Joseph Hage Aaronson

§ 1927 Sanctions — Defendants’ Settlement with Plaintiffs for Attorney’s Fees They Owe ≠ Release of Counsel for “Excess” Fees — Ambush by Late Motion — Recklessness OK in 11th Cir. — Plain Error Review If No Objection to MJ R&R

Oliva v. NBTY, Inc., 2014 U.S. App. LEXIS 18040 (11th Cir. Sept. 22, 2014): Attorney Brian Glick appeals the district court's order imposing sanctions on him based on 28 U.S.C. § 1927 and the court's inherent authority. Glick represented the…

Text / Email Admissibility — Direct Evidence Not Essential; Circumstantial Evidence Sufficient — Idaho Supreme Court, Construing Evidence Rules Identical to Fed. R. Evid.

State v. Koch, 2014 Ida. LEXIS 243 (Ida. Sup. Ct. Sept. 4, 2014): Michael Eugene Koch appeals from his judgment of conviction, entered following a verdict, for four counts of lewd conduct with a minor under sixteen. On appeal, Koch…

26(a)(1) Initial Disclosures — Failure to Timely Update to Add Fact Witnesses Mentioned in Deposition Leads to Exclusion, Even Though They Were Identified 10 Months before Trial — Good Quotes on Prejudice

Ollier v. Sweetwater Union High Sch. Dist., 2014 U.S. App. LEXIS 18020 (9th Cir. Sept. 19, 2014): We next address the exclusion of fact witnesses. The general issue is whether witnesses not listed in Rule 26(a) disclosures–and who were identified …

Federal Arbitration Act — Inherently Biased Arbitration Clause Unenforceable — Unreasonable under M/S Bremen and Unconscionable — Does State or Federal Law Govern Forum Selection Clause in Diversity? Circuit Split

Jackson v. Payday Fin’l LLC, 2014 U.S. App. LEXIS 16257 (7th Cir. Aug. 22, 2014): Deborah Jackson, Linda Gonnella, and James Binkowski (collectively "the Plaintiffs") initially brought this action in Illinois state court against Payday Financial, LLC, and other defendant…

Taxation of Costs under § 1920 — Video Deposition Costs Unrecoverable Where Summary Judgment Granted and Videos Unnecessary for That

In re Text Messaging Antitrust Litig., 2014 U.S. Dist. LEXIS 121804 (N.D. Ill. Sept. 2, 2014): The law permits a party to recover costs for both a paper transcript and video recording of a deposition; the standard is whether it …

Does Twiqbal’s Plausibility Standard Apply to Affirmative Defenses? Case Law Split — Policy Arguments against Application (Including Reliance on Official Form, All of Which Are Heading toward Extinction)

Jam Tire, Inc. v. Harbin, 2014 U.S. Dist. LEXIS 124581 (N.D. Ohio Sept. 5, 2013): Since the Supreme Court's decision in Iqbal v. Ashcroft, 556 U.S. 662 (2009), more than 230 federal decisions have addressed whether the plausibility standard applies …

Daubert — If Expert Failed to Follow Own Stated Methods, No Reliable Method Followed — Mere Expertise & Subjective Understanding ≠ Reliable Scientific Evidence (Good Quote) — De Novo Issue before Abuse of Discretion Applies

Brown v. Burlington N. Santa Fe Rwy., 2014 U.S. App. LEXIS 16865 (7th Cir. Aug. 29, 2014): Shannon Brown appeals the dismissal of his lawsuit against the Burlington Northern Santa Fe Railway Company ("BNSF"), which he filed under the Federal…

Rule 11 & § 1927 Sanctions — Quantum — Deterrence vs. Compensation — While Detailed Opinion Usually Not Needed, Conclusory Explanation for De Minimus Award Inadequate Where Misconduct Egregious

Tilmon-Jones v. Boladian, 2014 U.S. App. LEXIS 17522 (6th Cir. Sept. 8, 2014): In 2006 Janyce Tilmon-Jones sued defendants Bridgeport Music, Inc. and Armen Boladian for allegedly failing to pay royalties on two musical works of her late husband, Abrim …

Is Willfulness Judged by an Objective or Subjective Standard? Circuit Split (Bankruptcy/Restatement-Focused; Important for Pending Spoliation Rule 37(e))

Margulies v. Hough (In re Margulies), 2014 U.S. Dist. LEXIS 125843 (S.D.N.Y. Sept. 9, 2014): On August 3, 2000, Joshua Margulies and Dennis Hough engaged in what has fairly been described as a slow-moving game of chicken on a Manhattan …

Default Judgment — Can a Letter to the Court Constitute an Answer, Defense to Complaint or Appearance? — Circuit Split — Examples of Inadequate Letters Even Where Informality Permitted

United States v. Abdul Rahim, 2014 U.S. Dist. LEXIS 117621 (E.D. Va. July 25, 2014): On June 13, 2013, Plaintiff filed a Complaint against Defendant alleging willful concealment or misrepresentation of material fact to procure naturalization, and requesting revocation and…

Commercial Litigation and Arbitration

§ 1927 Sanctions — Defendants’ Settlement with Plaintiffs for Attorney’s Fees They Owe ≠ Release of Counsel for “Excess” Fees — Ambush by Late Motion — Recklessness OK in 11th Cir. — Plain Error Review If No Objection to MJ R&R

Text / Email Admissibility — Direct Evidence Not Essential; Circumstantial Evidence Sufficient — Idaho Supreme Court, Construing Evidence Rules Identical to Fed. R. Evid.

26(a)(1) Initial Disclosures — Failure to Timely Update to Add Fact Witnesses Mentioned in Deposition Leads to Exclusion, Even Though They Were Identified 10 Months before Trial — Good Quotes on Prejudice

Federal Arbitration Act — Inherently Biased Arbitration Clause Unenforceable — Unreasonable under M/S Bremen and Unconscionable — Does State or Federal Law Govern Forum Selection Clause in Diversity? Circuit Split

Taxation of Costs under § 1920 — Video Deposition Costs Unrecoverable Where Summary Judgment Granted and Videos Unnecessary for That

Does Twiqbal’s Plausibility Standard Apply to Affirmative Defenses? Case Law Split — Policy Arguments against Application (Including Reliance on Official Form, All of Which Are Heading toward Extinction)

Daubert — If Expert Failed to Follow Own Stated Methods, No Reliable Method Followed — Mere Expertise & Subjective Understanding ≠ Reliable Scientific Evidence (Good Quote) — De Novo Issue before Abuse of Discretion Applies

Rule 11 & § 1927 Sanctions — Quantum — Deterrence vs. Compensation — While Detailed Opinion Usually Not Needed, Conclusory Explanation for De Minimus Award Inadequate Where Misconduct Egregious

Is Willfulness Judged by an Objective or Subjective Standard? Circuit Split (Bankruptcy/Restatement-Focused; Important for Pending Spoliation Rule 37(e))

Default Judgment — Can a Letter to the Court Constitute an Answer, Defense to Complaint or Appearance? — Circuit Split — Examples of Inadequate Letters Even Where Informality Permitted

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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