Commercial Litigation and Arbitration

Sanctions: Default Judgment for Defendant’s Failure to Comply with Court-Ordered Discovery — Disobedience “Not Shown to Be Outside Control of Litigant” = Willfulness, Bad Faith or Fault (Good Quote)

 Apriori Techs. v. Broquard, 2019 U.S. App. LEXIS 21963 (9th Cir. July 23, 2019) (unpublished):


Charles Jerome Broquard appeals pro se from the district court's default judgment and permanent injunction in plaintiff's diversity action alleging defamation, intentional interference with prospective economic advantage, and extortion. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion the entry of default judgment as a discovery sanction under Federal Rule of Civil Procedure Rule 37. Stars' Desert Inn Hotel & Country Club, Inc. v. Hwang, 105 F.3d 521, 524 (9th Cir. 1997). We affirm.

The district court did not abuse its discretion by entering default judgment and a permanent injunction against Broquard because Broquard failed to comply with court-ordered discovery. See Dreith v. Nuy Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011) (discussing the five factors the district court must weigh before entering default as a sanction for discovery misconduct, and noting that "we will overturn a dismissal sanction only if we have a definite [*2]  and firm conviction that it was clearly outside the acceptable range of sanctions" (citation and internal quotation marks omitted)).

To the extent Broquard argues that his conduct was not willful, Broquard did not show that his failure to comply with court-ordered discovery was due to circumstances beyond his control. See Henry v. Gill Indus., Inc., 983 F.2d 943, 948 (9th Cir. 1993) (all that is required to demonstrate willfulness, bad faith, or fault is "disobedient conduct not shown to be outside the control of the litigant" (citation and internal quotation marks omitted)).

Broquard's contentions that the injunction violates his First Amendment rights, the district court violated his due process rights, and the district court was biased and prejudiced against him, are unpersuasive.

We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Plaintiff's motion to file a supplemental brief (Docket Entry No. 26) is granted. The Clerk shall file the supplemental brief at Docket Entry No. 27 and the supplemental excerpts of record at Docket Entry No. 28.




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

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