Complex Lit Blog

Rule 37(c)(1) Sanctions — Court Should Exclude Critical Evidence Such As Expert Testimony Only on a Showing of Willful Deception or Flagrant Disregard of a Court Order

Lamb v. Montgomery Township, 2018 WL 2094513 (3d Cir. May 7, 2018): Debora Lamb appeals from the grant of summary judgment against her on her claims that Montgomery Township, Lawrence Gregan, and Kevin Costello (the “Defendants”) violated her rights under Title VII of the Civil Rights Act of 1964,

Rule 41(b) Dismissal with Prejudice “Harsh” Sanction, to Be Employed Only in “Extreme Circumstances” — Failure to “Fully” Consider Efficacy of Lesser Sanctions Reversible Error — Five 9th Circuit Factors

Pima County Office of Children's Counsel v. Ariz., 2018 U.S. App. LEXIS 7968 (9th Cir. Mar. 29, 2018): MEMORANDUM* The plain ...

Pima County Office of Children's Counsel v. Ariz., 2018 U.S. App. LEXIS 7968 (9th Cir. Mar. 29, 2018): MEMORANDUM* The plaintiffs allege that Arizona's Department of Child Protective Services wrongfully removed a child, A.E., from his father's home…

Rule 11: Ninth Circuit Appears to Frown on Incorporating into Rule 11 Motion Arguments Made in Another Pleading in Light of the Separate-Motion Requirement of Rule 11(c)(2)

Ortego v. Lummi Island Scenic Estates Community Club, Inc., 2018 WL 3045230 (9th Cir. June 20, 2018): MEMORANDUM* *1 1. The district court properly determined that the Lummi Island Scenic Estates Community Club, Inc. (LISECC) has continuing authority to govern all of the properties comprising Lummi I ...

Inherent Power Sanctions for Extrajudicial (Prelitigation) Misconduct — Stealing Documents — & Using Them in Lit. = Interference with Judicial Process — Dismissal Requires Clear and Convincing Evidence — No Warning Required in These Circs.

Xyngular v. Schenkel, 2018 WL 2208472 (10th Cir. May 15, 2018): *1 Marc Schenkel appeals the dismissal by the district court of his claims against Xyngular Corporation and various third parties as a sanction for abuse of what he claims was pre-litigation discovery. Because we have not previously decided whether pre-li ...

Inherent Power & §1927—Duty of Candor: Even If No Duty to Disclose, Denials of Authenticity of Doc While Hiding Client Has Copy Are Sanctionable — “The Effort to Chop Down a Few Trees Doesn’t Mean There’s No Forest” (Good Quote)

Six v. Generations Fed. Credit Union, 891 F.3d 508 (4th Cir. 2018): This appeal arises out of the district court’s order sanctioning three attorneys and their law firms under both its inherent authority and

Supreme Court: In Determining Foreign Law under Rule 44.1, Court Is Not Conclusively Bound by Foreign Gov’t’s Amicus Statement As to What the Law Is, But Must Carefully Consider It — Cautiously, If Circumstances So Indicate

Animal Sci. Prods. v. Hebei

Animal Sci. Prods. v. Hebei Welcome Pharm. Co., 2018 U.S. LEXIS 3684, 2018 WL 2973745 (U.S. June 14, 2018): When foreign law is relevant to a case instituted in a federal court, and the foreign government whose law is …

§1782 Discovery: Which Party Bears Burden of Proof on Intel Factors, Especially Receptivity of Foreign Tribunal to Sought Discovery? — Circuit Split — First Circuit: Neither Party

Schlich v. Broad Inst., 2018 U.S. App. LEXIS 16668 (1st Cir. June 20, 2018): Petitioner-Appellant George W. Schlich, a patent agent for Intellia Therapeutics, Inc., appeals from the district c ...

Schlich v. Broad Inst., 2018 U.S. App. LEXIS 16668 (1st Cir. June 20, 2018): Petitioner-Appellant George W. Schlich, a patent agent for Intellia Therapeutics, Inc., appeals from the district court's denial of a petition for discovery under 28 U.S.C. …

FRAP 38 Sanctions: Merely Including Request in Brief Insufficient — Rule 60: 2 Types of Fraud: In Adversarial Process (1 Yr), On the Court (No Time Limit) — Missing Deadline: “He Simply Tripped over the Time Clock” (Good Quote)

Kennedy v. Schneider Elec., 2018 WL 3031074 (7th Cir. June 19, 2018): *1 In 2012, Bennie Kennedy filed a lawsuit against his longtime employer, Schneider Electric. In 2014, the district court granted summary judgment for Schneider Electric. More than a year later, and without offering any new evidence, Kennedy ...

