Joseph Hage Aaronson

Rule 41(b) Dismissal without Prejudice Warranted for Refusal to Arbitrate as Ordered by Court — Circuit Has Jurisdiction Despite Microsoft — No Review of Interlocutory Orders After Dismissal for Failure to Prosecute

Griggs v. S.G.E. Mgmt., LLC, 2018 WL 4625167 (5th Cir. Sept. 27, 2018): 1 When Plaintiff-Appellant Jernard Griggs began working as an Independent Associate (“IA”) for Ignite, he agreed to Ignite’s Policies & Procedures, which includes an arbitration clause covering…

Spoliation Sanctions: 11th Circuit Factors — Failure to Provide Adequate Record Reflecting Trial Court’s Consideration of Issue Precludes Appellate Review, Results in Affirmance

Tien v. Red Coats, Inc., 2018 U.S. App. LEXIS 29131 (11th Cir. Oct. 17, 2018): PER CURIAM: Henry Tien, proceeding pro se, appeals a jury verdict in favor of the defendant, Red Coats, Inc., d.b.a. Admiralty Security Services ("RCI"). …

Even When Intentional Spoliation Occurs, Court Has Discretion Not to Issue Adverse Inference Instruction Or Other Severe Sanction — Ultimately, Significance of Spoliation Evidence Is for the Jury to Weigh

Lexpath Techs. Holdings v. Welch, 2018 U.S. App. LEXIS 21034 (3d Cir. July 30, 2018): * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Defendant-Appellee, Brian Welch, …

When District Court May Sanction for Frivolous Appeal — Class Actions: Sanctions for Objector Blackmail — Failure to Accept Stip As Proof of Bad Faith — Misrep + Frivolousness = Bad Faith—FRAP 7 (Appeal Bond) Requires Dist Ct to Prejudge Appeal

In re Petrobras Secs. Litig., 2018 U.S. Dist. LEXIS 161898 (S.D.N.Y. Sept. 21, 2018): Those who file objections to class action settlements may themselves be pursuing widely varying objectives, ranging from the useful to the self-serving. On the positive…

Privilege: Intentional Waiver by Predecessor Corp. (1 of 2 Merging Cos.) Extends to Post-Merger Communications on Same Subject Matter by Successor — 502(b) Fairness Is Touchstone — Mandamus Apt for Issue of First Impression

In re OptumInsight, Inc., 2017 U.S. App. LEXIS 13483, 2017 WL 3096300 (Fed. Cir. July 20, 2017): This petition arises out of an order of the United States District Court for the Northern District of California compelling OptumInsight, Inc.…

Rule 37 Does Not Excuse Party from Appearing for Properly-Noticed 30(b)(6) Deposition Simply by Objecting, But Does Not Require Sanctions, Either — Choice of Sanction Should Be Guided by Concept of Proportionality (Good Quote)

Ranowsky v. Nat’l R.R. Passenger Corp., 2018 WL 3894287 (D.C. Cir. Aug. 14, 2018) (unpublished): *1 In the midst of an extensive restructuring at the Office of the Inspector General for Amtrak, Kathleen Ranowsky was fired from her job as…

Social Media Posts Showing Confusion Admissible on Trademark PI Motion: (1) Show Declarants’ State of Mind, (2) Have Independent Evidentiary Significance Tending to Show Confusion — Alternatively, Usable on PI Even If Hearsay

Canes Bar & Grill of S. Fla. v. Bay, 2018 U.S. Dist. LEXIS 168669 (S.D. Fla. Sept. 29, 2018): ORDER ADOPTING IN PART AND MODIFYING IN PART REPORT AND RECOMMENDATION THIS CAUSE came before the Court on Plaintiff's Motion…

RICO: Mere Existence of a Contract Between a Party and a Vendor Is Insufficient to Establish a Common Purpose, and Thus State an Enterprise, within RICO

Ellis v. JPMorgan Chase & Co., N.A., 2018 WL 4090102 (9th Cir. Aug. 28, 2018) (unpublished): MEMORANDUM** *1 Appellants Diana Ellis, James Schillinger, and Ronald Lazar appeal from three district court orders, entered in a case where they were …

Sanctions — Electronic Spoliation: Rule 37(e) Forecloses Reliance on Inherent Power — Sanctions Properly Denied Where Spoliations Unlikely and Any Gap in Production Relatively Insignificant

MEMORANDUM* Newberry v. Cty. of San Bernardino, 2018 U.S. App. LEXIS 26420, 2018 WL 4450831 (9th Cir. Sept. 18, 2018) (unpublished): The plaintiffs-appellants in this case are a subset of residents at a San Bernardino apartment complex who …

