Complex Lit Blog

Removal: Is There a Futility Exception to 28 U.S.C. § 1447(c) — Which Requires Remand If the District Court Lacks or Loses Subject Matter Jurisdiction — Allowing a District Court to Dismiss a Removed Case If Remand Would Be Futile? (Circuit Split)

Ratliff v. LTI Trucking Servs., 2019 U.S. Dist. LEXIS 227 (E.D. Mo. Jan. 2, 2019): This matter is before the Court on Defendant LTI Trucking Services, Inc.'s Motion to Dismiss for L ...

Ratliff v. LTI Trucking Servs., 2019 U.S. Dist. LEXIS 227 (E.D. Mo. Jan. 2, 2019): This matter is before the Court on Defendant LTI Trucking Services, Inc.'s Motion to Dismiss for Lack of Subject Matter Jurisdiction (ECF No. 4)…

Plaintiff’s Rule 41(a)(2) Motion to Voluntarily Dismiss without Prejudice Must Be Denied If Grant Would Strip Defendant of Viable Defense That Might Not Be Assertable If Plaintiff Were to Refile — Limits of Expressio Unius & Series-Qualifier Canons

United States ex rel. Vaughn v. United Biologics, LLC, 907 F.3d 187 (5th Cir. 2018): **1 The opinion issued September 7, 2018 is withdrawn by the panel, and the following is issued in its place: The plaintiffs-relators initiated a qui tam action under the False Claims Act (“FCA”), Anti-Kick ...

Hearsay — Declaration against Interest — Court Must Consider All Facts & Circumstances to See If Statement Is in Fact So Contrary to Declarant’s Interest That S/he Must’ve Believed It to Be True — Email Evid.: Redact Hearsay to Admit Remainder

In re Estate of Smith, 2018 Ida. LEXIS 216 (Idaho Dec. 18, 2018): This case centers on the estate of Victoria H. Smith. The magistrate court ruled that Victoria died intestate a ...

In re Estate of Smith, 2018 Ida. LEXIS 216 (Idaho Dec. 18, 2018): This case centers on the estate of Victoria H. Smith. The magistrate court ruled that Victoria died intestate after finding that her will was a product …

Rule 103(b): If Court Denies Motion in Limine But Invites More Foundation at Trial, Is MIL Ruling “Definitive”? (Probably) — Emails Downloaded 16 Yrs Earlier from Unknown Computer by Unknown Person Who Could’ve Altered Them Not Authenticated

United States v. Johns, 2018 U.S. App. LEXIS 35543 (6th Cir. Dec. 19, 2018): This case is about two women, Johns and Westphal, who maintained a secret lesbian relationship for nearly a ...

United States v. Johns, 2018 U.S. App. LEXIS 35543 (6th Cir. Dec. 19, 2018): This case is about two women, Johns and Westphal, who maintained a secret lesbian relationship for nearly a year. When Westphal attempted to end the…

Rule 803(6): Email from Ex-Opposing Lawyer Years after Litigation Ended, Solicited for Purposes of New Case, Not a Business Record (BR) of Soliciting Firm &, Even if BR of Sending Firm, Is Untrustworthy—R. 1006 Summary: Summed Data Must Be Admissible

Harpst v. George Fleming & Fleming & Assocs., 2018 Tex. App. LEXIS 10719 (Tex. Ct. App. Dec. 21, 2018): After a law firm settled tort claims against a drug manufacturer on behal ...

Harpst v. George Fleming & Fleming & Assocs., 2018 Tex. App. LEXIS 10719 (Tex. Ct. App. Dec. 21, 2018): After a law firm settled tort claims against a drug manufacturer on behalf of approximately 8,000 clients, about half the …

Experts — Report to Contradict or Rebut Opposing Expert Must Be Served within 30 Days, Absent Court Order — General Discovery / Disclosure Deadline ≠ Relevant Court Order — Can’t Supplement with New Opinions Based on “Theories Evolv[ing]”

Rodgers v. Beechcraft Corp., 2018 U.S. App. LEXIS 35028 (10th Cir. Dec. 13, 2018): On March 17, 2013, James Rodgers and Christopher Evans were passengers on a Beech Premier 390 jet airp ...

Rodgers v. Beechcraft Corp., 2018 U.S. App. LEXIS 35028 (10th Cir. Dec. 13, 2018): On March 17, 2013, James Rodgers and Christopher Evans were passengers on a Beech Premier 390 jet airplane, flying from Tulsa, Oklahoma to South Bend,…

Voicemail Authentication: Testimony from Person Leaving Message That It Is Her Voice & Accurately Reflects the Message She Left Suffices, Here Coupled with Phone Owner’s Response via Text

People v. Tetter, 2018 IL App (3d) 150243m 2018 Ill. App. LEXIS 519 (Ill. Ct. App. Jan. 31, 2018): [*P1] Defendant, age 21 at the time, be ...

