Joseph Hage Aaronson

Inherent Power Sanctions Apt for Wide Range of Willful Misconduct Implicating Multiple Rules (Including Fabricated Email, Ad Hominem Attacks in 113 Filings, Extrajudicial Misconduct)—$175K in Fees/Expenses, Referral to Disciplinary Comm (Good Quotes)

Deutsch v. Henry, 2016 U.S. Dist. LEXIS 168987 (W.D. Tex. Dec. 7, 2016): Before the court are Defendants' motions for sanctions. ... Defendants have filed identical motions for sanctions as well as supplemental memoranda specifying the alleged sanctionable conduct in…

FSIA — Collateral Order Doctrine Applies to Interlocutory Appeals — Only Legal Issues Appealable, Review Is De Novo — Burden of Proof under FSIA — What Is a “Direct Effect” under the Commercial Activity Exception?

Frank v. Commonwealth of Antigua & Barbuda, 2016 U.S. App. LEXIS 21018 (5th Cir. Nov. 22, 2016): These consolidated cases involve Defendant-Appellant, the Commonwealth of Antigua and Barbuda ("Antigua"), and its alleged involvement with the Stanford Ponzi scheme. As a…

CAFA — For Case Filed Originally in Federal Court, Subject Matter Jurisdiction Isn’t Lost If Court Denies Class Certification — If Plaintiff Voluntarily Amends Complaint, Court Looks to Amended Complaint to Determine Jurisdiction

Wright Transp., Inc. v. Pilot Corp., 2016 U.S. App. LEXIS 20937 (11th Cir. Nov. 22, 2016): This appeal arises out of several years of litigation between the parties now before us, as well as many others. This litigation has occupied…

Rule 56(h) Sanctions: Attorney’s Drafting “Likely Perjurious” Affidavit and Inserting Content with Willful Blindness to, or Knowledge of, Inaccuracy = Bad Faith — The Phrase “Abuse of Discretion Is a Nonpejorative Term of Art” (Good Quote)

Jimenez v. City of NY, 2016 U.S. App. LEXIS 21051 (2d Cir. Nov. 21, 2016): SUMMARY ORDER UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the District Court be and hereby is AFFIRMED…

Judicial Notice on 12(b)(6) Motion: “Not All Court Records Are Equal with Respect to the Ability to Take Judicial Notice” (Good Quote) — Fact of Party’s Filing (OK) vs. Truth of Matters Asserted (Not) — Facts of Procedural History OK

Malifrando v. Real Time Resolutions, Inc., 2016 U.S. Dist. LEXIS 164497 (E.D. Cal. Nov. 29, 2016): A. Rule 12(b)(6) – Failure to State a Claim *** In ruling on a motion to dismiss filed pursuant to Rule 12(b)(6), the court …

CT Scan Admissible/Authenticated under Same Standards as X-Rays (Best Evidence, Too) — Electronic Medical Records Authentication = Computer-Generated-Evidence & Business-Records Foundation — Silent Witness Theory

Washington v. State, 2016 Ark. App. 565; 2016 Ark. App. LEXIS 608 (2016): A jury convicted Terrance Washington of grievously injuring then three-month-old T.W. by violently shaking him. Washington was sentenced to 10 years' imprisonment. He appealed the sentencing order …

Facebook Account Authenticated by Testimony Witness Communicated with Defendant on It & Photo on It Was Defendant — Post Authenticated by Contents and Temporal Proximity to Post Def. Admitted He Made — Printout = 1003 Duplicate (Thus, Best Evidence)

People v. Dunn, 2016 Mich. App. LEXIS 942 (Mich. Ct. App. May 12, 2016): Defendant struck and killed Benjamin Berlin with his pick-up truck at a mobile home park on October 30, 2013. Shortly before this incident, defendant posted on …

Supreme Court — Courts May Impose “Remedial” Inherent Power Sanctions “Like Monetary Penalties or Attorney Discipline” or Ultimate Sanction of Dismissal — Dismissal Not Mandatory for Violation of False Claims Act’s Seal Requirement

