Joseph Hage Aaronson

Inherent Power Sanctions: Discovery Rules Inadequate Where Party Not Only Failed to Produce But Made Affirmative Misrepresentations to Conceal Document’s Existence — $257,000 Awarded Apply Goodyear’s But-For Causation Test

Goldstein v. Bavelis (In re Bavelis), 2018 U.S. App. LEXIS 32632 (6th Cir. Nov. 19, 2018): Quick Capital, a company owned by Ted Doukas, held a promissory note signed by George Bavelis, a debtor in Chapter 11 bankruptcy. Quick …

Rule 37 Sanctions: “Substantially Justified” Means “Not Justified to a High Degree” But “to a Degree That Could Satisfy a Reasonable Person” (Good Quote) — If Refusal to Admit RFA Is Substantially Justified, Court Lacks Power to Award Fees

In re Rael, 2018 U.S. App. LEXIS 34483 (10th Cir. Dec. 7, 2018): ORDER AND JUDGMENT* This appeal involves several orders entered in the bankruptcy proceedings stemming from the joint petition for bankruptcy relief filed by Robert and…

May State Gov’t Assert Attorney-Client Privilege against Fed. Grand Jury Subpoena? — Circuit Split — 1st Cir. Says Yes; Maybe Not If State Official Subject of Criminal Inquiry — Appellate Jurisdiction: Advisory vs. Traditional Mandamus

In re Grand Jury Subpoena, 2018 U.S. App. LEXIS 32961 (1st Cir. Nov. 21, 2018): Rhode Island Department of Labor and Training ("Department") petitions us for a writ of advisory mandamus to answer the following question: May a state…

Federal Jurisdiction—Class Actions: No Ancillary Jurisdiction over Fee Dispute Where Court Lacks Control over Funds (Distributed) & Dispute Has No Impact on Timing Or Substance of Relief in Underlying Action

In re Cmty. Bank, 2018 U.S. App. LEXIS 35841 (3d Cir. Dec. 20, 2018)): R. Bruce Carlson was co-lead counsel representing the plaintiffs in In re Community Bank of Northern Virginia Mortgage Lending Practices Litigation, MDL No. 1674 ("In …

Rule 11 Sanctions: Failure to Heed Dismissal of Case for Lack of Diversity, and Refiling in New District with Additional Defendant, Is Frivolous — Even If New Def. Is the Real-Party-in-Interest, Every Party’s Citizenship Counts

Zausa v. Zausa, 2018 WL 5734265 (7th Cir. Nov. 1, 2018): *1 Attorney Maurice James Salem believes that if he files a lawsuit in an Illinois federal district court, which dismisses the case for lack of federal subject-matter jurisdiction, he …

Texts/Hearsay — Adoptive Admissions (Factors) — Unique Nature of Texts (“Truncated, Raw & Immediate”) — Deflection vs. Acquiescence — Jury Must Be Instructed It Can’t Consider the Statements Unless It Finds Adoptive Admission Factors Satisfied

State v. Hill, 2018 Wash. App. LEXIS 2837 (Wash. Ct. App. Dec. 17, 2018): An out-of-court statement is not hearsay if the party has manifested an adoption or belief in its truth." ER 801(d)(2)(ii). A jury convicted Frederick …

RICO: Loss of Unvested Work Comp Benefits ≠ Injury to Business or Property — In California, That Right Is Wholly Statutory and Not Vested until Reduced to Final Judgment

Black v. Corvel Enter. Comp, 2018 U.S. App. LEXIS 35309 (9th Cir. Dec. 17, 2018) (unpublished): The district court dismissed Appellants' claims under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962, and 42 U.S.C. § 1983…

Sanctions: “Dismissal Must Be a Sanction of Last, Not First, Resort” (Good Quote) — Disregard of Scheduling Order, Even with Warning, Not Enough without Consideration of Lesser Sanctions and Other (3d Circuit) Factors

