Joseph Hage Aaronson

Twitter — Tweet Authenticated by Twitter Handle, Profile Photo, Contents, Reply Letter Doctrine — N.J. Appeals Court Adopts Circumstantial Approach to Social Media Authentication

State v. Hannah, 2016 N.J. Super. LEXIS 156 (N.J. Super. App. Div. Dec. 20, 2016): Defendant Terri Hannah appeals her July 10, 2015 conviction for simple assault after a trial de novo in the Law Division, following her conviction in …

Inherent Power/§1927 Sanctions Imposed for Ethical Violation — Model Rule 4.3 Governing Contact with Unrepresented Persons — $28,000 Monetary Sanction for Deceiving Lay Person into Cooperating, Defaulting

Daniel v. Marino, 2016 U.S. App. LEXIS 21828 (3d Cir. Dec. 8, 2016): Songwriter Daniel Marino appeals the district court's grant of summary judgment in favor of the defendants in his copyright infringement suit.1 The district court found that, because…

Affidavit of Plaintiff Attached to Complaint Is Not a “Written Instrument” within Rule 10(c) Deemed Part of Complaint — Must Be Legal Document Defining Rights, Like Contract, Will, Note, Security — Circuit Split

Smith v. Hogan, 794 F.3d 249 (2d Cir. 2015): Plaintiff-appellant Aidan A. Smith appeals from a judgment of the United States District Court for the District of Connecticut (Arterton, J.) dismissing his complaint pursuant to Rules 12(b)(1) and 12(b)(6) of…

Arbitration — Is Manifest Disregard a Permissible Ground to Overturn an Award under the FAA? — Circuit Split — If So, It Requires More Than Legal Error — Arbitrator Must Appreciate & Ignore Clearly Governing Legal Principle

Global Liquidity Partners, LLC v. Wegher, 2016 U.S. Dist. LEXIS 165427 (D.N.J. Nov. 30, 2016): C. Manifest Disregard of the Law under 10(a)(4) Respondents bring their manifest disregard for the law assertion under 9 U.S.C. § 10(a)(4). Courts vary in…

Are Pro Hac Vice Fees Recoverable Costs under 28 U.S.C. § 1920? — Circuit Split —Cost of Video May Be Taxed in Addition to Deposition Transcript If Reasonably Necessary — Uncertainty as to Witness Attendance at Trial Is Sufficient

Olesky v. Gen. Elec. Co., 2016 U.S. Dist. LEXIS 171505 (N.D. Ill. Dec. 12, 2016): Plaintiff Henryk Oleksy ("Oleksy") sued Defendant General Electric Company ("GE") for patent infringement. On September 29, 2015, the presiding District Judge ruled that [*4] GE…

Removal: If Plaintiff Adds Non-Diverse Defendant within 21 Days of Answer Per Rule 15(b), Should Court Honor That & Remand, Given Absolute Right to Amend, Or Deny Joinder under § 1447(e)? — Caselaw Split — Factors under 1447(e)

Edmond v. Kindred Healthcare Operating Inc., 2016 U.S. Dist. LEXIS 170896 (C.D. Cal. Dec. 8, 2016): Proceedings (In Chambers): Order GRANTING Motion to Remand Before the Court is Plaintiff Britani Edmond's motion to remand this action to state court. Dkt.…

Third-Party Websites May Be Considered on Summary Judgment Because They Would Be Admissible at Trial with Proper Authentication, Where Accuracy Not in Dispute

ZW USA, Inc. v. PWD Sys., LLC, 2016 U.S. Dist. LEXIS 129549 (E.D. Mo. Sept. 22, 2016): This matter is before the Court on plaintiff's motion for partial summary judgment and defendant's motion for summary judgment, pursuant to Fed. R.…

Intervention — May a Magistrate Judge, Who Is Conducting All Proceedings Through Trial and Judgment by Consent of the Parties, Rule on a Motion to Intervene Filed by a Person Who Has Not Consented? — Circuit Split

