Joseph Hage Aaronson

FRAP 39’s “Costs” Don’t Include Attorney’s Fees (F.R.Civ.P. 68 Distinguished) — Denial of “Costs” in Appellate Mandate Doesn’t Bar Award of Fees for Success on Appeal under Fee-Shifting Statute Defining Fees as “Costs”

Hines v. City of Albany, 2017 U.S. App. LEXIS 12042 (2d Cir. July 6, 2017): Constance and Marshay Hines appeal from an order of the United States District Court for the Northern District of New York (Suddaby, C.J.) denying their…

Blogs, Like Newspaper Articles, Are Hearsay When Offered for the Truth

Welch v. City of Albuquerque, 2016 WL 8809479 (D. N.M. May 13, 2016): *1 THIS MATTER comes before the Court upon Defendants Raymond Schultz, William Roseman, Cecil Knox, David Hubbard, Robert Smith, J.R. Potter, and Kevin Gagne’s (Defendants) Second Motion…

Inherent Power Sanctions for Filing Notice of Dismissal Instead of Agreeing to Dismiss with Prejudice — Fact Plaintiff Had to Post Bond to Sue Put Lawyer on Notice of Potential Frivolousness — Bad Faith, Improper Purpose Interchangeable in 6th Circuit

U.S. ex rel. Tingley v. PNC Fin’l Servs. Grp., 2017 WL 3098178 (6th Cir. July 21, 2017): *1 Relator William Tingley, III repeatedly filed claims alleging varying theories of liability—including liability under the False Claims Act and Michigan’s Hazardous Waste…

Sanctions — Finding of Professional Misconduct Appealable Even If No Sanction Imposed — Extrajudicial Conduct Sanctionable under Inherent Power — Rule 41(a)(1) Dismissal OK for Any Reason, Including to “Flee the Jurisdiction or the Judge”

Adams v. USAA Cas. Ins. Co., 2017 U.S. App. LEXIS 13369 (8th Cir. July 25, 2017): In this consolidated appeal, the appellants, attorneys for plaintiffs2 and defendants3 in a putative class action, appeal from the district court's orders (1) finding…

Judicial Notice of Internet Evidence: Notice Taken on 12(b)(1) Motion of Records on Gov’t & University Websites, and Docs Obtained via FOIA, for Purpose of Showing the Info Was Publicly Available — Wayback Machine Results, Too

U.S. ex rel. Hong v. Newport Sensors, Inc., 2016 U.S. Dist. LEXIS 188295 (C.D. Cal. May 19, 2016): PROCEEDINGS: (IN CHAMBERS) ORDER GRANTING DEFENDANTS' MOTION TO DISMISS THE SECOND AMENDED COMPLAINT AND DENYING AS MOOT DEFENDANTS' MOTION TO STRIKE (Doc. …

§ 1927 Sanctions: Recklessness Alone Insufficient — Argument Not Frivolous If Issue Unresolved and Out-of-Circuit Precedent Supports It — Failure to Withdraw Claim & Opposing Dismissal Once Aware of Baselessness Is Sanctionable

Stone Creek, Inc. v Omnia Italian Design, Inc., 2017 U.S. App. LEXIS 12393 (9th Cir. July 11, 2017): This appeal, set in the high-stakes world of furniture sales, runs the gamut of trademark infringement issues. The facts are somewhat unusual:…

Rule 36 Admissions — Judge “Implicitly” Allowed Withdrawal by Admitting Contrary Testimony: “To Order a New Trial on the Basis of a Technical Error Would Be to Arrogate Form over Substance, Wasting Everybody’s Time to No Purpose” (Good Quote)

The plaintiff, which for simplicity we'll call just Tate, sells ingredients used in the food and beverage industry. The defendant, Glatt, a member of a substantial German conglomerate called the Glatt group, sells processing equipment to the food industry. In…

Equivocal Texts ≠ Statements against Penal Interest — Mere Possibility Witness Might Invoke Fifth ≠ Unavailability — Authentication of Texts by Evidence of Phone Ownership & Contents OK, But Double Hearsay, Cloudy Circumstances Insufficient

Cottmeyer v. State, 2017 Md. App. LEXIS 725 (Md. Ct. Spec. App. July 17, 2017): Appellant, Matthew Everett Cottmeyer, was charged in the Circuit Court for Somerset County, Maryland, with first degree burglary, conspiracy to commit first degree burglary, theft…

Attorney-Client Privilege & Work Product: Mere Allegations, Bare Assertions Insufficient to Invoke Crime-Fraud Exception — What Is a Prima Facie Showing? — Client’s Current Law Firm May Appeal via Perlman

