Joseph Hage Aaronson

RICO Violations Didn’t Cause Plaintiffs’ Loss of Property Where They Lacked the Funds to Cover Mortgage Payments or Taxes — Merely “Peripheral References” to Issue in Rule 50(a) Motion Fails to Preserve It

Uni-Rty Corp. v. Guangdon Building, Inc., 2014 U.S. App. LEXIS 12478 (2d Cir. July 2, 2014): Plaintiffs-counterclaim-defendants-appellants-cross-appellees Uni-Rty Corp. and Golden Plaza Limited Partnership ("GPLP") (collectively, "plaintiffs") appeal from the January 16, 2013 amended judgment of the United States District…

Taxation of Costs: Video Deposition Editing, In-Court Technical Support, Equipment Rental Not Taxable under § 1920 (Circuit Split, New S.Ct. Case Unfavorable) — Demonstrative Boards Not Necessary

Fowler v. Cal. Hwy. Patrol, 2014 U.S. Dist. LEXIS 112540 (N.D. Cal. Aug. 13, 2014): Defendants move the Court to review and tax two discrete costs disallowed by the Clerk: (1) exemplification costs related to video presentations used at trial …

Securities — Satisfaction of Morrison’s 2-Part Test Is Necessary, But Not Sufficient, to Support Invocation of 10b-5 — If Application of 10b-5 Would Be Incompatible with Foreign Regulation, 10b-5 Inapt

Parkcentral Global Hub Ltd. v. Porsche Auto. Holdings, SE, 2014 U.S. App. LEXIS 15758 (2d Cir. Aug. 15, 2014): In Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010), the Supreme Court established that, by virtue of the presumption…

§ 1927 Sanctions — Failure to Respond to Portions of Summary Judgment Motion Directed to Claims Plaintiff Choose to Abandon Is Not Sanctionable — Duty Is to Abandon Unsustainable Claims

Adams v. Austal, USA, LLC, 2014 U.S. App. LEXIS 11318 (11th Cir. June 17, 2014): Defendant-Appellant Austal USA, LLC appeals the March 2, 2012 order of the United States District Court for the Southern District of Alabama denying Austal's motion…

Spoliation—Losing Evidence Suspiciously = Intentional—Stricter Review for Dismissal, Default—Discovery Not Limited to Relevant, Admissible Evidence, Is Fluid as Case Evolves—OK to Impose More Than Minimally Punitive Sanction (Good Quotes)

Sentis Group, Inc. v. Shell Oil Co., 2014 U.S. App. LEXIS 15597 (8th Cir. Aug. 14, 2014) (Note: This is the second Sentis opinion by the Eighth Circuit. See our post of April 23, 2009, for excerpts from the…

Vexatious Litigant Injunctions — Factors — 2 Cases Too Few; Motion Practice Inadequate — “A Successful Motion Is Neither Baseless Nor Frivolous” — Limitations on Orders — Invited Briefs Not to Be Held against Filer (Good Quotes)

Ringgold-Lockhart v. Cnty. of L.A., 2014 U.S. App. LEXIS 14979 (9th Cir. Aug. 4, 2014): This appeal requires us to consider the limits of a federal court's authority to impose pre-filing restrictions against so-called vexatious litigants. The case arises from…

Failure to Plead Affirmative Defense Does Not Waive It Absent Prejudice to Plaintiff

Garofalo v. Village of Hazel Crest, 2014 U.S. App. LEXIS 11087 (7th Cir. June 12, 2014): Plaintiff-Appellants Michael Garofalo and Mark Peers appeal from the district court's grant of summary judgment in favor of Defendant-Appellees, the Village of Hazel Crest…

Rule 11 Sanctions for Pursuing Issue of First Impression — Tenuous Nature of Legal Theory Coupled with Inadequate Factual Investigation — Rule 11 Factors (Eleventh Circuit)

Walther v. McIntosh, 2014 U.S. App. LEXIS 13987 (11th Cir. July 23, 2014): Dorothy Walther, Howard Walther, and Phillips P. O'Shaughnessy appeal the district court's order imposing sanctions against O'Shaughnessy under Federal Rule of Civil Procedure 11 for his conduct…

Does a Magistrate Judge Have Authority to Decide a Motion for Spoliation Sanctions under Rule 37 or the Court’s Inherent Power? As with Rule 11, the Case Law Is Split

In re Estate of Jackson v. Cnty. of Suffolk, 2014 U.S. Dist. LEXIS 96355 (E.D.N.Y. July 15, 2014)): Plaintiff the Estate of Willie Jackson ("plaintiff" or the "Estate") brings this action against numerous defendants associated with Suffolk County (the "County…

§ 1927 Sanctions — Recklessness May Suffice to Show Bad Faith — Multiplicity Essential: “Section 1927 Only Authorizes Shifting Fees That Are Associated with the Persistent Prosecution of a Meritless Claim.” (Good Quotes)

Hamaker v. Enerco Grp., Inc., 2014 U.S. App. LEXIS 9868 (5th Cir. May 28, 2014): Patricia Ayala brought suit in Louisiana state court [*2] against a manufacturer, its insurers, and a retail store alleging that defects in a propane heater …

Commercial Litigation and Arbitration

RICO Violations Didn’t Cause Plaintiffs’ Loss of Property Where They Lacked the Funds to Cover Mortgage Payments or Taxes — Merely “Peripheral References” to Issue in Rule 50(a) Motion Fails to Preserve It

Taxation of Costs: Video Deposition Editing, In-Court Technical Support, Equipment Rental Not Taxable under § 1920 (Circuit Split, New S.Ct. Case Unfavorable) — Demonstrative Boards Not Necessary

Securities — Satisfaction of Morrison’s 2-Part Test Is Necessary, But Not Sufficient, to Support Invocation of 10b-5 — If Application of 10b-5 Would Be Incompatible with Foreign Regulation, 10b-5 Inapt

§ 1927 Sanctions — Failure to Respond to Portions of Summary Judgment Motion Directed to Claims Plaintiff Choose to Abandon Is Not Sanctionable — Duty Is to Abandon Unsustainable Claims

Spoliation—Losing Evidence Suspiciously = Intentional—Stricter Review for Dismissal, Default—Discovery Not Limited to Relevant, Admissible Evidence, Is Fluid as Case Evolves—OK to Impose More Than Minimally Punitive Sanction (Good Quotes)

Vexatious Litigant Injunctions — Factors — 2 Cases Too Few; Motion Practice Inadequate — “A Successful Motion Is Neither Baseless Nor Frivolous” — Limitations on Orders — Invited Briefs Not to Be Held against Filer (Good Quotes)

Failure to Plead Affirmative Defense Does Not Waive It Absent Prejudice to Plaintiff

Rule 11 Sanctions for Pursuing Issue of First Impression — Tenuous Nature of Legal Theory Coupled with Inadequate Factual Investigation — Rule 11 Factors (Eleventh Circuit)

Does a Magistrate Judge Have Authority to Decide a Motion for Spoliation Sanctions under Rule 37 or the Court’s Inherent Power? As with Rule 11, the Case Law Is Split

§ 1927 Sanctions — Recklessness May Suffice to Show Bad Faith — Multiplicity Essential: “Section 1927 Only Authorizes Shifting Fees That Are Associated with the Persistent Prosecution of a Meritless Claim.” (Good Quotes)

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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