Gregory P. Joseph http://josephnyc.com/blog/ Observations about current developments bearing on complex litigation, U.S. and international arbitration, the Federal Rules, and occasionally state rules. en-us Copyright © 2007 Gregory P. Joseph Law Offices LLC. All rights reserved. Fri, 18 May 2012 04:58:56 +0100 Fri, 18 May 2012 04:58:56 +0100 Motion to Dismiss for Lack of Standing Properly Brought under Rule 12(b)(1) and Decided under 12(b)(6) Standards — Elements of Article III Standing http://josephnyc.com/blog/?blogID=2078 In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 2012 U.S. App. LEXIS 9832 (3d Cir. May 16, 2012): Under Fed. R. Civ. P. 12(b)(1), a court must grant a motion to dismiss if it lacks subject-matter jurisdiction to hear a claim. "A motion to dismiss for want of standing is . ... Fri, 18 May 2012 00:00:00 +0100 Inherent Power Sanctions — Bad Faith Requires Something More Than Mere Pursuit of Meritless Claim — 3-Part Test — Sixth Circuit Questions Whether Inherent Power to Sanction Exists in Criminal Cases http://josephnyc.com/blog/?blogID=2076 United States v. Aleo, 2012 U.S. App. LEXIS 9750 (6th Cir. May 15, 2012): On April 13, 2010, Freeman filed a motion to compel. The motion requested that the court order the prosecutor to file "a formal motion, with notice to defense counsel, seeking permission for the child complainant's mo... Thu, 17 May 2012 00:00:00 +0100 Unretained Experts — Broad, Summary Disclosures under Rule 26(a)(2)(C) Sufficient http://josephnyc.com/blog/?blogID=2073 Estate of Lance v. Lewisville Indep. School Dist., 2012 U.S. Dist. LEXIS 66190 (E.D. Tex. May 11, 2012): Dr. Walker will testify regarding the provision of special education services to students, and specifically how those services were provided to Montana Lance. Dr. Alexander will testify regard... Wed, 16 May 2012 00:00:00 +0100 Tenth Circuit Requires Bad Faith to Support an Adverse Inference for Spoliation, Absent Motion for Rule 37 Sanctions http://josephnyc.com/blog/?blogID=2043 Toppins v. Minn. Life Ins. Co., 2012 U.S. App. LEXIS 1897 (10th Cir. Feb. 2, 2012): [Plaintiff’s] assertion that Mr. Jolly's destruction of his interview notes entitles her to an adverse inference is unavailing. She has not shown that she sought sanctions under Fed. R. Civ. P. 37; acco... Tue, 15 May 2012 00:00:00 +0100 In Forma Pauperis Lawsuits Should Generally Not be Dismissed for Lack of Venue, but Rather Transferred — Error Harmless, However, Where No Conceivable Basis for Venue and No Prejudice http://josephnyc.com/blog/?blogID=2071 Day v. City of Galveston, 2012 U.S. App. LEXIS 9592 (3d Cir. May 11, 2012): District courts generally should not dismiss IFP [in forma pauperis] complaints sua sponte for improper venue. As we explained: 28 U.S.C. § 1915 [the IFP statute] contains no express authorization for a di... Mon, 14 May 2012 00:00:00 +0100 Federal Circuit Extends Federal Jurisdiction to All Patent-Related Legal Malpractice Claims, Even Where No Patent Has Issued and No Actual Patent Rights Are at Stake http://josephnyc.com/blog/?blogID=2036 Byrne v. Wood, Herron & Evans, LLP, 2012 U.S. App. LEXIS 6021 (Fed. Cir. Mar. 22, 2012) (denial of petition for rehearing en banc): Dyk, J., Concurring Under the Supreme Court's decision in Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 809 (1988), federal jurisdiction under 2... Sun, 13 May 2012 00:00:00 +0100 “Confusing Overlap” of Contempt vs. Other Sanctions Powers — Higher Burden of Proof If Contempt — Judge’s Duty to Justify Sanctions Imposed (Good Quote) http://josephnyc.com/blog/?blogID=2070 Securities and Exchange Commission v. First Choice Mgmt. Servs., Inc., 2012 U.S. App. LEXIS 8788 (7th Cir. May 1, 2012): So the order was violated; but was the sanction proper? Judges have inherent authority to impose sanctions for misconduct by litigants, their lawyers, witnesses, and others who ... Sat, 12 May 2012 00:00:00 +0100 Email Admissibility — Double Hearsay Satisfied by (1) Business Record Incorporating (2) Admission — 801(d)(2)(B) Does Not Require Employee Have Ability to Bind Employer — Junior Status of Employee Goes to Weight http://josephnyc.com/blog/?blogID=2064 In re Tribune Co., 2012 Bankr. LEXIS 1563 (Bankr. D. Del. April 9, 2012): In preparing his response to the Bigelow Email, Peter Cohen of JPMorgan contacted another JPMorgan employee, Joachim Sonne, who advised by email: Talked to EGI, Chris Hochschild, and he confirmed that they see their sec... Fri, 11 May 2012 00:00:00 +0100 Testimony Based on Newspaper Reports Is Hearsay — Documents Seized from PLO Not Admissible under Residual Exception —Rule 807 Standards — Lay Opinion May Not Include Specialized Knowledge or Legal Opinion http://josephnyc.com/blog/?blogID=2069 United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011): In this consolidated case, we address the appeals of five individuals and one corporate defendant convicted of conspiracy and substantive offenses for providing material aid and support to a designated terrorist organization. The terrorist... Thu, 10 May 2012 00:00:00 +0100 Rule 408 Exclusion of Attorney Conversation Erroneous Where There Was No Pending Dispute — Note Importance of Announcing Intent to Maintain Settlement Offers Confidential http://josephnyc.com/blog/?blogID=2068 MCI Commc’ns Servs., Inc. v. Hagan, 641 F.3d 112; 2011 U.S. App. LEXIS 9699 (5th Cir. 2011): This case arises from a January 20, 2006 incident in which an underground cable owned by plaintiff-appellant MCI was allegedly severed. MCI filed suit against defendants-appellees Wayne Hagan an... Wed, 09 May 2012 00:00:00 +0100