Opposition Brief — Loop AI Labs, Inc., et al., Petitioners v. Anna Gatti, et al.

No. 19-59

In the

Supreme Court of the United States

Loop AI Labs, Inc., et al.,

Petitioners,

v.

Anna Gatti, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Ninth Circuit

BRIEF IN OPPOSITION

Mitchell Y. Mirviss

Counsel of Record

Elizabeth C. Rinehart

Venable LLP

750 East Pratt Street, Suite 900

Baltimore, MD 21202

(410) 244-7400

mymirviss@venable.com

Thomas E. Wallerstein

Venable LLP

101 California Street, Suite 3800

San Francisco, CA 94111

(415) 653-3750

Counsel for the Almawave Respondents

289889

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED

Petitioners persisted in a two-year course of

unrelenting, willful discovery misconduct and violations

of court orders that made it impossible to proceed to trial

because, inter alia, Petitioners would not disclose the

factual bases for their claims, thereby tacitly admitting

that the claims lacked merit. The district court dismissed

the case, finding that Petitioners’ obstruction satisfied the

heightened requirements for case-dispositive sanctions,

and the Ninth Circuit affirmed, applying settled tests

similar to those used by every circuit. Two core questions

arise from the Petition:

1.

Are the circuits split as to whether nonmonetary

sanctions may address both punitive and remedial

purposes?

2.

Did the district court fail to apply the proper

standards?

ii

PARTIES TO THE PROCEEDING

Petitioners assert that defendant Almawave USA,

Inc. (“Almawave-USA”) no longer is a party because the

district court dismissed the claims against it. (Pet. ii).

Though Petitioners’ rationale is confusing, if Petitioners no

longer challenge the district court’s judgment dismissing

all claims against Almawave-USA, Almaviva S.p.A.

(“Almaviva”) and Almawave S.p.l. (“Almawave-Italy”)

are the only “Almawave” affiliates remaining in the case.

iii

RULE 29.6 CORPORATE

DISCLOSURE STATEMENT.

A l m av iva’s pa r ent cor p or at ion i s A l m av iva

Technologies S.r.l., which is not publicly traded. It owns

more than ten percent of Almaviva.’s stock.

Almawave-Italy’s parent corporation is Almaviva,

which owns more than ten percent of Almawave-Italy’s

stock.

iv

RULE 12(b)(iii) LIST OF PROCEEDINGS

The Petition’s statement of related proceedings (Pet.

iii) is complete.

v

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . . ii

RULE 29.6 CORPORATE

DISCLOSURE STATEMENT . . . . . . . . . . . . . . . . iii

RULE 12(b)(iii) LIST OF PROCEEDINGS . . . . . . . . . iv

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . vii

OVERVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 4

A. Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

B. Proceedings Below . . . . . . . . . . . . . . . . . . . . . . . . 10

REASONS FOR DENYING THE PETITION . . . . . 13

I.

This Court’s Decisions Do Not Conflict and

Do Not Require Clarification . . . . . . . . . . . . . . . 14

II. The Circuits Do Not Split on the Standards

for Nonmonetary Civil Sanctions . . . . . . . . . . . . 17

vi

Table of Contents

Page

III. The Lower Cour ts Applied Bauxite

Heightened Standards . . . . . . . . . . . . . . . . . . . . . 23

IV. T h e P e t i t i o n M a k e s I m p o r t a n t

Misstatements . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

vii

TABLE OF CITED AUTHORITIES

Page

CASES

Adolph Coors Co. v. Movement Against Racism

and the Klan,

777 F.2d 1538 (11th Cir. 1985) . . . . . . . . . . . . . . . . . . 21

Adriana Int’l Corp. v. Thoeren,

913 F.2d 1406 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . 19

Anderson v. Found. for Advancement, Educ. &

Emp’t of Am. Indians,

155 F.3d 500 (4th Cir. 1998) . . . . . . . . . . . . . . . . . . . . 21

Avionic Co. v. Gen. Dynamics Corp.,

957 F.2d 555 (8th Cir. 1992) . . . . . . . . . . . . . . . . . . . . 21

Butera v. D.C.,

235 F.3d 637 (D.C. Cir. 2001) . . . . . . . . . . . . . . . . . . . 22

Carlucci v. Piper Aircraft Corp.,

775 F.2d 1440 (11th Cir. 1985) . . . . . . . . . . . . . . . . . . 21

Commodity Futures Trading Com’n v.

