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

A District Court’s Discretion Is Limited When the Imposition of Sanctions Is Tantamount to Dismissal (Good Quote) — Court Must Find Willfulness, Bad Faith or Fault and Consider Lesser Sanctions (9th Circuit)

Download PDF

Caltex Plastics, Inc. v. Shannon Packaging Co., 2016 U.S. App. LEXIS 22204 (9th Cir. December 14, 2016):

*   This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Caltex Plastics, Inc. ("Caltex") appeals from the district court's decision granting summary judgment to Shannon Packaging, Co. ("Shannon") on claims that Shannon engaged in (1) false advertising under the Lanham Act, 15 U.S.C. § 1125(a), (2) false advertising under Cal. Bus. & Prof. Code. § 17500, and (3) unfair competition under Cal. Bus. & Prof. Code § 17200 when it advertised that its product was tested according to the MIL-PFR-81705 Type III specification ("81705 Spec.") "Test Method" and that its product was "designed to meet the performance of MIL PFR 81705 T3." As the parties are familiar [*2]  with the facts, we do not recount them here. We vacate and remand.

 

Caltex argues that the district court's decision to exclude the Declaration of James R. Higgs ("Higgs Declaration"), filed in support of its Opposition to Shannon's Motion for Summary Judgment, was an abuse of discretion. Higgs posits that Shannon's advertisements that its product was "designed to meet the performance of MIL PFR 81705 T3" and that its product was tested according to the 81705 Spec. "Test Method" were literally false. According to Higgs, Shannon only tested for one of the 19 characteristics required by the 81705 Spec. and used different test methods than those accepted by the military. Thus, the Higgs Declaration raised factual disputes as to whether (1) Shannon designed its product to meet all of the requirements of the 81705 Spec., or just one and (2) Shannon tested its product according to the 81705 Spec. "Test Method."

The district court excluded the Higgs Declaration as a Fed. R. Civ. P. Rule 37 sanction because Caltex failed to disclose Higgs as a witness, in violation of Fed. R. Civ. P. 26(a)(2), and because Higgs violated a court-imposed Protective Order. The district court held that, "[w]ithout the Higgs Declaration, which has been excluded," Caltex [*3]  failed to provide affirmative evidence that Shannon's product testing claims were not sufficiently reliable, and dismissed Caltex's false advertising claims. Accordingly, the district court's decision to exclude the Higgs Declaration was tantamount to dismissal of Caltex's claims.

A district court's discretion to impose sanctions is limited when the imposition of sanctions would be tantamount to dismissal. R & R Sails, Inc. v. Ins. Co. of Pa., 673 F.3d 1240, 1247 (9th Cir. 2012); see also Toyrrific, LLC v. Karapetian, 606 F. App'x 365, 365 (9th Cir. June 2, 2015) (unpublished). "[B]ecause the sanction amounted to dismissal of a claim, the district court was required to consider whether the claimed noncompliance involved willfulness, fault, or bad faith, and also to consider the availability of lesser sanctions." R & R Sails, 673 F.3d at 1247 (internal citations omitted).

Here, the district court did not explicitly consider these factors in its decision to exclude the Higgs Declaration. Accordingly, we vacate and remand to the district court to address these factors before deciding what sanction is appropriate.

VACATED AND REMANDED.

Share this article:

Facebook
Twitter
LinkedIn
Email

Recent Posts

(1) FRAP 38 Sanctions Inapt for Appeal That Is Weak — “Borderline Frivolous” — Test Is Whether Appellant Should Have Known the Appeal Had Absolutely No Chance of Success — (2) Lay Opinion Testimony under Rule 701: Nub of Helpfulness Requirement Is to Exclude Testimony When the Witness Is No Better Suited Than the Jury to Assess the Issue; (3) Appeals: No Appeal from Denial of Motion for Judgment As a Matter of Law Unless Appellant Made That Motion Before Case Was Submitted to Jury

