New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration
« Back to Complex Lit Blog

Rule 37 and Inherent Power Sanctions Not Stayed by Bankruptcy Filing — Judge’s Adverse Rulings ≠ Grounds to Recuse

Download PDF

Coope v. Dallas Police Ass’n, 2014 U.S. App. LEXIS 21663 (5th Cir. Nov. 14, 2014):

Jay Sandon Cooper moves for leave to proceed in forma pauperis (IFP) in his appeal of the district court's order compelling him to respond to a postjudgment discovery request by the Dallas Police Association and Glenn White, the order imposing sanctions against him for his failure to comply, and the order denying his numerous motions. The district court denied his IFP motion and certified that the appeal was not taken in good faith under 28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate Procedure 24(a)(3). By moving to proceed IFP, Cooper is challenging the district court's certification that [*2]  his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). This court's inquiry into an appellant's good faith "is limited to whether the appeal involves legal points arguable on their merits (and therefore not frivolous)." Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation omitted).

The district court did not abuse its discretion in ordering Cooper to answer the appellees' interrogatories. The appellees were permitted to file the discovery request seeking information relevant to the enforcement of the judgment. See Fed. R. Civ. P. 69(a); Tex. R. Civ. P. 621a. Rule 69 permitted the defendants to proceed under state law, and there is no limit to the number of interrogatories that may be propounded under Texas Rule of Civil Procedure 621a. See Tex. R. Civ. P. 190.6. Cooper admitted at the hearing that the appellees served him with the postjudgment discovery and that he did not respond or object to the discovery. Therefore, he waived any objections to the interrogatories. See Fed. R. Civ. P. 33(b)(4); see also In re United States, 864 F.2d 1153, 1156 (5th Cir. 1989); Tex. R. Civ. P. 193.1, 193.2(e); Reynolds v. Murphy, 188 S.W.3d 252, 260 (Tex. App. 2006). The defendants attached a good faith certification to their motion to compel and their motion for sanctions. The district court did not abuse its discretion in ordering Cooper to comply with the appellees' discovery request. See Fed. R. Civ. P. 37(a); Smith & Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 488 (5th Cir. 2012); United States v. City of Jackson, 359 F.3d 727, 732 (5th Cir. 2004); United States v. McWhirter, 376 F.2d 102, 106 (5th Cir. 1967).

The district court did not [*3]  abuse its discretion in imposing sanctions against Cooper for his failure to comply. The appellees met their burden to show that Cooper should be held in contempt because the order compelling Cooper to respond was in effect, he did not respond or object, and he did not demonstrate that he was unable to comply or present any other relevant defense. See Piggly Wiggly Clarksville, Inc. v. Mrs. Baird's Bakeries, 177 F.3d 380, 382 (5th Cir. 1999). The district court determined that his refusal to comply was the result of willful disobedience. The district court had the authority under Rule 37 to impose sanctions for Cooper's refusal to comply with its discovery order. See Smith & Fuller, P.A., 685 F.3d at 488; McWhirter, 376 F.3d at 106. Therefore, the district court did not abuse its discretion in imposing sanctions against Cooper for his refusal to comply with the court's prior order. See Whitcraft v. Brown, 570 F.3d 268, 271 (5th Cir. 2009).

The district court did not err in rejecting Cooper's argument that the order was not definite or specific, finding that the order clearly required him to answer every interrogatory. The district court did not err in rejecting Cooper's argument that sanctions were not authorized in a Title VII action. See Tollett v. City of Kemah, 285 F.3d 357, 368-69 (5th Cir. 2002) (affirming award of attorney's fees pursuant to Rule 37 for failure to comply with discovery order in a Title VII case); Paskauskiene v. Alcor Petrolab, L.L.P., 527 F. App'x 329, 334 (5th Cir. 2013) (affirming award of reasonable expenses [*4]  and attorney's fees pursuant to Rule 37 for failure to comply with discovery order against plaintiff in Title VII case). The notice of the hearing did not violate Cooper's due process rights as it correctly stated that the hearing would concern the motion for sanctions, and the magistrate judge properly allowed testimony concerning related matters. The district court did not err in imposing sanctions despite Cooper's indigence. See Day v. Allstate Ins. Co., 788 F.2d 1110, 1114-15 (5th Cir. 1986) (affirming monetary sanctions and attorney's fees imposed on indigent party for his willful refusal to comply with discovery orders). Nor did the district court did err in rejecting Cooper's argument that penalties should not be incurred from the date of the order. See Fed. R. Civ. P. 62(a), (d).