RICO: Intracorporate Conspiracy Doctrine Inapplicable to RICO Conspiracy in 11th Cir. (Cir. Split) — Incontestability Clause Doesn’t Bar RICO Claim over Fraudulently Procured STOLI Policies (RICO Dams. Won’t Void Policies)–Waiver of Choice of Law

Sun Life Assur. Co. of Can. v. Imperial Premium Fin., LLC, 2018 U.S. App. LEXIS 26461, 2018 WL 4443054 (11th Cir. Sept. 18, 2018): These [*3] two appeals arise from dueling lawsuits pitting Sun Life Assurance Company of Canada …

Commercial Litigation and Arbitration

Rule 41(b) Dismissal without Prejudice Warranted for Refusal to Arbitrate as Ordered by Court — Circuit Has Jurisdiction Despite Microsoft — No Review of Interlocutory Orders After Dismissal for Failure to Prosecute

Spoliation Sanctions: 11th Circuit Factors — Failure to Provide Adequate Record Reflecting Trial Court’s Consideration of Issue Precludes Appellate Review, Results in Affirmance

Even When Intentional Spoliation Occurs, Court Has Discretion Not to Issue Adverse Inference Instruction Or Other Severe Sanction — Ultimately, Significance of Spoliation Evidence Is for the Jury to Weigh

When District Court May Sanction for Frivolous Appeal — Class Actions: Sanctions for Objector Blackmail — Failure to Accept Stip As Proof of Bad Faith — Misrep + Frivolousness = Bad Faith—FRAP 7 (Appeal Bond) Requires Dist Ct to Prejudge Appeal

Privilege: Intentional Waiver by Predecessor Corp. (1 of 2 Merging Cos.) Extends to Post-Merger Communications on Same Subject Matter by Successor — 502(b) Fairness Is Touchstone — Mandamus Apt for Issue of First Impression

Rule 37 Does Not Excuse Party from Appearing for Properly-Noticed 30(b)(6) Deposition Simply by Objecting, But Does Not Require Sanctions, Either — Choice of Sanction Should Be Guided by Concept of Proportionality (Good Quote)

Social Media Posts Showing Confusion Admissible on Trademark PI Motion: (1) Show Declarants’ State of Mind, (2) Have Independent Evidentiary Significance Tending to Show Confusion — Alternatively, Usable on PI Even If Hearsay

RICO: Mere Existence of a Contract Between a Party and a Vendor Is Insufficient to Establish a Common Purpose, and Thus State an Enterprise, within RICO

Sanctions — Electronic Spoliation: Rule 37(e) Forecloses Reliance on Inherent Power — Sanctions Properly Denied Where Spoliations Unlikely and Any Gap in Production Relatively Insignificant

RICO: Intracorporate Conspiracy Doctrine Inapplicable to RICO Conspiracy in 11th Cir. (Cir. Split) — Incontestability Clause Doesn’t Bar RICO Claim over Fraudulently Procured STOLI Policies (RICO Dams. Won’t Void Policies)–Waiver of Choice of Law

Recent Articles

FRAP 38 Sanctions — Sixth Circuit Usually Declines to Impose FRAP 38 Sanctions Unless An Improper Purpose Was Behind the Appeal

FRAP 38: Permissible for Appeals Court to Affirm Sanctions But Deny FRAP 38 Sanctions for Appeal — A Defendant’s Voluntary Cessation of Complained of Behavior Does Not Moot a Case Unless It Is Clear That The Behavior Could Not Reasonably Be Expected to Recur

Rule 11: Violation of 21 Day Safe Harbor “Overlook[ed]” As Non-Prejudicial by First Circuit — “Rule 11 Monetary Sanctions Must Be Reasonable” (Good Quote) — Rule 11(c)(4) Requires Consideration of Offender’s Ability to Pay

Temporary Restraining Order = Preliminary Injunction: 3 Supreme Court Cases (TRO=PI x 3)

Rule 37(c)(1) Sanctions — Exclusion of Untimely Expert Report — Eighth Circuit’s 4-Factor Test

RICO: So Insubstantial A Claim As to Fail to Confer Subject Matter Jurisdiction

RICO: Distinctiveness Issues Most Likely to Appear When The Enterprise Is An Entity Capable of Being Sued, Like A Corporation

FRAP 38 Sanctions: Eleventh Circuit Generally Declines to Impose FRAP 38 Sanctions on Pro Se Appellants Absent a History of Frivolous Litigation or an Explicit Warning

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