Noble Metals Int’l, Inc.,

67 F.3d 766 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . 17

Conn. Gen. Life Ins. Co. v.

New Images of Beverly Hills,

482 F.3d 1091 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . 25

viii

Cited Authorities

Page

Daval Steel Prods. v. M/V Fakredine,

951 F.2d 1357 (2d Cir. 1991) . . . . . . . . . . . . . . . . . . . . 22

Estate of Spear v. Comm’r,

41 F.3d 103 (3d Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . 22

Everyday Learning Corp. v. Larson,

242 F.3d 815 (8th Cir. 2001) . . . . . . . . . . . . . . . . . . . . 21

Fashion House, Inc. v. Kmart Corp.,

892 F.2d 1076 (1st Cir. 1989) . . . . . . . . . . . . . . . . . . . 22

FDIC v. Daily,

973 F.2d 1525 (10th Cir. 1992) . . . . . . . . . . . . . . . . . . 16

Fjelstad v. Am. Honda Motor Co.,

762 F.2d 1334 (9th Cir. 1985) . . . . . . . . . . . . . . . . 19, 25

Fuery v. City of Chicago,

900 F.3d 450 (7th Cir. 2018) . . . . . . . . . . . . . . . . . 16, 20

Goodman v. New Horizons Cmty. Serv. Bd.,

No. 05-14717, 2006 WL 940646

(11th Cir. Apr. 12, 2006) . . . . . . . . . . . . . . . . . . . . . . . 21

Goodyear Tire & Rubber Co. v. Haeger,

581 U.S. ---, 137 S. Ct. 1178 (2017) . . . . . . . . . . . passim

Halaco Eng’g Co. v. Costle,

843 F.2d 376 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . 25

ix

Cited Authorities

Page

Hammond Packing Co. v. Ark.,

212 U.S. 322 (1909) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Hernandez v. City of El Monte,

138 F.3d 393 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . 25

Hicks v. Feeney,

850 F.2d 152 (3d Cir. 1988) . . . . . . . . . . . . . . . . . . . . . 20

Hoxworth v. Blinder, Robinson & Co.,

980 F.2d 912 (3d Cir. 1992) . . . . . . . . . . . . . . . . . . . . . 20

Ins. Corp. of Ireland v.

Compagnie des Bauxites de Guinee,

456 U.S. 694 (1982) . . . . . . . . . . . . . . . . . . . . . . . passim

Knowlton v. Teltrust Phones, Inc.,

189 F.3d 1177 (10th Cir. 1999) . . . . . . . . . . . . . . . . . . 22

Leon v. IDX Sys. Corp.,

464 F.3d 951 (9th Cir. 2006) . . . . . . . . . . . . . . . . . . . . 18

Lyons v. O’Quinn,

746 F. App’x 898 (11th Cir. 2018) . . . . . . . . . . . . . . . . 21

Malone v. U.S. Postal Serv.,

833 F.2d 128 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . . 18

Mindek v. Rigatti,

964 F.2d 1369 (3d Cir. 1992) . . . . . . . . . . . . . . . . . . . . 20

x

Cited Authorities

Page

Munoz-Santana v. U.S. I.N.S.,

742 F.2d 561 (9th Cir. 1984) . . . . . . . . . . . . . . . . . . . . 19

Mut. Fed. Sav. & Loan Ass’n v.

Richards & Assocs., Inc.,

872 F.2d 88 (4th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . 21

Nat’l Hockey League v. Metro. Hockey Club, Inc.,

427 U.S. 639 (1976) . . . . . . . . . . . . . . . . . . . . . . . passim

Parsi v. Daioleslam,

778 F.3d 116 (D.C. Cir. 2015) . . . . . . . . . . . . . . . . . . . 21

Payne v. Exxon Corp.,

121 F.3d 503 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . 16

Phoceene Sous-Marine, S. A. v.