Cooper argues that the district court erred in granting the motion for sanctions during an automatic stay imposed by the bankruptcy court during his bankruptcy proceedings. The district court did not err in holding that the governmental unit exception to the automatic stay applied to district court sanctions order. See Sabre Group, Inc. v. European Am. Travel, Inc., 192 F.3d 126, 1999 WL 683863 at *2 (5th Cir. 1999)1 ; see also Alpern v. Lieb, 11 F.3d 689, 690 (7th Cir. 1993) (holding Rule 11 sanction proceeding was exempt from automatic stay); In re Berg, 230 F.3d 1165, 1167-68 (9th Cir. 2000) (same).

1   See Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006) (recognizing that unpublished decisions issued after January 1, 1996 are not [*5]  controlling precedent but may be considered persuasive authority).

Finally, Cooper argues that the district court judge should have recused himself for bias because he improvidently granted the defendants' motion to compel without reviewing the interrogatories. Cooper failed to show that there was a basis for recusal of the district court judge under 28 U.S.C. §§ 144 or 455. The district court's adverse rulings against Cooper were not an adequate basis for demanding recusal. See United States v. MMR Corp. 954 F.2d 1040, 1045 (5th Cir. 1992). Therefore, the district court judge did not abuse his discretion in not recusing himself for alleged bias. See United States v. Anderson, 160 F.3d 231, 233 (5th Cir. 1998).

Because the appeal lacks arguable merit and is therefore frivolous, Cooper's motion for leave to proceed IFP on appeal should be denied, and his appeal should be dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24; Howard, 707 F.2d at 220; 5TH CIR. R. 42.2.

IFP MOTION DENIED; APPEAL DISMISSED.

Note: The sanctions in this case were issued pursuant to Fed. R. Civ. P. 37(b)(2)(A)(viii) and the Court’s inherent power.  See Cooper v. Dallas Police Ass'n, 2013 U.S. Dist. LEXIS 60832, at *3, *26 (N.D. Tex. Apr. 5, 2013) (Report and Recommendation), adopted, 2013 U.S. Dist. LEXIS 59822 (N.D. Tex. Apr. 26, 2013)

 

Share this article:

Facebook
Twitter
LinkedIn
Email

Recent Posts

Rule 41(b): Five Factors to Be Weighed in Deciding Whether Dismissal Is Appropriate (Second Circuit) — Is A Finding of Bad Faith or Fault Required if Dismissal Is Without Prejudice? — Undecided If Truly Without Prejudice But It Is Required If the Without Prejudice Dismissal Will Act as a Dismissal on the Merits (Here, Because of the Statute of Limitations) — Failure To Consider A Lesser Sanction Than Dismissal Is Generally An Abuse Of Discretion

Spoliation Sanctions/Mootness: Stipulation Resolving “All Pending Discovery Disputes,” Which Are Enumerated, Does Not Moot Subsequent Sanctions Motion for ESI Spoliation — Postjudgment Sanctions Order Is Appealable When District Court Has Finally Disposed of Both Liability and Amount

Rule 37 Default Judgment Sanction: (1) Default Judgment Appropriate Only As a Last Resort, When Less Drastic Sanctions Would Not Ensure Compliance with the Court’s Orders — (2) Default Judgment Sanction Requires Willful or Bad Faith Failure to Obey Discovery Order — (3) Fugitive Defendant’s Failure to Appear at Court-Ordered, Remote Deposition Despite Court Warning That Sanctions Could Follow Disobedience Warrants Default Judgment — (4) District Court Afforded Wide Discretion in Interpreting Its Own Orders — (5) Filing a Notice of Appeal from a Non-Appealable Order (Here, a Discovery Order) Does Not Deprive the District Court of Jurisdiction over the Case

