Joseph Hage Aaronson

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…

Rule 37(c)(1) Sanctions: Treating Physicians Who Don’t File 26(a)(2)(B) Report Limited to Opinions Formed during Treatment — Punitive Damages: Single Digit Ratios Generally Constitutional, 10-1 OK If Act Egregious, Compensatories Low

Morris v. Bland, 2016 U.S. App. LEXIS 20548 (4th Cir. Nov. 16, 2016): This appeal arises from a plaintiffs' verdict in connection with the death of David Allan Woods during his incarceration at the Hill-Finklea Detention Center ("HFDC") in South…

Texts Authenticated by Fact They Reflect They Came from Sender & Bore Defendant’s Nickname & One Came with His Photo, Evidence Phone Number Was Defendant’s and by the Contents of the Messages

Reyes-Mendoza v. State, 2015 Md. App. LEXIS 388 (Ct. Spec. App. Sept. 29, 2015): On January 31, 2014, a jury in the Circuit Court for Prince George's County convicted Marvin Reyes-Mendoza of attempted first degree murder and related crimes in…

Commercial Litigation and Arbitration

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

Rule 37(c)(1) Sanctions: Treating Physicians Who Don’t File 26(a)(2)(B) Report Limited to Opinions Formed during Treatment — Punitive Damages: Single Digit Ratios Generally Constitutional, 10-1 OK If Act Egregious, Compensatories Low

Texts Authenticated by Fact They Reflect They Came from Sender & Bore Defendant’s Nickname & One Came with His Photo, Evidence Phone Number Was Defendant’s and by the Contents of the Messages

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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