Joseph Hage Aaronson

Rule 37(c) Sanctions: Non-Disclosure of Documents under 26(a) ≠ Exclusion If Defendant Already Has Them (No Surprise) — Experts: Reasonableness of Conduct in Light of Regulatory Framework ≠ Legal Opinion—Punitive Damages: Constitutionality

Daugherty v. Ocwen Loan Serv., LLC, 2017 WL 3172422 (4th Cir. July 26, 2017): Plaintiff David Daugherty filed a complaint under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., alleging that defendant Ocwen Loan Servicing, LLC …

Texts Authenticated as Def’s: (1) Police Took 2 Phones from Room Def. & Girlfriend Rented, (2) One Listed Girlfriend as Frequent Contact, (3) Def. ID’ed Self in Texts on That Phone & (4) Selfie of Def. Was on Phone — All Texts=Admissions

Roberts v. State, 2017 Ind. App. Unpub. LEXIS 1024 (Ind. Ct. App. July 31, 2017): P1 A jury convicted Ronnell Roberts of level 2 felony dealing in cocaine and class A misdemeanor dealing in marijuana. Roberts now appeals, challenging the…

Arbitration — Equitable Tolling Applies to Motion to Vacate, Modify or Correct an Award under FAA § 12 — Evident Partiality: Standard; Not Shown by Dated, Attenuated or Insubstantial Ties

A. Miner Contr., Inc. v. Dana Kepner Co., 2017 U.S. App. LEXIS 15536, 2017 WL 3530894 (9th Cir. Aug. 17, 2017): Appellant A. Miner Contracting, Inc. ("Miner") appeals the district court's order denying Miner's petition to vacate an arbitration award…

RICO Standing: Injury to Heirs from Fraud on Estate Too Speculative, Indirect — Rule 11 & Inherent Power Sanctions: New Trial Motion Motivated by Desire to Increase Costs = Improper Purpose — Counsel Must Separately Appeal Sanctions

Sheshtawy v. Gray, 2017 U.S. App. LEXIS 17790 (5th Cir. Sept. 14, 2017): PER CURIAM:* * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the…

Judicial Notice of Internet Evidence: Notice of Wayback Machine Results OK Based on Affidavit from Butler — Date in Wayback URL = Date Party Assigns to Page — Screenshots on Party’s Facebook Page Also Noticed

Dzinesquare, Inc. v. Armano Luxury Alloys, Inc., 2014 U.S. Dist. LEXIS 197546 (C.D. Cal. Dec. 22, 2014): Defendant Armano Luxury Alloys Inc.'s Motion for Partial Summary Judgment as to Invalidity (Fld 11-12-14) Cause called and counsel make their appearances. The…

Incoming Texts Not Hearsay: By Responding Affirmatively to Offers to Buy Drugs, Party Adopted Implied Assertions He Had Drugs for Sale — Also Admissible As Context to Make Responses Intelligible

State v. Ulmer, 2017 Ariz. App. Unpub. LEXIS 1125 (Ariz. Ct. App. Aug. 15, 2017): P1 After a jury trial, Clinton Ulmer was convicted of possession of a narcotic drug for sale and possession of drug paraphernalia. The trial court…

Spoliation — Adverse Inference Instruction “Usually Makes Sense” Only If Bad Faith — Undercut by Prior Notice of Destruction & Opportunity to Analyze — Sanctions Should Fit the Crime — Merits Decision Preferred

Sharp v. Hylas Yachts, LLC, 2017 U.S. App. LEXIS 18388 (1st Cir. Sept. 22, 2017): Following an eleven-day jury trial and verdict, the district court entered judgment against Hylas Yachts, LLC and in favor of plaintiffs Nelson Sharp and his…

Diversity Jurisdiction: What Is the Citizenship of a Dissolved or Inactive Corporation? Circuit Split

Pratt v. Green Bay Distribs., 2017 U.S. Dist. LEXIS 157351 (S.D. Ind. Sept. 25, 2017): [*1] ORDER ON SUBJECT MATTER JURISDICTION Sua sponte, the Court raised the issue of whether or not this Court has subject matter jurisdiction over this…

Subject Matter & Personal Jurisdiction: Yelp, TripAdvisor Pages Set Up by Third Parties, Not Defendant, Thus Irrelevant to Minimum Contacts — Twitter: Following Resident of State (Sports Team) Not Enough: Where Does a Tweet Exist?