U.S. Phosmarine, Inc.,

682 F.2d 802 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . . . 25

Rangarajan v. Johns Hopkins Univ.,

917 F.3d 218 (4th Cir. 2019) . . . . . . . . . . . . . . . . . . 20, 21

Roadway Express, Inc. v. Piper,

447 U.S. 752 (1980) . . . . . . . . . . . . . . . . . . . . . . . . 15, 17

Shea v. Donohoe Constr. Co.,

795 F.2d 1071 (D.C. Cir. 1986) . . . . . . . . . . . . . . . . . . 22

Tripati v. Corizon Inc.,

713 F. App’x 710 (9th Cir. 2018) . . . . . . . . . . . . . . . . . 25

xi

Cited Authorities

Page

U.M.W. of Am. v. Bagwell,

512 U.S. 821 (1994) . . . . . . . . . . . . . . . . . . . . . 14, 15, 20

United States ex rel. Wiltec Guam, Inc. v.

Kualahuu Constr. Co.,

857 F.2d 600 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . 25

United States v. Shaffer Equip. Co.,

11 F.3d 450 (4th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . 21

Valley Eng’rs Inc. v. Elec. Eng’g Co.,

158 F.3d 1051 (9th Cir. 1998) . . . . . . . . . . . . . . . . 16, 25

Wash. Metro. Area Transit Comm’n v.

Reliable Limousine Serv., LLC,

776 F.3d 1 (D.C. Cir. 2015) . . . . . . . . . . . . . . . . . . . . . 22

Webb v. D.C.,

146 F.3d 964 (D.C. Cir. 1998) . . . . . . . . . . . . . . . . . . . 22

Wilson v. Volkswagen of Am., Inc.,

561 F.2d 494 (4th Cir. 1977) . . . . . . . . . . . . . . . . . . . . 22

Wyle v. R.J. Reynolds Indus., Inc.,

709 F.2d 585 (9th Cir. 1983) . . . . . . . . . . . . . . 17, 19, 24

xii

Cited Authorities

Page

STATUTES AND OTHER AUTHORITIES

Fed. R. Civ. P. 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 21

Fed. R. Civ. P. 37(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Fed. R. Civ. P. 37(b)(2) . . . . . . . . . . . . . . . . . . . . . . 1, 15, 17

Fed. R. Civ. P. 37(b)(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . 25

8B Charles Alan Wright, et al., Federal Practice

and Procedure § 2283 (3d ed. 2010) . . . . . . . . . . . . . 25

James Wm. Moore, Moore’s Federal Practice 3d

§ 27.56(6) (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

1

OVERVIEW

The Petition for a Writ of Certiorari by Petitioners

Loop AI Labs Inc. (“Loop”) and its counsel Valeria

Calafiore Healy fails on both legal and factual grounds.

Petitioners ask this Court to review a case-dispositive

sanction and withdrawal of counsel’s pro hac vice status by

presenting nonexistent issues of law and recharacterizing

facts to obscure their misconduct and defiance of court

orders.

Contrary to the Petition:

• Ins. Corp. of Ireland v. Compagnie des Bauxites

de Guinee, 456 U.S. 694 (1982) [“Bauxites”], does

not overrule Nat’l Hockey League v. Metro. Hockey

Club, Inc., 427 U.S. 639 (1976) (per curiam) [“NHL”].

Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. ---,

137 S. Ct. 1178 (2017) [“Goodyear”], does not raise a

question about nonmonetary sanctions under Fed.

R. Civ. P. 37(b)(2).

• All circuits, including the Ninth Circuit, require

courts to calibrate terminating sanctions to remedy

the harm caused by the violations.

• The circuits concur that courts may consider the

need to punish and deter future misconduct when

assessing these sanctions.

• The district court did apply heightened standards

to assess the impact of Petitioners’ misconduct.

2

Because there is no issue, let alone a circuit split, as to

whether heightened standards apply, and, likewise, no

genuine question whether the district court did apply

those standards, Petitioners’ issues for review simply do

not exist.

Petitioners’ presentation of the facts is equally

divorced from reality. They conspicuously ignore their

two-year history of transgressions found by the U.S.

District Court for the Northern District of California

(Gilliam, J.) (“district court”) and affirmed by the Ninth

Circuit. Petitioners violated numerous court orders,

including orders to produce documents, present witnesses

for deposition, and not obstruct depositions. They flouted

the district court’s case-management rules and would

not identify the factual bases for their claims. In short,

they engaged in persistent, flagrant defiance and uncivil

misconduct, all to disguise the lack of merit to Loop’s

claims.