People v. Tetter, 2018 IL App (3d) 150243m 2018 Ill. App. LEXIS 519 (Ill. Ct. App. Jan. 31, 2018): [*P1] Defendant, age 21 at the time, began a relationship with S.K. who represented herself to be 18. A jury…

The 7 Most Important Developments in Federal Civil Procedure in 2018

1. Service is generally effected immediately upon filing papers on ECF (amended Fed. R. Civ. P. 5(b)(2)(E)) 2. A class action "proposed to be settled" must be brought to the attention of the District Judge for approval or dismissal, precluding the prior alternative of dismissing in federal court and refiling in state court f ...

Class Actions: Improper to Certify Class 10% of Whose Members Were Not Injured — Culling Them Out Cannot Be Left to Claims Administrator — Need to ID the Uninjured Predominates—Rules of Evidence Must Be Followed in Doing So (Circuit Split/Variance)

United Food & Commer. Workers Unions & Emplrs. Midwest Health Bens. Fund v. Warner Chilcott Ltd. (In re Asacol Antitrust Litig.), 907 F.3d 42 (1st Cir. 2018): ...

United Food & Commer. Workers Unions & Emplrs. Midwest Health Bens. Fund v. Warner Chilcott Ltd. (In re Asacol Antitrust Litig.), 907 F.3d 42 (1st Cir. 2018): Drug manufacturer Warner Chilcott Limited pulled one of its products — Asacol…

The Court of Federal Claims Lacks Jurisdication over RICO Claims

Burmaster v. United States, 744 Fed.Appx. 699 (Fed. Cir. 2018): Footnote 1. Burmaster’s complaint also sought treble damages under the Racketeer Influenced Corrupt Organizations (“RICO”) Act,

Burmaster v. United States, 744 Fed.Appx. 699 (Fed. Cir. 2018): Footnote 1. Burmaster’s complaint also sought treble damages under the Racketeer Influenced Corrupt Organizations (“RICO”) Act, 18 U.S.C. § 1964(c). Suppl. J.A. at 2. The Claims Court held that…

Commercial Litigation and Arbitration

Removal: Is There a Futility Exception to 28 U.S.C. § 1447(c) — Which Requires Remand If the District Court Lacks or Loses Subject Matter Jurisdiction — Allowing a District Court to Dismiss a Removed Case If Remand Would Be Futile? (Circuit Split)

Plaintiff’s Rule 41(a)(2) Motion to Voluntarily Dismiss without Prejudice Must Be Denied If Grant Would Strip Defendant of Viable Defense That Might Not Be Assertable If Plaintiff Were to Refile — Limits of Expressio Unius & Series-Qualifier Canons

Hearsay — Declaration against Interest — Court Must Consider All Facts & Circumstances to See If Statement Is in Fact So Contrary to Declarant’s Interest That S/he Must’ve Believed It to Be True — Email Evid.: Redact Hearsay to Admit Remainder

Rule 103(b): If Court Denies Motion in Limine But Invites More Foundation at Trial, Is MIL Ruling “Definitive”? (Probably) — Emails Downloaded 16 Yrs Earlier from Unknown Computer by Unknown Person Who Could’ve Altered Them Not Authenticated

Rule 803(6): Email from Ex-Opposing Lawyer Years after Litigation Ended, Solicited for Purposes of New Case, Not a Business Record (BR) of Soliciting Firm &, Even if BR of Sending Firm, Is Untrustworthy—R. 1006 Summary: Summed Data Must Be Admissible

Experts — Report to Contradict or Rebut Opposing Expert Must Be Served within 30 Days, Absent Court Order — General Discovery / Disclosure Deadline ≠ Relevant Court Order — Can’t Supplement with New Opinions Based on “Theories Evolv[ing]”

Voicemail Authentication: Testimony from Person Leaving Message That It Is Her Voice & Accurately Reflects the Message She Left Suffices, Here Coupled with Phone Owner’s Response via Text

The 7 Most Important Developments in Federal Civil Procedure in 2018

Class Actions: Improper to Certify Class 10% of Whose Members Were Not Injured — Culling Them Out Cannot Be Left to Claims Administrator — Need to ID the Uninjured Predominates—Rules of Evidence Must Be Followed in Doing So (Circuit Split/Variance)

The Court of Federal Claims Lacks Jurisdication over RICO Claims

Recent Posts

Temporary Restraining Order = Preliminary Injunction: 3 Supreme Court Cases (TRO=PI x 3)

Rule 37(c)(1) Sanctions — Exclusion of Untimely Expert Report — Eighth Circuit’s 4-Factor Test

RICO: So Insubstantial A Claim As to Fail to Confer Subject Matter Jurisdiction

RICO: Distinctiveness Issues Most Likely to Appear When The Enterprise Is An Entity Capable of Being Sued, Like A Corporation

FRAP 38 Sanctions: Eleventh Circuit Generally Declines to Impose FRAP 38 Sanctions on Pro Se Appellants Absent a History of Frivolous Litigation or an Explicit Warning

Paul Weiss Did The Right Thing

RICO: Unsettled Whether Legal Expenses Constitute Injury to Business or Property in Ninth Circuit — Leave to Amend Must Be Granted Unless 1 or More of 5 Factors Is Present — Request for Judicial Notice of Wikipedia Articles Fails to Satisfy The Standards Fed. R. Evid. 201

FRAP 38 Sanctions Denied Without Prejudice for Lack of Separate Motion

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