Joseph Hage Aaronson

Sanctions — Neither Prior Sanction Nor Explicit Observation of Frivolousness Affords Sufficient Due Process to Sustain Sua Sponte Rule 11 Sanction — Due Process Challenge Review Is Plenary, Not Abuse-of-Discretion

O.R. v. Hutner, 2013 U.S. App. LEXIS 2760 (3d Cir. Feb. 8, 2013): Appellant O.R. (“O.R.”) and his attorney, Rotimi A. Owoh (“Mr. Owoh”), (collectively “Appellants”), appeal the October 13, 2011 and January 27, 2012 Orders of the District Court,…

Non-Testifying Expert Who Submits Declaration on Unsuccessful Summary Judgment Motion Is Subject to Deposition Concerning the Subject Matter of the Declaration — Also on Opinions Formed as Percipient Witness

Positive Techs., Inc. v. Sony Electronics, Inc., 2013 U.S. Dist. LEXIS 49738 (N.D. Cal. April 5, 2013): Plaintiff and Defendant have filed a joint statement regarding a discovery dispute over the deposition of Plaintiff’s expert, Dr. Alan Sobel. See Dkt…

Expert’s Notes, Outlines, Lists, Letters, Memoranda and Internal Communications with Staff Are Discoverable, Unless They Contain Theories or Mental Impressions of Counsel — 2010 Expert Rules Amendments

Republic of Ecuador v. Bjorkman, 2013 U.S. Dist. LEXIS 60739 (D. Colo. April 26, 2013): First, because it is the intention of the rules committee to protect the mental impressions and legal theories of a party’s attorney, not its expert,…

Affidavits Excluded for Failure to Identify Affiants in Initial or Supplemental Disclosures, Even Though Exclusion Is Tantamount to Dismissal — Factors for Exclusion and for Dismissal Sanctions

Carmody v. K.C. Bd. of Police Comm’rs, 2013 U.S. App. LEXIS 8128 (8th Cir. April 23, 2013): Sergeant James Carmody, Officer Marcus Davis, and Officer Robert Vivona (officers) appeal the district court’s1 orders (1) striking the officers’ affidavits submitted in…

Rule 16(f) Sanctions — Pro Se Litigants Not Entitled to Disobey Two Orders before a Default or Dismissal Can Be Declared — Extrajudicial Rudeness Separately Sanctioned and Forms Part of Basis for Default Dismissal

Maus v. Ennis, 2013 U.S. App. LEXIS 5468 (11th Cir. Mar. 20, 2013): John Ennis, proceeding pro se, appeals the district court’s grant, in part, of a default judgment in favor of David Maus and Mark Ornstein (collectively, the “plaintiffs”)…

Sanction Consisting of Award of Attorney’s Fees Not Yet Reduced to a Sum Certain Is Not Appealable

Webb v. Morella, 2013 U.S. App. LEXIS 7393 (5th Cir. April 12, 2013): The Webbs raise a number of issues relating to the district court’s decision to impose sanctions. While the court granted Morella’s Rule 11 motion and stated that…

Spoliation — Refusal to Give Mandatory Adverse Inference Instruction Is Consistent with Refusal to Grant Default Judgment (or Dismissal) — Permissive Instruction Upheld

Flagg v. City of Detroit, 2013 U.S. App. LEXIS 8361 (6th Cir. April 25, 2013): Plaintiffs challenge the district court’s decision to impose a permissive, as opposed to mandatory, adverse inference sanction against the City for destroying “e-mails sent and…

RICO — Fraudulent Appraisal Sustains Mail Fraud-Based § 1962(c) Claim Alleging Scheme to Defraud Homeowner into Taking Out Unsustainable Mortgage, Leading to Foreclosure and Bankruptcy — Proximate Cause Is Not Same as Sole Cause (Good Quote)

Wallace v. Midwest Fin. Mortg. Servs., Inc., 2013 U.S. App. LEXIS 8111 (6th Cir. April 23, 2013): This is a subprime mortgage case brought by the borrower, Harold Wallace, against the lender, MortgageIT, Inc. (“MortgageIT”), the mortgage broker, Midwest Financial…

Spoliation Sanctions — No Bad Faith Required for Adverse Inference If Preservation Is Required by Statute or Regulation and Harmed Party Is within Class Protected by That Provision — Even Adverse Inference Insufficient to Avoid Summary Judgment

Grosdidier v. Broad. Bd. of Governors, 2013 U.S. App. LEXIS 4706 (D.C. Cir. Mar. 8, 2013): Camille Grosdidier has worked in the French to Africa Service of the Voice of America (“VOA”) since 1987, since 1991 as a GS 12.…

By Bringing Bad Faith Action, Insured Places in Issue the Conduct of Both Sides of Litigation — Rule 68 — If Court Does Not Award Costs, Costs Should Be Excluded in Valuing the Judgment — § 1927 Sanctions on Appeal Though Properly Denied Below

Charyulu v. Calif. Cas. Indem. Exch., 2013 U.S. App. LEXIS 7328 (9th Cir. April 11, 2013): Plaintiff Cindy Charyulu, special administrator of the Estate of Fatu Taputu, appeals the judgment, after a jury trial, entered in favor of the insurance…

Commercial Litigation and Arbitration

Sanctions — Neither Prior Sanction Nor Explicit Observation of Frivolousness Affords Sufficient Due Process to Sustain Sua Sponte Rule 11 Sanction — Due Process Challenge Review Is Plenary, Not Abuse-of-Discretion

Non-Testifying Expert Who Submits Declaration on Unsuccessful Summary Judgment Motion Is Subject to Deposition Concerning the Subject Matter of the Declaration — Also on Opinions Formed as Percipient Witness

Expert’s Notes, Outlines, Lists, Letters, Memoranda and Internal Communications with Staff Are Discoverable, Unless They Contain Theories or Mental Impressions of Counsel — 2010 Expert Rules Amendments

Affidavits Excluded for Failure to Identify Affiants in Initial or Supplemental Disclosures, Even Though Exclusion Is Tantamount to Dismissal — Factors for Exclusion and for Dismissal Sanctions

Rule 16(f) Sanctions — Pro Se Litigants Not Entitled to Disobey Two Orders before a Default or Dismissal Can Be Declared — Extrajudicial Rudeness Separately Sanctioned and Forms Part of Basis for Default Dismissal

Sanction Consisting of Award of Attorney’s Fees Not Yet Reduced to a Sum Certain Is Not Appealable

Spoliation — Refusal to Give Mandatory Adverse Inference Instruction Is Consistent with Refusal to Grant Default Judgment (or Dismissal) — Permissive Instruction Upheld

RICO — Fraudulent Appraisal Sustains Mail Fraud-Based § 1962(c) Claim Alleging Scheme to Defraud Homeowner into Taking Out Unsustainable Mortgage, Leading to Foreclosure and Bankruptcy — Proximate Cause Is Not Same as Sole Cause (Good Quote)

Spoliation Sanctions — No Bad Faith Required for Adverse Inference If Preservation Is Required by Statute or Regulation and Harmed Party Is within Class Protected by That Provision — Even Adverse Inference Insufficient to Avoid Summary Judgment

By Bringing Bad Faith Action, Insured Places in Issue the Conduct of Both Sides of Litigation — Rule 68 — If Court Does Not Award Costs, Costs Should Be Excluded in Valuing the Judgment — § 1927 Sanctions on Appeal Though Properly Denied Below

Recent Articles

nherent 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?

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

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