If an action is dismissed in part with prejudice and in part without prejudice, can it be final for appeal purposes within 28 U.S.C. § 1291? Generally, the answer is “No” because the plaintiff is free to refile by amending (Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064 (4th Cir. 1993)). But the answer was “Yes” in GO Computer ...

Plaintiff One sues defendant. Plaintiff One then subpoenas the litigation consultant retained by Plaintiff Two, who also has a claim against the same defendant. As observed by Magistrate Judge Mikel Williams, “The literal language of the Rule [26(b)(3)] protects materials prepared for any litigation or trial only if they were prepared by or for a party to the su ...

Typically, we think about spoliation and its utility at trial — specifically, the impact of an adverse inference instruction. The issue in Hamilton v. Mount Sinai Hospital, 2007 U.S. Dist. LEXIS 85593 (S.D.N.Y. Nov. 21, 2007), was the impact of the spoliation inference at summary judgment. Magistrate Judge Gabriel W. Gorenstein summarized Second Circuit l ...

Yes: 3d Circuit, 4th Circuit, 8th Circuit, and 10th Circuit No: 1st Circuit, 2d Circuit, 9th Circuit, 11th Circuit, and D.C. Circuit Sort of: 7th Circuit As Justice Scalia once observed about the Supreme Court's enterprise test: "This seems to me about as helpful to the conduct of [the lower courts'] as 'life is a fo ...

The plaintiff was injured by an allegedly defective power saw in Victor v. Makita USA, Inc.” 2007 U.S. Dist. LEXIS 83427 (M.D. Fla. Nov. 9, 2007). His counsel sent it to an expert, who disassembled the saw, preserving all components and photographing his process and findings. The defendant contended that disassembly of the allegedly defective product in ...

In a masterful understatement, the Fourth Circuit observed this week that, “[i]n the wake of Twombly, courts and commentators have been grappling with the decision's meaning and reach." Anderson v. Sara Lee Corp., 2007 U.S. App. LEXIS 26723 (4th Cir. Nov. 19, 2007). According to the Seventh Circuit: “Taking Erickson and Twombly together, ...

We have previously noted the apparently differing standards used in applying Daubert at the class certification stage. See our post of February 11, 2007, contrasting opinions of the Second and Ninth Circuits. The question in In re Katrina Canal Breaches Consol. Litig., 2007 U.S. Dist. LEXIS 82887 (E.D. La. Nov. 1, 2007), was whether expert testimony ...

The defendant's expert in Sandata Techs., Inc. v. Infocrossing, Inc., , 2007 U.S. Dist. LEXIS 85176 (S.D.N.Y. Nov. 16, 2007), prepared a supplemental report that had not been delivered to the other side prior to his deposition, but was handed across the table when it was referred to. Another voluminous supplemental report was delivered on the last day of exp ...

The four part standing test for a civil RICO claim under 18 U.S.C. § 1964(c) requires that (i) a person allege (ii) injury to (iii) business or property (iv) by reason of a violation of §1962(a), (b), (c) or (d). Therefore, if the plaintiff cannot allege injury to business or property, the plaintiff lacks standing to sue. It is well settled that personal injurie ...

Last Thursday, November 15, 2007, The Wall Street Journal reported at page D1 an "alarming" increase in the number of home invasion robberies. In a related development, in a recent a 2 to 1 decision, Ferensic v. Birkett, 501 F.3d 469 (6th Cir. 2007), the Sixth Circuit overturned an armed robbery and home invasion conviction because of the exclusion of ...