These misbehaviors made the case a nightmare.

Despite countless warnings and extraordinary effort by

the district court and the assigned magistrate judge to get

the case on track, Loop persisted in its intransigence. As

the district court stated, “[t]he Court has given Plaintiff

many chances to litigate … and has been consistently

confronted with counsel’s utter disregard for the Court’s

authority and her persistent refusal to comply with the

Court’s orders and the Federal Rules.” App. 26a-27a.

Numerous orders and awards of lesser sanctions failed

to curb the transgressions.

Ultimately, as trial approached without Loop having

met basic discovery obligations regarding its core

allegations—such as identifying its trade secrets that

3

allegedly were misappropriated or the tortious acts to

steal Loop’s business—Loop doubled-down for its pretrial

statement and continued to refuse to identify the specific

facts, exhibits, and witnesses supporting its conspiracy

theories, making it impossible for defendants to prepare

for trial and bringing the case to a screeching halt.

Confronted with the complete breakdown of procedure,

the district court suspended all deadlines and ordered

Loop to show cause why dismissal was not warranted.

After briefing, the district court dismissed the case under

Rule 37(b) and its inherent authority and revoked Healy’s

pro hac vice admission. Its lengthy opinion documented

how Petitioners’ defiance had made it impossible to learn

the bases, if any, for Loop’s claims, leaving the court no

alternative. App. 24a-75a. The Ninth Circuit affirmed in

an unreported decision, App. 3a-4a, and denied rehearing

en banc, App. 1a-2a.

This case presents a paradigm example of when

case-terminating sanctions are warranted: Petitioners’

obstruction of discovery made a fair trial impossible.

Instead of addressing that issue, Petitioners accuse the

district court of failing to calibrate its sanction to remedy

the prejudice caused by their misconduct even though the

district court wrote pages of analysis doing exactly that.

Instead of citing a single case or scholar indicating that

district courts lack judicial authority to dismiss claims

when the plaintiff’s discovery misconduct prevents a fair

trial, Petitioners misrepresent the facts: they acknowledge

no wrongdoing, ignore the district court’s extraordinary

efforts to move the case forward, and make numerous false

claims (e.g., that Respondents never produced discovery

and that no party sought case-ending sanctions).

4

The Petition does not merit serious consideration by

this Court. Apart from erroneous accounts of the law

and the facts, Petitioners fail to present any legal issue

warranting review or any untoward act of grave injustice

requiring correction. Their extraordinary, ongoing

defiance of court orders made a fair trial impossible, and

thus the remedy amply fits the wrong.

STATEMENT OF THE CASE

A. Facts.

The district court’s decision discusses Petitioners’

violations in great detail. See App. 27a-44a, 46a-62a,

64a-72a. Petitioners do not discuss these violations at all.

Almaviva and Almawave-Italy (collectively, with

A lmawave-USA, “A lmawave”) are affiliates of an

international technology business headquartered in

Italy. Almawave-USA was their U.S. affiliate whose sole

purpose was to develop American markets for AlmawaveItaly’s existing products. ER107-ER108, SER0767,

SER0770, SER0780.1 Loop is a San Francisco start-up.

Anna Gatti was CEO of Loop, succeeded as CEO by cofounder Gianmauro Calafiore. Healy is Calafiore’s sister

and had invested in Loop stock. SER1404, SER1416,

SER0864. This case concerns Loop’s conspiracy theories

about Almawave-USA’s hiring of Gatti.

1. “ER” refers to Petitioners’ Extract of Record filed in the

Ninth Circuit. “SER” refers to Almawave’s Supplemental Extract

of Record.

5

Gatti’s principal job at Loop was to secure financing.

ER97. Her contract allowed her to work with other

businesses, but it was disputed whether she had to obtain

(or did obtain) Loop’s consent for her other work. Id. In

2014, Gatti was hired as part-time CEO for Almawave’s

new U.S. affiliate, while retaining her position with Loop,

having represented in writing that her new position

would not breach third-party contracts. SER0768. Gatti

was referred to Almawave by a premier international

headhunter agency, Russell Reynolds, which knew of her

other engagements, including Loop. Id. Upon learning of

Loop’s claim that this hiring was wrongful, AlmawaveUSA terminated Gatti. SER0103.