Blue Water Int’l, Inc. v. Hattrick’s Irish Sports Pub, LLC, 2017 WL 4182405 (M.D. Fla. Sept. 21, 2017): ORDER *1 Several “Hattrick’s” bars serve food and alcohol in the United States.1 Most market themselves as sports bars (in hockey …

Recusal: Judge’s Twitter Account’s Following of US Atty’s Office Twitter Account Not Enough — Rule 60(d)(3): Not All Fraud Is Fraud on the Court — Standards — Must Be Post-Judgment; Here, Barred by Settlement of Unknown Claims

United States v. Sierra Pacific Indus., Inc., 2017 U.S. App. LEXIS 12528 (9th Cir. July 13, 2017): We are asked to decide whether certain allegations of fraud, some of which were known before the parties settled and some of which …

Commercial Litigation and Arbitration

Rule 37(c) Sanctions: Non-Disclosure of Documents under 26(a) ≠ Exclusion If Defendant Already Has Them (No Surprise) — Experts: Reasonableness of Conduct in Light of Regulatory Framework ≠ Legal Opinion—Punitive Damages: Constitutionality

Texts Authenticated as Def’s: (1) Police Took 2 Phones from Room Def. & Girlfriend Rented, (2) One Listed Girlfriend as Frequent Contact, (3) Def. ID’ed Self in Texts on That Phone & (4) Selfie of Def. Was on Phone — All Texts=Admissions

Arbitration — Equitable Tolling Applies to Motion to Vacate, Modify or Correct an Award under FAA § 12 — Evident Partiality: Standard; Not Shown by Dated, Attenuated or Insubstantial Ties

RICO Standing: Injury to Heirs from Fraud on Estate Too Speculative, Indirect — Rule 11 & Inherent Power Sanctions: New Trial Motion Motivated by Desire to Increase Costs = Improper Purpose — Counsel Must Separately Appeal Sanctions

Judicial Notice of Internet Evidence: Notice of Wayback Machine Results OK Based on Affidavit from Butler — Date in Wayback URL = Date Party Assigns to Page — Screenshots on Party’s Facebook Page Also Noticed

Incoming Texts Not Hearsay: By Responding Affirmatively to Offers to Buy Drugs, Party Adopted Implied Assertions He Had Drugs for Sale — Also Admissible As Context to Make Responses Intelligible

Spoliation — Adverse Inference Instruction “Usually Makes Sense” Only If Bad Faith — Undercut by Prior Notice of Destruction & Opportunity to Analyze — Sanctions Should Fit the Crime — Merits Decision Preferred

Diversity Jurisdiction: What Is the Citizenship of a Dissolved or Inactive Corporation? Circuit Split

Subject Matter & Personal Jurisdiction: Yelp, TripAdvisor Pages Set Up by Third Parties, Not Defendant, Thus Irrelevant to Minimum Contacts — Twitter: Following Resident of State (Sports Team) Not Enough: Where Does a Tweet Exist?

Recusal: Judge’s Twitter Account’s Following of US Atty’s Office Twitter Account Not Enough — Rule 60(d)(3): Not All Fraud Is Fraud on the Court — Standards — Must Be Post-Judgment; Here, Barred by Settlement of Unknown Claims

Recent Articles

Rule 37(d) Sanctions — For Failure to Serve Answers, Objections, Or Written Response to Discovery Requests — Are Not Limited to Intentional Misconduct; Even Innocent Mistakes May Be Covered

Sanctions: (1) Rule 11 Does Not Apply to Litigation Papers Initially Filed in State Court — Only Reaffirmance in Federal Court Post-Removal Is Subject to Sanction — (2) “The Fact That A Legal Theory Is A Long-Shot Does Not Necessarily Mean It Is Sanctionable” (Good Quote)

Supreme Court: Relief under Rule 60(b)(6) Requires Extraordinary Circumstances Even If It Is Invoked to Allow Amendment of The Complaint–Rule 15’s Liberal Approach to Amendment Does Not Change That (Reversing Second Circuit)

FRAP 38 Sanctions — Eleventh Circuit Generally Does Not Impose FRAP 38 Sanctions on Pro Se Litigants, But May Do So If They Have Persisted Despite Judicial Warnings of Frivolousness

Inherent Power Sanctions: No Dismissal with Prejudice If Lesser Sanctions Will Suffice — The Liberal Pleading Standard of Swierkiewicz “Is Still Good Law”

Statements in Briefs As Judicial Admissions

Supreme Court: TRO As Appealable Order — And District Court Inaction As Tantamount to Refusing An Injunction And Thus Appealable

“Slow-Playing Discovery” in Response to Court Order, Prejudicing Opponent, Violates Rule 37(b)(2)(A)

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