 16, 2019): On October 8, 2019, the Court entered an Order imposing sanctions on Victor A. Worms, Esq. (“Worms”), counsel of record for the foreign debtor …

Rule 37(c)(1) Sanctions: District Judge’s Review Magistrate of Judge’s Decision Is for Abuse of Discretion — 5-Factor 37(c)(1) Test (6th Cir.) — Can Timely Production (within Fact Discovery Period) Still Be Sanctionably Late? (Footnote 7)

Bisig v. Time Warner Cable, Inc., 2019 WL 4894348 (6th Cir. Oct. 4, 2019): *1 This case is about promises made, promises broken, and disclaimers signed. And it is a reminder that not every broken promise occasions a legal remedy. Plaintiffs

Experts: Rule 37(c)(1) Exclusion Is Discretionary, Not Self-Executing, Even Where Undisclosed Opinion Is Complete About-Face — 2-1 Eleventh Circuit Decision

Teresa Taylor here sues Mentor Worldwide LLC ("Mentor") and Mentor Corporation1 for compensatory and punitive damages for injuries she suffered as a result of the surgical implantation of a polypropylene mesh sling manufactured by Mentor to treat her stress urinary incontinence. The jury found Men ...

Experts: Rule 37(c)(1) Discretion Inapt If Late-Disclosing Party Fails to Show Good Cause to Modify Protective Order Deadline for Expert Reports, Necessitating Exclusion — 2-1 Eighth Circuit Decision

Petrone v. Werner Enters., 2019 U.S. App. LEXIS 30344 (8th Cir. Oct. 10, 2019): Philip Petrone and others (collectively, Plaintiffs) filed a class action against Werner Enterprises, Inc. and Drivers Management, LLC (collectively, Defendants) arising out of an eight-week student-driver …

Facebook Authentication: Photos on Social Media Subject Only to Traditional [Fair-and-Accurate-Portrayal] Test Where Sole Proffer Is the Images, Not As Part of a Social Media Statement by the Ostensible Page Owner

United States v. Vázquez-Soto, 2019 U.S. App. LEXIS 29495 (1st Cir. Oct. 1, 2019): After a six-day trial and four days of deliberation, a jury convicted appellant Rodolfo Vázquez-Soto on two count ...

United States v. Vázquez-Soto, 2019 U.S. App. LEXIS 29495 (1st Cir. Oct. 1, 2019): After a six-day trial and four days of deliberation, a jury convicted appellant Rodolfo Vázquez-Soto on two counts of making false statements and one count of …

Forum Selection Clause Requiring Litigation in Federal Court Unless Court Lacks Jurisdiction Trumps Forum Defendant Rule, Which Is Procedural & Doesn’t Affect Subject Matter Jurisdiction

Capital Rest. Grp., LLC v. Burger King Corp., 2019 U.S. Dist. LEXIS 176821 (S.D. Fla. Oct. 11, 2019): This matter is before the Court on Defendant Burger King Corporation's motion to dismiss. (ECF No. 9. ...

Inherent Power Sanctions — Frivolous Attack on Arbitration Award Is Inherently Made in Bad Faith, Warrants Award of Attorney’s Fees

18-14807 Inversiones v. Del Monte Int'l Gmbh, 2019 U.S. App. LEXIS 26761, 2019 WL 4200011 (11th Cir. Sept. 5, 2019) (unpublished): *1 Inversiones y Procesadora Tropical INPROTSA, S.A. ( ...

18-14807 Inversiones v. Del Monte Int'l Gmbh, 2019 U.S. App. LEXIS 26761, 2019 WL 4200011 (11th Cir. Sept. 5, 2019) (unpublished): *1 Inversiones y Procesadora Tropical INPROTSA, S.A. (INPROTSA) appeals from the district court’s order granting Del Monte International…

Commercial Litigation and Arbitration

Rule 37(c)(1) Sanctions — Failure to Exclude Unnecessary Evidence That Was Improperly Undisclosed Properly Not Sanctioned Due to Absence of Prejudice [= Evidence of Harmlessness]

RICO: Separate Roles Performed in Concert ≠ Enterprise — Must Factually Allege Structural Features Like Common Purpose, Relationship & Longevity Needed to Pursue Enterprise’s Purpose — Conclusory Allegations Insufficient

RICO: Plaintiff Must Plausibly Allege Common Purpose to State Associated-in-Fact Enterprise — Sanctions: Vexatious Litigant Injunction Factors (2d Circuit)

Civil Contempt Sanction of $1,000/Day until Discovery Order Honored — Disc’y per Rules 34(a), 45 & in Ch. 15 Bkcy Case Not Limited to Docs in U.S. — Issue Is Practical Ability to Obtain Them (“Control”) — Factors for Contempt & Coercive Sanction

Rule 37(c)(1) Sanctions: District Judge’s Review Magistrate of Judge’s Decision Is for Abuse of Discretion — 5-Factor 37(c)(1) Test (6th Cir.) — Can Timely Production (within Fact Discovery Period) Still Be Sanctionably Late? (Footnote 7)

Experts: Rule 37(c)(1) Exclusion Is Discretionary, Not Self-Executing, Even Where Undisclosed Opinion Is Complete About-Face — 2-1 Eleventh Circuit Decision

Experts: Rule 37(c)(1) Discretion Inapt If Late-Disclosing Party Fails to Show Good Cause to Modify Protective Order Deadline for Expert Reports, Necessitating Exclusion — 2-1 Eighth Circuit Decision

Facebook Authentication: Photos on Social Media Subject Only to Traditional [Fair-and-Accurate-Portrayal] Test Where Sole Proffer Is the Images, Not As Part of a Social Media Statement by the Ostensible Page Owner

Forum Selection Clause Requiring Litigation in Federal Court Unless Court Lacks Jurisdiction Trumps Forum Defendant Rule, Which Is Procedural & Doesn’t Affect Subject Matter Jurisdiction

Inherent Power Sanctions — Frivolous Attack on Arbitration Award Is Inherently Made in Bad Faith, Warrants Award of Attorney’s Fees

Recent Posts

RICO: Indirect Injury Unrecoverable — Indirect Purchaser Rule Imported from Antitrust

RICO: No Causation Where Harm Flowed Several Steps After the Fraudulent Acts — RICO Causation Same As Antitrust Causation

Sanctions vs. Automatic Stay: Imposition of Sanctions (Here, Inherent Power Sanctions) Is Subject to the Police Power Exception to the Automatic Stay in Bankruptcy

The Word “Include” May Be A Word of Limitation As Opposed to a Word of Enlargement, Depending on the Context

Spoliation/Sanctions: “A Party Does Not Spoliate Evidence When, Without Notice Of The Evidence’s Potential Relevance, It Destroys The Evidence According To Its Policy Or In The Normal Course Of Its Business” (Good Quote)

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