Muha v. Encore Receivable Mgmt., Inc. 2007 U.S. Dist. LEXIS 74801(E.D. Wis. Sept. 28, 2007) is a case study in how not to prepare survey evidence. In this FDCPA class action, the plaintiffs offered a consumer survey as extrinsic evidence of consumer confusion. District Judge J. P. Stadtmueller found the survey unreliable and irrelevant because, inter alia ...

Federal Rule of Civil Procedure 41(d) provides that you don’t get two bites at the apple free. A voluntary dismissal followed by refiling the same action subjects the plaintiff to paying the ‛costs“ of the defendant in the first action, in the discretion of the judge in action number 2: If a plaintiff who has once dismissed an action in an ...

Under Hickman v. Taylor, 329 U.S. 495 (1947), a third-party witness statement is prototypical work product. The defendant in 1100 West, LLC v. Red Spot Paint & Varnish Co., 2007 U.S. Dist. LEXIS 73621 (S.D. Ind. May 18, 2007), argued that, to the extent that a third-party witness was shown drafts of his own statement, and asked to execute the final, ...

The discovery snafus in Kyoei Fire & Marine Insurance Co. v. M/V Maritime Antalya, 2007 U.S. Dist. LEXIS 74200 (S.D.N.Y. Oct. 4, 2007), defy brief description. Two of District Judge Loretta A. Preska’s instructive holdings: 1. Spoliation of Evidence Relevant Only to an Adversary’s Burden of Proof. The defendants argued that spoliation san ...

FAA Subject Matter Jurisdiction. The Federal Arbitration Act confers original jurisdiction on the federal district courts over actions falling under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards for two types of claims: (1) an action to compel arbitration under 9 U.S.C. § 206, and (2) an action to confirm an arbitral ...

The general rule is that a district judge cannot sanction or threaten to penalize a lawyer who is planning to file an appeal that the district judge considers frivolous. If a frivolous or bad faith appeal is taken, that is a matter for the court of appeals. Joseph, Sanctions: The Federal Law of Litigation Abuse §§ 17(A)(15), 23(A)(4) (3d ed. Supp. 2007). The Ni ...

The question in Ballanger v. Johanns, 495 F.3d 866 (8th Cir. 2007), was technical and of no inherent interest (to me): whether the removal of woody vegetation from a wetland, without more, constitutes a "manipulat[ion]" of a wetland for purposes of 16 U.S.C. § 3801(a)(6)(A) or whether the U.S. Department of Agriculture had misconstrued the statute and was ...

The plaintiff in Masi v. DTE Coke Operations, LLC, 2007 U.S. Dist. LEXIS 72990 (E.D. Mich. Oct. 1, 2007), prepared a factual summary he called "My Story" that he delivered to his counsel to assist in the prosecution of his case. When discovery demands were served, plaintiff's counsel asserted privilege. But the plaintiff had provided a first draft to his un ...

New York’s statute of frauds (General Obligations Law § 5-701) requires a signature: a. Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking: 1. By its terms is ...

Because it determined the that District Court had improperly granted summary judgment sua sponte for the defendant, the Federal Circuit reversed on the merits in Eon-Net, LP v. Flagstar Bancorp, 2007 U.S. App. LEXIS 22832 (Fed. Cir. Sept. 27, 2007). That left the Court of Appeals with the Rule 11 sanctions that the District Court had imposed on the pl ...