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.

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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.
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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)

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 LEXIS 21963 (9th Cir. July 23, 2019) (unpublished):

MEMORANDUM*

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.

AFFIRMED.

 

 

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

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3 Prerequisites for Inherent Power and § 1927 Sanctions in Second Circuit: (1) Bad Faith, (2) Conduct That Is Entirely Without Color [Thus, An Ill-Motivated Colorable Position Appears to Be Protected in the Second Circuit], and (3) Improper Purpose— “To Gain A Strategic Advantage” Is An Improper Purpose — Due Process Satisfied by Opponent’s Motion and Multiple Court Conferences, After Which Target Was Allowed to Submit Additional Letters

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(1) Appellate Review of Inherent Power Sanctions (7th Circuit): Factual Findings Reviewed for Clear Error, Choice of Sanction for Abuse of Discretion — 4-Element Test for Reversal; (2) Sanctions and Class Actions: Monetary Sanctions Properly Imposed on Defendants for Improper Communications with Class Members (Represented Parties) — “[I]f The Class And The Class Opponent Are Involved In An Ongoing Business Relationship, Communications From The Class Opponent To The Class May Be Coercive” (Good Quote); (3) Monetary Sanctions under Goodyear v. Haeger: If Same Fact-Gathering Would Have Been Conducted Absent The Misconduct, No But-For Causation — But Only “Rough Justice” Required, “Not Accountant-Like Precision” (Good Quote) — Once Misconduct Is Clear, Time Spent Ferreting It Out Compensable under Goodyear; (4) Goodyear Did Not Overrule Long-Standing Rule That Courts May Impose Modest Civil Monetary Sanctions to Curb Litigation Abuse; (5) Appellate Jurisdiction Lacking Where Sanctioned Attorney Fails to File Notice of Appeal and Lawyer’s Intent to Appeal Not Apparent from Client’s Notice; (5) Rule 11 Improper Purpose — Party May Have Many Purposes for Pursuing Claim — As Long As Claim Is Supported by Good Faith Belief in the Merits, “A Parallel Reason Does Not Violate Rule 11” — To Deny A Motion for Sanctions, The District Court Need Not Address Every Argument: “Arguments Clearly Without Merit Can, And For The Sake Of Judicial Economy Should, Be Passed Over In Silence” (Good Quote); Non-Monetary Sanction on Counsel: Complete Twice The Required Amount Of Professional Responsibility Hours For Her Next Continuing Legal Education Cycle Imposed By The State Bar

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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.

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