On February 20, 2015, Loop sued, alleging that

Almawave had hired Gatti to steal Loop’s trade secrets,

sabotage its operations and access to venture capital, and

force its acquisition. Loop’s operative Second Amended

Complaint (“SAC”) alleged trade-secret violations,

tortious interference, RICO violations, and other business

torts. ER95-ER206.

Alleging that Gatti was planning imminent destruction

of evidence, Loop filed an ex parte TRO to freeze

defendants’ assets and halt all business activity. SER0060.

The motion was denied because Loop failed to identify the

trade secrets that were stolen; the one document cited

to show that Gatti would destroy computer files actually

showed that she could not access the files; and Loop had

not shown a likelihood of success on the merits beyond

a claim that Gatti breached her contract with Loop.

SER0088-SER0090.

6

Discovery disputes quickly arose, see SER0130, and

Judge Gilliam appointed U.S. Magistrate Judge Ryu to

resolve them. ER320, ER436. Judge Ryu’s standing orders

had detailed instructions for discovery disputes, including

meet-and-confer sessions, joint letters presenting

disputes, and prompt privilege logs. ER436-ER438, as

modified, ER555-ER559. Within a month, Judge Ryu

warned the parties that their “manifest acrimony”

and difficulties in meeting, conferring, and filing joint

statements could result in Rule 37 sanctions; she entered

further case-management orders and accommodated

Healy’s request that no counsel communicate with

Healy by email. SER0154. These procedures also proved

ineffective, so, one month later, Judge Ryu again warned

Loop and issued additional orders to induce Loop to meet

and confer. SER0150-SER0155, ER511, ER6621-ER6622.

These mechanisms also failed. Loop would not even sign

a protective order for trade-secret production despite

an order to do so. SER0156-SER200, ER2221-ER2222.

After further defense complaints, SER0222, ER5563ER5572, Judge Ryu ordered weekly meet-and-confer

sessions documented by audiotapes and logs. SER0224,

ER519-ER520.

This, too, failed. Healy refused to participate in multiple

calls and instead assigned an associate whose authority

was limited to discussing Loop’s agenda. Loop refused

to enter a protocol for document and ESI production and

instead produced documents with restricted access that

prevented printing, copying, or forwarding the documents.

SER0277-SER0305. Almawave had to move to compel

Loop to produce documents, answer interrogatories,

and depose Loop’s CEO. SER0240-SER0244, SER0269SER0275.

7

On December 10, 2015, Judge Ryu again ordered

Loop to participate in weekly meet-and-confer sessions

and joint-letter dispute-resolution, yet, by year’s end,

Loop still balked at providing unrestricted access to its

documents and ESI, scheduling depositions, and engaging

in reasonable meet-and-confer practices (e.g., it insisted

on conferring only on Christmas), forcing another order

by Judge Ryu. SER0350, SER0377, SER0411, SER0413,

SER0442, SER0459-SER0463, ER2238-ER2244. By

February 2016, Judge Gilliam warned Loop that the

“profoundly troubling and unprofessional pattern of

behavior” and “dysfunctional discovery dynamic” could

result in severe punishment. App. 55a. But the problems

only escalated.

Loop willfully violated at least five court orders

requiring Loop to answer interrogatories and disclose

the factual bases for its contentions, e.g., identifying

allegedly misappropriated trade secrets and the grounds

for its business-tort claims. App. 32a-35a, 41a-43a, 50a.

Loop gave “plainly and grossly deficient” unverified

responses that “listed thousands of bates numbers with no

explanation” and generically pointed to “all productions by

all parties and non-parties…, and any further materials

has [sic] may be obtained through discovery or otherwise,”

i.e., “a mass [o]f undifferentiated records,” with “nearly

100 pages of allegations that appear to be cut and pasted

from Plaintiff’s [SAC].” SER0675. Its final feint at

compliance “resemble[d] an effort to categorize every

piece of information or know-how that could potentially

have value to the company,” and rotely referred back

to the SAC despite the court’s warning that this would

8

be “plainly insufficient.” ER7061, ER7064, ER7068. 2

Judge Ryu’s final warning of sanctions failed to induce

compliance, so Almawave sought terminating sanctions.

SER0701.