Supreme Court: American Pipe Tolls Statute of Limitations for Individual Actions But Not Later Class Action — Court Notes Difficulty in Assessing Largest Financial Interest for PSLRA Lead Plaintiff Purposes, Possibility of Aggregation

China Agritech

China Agritech , Inc. v. Resh, 2018 U.S. LEXIS 3502 (U.S. June 11, 2018): This case concerns the tolling rule first stated in American Pipe & Constr. Co. v. Utah , 414 U. S. 538, 94 S. Ct. 756, …

Rule 11 vs. 12(b)(6): While Court Credits Complaint on MTD, Not for Sanctions — “Sometimes a Litigant Makes Suspending Credibility … Difficult” (Good Quote) — Circuit Sustains Rule 11 Denial That “Could Be Reasonable” But Sanctions Per R. 38

Tobey v. Chibucos, 2018 WL 2210619 (7th Cir. May 15, 2018): *1 One man’s extradition is another man’s “kidnapping.” Edward Tobey, the plaintiff here, has three state-court convictions (one in Illinois and two in Florida) for possession of child pornography. Tobey also has a penchant for resist ...

Commercial Litigation and Arbitration

Rule 37(c)(1) Sanctions — Court Should Exclude Critical Evidence Such As Expert Testimony Only on a Showing of Willful Deception or Flagrant Disregard of a Court Order

Rule 41(b) Dismissal with Prejudice “Harsh” Sanction, to Be Employed Only in “Extreme Circumstances” — Failure to “Fully” Consider Efficacy of Lesser Sanctions Reversible Error — Five 9th Circuit Factors

Rule 11: Ninth Circuit Appears to Frown on Incorporating into Rule 11 Motion Arguments Made in Another Pleading in Light of the Separate-Motion Requirement of Rule 11(c)(2)

Inherent Power Sanctions for Extrajudicial (Prelitigation) Misconduct — Stealing Documents — & Using Them in Lit. = Interference with Judicial Process — Dismissal Requires Clear and Convincing Evidence — No Warning Required in These Circs.

Inherent Power & §1927—Duty of Candor: Even If No Duty to Disclose, Denials of Authenticity of Doc While Hiding Client Has Copy Are Sanctionable — “The Effort to Chop Down a Few Trees Doesn’t Mean There’s No Forest” (Good Quote)

Supreme Court: In Determining Foreign Law under Rule 44.1, Court Is Not Conclusively Bound by Foreign Gov’t’s Amicus Statement As to What the Law Is, But Must Carefully Consider It — Cautiously, If Circumstances So Indicate

§1782 Discovery: Which Party Bears Burden of Proof on Intel Factors, Especially Receptivity of Foreign Tribunal to Sought Discovery? — Circuit Split — First Circuit: Neither Party

FRAP 38 Sanctions: Merely Including Request in Brief Insufficient — Rule 60: 2 Types of Fraud: In Adversarial Process (1 Yr), On the Court (No Time Limit) — Missing Deadline: “He Simply Tripped over the Time Clock” (Good Quote)

Supreme Court: American Pipe Tolls Statute of Limitations for Individual Actions But Not Later Class Action — Court Notes Difficulty in Assessing Largest Financial Interest for PSLRA Lead Plaintiff Purposes, Possibility of Aggregation

Rule 11 vs. 12(b)(6): While Court Credits Complaint on MTD, Not for Sanctions — “Sometimes a Litigant Makes Suspending Credibility … Difficult” (Good Quote) — Circuit Sustains Rule 11 Denial That “Could Be Reasonable” But Sanctions Per R. 38

Recent Posts

For An Appeal to Be Timely, A Motion for Reconsideration in The District Court (A Rule 59(e) Motion) Must Be Filed, And Not Just Served within 30 Days of The Decision, to Toll The 30-Day Period for Filing An Appeal

There Is No Good-Faith Defense For Issuing An Overly Burdensome Subpoena

Purposes of Rule 37 and Section 1927 Sanctions

While Rule 11 Doesn’t Apply to Appellate Proceedings (Unless It Has Been Incorporated in Local Appellate Rules), Rule 11 Caselaw Is Looked to for Guidance in Interpreting Applicable Sanctions Powers on Appeal

Rule 11 Sanctions & Appellate Review: Abuse of Discretion Standard Applies Unless Sanctions Are Based Solely (Not Just in Part) on Legal Issues, in Which Case Review Is De Novo

Spoliation: Fed. R. Civ. P. 37(e) Imposes a Higher Standard — Intent — Than Fourth Circuit Law Previously Applied to Spoliation of Electronically-Stored Information (And Still Does As to Non-ESI) — Willfulness vs. Intent

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