Joseph Hage Aaronson

Sanctions & Magistrate Judges: MJs May Preclude Evidence & Deem Facts Admitted under R. 37(b), If These Don’t End the Claim—Violated Order Needn’t Be Written—Order Allowing Discovery≠R. 37 Order—Can MJs Order R. 11 Sanctions? (Cir. Split)

Joint Stock Company Channel One Russia Worldwide v. Informir LLC, 2017 U.S. Dist. LEXIS 165702 (S.D.N.Y. July 18, 2017): Before me are two motions, both filed by plaintiffs, seeking sanctions against defendant Panorama Alliance, LP (Panorama) and its former attorney…

Do “Costs” in Rule 41(d) Include Attorney’s Fees? — Circuit Split — Can Inherent Power Sanctions Be Used If the Answer Is No? — Generally Not — Court May Not Grant Unrequested Relief under Rule 54(c) If It Is a Surprise and Prejudicial

Portillo v. Cunningham, 2017 U.S. App. LEXIS 19603 (5th Cir. Oct. 6, 2017): JohnJay Portillo appeals the dismissal of his claims under common law, Texas statutes, and 42 U.S.C. § 1983. He contends that the court erred by dismissing for…

Hearsay: Terrorist Claims of Responsibility ≠ Statements against Interest But Claims of Benefit; Newspaper Articles = Hearsay — Expert May Explain Why Facts Lead to Conclusion Even If Lay Person Can Reach Conclusion — Good SJ Quote

Strauss v. Crédit Lyonnais, S.A., 2017 U.S. Dist. LEXIS 165722 (E.D.N.Y. Sept. 30, 2017): Pursuant to the 2013 statute of limitations amendment [*12] to the Anti-Terrorism Act ("ATA"), Plaintiffs' claims arising from five attacks (the "Reinstated Attacks"), previously dismissed …

Rule 68 Offer of Judgment: Ambiguities Construed against Drafter, But Circuit Split Exists as to Whether This Applies to Ambiguity Concerning Whether Statutorily-Awarded Fees Are Included in the Offer

Johnson v. Hyatt Hotels Corp., 2017 U.S. Dist. LEXIS 165850 (D.S.C. Oct. 6, 2017): This matter is before the court on plaintiff Bradley Johnson's ("Johnson") motion for attorneys' fees. For the reasons set forth below, the court denies the…

YouTube Authentication—New York State—By Certification from YouTube, Testimony of Witness Who Viewed It, Party’s Admission a Video Was Done in Call to 3d Party, Appearance, Contents, Characteristics

People v. Franzese, 2017 N.Y. App. Div. LEXIS 6967 (2d Dep’t Oct. 4, 2017): Appeal by the defendant from a judgment of the Supreme Court, Queens County (Schwartz, J.), rendered July 8, 2015, convicting him of attempted assault in the…

Hearsay—911 Call: Present Sense Impression May Apply to Answers to Questions after the Event, Requires No Calculated Narration — Excited Utterance (Factors), May Be More Probative Than Later Testimony Given after Consequences Considered

United States v. Boyce, 742 F.3d 792 (7th Cir. 2013): After a foot chase during which an officer said he saw Darnell Boyce throw a gun into a yard, officers recovered the gun from the area and also found ammunition…

Rule 37 Dismissal Sanction Warranted for Refusal to Sit for Deposition on Fifth Amendment Grounds — Party Must Appear and Assert the Fifth Question by Question — Can’t Refuse to Attend — Dismissal Sanction Requires Willfulness or Bad Faith

United States v. Twenty-Nine Pre-Columbian And Colonial Artifacts From Peru, 2017 U.S. App. LEXIS 9748 (11th Cir. June 2, 2017): Jean Combe-Fritz appeals from the district court's final judgment of forfeiture of a number of artifacts confiscated from him by …

Prohibition against Claim-Splitting: Factors—Transactional Analysis—Second Suit Not Saved by Extending Time Period, Adding Claims—Same Series of Transactions, Same Goals Dispositive—Relationship to Res Judicata

Vanover v. NCO Fin. Servs., 857 F.3d 833 (11th Cir. 2017): Plaintiff-Appellant Karen Vanover ("Vanover") sued Defendant-Appellee NCO Financial Systems, Inc. ("NCO"), on April 23, 2014, for violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227,…

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…

Commercial Litigation and Arbitration

Sanctions & Magistrate Judges: MJs May Preclude Evidence & Deem Facts Admitted under R. 37(b), If These Don’t End the Claim—Violated Order Needn’t Be Written—Order Allowing Discovery≠R. 37 Order—Can MJs Order R. 11 Sanctions? (Cir. Split)

Do “Costs” in Rule 41(d) Include Attorney’s Fees? — Circuit Split — Can Inherent Power Sanctions Be Used If the Answer Is No? — Generally Not — Court May Not Grant Unrequested Relief under Rule 54(c) If It Is a Surprise and Prejudicial

Hearsay: Terrorist Claims of Responsibility ≠ Statements against Interest But Claims of Benefit; Newspaper Articles = Hearsay — Expert May Explain Why Facts Lead to Conclusion Even If Lay Person Can Reach Conclusion — Good SJ Quote

Rule 68 Offer of Judgment: Ambiguities Construed against Drafter, But Circuit Split Exists as to Whether This Applies to Ambiguity Concerning Whether Statutorily-Awarded Fees Are Included in the Offer

YouTube Authentication—New York State—By Certification from YouTube, Testimony of Witness Who Viewed It, Party’s Admission a Video Was Done in Call to 3d Party, Appearance, Contents, Characteristics

Hearsay—911 Call: Present Sense Impression May Apply to Answers to Questions after the Event, Requires No Calculated Narration — Excited Utterance (Factors), May Be More Probative Than Later Testimony Given after Consequences Considered

Rule 37 Dismissal Sanction Warranted for Refusal to Sit for Deposition on Fifth Amendment Grounds — Party Must Appear and Assert the Fifth Question by Question — Can’t Refuse to Attend — Dismissal Sanction Requires Willfulness or Bad Faith

Prohibition against Claim-Splitting: Factors—Transactional Analysis—Second Suit Not Saved by Extending Time Period, Adding Claims—Same Series of Transactions, Same Goals Dispositive—Relationship to Res Judicata

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

Recent Articles

FRAP 38 and Pro Se Litigants — Observations, Not Sanctions, For Non-Existent Quotations

Supreme Court: Party Moving to Set Aside Void Judgment Under Rule 60(b)(4) Must Do So Within A Reasonable Time Per Rule 60(c)(1)

RICO Statute of Limitations — Storm Warnings, Not Thunder and Lightning (Good Quote)

Rule 37 Discovery Sanctions: Ninth Circuit’s Five-Factor Test for Gauging Appropriateness of Dismissal — The Limited Utility of Rule 12(f) Motions to Strike

Inherent Power Sanction of Dismissal — Preponderance of the Evidence Burden of Proof, Not Clear and Convincing Evidence (7th Circuit)

§ 1927 Sanctions — Must A Lawyer Who Unreasonably and Vexatiously Multiplies Federal Court Proceedings Be Acting “As An Attorney” When Committing the Misconduct To Be Subject to Sanction under § 1927?

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