Davis v. Union Pac. RR, 2015 U.S. Dist. LEXIS 182824 (S.D. Tex. Aug. 6, 2015): REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE On June 19, 2015, Hallmark County Mutual Insurance Company – as the subrogee of Plaintiffs Daniel Davis and…

26(g) Sanctions — Impeachment vs. Substantive Evidence under 26(a)(1) — Is It Impeachment If You Offer It Only to Impeach Or Is It “Partially Substantive” If the Court Says So? — Circuit Split — Definition of Substantially Justified

Olivarez v. George Grp., Inc., 2016 U.S. App. LEXIS 22049 (5th Cir. Dec. 12, 2016): Attorneys Shawn K. Fitzpatrick and Timothy Flocos (collectively, "Appellants") were sanctioned by the district court for certifying that their clients' initial disclosures under Federal Rule …

Rule 37(e) Spoliation Sanctions — No Intent to Deprive — Fees, Jury Instructed Spoliator Was Under Duty to Preserve & Didn’t, Spoliator Barred from Offering Preserved Remainder of Missing Category of Evidence

Security Alarm Financing Enters., LP v. Alarm Protection Tech., LLC, 2016 U.S. Dist. LEXIS 168311 (D. Alaska Dec. 6, 2016): ORDER RE MOTION FOR SPOLIATION SANCTIONS Before the Court is Defendant Alarm Protection Technology's Motion for Spoliation Sanctions at Docket…

Commercial Litigation and Arbitration

Twitter — Tweet Authenticated by Twitter Handle, Profile Photo, Contents, Reply Letter Doctrine — N.J. Appeals Court Adopts Circumstantial Approach to Social Media Authentication

Inherent Power/§1927 Sanctions Imposed for Ethical Violation — Model Rule 4.3 Governing Contact with Unrepresented Persons — $28,000 Monetary Sanction for Deceiving Lay Person into Cooperating, Defaulting

Affidavit of Plaintiff Attached to Complaint Is Not a “Written Instrument” within Rule 10(c) Deemed Part of Complaint — Must Be Legal Document Defining Rights, Like Contract, Will, Note, Security — Circuit Split

Arbitration — Is Manifest Disregard a Permissible Ground to Overturn an Award under the FAA? — Circuit Split — If So, It Requires More Than Legal Error — Arbitrator Must Appreciate & Ignore Clearly Governing Legal Principle

Are Pro Hac Vice Fees Recoverable Costs under 28 U.S.C. § 1920? — Circuit Split —Cost of Video May Be Taxed in Addition to Deposition Transcript If Reasonably Necessary — Uncertainty as to Witness Attendance at Trial Is Sufficient

Removal: If Plaintiff Adds Non-Diverse Defendant within 21 Days of Answer Per Rule 15(b), Should Court Honor That & Remand, Given Absolute Right to Amend, Or Deny Joinder under § 1447(e)? — Caselaw Split — Factors under 1447(e)

Third-Party Websites May Be Considered on Summary Judgment Because They Would Be Admissible at Trial with Proper Authentication, Where Accuracy Not in Dispute

Intervention — May a Magistrate Judge, Who Is Conducting All Proceedings Through Trial and Judgment by Consent of the Parties, Rule on a Motion to Intervene Filed by a Person Who Has Not Consented? — Circuit Split

26(g) Sanctions — Impeachment vs. Substantive Evidence under 26(a)(1) — Is It Impeachment If You Offer It Only to Impeach Or Is It “Partially Substantive” If the Court Says So? — Circuit Split — Definition of Substantially Justified

Rule 37(e) Spoliation Sanctions — No Intent to Deprive — Fees, Jury Instructed Spoliator Was Under Duty to Preserve & Didn’t, Spoliator Barred from Offering Preserved Remainder of Missing Category of Evidence

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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