Equally outrageous were Loop’s non-production of

documents and privilege log violations. See App. 35a-36a,

36a-41a. Multiple orders required prompt submission of

privilege logs, but Loop delayed until after the discovery

cut-off. The log was woefully deficient, listing only 43

documents, omitting key documents identified in discovery

responses and depositions, and lacking basic information

like document title and description, “Bates number” range,

and subject matter. ER594, ER 596, SER690-693. Due to

the log’s “grossly late” submission and “plainly deficient”

content, the district court found that the privilege was

waived. App. 38a-39a. Loop petitioned the Ninth Circuit

for a writ of mandamus, and then violated an order to

produce the documents while the petition was pending,

causing Almawave to seek terminating sanctions a second

time. SER0703. Loop also stonewalled when ordered to

produce its documents in a format that could be copied,

forwarded, or printed. App. 35a-36a.

An especially extreme example involved depositions.

At least six orders were required to compel Loop

executives to attend depositions and prevent Healy

from coaching witnesses and violating deposition rules.

2. Loop’s excuses for non-compliance were patently specious,

e.g., that disclosure of its evidence supposedly would reveal its

trial strategy (SER0495, SER0567), or that Judge Ryu’s orders

violated due process and exceeded her judicial authority because

they required Loop “to change the factual basis…supporting its

complaint….” (ER760-ER761).

9

App 27a-32a, 50a. Petitioners tried to prevent CEO

Calafiore’s corporate-designee deposition by citing “highly

confidential” medical reasons that turned out to be a

doctor’s warning to avoid “strenuous exercise.” SER0475,

SER0485. When that failed, Healy violated Judge Ryu’s

warnings against coaching and instructing witnesses not

to answer questions. App. 27a-28a; SER1400-SER1464.

Calafiore mimicked Healy’s objections and, despite an

offer to provide him with a real-time transcript, insisted on

writing down each question before answering it. Id. Judge

Ryu sanctioned Healy’s and her brother’s “obstructionist

conduct” that stymied this key deposition. App. 28a.

Other Loop executives failed to appear on courtordered dates, forcing Judge Ryu to compel their

depositions again. SER0651-SER0652. W hen the

depositions finally occurred after the discovery cut-off,

Petitioners repeated their misbehavior: “Healy instructed

witnesses to refuse to answer questions on grounds other

than privilege,” made “numerous improper speaking

objections,” and so effectively coached the witnesses that

they “occasionally repeated her objections, sometimes

verbatim.” “On other occasions, … Healy attempted to

answer the question for the witness.” App. 29a-32a & n.3.

Judge Ryu also sanctioned Healy for misconduct at

the Roberto Pieraccini deposition. App. 69a-71a & n.12.

Almawave had to secure multiple orders to compel his

deposition. SER0581, ER7083, SER0704-SER0705. At

the deposition, Almawave counsel told Healy to “be quiet”

after she interjected a gratuitous comment. App. 69a-70a.

Healy threatened to leave with Pieraccini, despite the

orders compelling his attendance, and Almawave counsel

tried to convince him to stay. Healy yelled profanities and

10

threw a cup of iced coffee at Almawave counsel, splashing

his computer, clothing, and briefcase. App. 70a. Although

Healy denied wrongdoing, Judges Ryu and Gilliam

found otherwise, citing sworn statements by Pieraccini

and the stenographer and noting Almawave counsel’s

contemporaneous exclamation. ER600-ER601, ER6357ER6358; App. 70a.

The impact of Loop’s failure to provide discovery

became clear by the pretrial phase. Judge Gilliam’s

standing pretrial order required parties to meet and confer,

exchange exhibits, and submit a joint pretrial statement

by specific dates. ER560. On August 1, 2016, the deadline

for exchanging exhibits, Loop announced that it would

start (not finish) a rolling production/identification of over

5,000 exhibits the next day; within four days, its exhibit

list had grown to 246 pages, listing over 3,600 exhibits

totaling 53,000 pages. SER1147-SER1148. Many entries

were unidentifiably cryptic, some exhibits lacked Bates

numbers, and thousands of pages were immaterial filler

like pleadings and calendar entries. Id. Loop identified

107 trial witnesses without describing their testimony—a

violation of the pretrial order—and stated that it was not

ready to share its pretrial statement portion. SER1164SER1166, SER1176. Having no idea what evidence,

witnesses, or legal theories Loop would present at trial,

Almawave moved for dismissal or preclusion of claims

under Rules 16(f) and 41. SER1141-SER1142.

