Joseph Hage Aaronson

Text Message Authentication: Mere Proximity to Phone, Absent Proof of Ownership or Linkage to Content of Texts or Other Circumstantial Evidence Linking Alleged Owner to Messages, Insufficient to Authenticate

Garnett v. Commonwealth, 2016 Va. App. LEXIS 361 (Va. Ct. App. Dec. 20, 2016): * Pursuant to Code § 17.1-413, this opinion is not designated for publication. Terrell Dewayne Garnett appeals an order convicting him of possession with intent to…

Spoliation Doesn’t Prevent Summary Judgment in Spoliator’s Favor If Only Adverse Inference Would Not Save Adversary’s Claims — Appeals: Failure to Order Transcript of Recorded Hearing As Required by FRAP 10(b)(1) Forfeits Claim of Error

Rodriguez v. Forthright, 2016 U.S. App. LEXIS 22463 (3d Cir. Dec. 19, 2016): * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM Felix A. Rodriguez appeals…

Court May Take Judicial Notice of Document Filed in Another Case Not for the Truth of the Matters Asserted But Only to Establish Fact of Filing and What Is Asserted — Judicial Estoppel: Factors

United States v. First Am. Title Ins. Co., 2016 U.S. Dist. LEXIS 175617 (N.D. Ill. Dec. 20, 2016): II. Judicial Estoppel Patel also argues that the doctrine of judicial estoppel bars the SBA from bringing this action. Judicial estoppel "generally …

Arbitration — If Complaint/Supporting Docs Unclear on Agreement to Arbitrate, Motion to Compel Should Follow Discovery, Be Decided under SJ Standard — While Continuing to Work after ADR Policy May=Consent to Arbitrate, Not So If Employee Dissents

Scott v Education Mgmt. Corp., 2016 U.S. App. LEXIS 18662 (3d Cir. Oct. 18, 2016): In these consolidated appeals, two former employees of the Education Management Corporation ("EDMC") appeal from orders dismissing their separate claims of discrimination. The employees —…

RICO/9(b): Where Many Sued, Complaint Need Not Necessarily ID False Statements by Each But Conclusory Conspiracy Claim Not Enough — Each’s Role Must Be ID’ed; Collective Action OK If All Did Same Thing — Basis for Belief (Info+B) Must Be Stated

Puri v. Khalsa, 2017 U.S. App. LEXIS 287 (9th Cir. Jan. 6, 2017): * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. The plaintiffs, individually and on behalf of …

Video Evidence Should Be Reviewed by the Court In Camera before It Is Displayed to Jury — Fact That Attorney Referred Plaintiff to Physician Is Relevant, Admissible — Fact Plaintiff’s Counsel Advertises Excluded

Ernestine v. Hi-Vac LLC, 2016 U.S. Dist. LEXIS 141290 (S.D. Miss. Oct. 12, 2016): This matter is before the Court on the Motion in Limine [143] filed by Plaintiff Lionel Ernestine ("Plaintiff"), and the Motion in Limine [147] filed by…

Arbitration — Does the FAA Authorize Arbitrators to Issue Deposition Subpoenas Duces Tecum or Must a Hearing Be Held? — Circuit Split

McTammany v. Foundation Capital Partners LP, 2015 U.S. Dist. LEXIS 183559 (C.D. Cal. May 1, 2015): PROCEEDINGS (IN CHAMBERS): ORDER DENYING MOTION TO COMPEL DEPOSITION OF KELLY HOLOWATY [1] Before the Court is Plaintiffs' Motion to Compel Deposition of Kelly…

§ 1927 Sanctions: Once It Is Obvious An Asserted Position Has No Basis, Continuing to Assert It Exposes Counsel to Sanctions — The Court Aims To Resolve This Dispute, Not To Litigate The Same Points Ad Infinitum (Good Quotes)

Valley Forge Ins. Co. v. Hartford Iron & Metal, Inc., 2017 U.S. Dist. LEXIS 1187 (N.D. Ind. Jan. 4, 2017): Hartford Iron doesn't like the way Valley Forge has performed on its contract. After three motions to dismiss, numerous excess…

Removal: May a Non-Forum Defendant Remove before Service Is Effected on a Forum Defendant? — Circuit Split — Held, a Forum Defendant May Remove before It Has Been Served Even If There Are No Non-Forum Defendants

Hwang v. Gladden, 2016 U.S. Dist. LEXIS 177479 (M.D. Ala. Dec. 21, 2016): This matter is before the court on plaintiffs' motion to remand (Doc. 9), which is opposed by defendants Brent Gladden and University Real Estate Group, LLC (collectively,…

Wayback Machine: Court Declines to Take Judicial Notice Because of Wayback Machine’s Disclaimer of Warranty of Accuracy — Res Judicata: Prior Judgment Bars More Detailed Allegations of Prejudgment Misconduct, But Not Post-Judgment Incidents

Nassar v. Nassar, 2017 U.S. Dist. LEXIS 456 (M.D. Fla. Jan. 3, 2017): THIS CAUSE is before the Court on (1) Defendant's Motion to Dismiss Amended Complaint and Memorandum in Support (Doc. 63; "Defendant's Motion to Dismiss"), filed on March…

Commercial Litigation and Arbitration

Text Message Authentication: Mere Proximity to Phone, Absent Proof of Ownership or Linkage to Content of Texts or Other Circumstantial Evidence Linking Alleged Owner to Messages, Insufficient to Authenticate

Spoliation Doesn’t Prevent Summary Judgment in Spoliator’s Favor If Only Adverse Inference Would Not Save Adversary’s Claims — Appeals: Failure to Order Transcript of Recorded Hearing As Required by FRAP 10(b)(1) Forfeits Claim of Error

Court May Take Judicial Notice of Document Filed in Another Case Not for the Truth of the Matters Asserted But Only to Establish Fact of Filing and What Is Asserted — Judicial Estoppel: Factors

Arbitration — If Complaint/Supporting Docs Unclear on Agreement to Arbitrate, Motion to Compel Should Follow Discovery, Be Decided under SJ Standard — While Continuing to Work after ADR Policy May=Consent to Arbitrate, Not So If Employee Dissents

RICO/9(b): Where Many Sued, Complaint Need Not Necessarily ID False Statements by Each But Conclusory Conspiracy Claim Not Enough — Each’s Role Must Be ID’ed; Collective Action OK If All Did Same Thing — Basis for Belief (Info+B) Must Be Stated

Video Evidence Should Be Reviewed by the Court In Camera before It Is Displayed to Jury — Fact That Attorney Referred Plaintiff to Physician Is Relevant, Admissible — Fact Plaintiff’s Counsel Advertises Excluded

Arbitration — Does the FAA Authorize Arbitrators to Issue Deposition Subpoenas Duces Tecum or Must a Hearing Be Held? — Circuit Split

§ 1927 Sanctions: Once It Is Obvious An Asserted Position Has No Basis, Continuing to Assert It Exposes Counsel to Sanctions — The Court Aims To Resolve This Dispute, Not To Litigate The Same Points Ad Infinitum (Good Quotes)

Removal: May a Non-Forum Defendant Remove before Service Is Effected on a Forum Defendant? — Circuit Split — Held, a Forum Defendant May Remove before It Has Been Served Even If There Are No Non-Forum Defendants

Wayback Machine: Court Declines to Take Judicial Notice Because of Wayback Machine’s Disclaimer of Warranty of Accuracy — Res Judicata: Prior Judgment Bars More Detailed Allegations of Prejudgment Misconduct, But Not Post-Judgment Incidents

Recent Articles

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?

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

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