Joseph Hage Aaronson

RICO & Res Judicata — Mere Addition of Claims, Defendants to Same Facts Doesn’t Avoid Preclusion Bar — Can’t Relitigate Final Judgment by Adding Subsequent Facts to Adjudicated 16-Year-Long Set of Events

Zahl v. Warhaftig, 2016 U.S. App. LEXIS 12155 (3d Cir. July 1, 2016): Kenneth Zahl, M.D. appeals the final decision of the U.S. District Court for the District of New Jersey granting summary judgment in favor of a group of…

Attorney-Client Privilege — 5-Factor Test Corporate Employees Claiming Corp. Counsel Represented Them Must Satisfy — What If a Reasonable Lay Person Would Misunderstand the Upjohn Warning? (See Concurrence)

United States v. Merida, 2016 U.S. App. LEXIS 12786 (10th Cir. July 12, 2016): I. INTRODUCTION Jason Brett Merida, the former executive director of construction for the Choctaw Nation of Oklahoma (the Nation), was convicted after a fifteen-day jury trial …

Attorney-Client Privilege: Government Official Has No Personal Privilege with Government Lawyer Consulted on Ethics Issues (Government Holds Privilege) — Perhaps Different If Government Lawyer Representing Official Personally

In re Grand Jury Subpoena, 2016 U.S. App. LEXIS 12860 (9th Cir. July 13, 2016): This case arises in the midst of an investigation by the federal government into activities of the former Governor of Oregon, John Kitzhaber. A…

Voicemail Left for Employee A by Employee B, Who Was Investigating Employee A’s Race, Age & Gender Discrimination Claim, Is Admissible against Employer as an 801(d)(2) Admission

Ritchie v. Napolitano, 2016 U.S. Dist. LEXIS 89279 (D.D.C. July 11, 2016): Plaintiff Scott Ritchie brings suit under (i) Title VII of the Civil Rights Act of 1964 ("Title VII") for race discrimination; (ii) Title VII for gender discrimination; and…

Rule 37(c)(1) Sanctions — Critical Witness Affidavit Struck (Resulting in Summary Judgment) for Failure to Update Per 26(e) Witness’s Address on 26(a) Disclosure or Give Affidavit — Query re Affidavit: What about Hickman v. Taylor?

Emanuel v. Cnty. of Wayne, 2016 U.S. App. LEXIS 11385 (6th Cir. June 20, 2016): Plaintiff Lennox Emanuel was arrested after Wayne County Sheriff's Office personnel observed him speaking with a known prostitute, inviting the woman into his car, and…

RICO Enterprise: Is Association of a Few Individuals, without Meaningful Structure, Distinct from Those Individuals? — Good Quotes on RICO Predicates & Elements, Including Interstate Commerce (All Telephone Calls Are Presumed to Be Intrastate)

Aliev v. Borukhov, 2016 U.S. Dist. LEXIS 88856 (E.D.N.Y. July 8, 2016): On October 26, 2015, plaintiff Fariz Aliev ("Aliev") filed a complaint principally seeking damages against Neriya Borukhov, his brother Aron Borukhov, and two other individuals, Stella Akbashev ("Akbashev"), …

RICO: Each Member of Enterprise Needn’t Know Each Other’s Role — Enough to Know General Nature of Enterprise & That It Extends Beyond His/Her Role — Conspiracy Conflation — Impact on Hub & Spoke?

United States v. Christensen, 2016 U.S. App. LEXIS 12738 (9th Cir. July 8, 2016): Six defendants appeal their criminal convictions stemming from a widespread criminal enterprise offering illegal private investigation services in Southern California. At the center of this criminal …

Sanctions — Inherent Power Extends to Misconduct before Court-Supervised Settlement Program, Apt to Punish Ethics Violations — Factors in Selecting Sanction — Loosely Formulated, Imprecise Objection Doesn’t Preserve Error (Good Quote)

In re Deepwater Horizon, 2016 U.S. App. LEXIS 10069 (5th Cir. June 2, 2016): Glen Lerner and Jonathan Andry appeal the district court's sanction order disqualifying them from further participation in the Court-Supervised Settlement Program related to the Deepwater Horizon …

Does Rule 15(b)(2) — Amendment of Complaint by Trial of the Issue on Express or Implied Consent — Apply at the Summary Judgment Stage? — Circuit Split

Cedar Valley Exteriors, Inc. v. Professional Exteriors, Inc., 2016 U.S. Dist. LEXIS 84868 (D. Minn. June 29, 2016): Plaintiff Cedar Valley Exteriors, Inc. ("Cedar Valley") brought this action against defendant Professional Exteriors, Inc. ("Professional Exteriors"), alleging that Professional Exteriors infringed…

Removal: Pre-Suit Discovery Proceedings Are Removable Under the Removal Clarification Act of 2011, As Are Other Previously Unremovable Proceedings

Estate of Wisler, 2016 U.S. Dist. LEXIS 8690 (S.D. Ind. Jan. 25, 2016): In 2011, Congress passed the Removal Clarification Act of 2011 in response to "recent Federal court cases that reflect an inter- and intra-circuit split as to whether…

Commercial Litigation and Arbitration

RICO & Res Judicata — Mere Addition of Claims, Defendants to Same Facts Doesn’t Avoid Preclusion Bar — Can’t Relitigate Final Judgment by Adding Subsequent Facts to Adjudicated 16-Year-Long Set of Events

Attorney-Client Privilege — 5-Factor Test Corporate Employees Claiming Corp. Counsel Represented Them Must Satisfy — What If a Reasonable Lay Person Would Misunderstand the Upjohn Warning? (See Concurrence)

Attorney-Client Privilege: Government Official Has No Personal Privilege with Government Lawyer Consulted on Ethics Issues (Government Holds Privilege) — Perhaps Different If Government Lawyer Representing Official Personally

Voicemail Left for Employee A by Employee B, Who Was Investigating Employee A’s Race, Age & Gender Discrimination Claim, Is Admissible against Employer as an 801(d)(2) Admission

Rule 37(c)(1) Sanctions — Critical Witness Affidavit Struck (Resulting in Summary Judgment) for Failure to Update Per 26(e) Witness’s Address on 26(a) Disclosure or Give Affidavit — Query re Affidavit: What about Hickman v. Taylor?

RICO Enterprise: Is Association of a Few Individuals, without Meaningful Structure, Distinct from Those Individuals? — Good Quotes on RICO Predicates & Elements, Including Interstate Commerce (All Telephone Calls Are Presumed to Be Intrastate)

RICO: Each Member of Enterprise Needn’t Know Each Other’s Role — Enough to Know General Nature of Enterprise & That It Extends Beyond His/Her Role — Conspiracy Conflation — Impact on Hub & Spoke?

Sanctions — Inherent Power Extends to Misconduct before Court-Supervised Settlement Program, Apt to Punish Ethics Violations — Factors in Selecting Sanction — Loosely Formulated, Imprecise Objection Doesn’t Preserve Error (Good Quote)

Does Rule 15(b)(2) — Amendment of Complaint by Trial of the Issue on Express or Implied Consent — Apply at the Summary Judgment Stage? — Circuit Split

Removal: Pre-Suit Discovery Proceedings Are Removable Under the Removal Clarification Act of 2011, As Are Other Previously Unremovable Proceedings

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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