Rawls v. Gibbs, 741 Fed. Appx. 108, 2018 U.S. App. LEXIS 31014, 2018 WL 5734259 (3d Cir. Nov. 1, 2018): (unpublished): OPINION* PER CURIAM Pro se appellant Sameech Rawls appeals the District Court's dismissal of his complaint for…

Summary Judgment: Evidentiary Issues Reviewed for Abuse of Discretion — Unsigned Dep. OK on SJ If No Inaccuracies Shown — Affidavit from Undisclosed Person Harmless Where Others Disclosed to Say Same Thing & No Deps Taken

PNC Equipment Finance v. Mariani, 2018 WL 6584123 (6th Cir. Dec. 13, 2018): Harry Carr (“Carr”) appeals the decision of the district court to grant the Motion for Summary Judgment (“Motion”) filed by Plaintiff PNC Equipment Finance, LLC (“PNCEF”) and…

Inherent Power & 41(b) Sanctions: Dismissal with Prejudice upon Disregard of An Order Generally OK If Party Forewarned — Finding Lesser Sanctions Wouldn’t Suffice May Be Implicit

Novero v. Duke Energy, 2018 WL 5013823 (11th Cir. Oct. 16, 2018): PER CURIAM: In this employment action, Plaintiff Primo C. Novero appeals the district court’s dismissal of his Complaint for failure to comply with Federal Rules of Civil Procedure …

Commercial Litigation and Arbitration

Inherent Power Sanctions: Discovery Rules Inadequate Where Party Not Only Failed to Produce But Made Affirmative Misrepresentations to Conceal Document’s Existence — $257,000 Awarded Apply Goodyear’s But-For Causation Test

Rule 37 Sanctions: “Substantially Justified” Means “Not Justified to a High Degree” But “to a Degree That Could Satisfy a Reasonable Person” (Good Quote) — If Refusal to Admit RFA Is Substantially Justified, Court Lacks Power to Award Fees

May State Gov’t Assert Attorney-Client Privilege against Fed. Grand Jury Subpoena? — Circuit Split — 1st Cir. Says Yes; Maybe Not If State Official Subject of Criminal Inquiry — Appellate Jurisdiction: Advisory vs. Traditional Mandamus

Federal Jurisdiction—Class Actions: No Ancillary Jurisdiction over Fee Dispute Where Court Lacks Control over Funds (Distributed) & Dispute Has No Impact on Timing Or Substance of Relief in Underlying Action

Rule 11 Sanctions: Failure to Heed Dismissal of Case for Lack of Diversity, and Refiling in New District with Additional Defendant, Is Frivolous — Even If New Def. Is the Real-Party-in-Interest, Every Party’s Citizenship Counts

Texts/Hearsay — Adoptive Admissions (Factors) — Unique Nature of Texts (“Truncated, Raw & Immediate”) — Deflection vs. Acquiescence — Jury Must Be Instructed It Can’t Consider the Statements Unless It Finds Adoptive Admission Factors Satisfied

RICO: Loss of Unvested Work Comp Benefits ≠ Injury to Business or Property — In California, That Right Is Wholly Statutory and Not Vested until Reduced to Final Judgment

Sanctions: “Dismissal Must Be a Sanction of Last, Not First, Resort” (Good Quote) — Disregard of Scheduling Order, Even with Warning, Not Enough without Consideration of Lesser Sanctions and Other (3d Circuit) Factors

Summary Judgment: Evidentiary Issues Reviewed for Abuse of Discretion — Unsigned Dep. OK on SJ If No Inaccuracies Shown — Affidavit from Undisclosed Person Harmless Where Others Disclosed to Say Same Thing & No Deps Taken

Inherent Power & 41(b) Sanctions: Dismissal with Prejudice upon Disregard of An Order Generally OK If Party Forewarned — Finding Lesser Sanctions Wouldn’t Suffice May Be Implicit

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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