Joseph Hage Aaronson

Sanctions — Rule 37 Dismissal Requires Willfulness, Bad Faith or Fault — Fees Limited to Cost of Misconduct, Not Responding to Discovery — Extraordinary Circumstances Needed to Withdraw Consent to Proceed before Magistrate Judge

Odige v. Nat’l Mentor Healthcare, LLC, 2015 U.S. App. LEXIS 15831 (9th Cir. Sept. 4, 2015): In these consolidated appeals, Chuks Odigwe appeals pro se from the district court's judgment dismissing his employment discrimination action as a discovery sanction under…

Sanctions — Spoliation — Bad Faith as Well as Prejudice Required for Adverse Inference Instruction in Eleventh Circuit

Rives v. LaHood, 2015 U.S. App. LEXIS 4838 (11th Cir. Mar. 25, 2015): We review a district court's decision regarding spoliation sanctions for abuse of discretion. Mann, 588 F.3d at 1310. "[A] party moving for [spoliation] sanctions must establish, …

Unethical or Illegal Conduct by Counsel Vitiates Work Product Protection — RICO: Awareness of Essential Nature and Scope of Enterprise, and Intent to Participate in It, Suffice for §1962(c)

United States v. Pellicano, 2015 U.S. App. LEXIS 14961 (9th Cir. Aug. 25, 2015): Six defendants appeal [*7] their criminal convictions stemming from a widespread criminal enterprise offering illegal private investigation services in Southern California. At the center of this …

Rule 37(c)(2) Sanctions for Failure to Admit Per Rule 36 (Here, Lack of Legally Cognizable Injury) — Test: Reasonable Belief Responder Might Prevail on Matter Denied

Magnetar Techs. Corp. v. Intamin, Ltd., 2015 U.S. App. LEXIS 16310 (9th Cir. Sept. 14, 2015): III. Rule 37 Sanctions On cross-appeal, Intamin contends that the district court erred in denying its request for attorney's fees and costs under Rule…

Spoliation — While Duty to Preserve Isn’t Dependent on Preservation Letter, Where One Is Sent and Abided by, No Error to Deny Adverse Inference for Destroying Other Documents Per Customary Retention Policy (11th Cir. — Bad Faith Required)

Hill v Cundiff, 2015 U.S. App. LEXIS 14101 (11th Cir. Aug. 12, 2015): These consolidated appeals involve student-on-student sexual harassment. Jane Doe, an eighth-grade student at Sparkman Middle School, was raped in a bathroom after school officials decided to use…

Mooting Claim by Offer of Judgment That Offers Plaintiff Complete Relief — Procedure under Rule 12(b)(1) Mirrors Summary Judgment Practice under Rule 56 — Plaintiff’s 26(a)(1) Damages Calculation May ≠ Full Post-Discovery Claim

Flores v. ACT Event Servs., Inc., 2015 U.S. Dist. LEXIS 16773 (N.D. Tex. Feb. 11, 2015): 3. Mooting Claims Through Offers of Judgment a. Examples of Rule 12(b)(1) Motions Following Offers of Judgment Federal Rule of Civil Procedure 68 provides …

RICO — No Closed-Ended Continuity If Only One Victim, Even If Acts Committed over Long Period of Time — No Open-Ended If Scheme Has a Clear and Terminable Goal (Which, Here, Was Achieved)

Daedalus Capital LLC v. Vinecombe, 2015 U.S. App. LEXIS 15808 (11th Cir. Sept. 4, 2015): Appellants Daedalus Capital, LLC (Daedalus) and Lockwood Technology Corporation (LTC) appeal the district court's order granting partial summary judgment in favor of Appellees Bradford Vinecombe…

Spoliation Sanctions — Sixth Circuit Test — To Prove Relevance, Movant Must Show Destroyed Evidence Was of Nature Alleged, Not Just Satisfy Rule 401 — Meaning of Abuse of Discretion

Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, 2014 U.S. App. LEXIS 24301 (6th Cir. Dec. 22, 2014): Defendant, EquipmentFacts, LLC ("Efacts"), appeals from the judgment entered by the United States District Court for the Northern District of Ohio imposing …

Sanctions — Barring Litigant from Submitting Evidence at Summary Judgment under Rules 37 and 16(f) for Disobeying Orders and Failing to Attend Scheduled Conferences

Lasisi v. Follett Higher Education Grp., Inc., 2015 U.S. App. LEXIS 142 (7th Cir. Jan. 6, 2015): case ended at summary judgment. Follett moved to strike Lasisi's evidence and statement of facts as a sanction for his failure to answer…

Sanctions — Dismissal under Rule 37 Is Extreme, Reserved for Flagrant Cases of Bad Faith — 4th Circuit’s 4-Factor Test — Lesser Sanctions Should Be Considered

Kelly v. Suntrust Bank, 2015 U.S. App. LEXIS 124 (4th Cir. Jan. 6, 2015): Freddie J. Kelly appeals the district court's order dismissing with prejudice his action against SunTrust Bank and credit reporting agencies Equifax Information Services LLC, Experian Information…

Commercial Litigation and Arbitration

Sanctions — Rule 37 Dismissal Requires Willfulness, Bad Faith or Fault — Fees Limited to Cost of Misconduct, Not Responding to Discovery — Extraordinary Circumstances Needed to Withdraw Consent to Proceed before Magistrate Judge

Sanctions — Spoliation — Bad Faith as Well as Prejudice Required for Adverse Inference Instruction in Eleventh Circuit

Unethical or Illegal Conduct by Counsel Vitiates Work Product Protection — RICO: Awareness of Essential Nature and Scope of Enterprise, and Intent to Participate in It, Suffice for §1962(c)

Rule 37(c)(2) Sanctions for Failure to Admit Per Rule 36 (Here, Lack of Legally Cognizable Injury) — Test: Reasonable Belief Responder Might Prevail on Matter Denied

Spoliation — While Duty to Preserve Isn’t Dependent on Preservation Letter, Where One Is Sent and Abided by, No Error to Deny Adverse Inference for Destroying Other Documents Per Customary Retention Policy (11th Cir. — Bad Faith Required)

Mooting Claim by Offer of Judgment That Offers Plaintiff Complete Relief — Procedure under Rule 12(b)(1) Mirrors Summary Judgment Practice under Rule 56 — Plaintiff’s 26(a)(1) Damages Calculation May ≠ Full Post-Discovery Claim

RICO — No Closed-Ended Continuity If Only One Victim, Even If Acts Committed over Long Period of Time — No Open-Ended If Scheme Has a Clear and Terminable Goal (Which, Here, Was Achieved)

Spoliation Sanctions — Sixth Circuit Test — To Prove Relevance, Movant Must Show Destroyed Evidence Was of Nature Alleged, Not Just Satisfy Rule 401 — Meaning of Abuse of Discretion

Sanctions — Barring Litigant from Submitting Evidence at Summary Judgment under Rules 37 and 16(f) for Disobeying Orders and Failing to Attend Scheduled Conferences

Sanctions — Dismissal under Rule 37 Is Extreme, Reserved for Flagrant Cases of Bad Faith — 4th Circuit’s 4-Factor Test — Lesser Sanctions Should Be Considered

Recent Articles

§ 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

Inherent Power — Circumstantial Evidence — Fact That Bad Faith May Be Shown by Establishing That Conduct Was So Egregious It Was Necessarily Committed in Bad Faith Does Not Mean That Bad Faith Must Be The Sole Explanation for The Bad Conduct

RICO Causation: Testing Labs’ Misstatements As to Alcohol Tests’ Efficacy Not Communicated to Plaintiffs’ Employers Did Not Cause Plaintiffs’ Professional Harm

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

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