RICO and Injunctions: (1) State Court Actions Designed to Perpetuate and Monetize a RICO Violation Are Enjoinable under RICO, Even Though They Are Not Themselves Alleged to Be Predicate Acts [Note: Noerr Pennington Applies in RICO Actions] — (2) Although Civil RICO’s Text and Legislative History Fail to Reveal Any Intent to Override the Provisions of the Federal Arbitration Act, Arbitrations Are Enjoinable Under the “Effective Vindication” Doctrine Where They Operate As a Prospective Waiver of a Party’s Right to Pursue Statutory RICO Remedies — (3) Arbitration Findings May Be Given Collateral Estoppel Effect in a Civil RICO Action — (4) Injunction of Non-Corrupt State Court Litigations That Furthers a RICO Violation Are Enjoinable Under the Anti-Injunction Act’s “Expressly Authorized” Exception — (5) “The Irreparable Harm Requirement Is The Single Most Important Prerequisite For The Issuance Of A Preliminary Injunction” (Good Quote) — (6) When Injunction Is Based on “Serious Questions on the Merits” Rather Than “Likelihood of Success,” Court May Rely on Unverified Pleadings and Attached Exhibits to Assess the Merits, Unless the Opponent Has Raised Substantial Questions (Here, the Opponent Failed to Request an Evidentiary Hearing) — (7) Whether Amended Pleading Moots An Appeal Turns on Whether It Materially Changes the Substantive Basis for the Appeal — (8) Meaning of “In That” (“Used To Introduce A Statement That Explains Or Gives More Specific Information” About A Prior Statement)

RICO: Fraudulent Concealment Must Prevent Discovery of the Injury to Toll Statute of Limitations

Rule 37 Default Judgment Sanction: (1) Abuse of Discretion Review = Legal Conclusions De Novo. Factual Findings for Clear Error — (2) Client May Be Sanctioned for Misconduct of Its Counsel, Though Here Client Was Directly Involved in Bad Faith Misbehavior — (3) Is There A Difference, Under Rule 11 As Opposed to Rule 37, Concerning Whether A Client Can Be Sanctioned for Its Counsel’s Misconduct? — (4) While Sanctions of Last Resort (Dismissal/Default) Are Apt Only If Lesser Sanctions Wouldn’t Ensure Compliance, Rule 37 Doesn’t Require the Vain Gesture of First Imposing Lessert Sanctions When It Is Clear They Would be Ineffective — (5) Court’s Reconsideration of Non-Final Orders Is Governed by Rule 54(b), And Court’s Discretion under That Rule Is Governed by the Law-of-the-Case-Doctrine

RICO: (1) Special Pleading Requirements? — (2) Although Enterprise Must Be More Than a Summation of the Predicate Acts, The Predicate Acts Can Demonstrate the Existence of the Enterprise — (3) Requirement That Association-in-Fact Exist For Purposes Other Than Just to Commit Predicate Acts Merely Requires Continuity — (4) To State an Association-in-Fact Enterprise Consisting of One Natural Person and Collection of Legal Fictions Requires Factual Detail As to How They Acted Together — (5) “A § 1962(c) Enterprise Must Be More Than An Association of Individuals Or Entities Conducting the Normal Affairs of a Defendant Corporation” (Good Quote)

RICO: (1) Fee Award May Exceed Amount Recovered — Strict Proportionality Not Required — (2) Nonmonetary Benefits and Injunctive Relief Recovered Also Relevant Factors — (3) Loss on Some Claims Need Not Result in Lowered Fees, Especially When Both Arise Out of The Same Nucleus of Operative Facts

RICO: Indirect Purchasers (Car Buyers/Renters) Lack Standing to Sue Manufacturers for RICO Violations Even Though Intermediaries (Auto Dealer Direct Purchasers) Lack Any Damages

RICO: Statutory Requirement that RICO Be Liberally Construed Does Not Establish a More Liberal Pleading Standard for RICO Claims — “To Be Sure, Adequately Pleading a RICO Claim Can Be Challenging” (Good Quote) — Court May Dismiss Action Pursuant to Rule 41(b) Absent A Motion

Archives
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

New York Office

© 2024 Joseph Hage Aaronson LLC  
Disclaimer | Attorney Advertising Notice | Legal Notice