Sometimes jurisdictional facts overlap with merits facts. The right to a jury trial may therefore be implicated if merits facts are decided at on a pretrial motion addressed to jurisdiction. What is the standard for determining whether the right to a jury trial is being impinged? Resolving this as an issue of first impression for the Federal Circuit, DDB Tech ...

One would have thought that any party asserting a waiver would bear the burden of proving it. Not necessarily. Many courts hold that a party asserting attorney-client privilege bears the burden of establishing that the privilege has been both claimed and not waived. See, e.g.: One of the elements that the asserting party must prove is ...

There will, optimistically, never be occasion for citing this case, but, if needed, Amadasu v. General Revenue Corp., stands for the proposition that presenting forged documents to the court warrants dismissal. Note that the offender was the client, who suffered the sanction, even though the documents were initially proffered to the court by his counsel, ...

Jurisdiction was predicated on diversity in Osborn & Barr Commc’ns, Inc. v. EMC Corp., 2008 U.S. Dist. LEXIS 8430 (E.D. Mo. Feb. 5, 2008). The plaintiff sued an LLC, among other defendants, but alleged nothing about the citizenship of the members of the LLC. The Court pointed out that diversity was not properly alleged. The plaintiff responded that it ha ...

As now-Judge Martin Glenn pointed out in a valuable paper on Civil and Criminal Contempt he prepared for the Federal Bar Council two years ago, there is a split in the Circuits as to whether violation of a consent decree that simply tracks the language of a statute may be punished by contempt. The Eleventh Circuit says no (SEC v. Smyth, 420 F.3d 1225, 1233 n.14 (11 ...

The Third Circuit held in Gary v. Braddock Cemetery, 2008 U.S. App. LEXIS 2533 (3d Cir. Feb. 5, 2008) that it is error for a District Court not to resolve a pending Rule 11 (or, by implication, any other sanctions motion) prior to entering final judgment. The Third Circuit has a unique a supervisory rule "that counsel seeking Rule 11 sanctions must file thei ...

Download associated file: FJC CAFA Study.pdf  Attached is the April 2007 Federal Judicial Center Report, The Impact of the Class Action Fairness Act of 2005 on the Federal Courts by Tom Willging and Emery Lee of the FJC. One of a series of reports prepared for the ...

The Connecticut Superior Court recognized a cause of action for third-party intentional spoliation of evidence in Diana v. NetJets Servs., Inc.,2007 Conn. Super. LEXIS 3491 (Conn. Super. Dec. 27, 2007), a personal injury action brought by an individual injured on airport property against, inter alia, the airport owner, which had received an incident report ab ...

From Gary v. Braddock Cemetery, 2008 U.S. App. LEXIS 2533 (3d Cir. Feb. 5, 2008): With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court it is rare that a brief successfully demonstrates that the trial court committed more than one or two reversible errors. I have said in ...

Highland Capital Mgmt., LP v. Schneider, 2008 U.S. Dist. LEXIS 7019 (S.D.N.Y. Jan. 28, 2008): 1. No Testimony as to Witness Credibility. “[Expert] Duval's opinion as to the credibility of witnesses is inadmissible.... [T]he credibility of witnesses is exclusively for the determination of the jury.... Such subjective review of ...