In re Grand Jury Subpoena, 2017 U.S. App. LEXIS 10690 (3d Cir. June 16, 2017): * This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent. This case involves the…

Waiver of Securities Claims Is Invalid (§ 29(a)), But All Other Claims Are Gone, Including RICO — Moving to Amend within Statute of Repose Makes Claim Timely — Denial of Leave to Amend Requires Prejudice or Bad Faith (Factors), Not Mere Delay

Pasternack v. Schrader, 2017 U.S. App. LEXIS 12513 (2d Cir. July 13, 2017): The plaintiffs are retired officers of Booz Allen Hamilton, a privately-held corporation. Bruce Pasternack, Reginald Boudinot, and Paul Kocourek allege that they were improperly denied compensation when, …

Commercial Litigation and Arbitration

FRAP 39’s “Costs” Don’t Include Attorney’s Fees (F.R.Civ.P. 68 Distinguished) — Denial of “Costs” in Appellate Mandate Doesn’t Bar Award of Fees for Success on Appeal under Fee-Shifting Statute Defining Fees as “Costs”

Blogs, Like Newspaper Articles, Are Hearsay When Offered for the Truth

Inherent Power Sanctions for Filing Notice of Dismissal Instead of Agreeing to Dismiss with Prejudice — Fact Plaintiff Had to Post Bond to Sue Put Lawyer on Notice of Potential Frivolousness — Bad Faith, Improper Purpose Interchangeable in 6th Circuit

Sanctions — Finding of Professional Misconduct Appealable Even If No Sanction Imposed — Extrajudicial Conduct Sanctionable under Inherent Power — Rule 41(a)(1) Dismissal OK for Any Reason, Including to “Flee the Jurisdiction or the Judge”

Judicial Notice of Internet Evidence: Notice Taken on 12(b)(1) Motion of Records on Gov’t & University Websites, and Docs Obtained via FOIA, for Purpose of Showing the Info Was Publicly Available — Wayback Machine Results, Too

§ 1927 Sanctions: Recklessness Alone Insufficient — Argument Not Frivolous If Issue Unresolved and Out-of-Circuit Precedent Supports It — Failure to Withdraw Claim & Opposing Dismissal Once Aware of Baselessness Is Sanctionable

Rule 36 Admissions — Judge “Implicitly” Allowed Withdrawal by Admitting Contrary Testimony: “To Order a New Trial on the Basis of a Technical Error Would Be to Arrogate Form over Substance, Wasting Everybody’s Time to No Purpose” (Good Quote)

Equivocal Texts ≠ Statements against Penal Interest — Mere Possibility Witness Might Invoke Fifth ≠ Unavailability — Authentication of Texts by Evidence of Phone Ownership & Contents OK, But Double Hearsay, Cloudy Circumstances Insufficient

Attorney-Client Privilege & Work Product: Mere Allegations, Bare Assertions Insufficient to Invoke Crime-Fraud Exception — What Is a Prima Facie Showing? — Client’s Current Law Firm May Appeal via Perlman

Waiver of Securities Claims Is Invalid (§ 29(a)), But All Other Claims Are Gone, Including RICO — Moving to Amend within Statute of Repose Makes Claim Timely — Denial of Leave to Amend Requires Prejudice or Bad Faith (Factors), Not Mere Delay

Recent Articles

nherent 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?

Rule 37 Sanctions — Unfamiliarity With Litigation Process Does Not Excuse Intentional Disregard of Court Order — Also Affirming Rule 26(g) Sanctions on Clients and Counsel for False Representations That All Responsive Documents Had Been Produced

Supreme Court: Notice of Appeal Filed After The Original Deadline But Before Reopening by The District Court Is Timely — It Relates Forward to The Date of The Order Making The Appeal Possible — Second Notice of Appeal After Reopening Unnecessary

Rule 37 Default Judgment: Second Circuit’s Four-Factor Test for Imposing Defaults and Three-Factor Test for Lifting Them

RICO: Cover-Up Within Limitations Period of Untimely RICO Violation “Was Merely A Continuation” Of The Original Injury And Could Not Be Used “As A ‘Bootstrap’ To Salvage [The] Time-Barred Claims–Declining to Apply Pinkerton Doctrine to Civil RICO Claims

Inherent Power — Circumstantial Evidence — Fact That Bad Faith May Be Shown by Establishing That Conduct Was So Egregious It Was Necessarily Committed in Bad Faith Does Not Mean That Bad Faith Must Be The Sole Explanation for The Bad Conduct

RICO Causation: Testing Labs’ Misstatements As to Alcohol Tests’ Efficacy Not Communicated to Plaintiffs’ Employers Did Not Cause Plaintiffs’ Professional Harm

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