B. Proceedings Below.

On Aug ust 8, 2016, Judge Gilliam suspended

pretrial deadlines. ER54. Following expedited briefing

on Almawave’s motion, he vacated pending trial and

11

pretrial dates. App. 81a. On September 26, he ordered

Loop to show cause why terminating sanctions were not

warranted in light of Loop’s “history of obstructionist

discovery conduct and persistent refusal to follow Court

orders notwithstanding repeated warnings.” App. 76a.

The order gave clear notice of the violations at issue, citing

improper deposition conduct (three examples); failure

to answer interrogatories (four examples); untimely/

improper RFP responses (two examples); lack of privilege

log (four examples); failure to disclose trade secrets

(two examples); and five other examples of “pervasive

and repeated disregard for the Court’s authority and

obstructionist discovery conduct.” App. 76a-79a. Loop

denied all wrongdoing, claimed insufficient notice, and

challenged Judge Ryu’s constitutional authority to manage

discovery with enforceable orders. App. 58a-61a; ER5789ER5816.

On March 21, 2017, the district court dismissed

the case due to Loop’s discovery abuse (App. 22a-23a)

pursuant to a prior March 9 ruling (App. 24a-75a).

In a comprehensive 31-page ruling, Judge Gilliam

painstakingly addressed each order that was violated

and all of Loop’s excuses. Id. Applying the Ninth Circuit’s

settled tests, he concluded that dismissal was necessary

because Petitioners’ violations prevented a fair trial:

“Plaintiff’s violations have harmed Defendants’ ability to

prepare a defense and patently obfuscated the basis for

Plaintiff’s claims, making it impossible to have confidence

that Defendants or the Court have access to the facts and

that any resolution at trial would be fair and just.” App.

58a. They had “‘so damage[d] the integrity of the discovery

process that there can never be assurance of proceeding

on true facts.’” App. 62a (citation omitted). Petitioners’

12

core assertion that the dismissal sanction was “punitive,

not remedial,” and “lacked any causal connection to any

cited misconduct” (Pet. 3) is dead wrong.

Other factors also justified dismissal: (a) the violations

were willful and supported case-terminating sanctions

(App. 46a-48a); (b) the public interest in expeditious

resolution and the court’s need to manage its docket

“strongly favor” dismissal because “Plaintiff has violated

countless orders of the Court” (App. 48a-50a); (c) the

violations “obstructed Defendants’ attempts to learn what,

if any, support Plaintiff has for its claims” (App. 50a-52a);

(d) the case was irremediably stalled on the merits (App.

52a-53a); and (e) less drastic sanctions were futile given the

numerous warnings, second and third chances, and lesser

sanctions that had not curbed Loop (App. 53a-56a). Loop’s

due-process challenge to Judge Ryu’s authority was legally

wrong and in any event did not excuse its unyielding defiance

of routine orders and procedures. App. 58a-61a. The district

court also dismissed under its inherent authority, citing a

“pervasive and egregious” “refusal to obey Court orders”

that “ha[d] created an untenable situation” and “ma[d]e

clear that no adequate lesser sanction is available.” App.

62a-72a.

The Ninth Circuit affirmed and denied rehearing

en banc. App. 1a-6a. In claiming that it ruled that

nonmonetary sanctions do not require “causation and

calibration,” Petitioners mischaracterize the opinion;

they cite Healy’s oral argument, not the decision. See

Pet. 4 (citing App. 10a-11a). The Ninth Circuit ruled

directly to the contrary, agreeing with the district court

that “[t]he plaintiff’s violations made it impossible for the

defendants—all of them—to prepare for trial. Repeated

13

valid orders and warnings had proved insufficient to bring

about compliance.” App. 5a.

REASONS FOR DENYING THE PETITION

Petitioners’ silence about the above events is ample

ground for denying the Petition. Their assertion that the

district court found that “‘terminating sanctions’ were

necessary” because ‘in the end, counsel simply thinks

she knows better than the Court what the law requires’”

(Pet. 4 (quoting App. 61a)) ignores the court’s ruling

that Petitioners’ obstruction of basic discovery made it

impossible to try the case. Petitioners cannot credibly

ask this Court to consider an alleged failure to calibrate

sanctions to their violations when they never discuss their

flagrant violations or the district court’s careful discussion

of why those violations required dismissal.