State Farm Fire & Cas. Co. v. United States ex rel. Rigsby, 2016 U.S. LEXIS 7420 (U.S. Dec. 6, 2016): This case addresses the question of the proper remedy when there is a violation of the False Claims Act (FCA) …

Privilege: Disclosure of Fact of Communications, Not Using Them as Basis for a Claim or Defense, ≠ Waiver — Plaintiff Suing Defendant & Its Law Firm Lacks Standing to Seek Disqualification of Firm, Suffers No Injury Even If It Must Pay Fees

Rich v. Bank of Am., N.A., 2016 U.S. App. LEXIS 20850 (9th Cir. Nov. 21, 2016): * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Judith Rich and Vincent …

Arbitration: Is Jurisdiction to Confirm an Award under the FAA Determined by Looking Through to the Underlying Dispute or Must It Arise from the Questions Presented by the Application to Confirm Itself? — Circuit Split

Reading Joint Apprenctice & Elec. Comm. v. Hiester, 2016 U.S. Dist. LEXIS 163328 (E.D. Pa. Nov. 28, 2016): I. Introduction Plaintiff Reading Joint Apprentice and Electrical Committee seeks to confirm an arbitration award it secured against Defendant Eric Hiester for…

Commercial Litigation and Arbitration

Inherent Power Sanctions Apt for Wide Range of Willful Misconduct Implicating Multiple Rules (Including Fabricated Email, Ad Hominem Attacks in 113 Filings, Extrajudicial Misconduct)—$175K in Fees/Expenses, Referral to Disciplinary Comm (Good Quotes)

FSIA — Collateral Order Doctrine Applies to Interlocutory Appeals — Only Legal Issues Appealable, Review Is De Novo — Burden of Proof under FSIA — What Is a “Direct Effect” under the Commercial Activity Exception?

CAFA — For Case Filed Originally in Federal Court, Subject Matter Jurisdiction Isn’t Lost If Court Denies Class Certification — If Plaintiff Voluntarily Amends Complaint, Court Looks to Amended Complaint to Determine Jurisdiction

Rule 56(h) Sanctions: Attorney’s Drafting “Likely Perjurious” Affidavit and Inserting Content with Willful Blindness to, or Knowledge of, Inaccuracy = Bad Faith — The Phrase “Abuse of Discretion Is a Nonpejorative Term of Art” (Good Quote)

Judicial Notice on 12(b)(6) Motion: “Not All Court Records Are Equal with Respect to the Ability to Take Judicial Notice” (Good Quote) — Fact of Party’s Filing (OK) vs. Truth of Matters Asserted (Not) — Facts of Procedural History OK

CT Scan Admissible/Authenticated under Same Standards as X-Rays (Best Evidence, Too) — Electronic Medical Records Authentication = Computer-Generated-Evidence & Business-Records Foundation — Silent Witness Theory

Facebook Account Authenticated by Testimony Witness Communicated with Defendant on It & Photo on It Was Defendant — Post Authenticated by Contents and Temporal Proximity to Post Def. Admitted He Made — Printout = 1003 Duplicate (Thus, Best Evidence)

Supreme Court — Courts May Impose “Remedial” Inherent Power Sanctions “Like Monetary Penalties or Attorney Discipline” or Ultimate Sanction of Dismissal — Dismissal Not Mandatory for Violation of False Claims Act’s Seal Requirement

Privilege: Disclosure of Fact of Communications, Not Using Them as Basis for a Claim or Defense, ≠ Waiver — Plaintiff Suing Defendant & Its Law Firm Lacks Standing to Seek Disqualification of Firm, Suffers No Injury Even If It Must Pay Fees

Arbitration: Is Jurisdiction to Confirm an Award under the FAA Determined by Looking Through to the Underlying Dispute or Must It Arise from the Questions Presented by the Application to Confirm Itself? — Circuit Split

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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