(1) § 1927 and Inherent Power Sanctions — Extrajudicial Misconduct After Obtaining Verdict: Filing Lis Pendens Based on False Statements and in Violation of Governing Law, Filing Fraudulent Abstracts of Judgment That Represented They Had Been Court-Issued; (2) Rule 37 Sanctions for Baseless Motion to Compel Required Unless Target Shows That the Motion Was Substantially Justified Or Other Circumstances Make An Award Of Expenses Unjust

Rule 37 Dismissal Factors (10th Circuit) — Rule 37(d) Sanctions Apply Without Regard to Whether the Court Has Ordered the Delinquent Party to Appear for His, Her or Their Deposition

Rule 37 Dismissal Factors (Sixth Circuit) — Refusal to Answer Deposition Questions on Relevancy Grounds Is Not Valid Rule 30(c)(2) — Pro Se Deponent’s Attendance At Zoom Deposition While Driving A Semi, Refusing to Answer Questions, Inter Alia, Held Contumacious

Rule 26(a)(1) Disclosures and Rule 37 Preclusion: Rule 26 Does Not Require Disclosure of Legal Theories Underlying Damages Computations Provided Pursuant to 26(a)(1)(A)(i)

Rule 37 Sanctions: (1) Forfeiture of Objections to Produce Specific Categories of Documents (Including Tax Returns, Social Media Passwords) as Sanction for Violation of Discovery Order — (2) Default Judgment for Multiple Violations of Discovery Orders — (3) Ninth Circuit’s 5-Factor Test for Dismissal or Default Sanction — (4) Three Additional Factors Considered by Court of Appeals in Assessing Whether Lesser Sanctions Were Adequately Considered — (5) District Court Need Not Recite Each Factor: It Suffices If Record Permits Appellate Court to Apply Them — (6) Public Policy Favoring Disposition of Cases on the Merits Is Not Dispositive Where At Least 4 Factors “Support,” Or 3 Factors “Strongly Support,” Dismissal/Default — (7) And Lends Little Support to A Party Whose Conduct Impedes Adjudication on the Merits — (7) Order to Show Cause Why FRAP 38, § 1927 and Inherent Power Sanctions Should Not Issue for Multiple Misstatements Of Counsel At Oral Argument

Electronic Spoliation Sanctions: “Intent to Deprive” in Rule 37(e)(2) Means Willful Destruction of Evidence to Avoid Its Discovery by an Adverse Party — Relevant Circumstantial Evidence in Determining “Intent to Deprive” — Rule 37(e)(2)(C)’s Standards Trump Circuit’s Multi-Factor Test for Determining Whether Dismissal Is Appropriate — No Prejudice Required for 37(e)(2) Sanctions Because Intent to Deprive Creates Inference the Loss of Information Favored the Spoliator

Sanctions and Appealability — Fifth Circuit’s 2023 Survey of Circuit Cases Concerning Whether Judgment of Dismissal As a Sanction Bars Review of Earlier Sanctions Orders Due to Lack of Jurisdiction or Whether The Decision to Review Pre-Dismissal Sanctions Orders Is Prudential

Sanctions and Appealability — Prior Sanctions Orders Do Not Merge into Judgment of Dismissal Imposed As Sanction under Rules 16(f), 37(b) and 41(b) and Are Unappealable — Courts of Appeal Differ As to Whether This Lack of Reviewability Is Jurisdictional or Discretionary (Jurisdictional in Second Circuit)

Sanctions Enforcement and Appealability: Failure to Pay Rule 37 Sanctions and Otherwise Comply with Discovery Orders Leads to Dismissal under Rule 41(b) — Second Circuit Factors for Dismissal for Failure to Prosecute or Comply with Court Orders — Belated, Partial Compliance with Orders Does Not Deprive District Court of Discretion to Dismiss Based on Continuing Non-Compliance with Other Aspects of Orders — “Hopelessly Belated Compliance” with Court Orders Not Accorded Great Weight — Prior Sanctions Orders Do Not Merge into Judgment of Dismissal under Rule 41(b) And Are Unreviewable

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