Commercial Litigation and Arbitration

Complex Lit Blog

Rule No. 1: Know your Judge. Under Fed.R.Civ.P. 37(c)(1), if a party fails to disclose expert opinions or exhibits in his or her Rule 26(a)(2)(B) report, the undisclosed matter is automatically excluded at trial, unless there is "substantial justification" for the failure to disclose or the "failure is harmless." That rule of exclusion is often strictly enforced. ...
Rule No. 1: Know your Judge. Under Fed.R.Civ.P. 37(c)(1), if a party fails to disclose expert opinions or exhibits in his or her Rule 26(a)(2)(B) report, the undisclosed matter is automatically excluded at trial, unless there is “substantial justification” for…
From New England Surfaces v. E. I. DuPont de Nemours & Co., , 2008 U.S. Dist. LEXIS 43530 (D. Me. June 3, 2008): Unlike the inherent power, the Supreme Court and the First Circuit have not instructed that § 1927 can only be used when the Rules do not cover the conduct. Thus, the failure to invoke the Rules when they are available does ...
From New England Surfaces v. E. I. DuPont de Nemours & Co., , 2008 U.S. Dist. LEXIS 43530 (D. Me. June 3, 2008): Unlike the inherent power, the Supreme Court and the First Circuit have not instructed that § 1927…
From Brown v. Brown, 2008 Bankr. LEXIS 1503 (Bankr. D. N.H. May 19, 2008): Defense witness No. 1 testified: Q. And--and you have no documents because you--you don't retain documents. A. No. Q. You discard them. A. Yes. Q. And since the commencement of this litigation you continued to discard documents. < ...
From Brown v. Brown, 2008 Bankr. LEXIS 1503 (Bankr. D. N.H. May 19, 2008): Defense witness No. 1 testified: Q. And–and you have no documents because you–you don’t retain documents. A. No. Q. You discard them. A. Yes. Q. And…
From Judson Atkinson Candies, Inc. v. Dhimantec, 2008 U.S. App. LEXIS 11771 (7th Cir. June 3, 2008): The facts strongly suggest that Judson Atkinson was less than forthright in its use of third-party subpoenas. First, defense counsel was not provided with copies of the subpoenas. Then, although Judson Atkinson began receiving documents i ...
From Judson Atkinson Candies, Inc. v. Dhimantec, 2008 U.S. App. LEXIS 11771 (7th Cir. June 3, 2008): The facts strongly suggest that Judson Atkinson was less than forthright in its use of third-party subpoenas. First, defense counsel was not provided…
From Dell, Inc. v. Advicon Computer Servs., Inc., 2008 U.S. Dist. LEXIS 40881 (E.D. Mich. May 22, 2008): The Sixth Circuit has explained that this Rule "entitles a party who files a satisfactory supersedeas bond to a stay of money judgment as a matter of right." Arban v. West Pub. Corp., 345 F.3d 390, 409 (6th Cir. 2003). The amo ...
From Dell, Inc. v. Advicon Computer Servs., Inc., 2008 U.S. Dist. LEXIS 40881 (E.D. Mich. May 22, 2008): The Sixth Circuit has explained that this Rule “entitles a party who files a satisfactory supersedeas bond to a stay of money…
The Sixth Circuit, the lone Court of Appeals to hold that state law governs punishment for spoliation in federal court (see our posts of July 18, 2007, and September 28, 2007), seems to have abandoned that position — wisely — while acknowledging that in the past it has adhered to the contrary view and continuing to assert that: “We are bound by these decision ...
The Sixth Circuit, the lone Court of Appeals to hold that state law governs punishment for spoliation in federal court (see our posts of July 18, 2007, and September 28, 2007), seems to have abandoned that position — wisely —…
From IDT Corp. v. Morgan Stanley Dean Witter & Co., 2008 N.Y. Misc. LEXIS 2721 (Sup. Ct. New York County, April 4, 2008): This Court is constrained to follow Ortega v. City of New York, and find that these causes of action for fraud and fraudulent concealment are essentially third party spoliation claims. Spoliation has been defined as " ...
From IDT Corp. v. Morgan Stanley Dean Witter & Co., 2008 N.Y. Misc. LEXIS 2721 (Sup. Ct. New York County, April 4, 2008): This Court is constrained to follow Ortega v. City of New York, and find that these causes…
From Williams v. Beemiller, Inc., 2008 U.S. App. LEXIS 11276 (2d Cir. May 28, 2008): The question of whether a magistrate judge may order a case remanded to state court under § 1447(c) is one of first impression in this Circuit. All three of our sister circuits that have considered the matter have concluded that such orders are disposit ...
From Williams v. Beemiller, Inc., 2008 U.S. App. LEXIS 11276 (2d Cir. May 28, 2008): The question of whether a magistrate judge may order a case remanded to state court under § 1447(c) is one of first impression in this…
From Wood v. B.C. Daniels, Inc., 2008 U.S. Dist. LEXIS 40955 (S.D. Ala. May 21, 2008): [T]he filing of sur-replies is discouraged because of the inefficiencies inherent in an interminable thrust-and-parry debate between the parties.... ...
From Wood v. B.C. Daniels, Inc., 2008 U.S. Dist. LEXIS 40955 (S.D. Ala. May 21, 2008): [T]he filing of sur-replies is discouraged because of the inefficiencies inherent in an interminable thrust-and-parry debate between the parties….
From Motient Corp. v. Dondero, 2008 U.S. App. LEXIS 11380 (5th Cir. Mary 27, 2008): No other Circuit has found a private right of action for money damages under Section 13(d) [15 U.S.C. § 78m(d)]. The Second Circuit held that Section 13(d) does not provide a damages remedy to issuers. Hallwood Realty Partners, L.P. v. Gotham Partners ...
From Motient Corp. v. Dondero, 2008 U.S. App. LEXIS 11380 (5th Cir. Mary 27, 2008): No other Circuit has found a private right of action for money damages under Section 13(d) [15 U.S.C. § 78m(d)]. The Second Circuit held that…

Recent Posts

Archives