Petitioners’ misleading account of the facts is

compounded by their legal arguments. They posit a

hole in the law—whether nonmonetary case-dispositive

sanctions must be calibrated to the harm caused by the

misconduct—that simply does not exist. There is no circuit

split, no unresolved questions by this Court regarding the

standards for nonmonetary sanctions, no departure by

the Ninth Circuit from settled norms. Accordingly, this

Court should deny review because:

1. NHL, Bauxites, and Goodyear are in harmony and

do not require clarification.

2. The circuits are not split. They apply similar

general tests and concur that punishment and deterrence

are valid factors.

14

3. The Ninth Circuit imposes heightened due process

standards per Bauxites. Applying these standards—

the very test that Petitioners insist was lacking—the

district court ruled that dismissal was necessary because

Petitioners’ violations were willful and made a fair trial

impossible.

4. The Petition is riddled with misstatements and

omissions. Petitioners’ disingenuity makes this an

improper case for certiorari.

I.

This Court’s Decisions Do Not Conflict and Do Not

Require Clarification.

Petitioners misapprehend this Court’s precedents.

According to Petitioners, in NHL, this Court held

that a district court could dismiss an action to punish

and deter flagrant discovery misconduct, but, through

a combination of Bauxites and Goodyear, the Court

has implicitly overruled NHL, eliminated punishment

and deterrence as valid factors, and instead narrowly

constrained nonmonetary sanctions to the minimal level

needed to remedy the prejudice. Pet. 13-14. They claim

that an “important and recurring question” exists as to

whether Goodyear applies to nonmonetary sanctions and

NHL is overruled. Id. Petitioners’ analysis fails at its core

premise: NHL, Bauxites, and Goodyear do not conflict,

and NHL is good law.

1. This Court distinguishes monetary sanctions,

which require quasi-criminal protections, from default

or dismissal sanctions, which do not. See U.M.W. of Am.

v. Bagwell, 512 U.S. 821, 833 (1994). As Bagwell states,

district courts have “broad authority” to “penalize

15

a party’s failure to comply with the rules of conduct

governing the litigation process” by “entering [a] default

judgment” under Rule 37, and such sanctions “never

have been considered criminal” and do not require quasicriminal protections. Id.

2. This Court has expressly affirmed NHL. See

Roadway Express, Inc. v. Piper, 447 U.S. 752, 763-764

(1980) (“Rule 37 sanctions must be applied diligently

both ‘to penalize those whose conduct may be deemed

to warrant such a sanction, [and] to deter those who

might be tempted to such conduct in the absence of such

a deterrent.’”) (alteration in original) (quoting NHL, 427

U.S. at 643)). Petitioners cite Roadway Express only in

passing. See Pet. 28.

3. NHL, Bauxites, and Goodyear do not conflict.

Neither Bauxites nor Goodyear criticizes NHL. Far

from implicitly overruling NHL, Bauxites quotes it with

approval: “What was said in [NHL]” about the standard

of appellate review “is fully applicable here….” Bauxites,

456 U.S. at 707. Goodyear does not cite NHL (or Bauxites,

for that matter) and addresses monetary sanctions only. If

a conflict exists, it has escaped the attention of this Court,

the lower courts (which continue to cite NHL as a leading

precedent), and the academic community.

Bauxites and NHL complement each other. Bauxites

held that Rule 37(b)(2) has two standards: the sanction

must be “just” and must be “specifically related to the

particular ‘claim’ which was at issue in the order to

provide discovery.” 456 U.S. at 707. The requirement

that a sanction must be “just” is entirely consistent with

consideration of the need to punish and deter per NHL.

16

Goodyear, by contrast, deals with a different issue:

a monetary attorney’sfee fine for discovery misconduct

that exceeded a compensatory amount. No party

disputed the law or its limiting effect on attorney’s fee

awards. Id. at 1188. Petitioners misread the exceptionally

narrow Goodyear decision as upending settled law for

nonmonetary sanctions sub silentio. See Fuery v. City of

Chicago, 900 F.3d 450, 468-469 (7th Cir. 2018) (finding this

contention improbable and affirming dismissal).

4. To shoehorn this case into Goodyear, Petitioners

contend that the dismissal was a “windfall” to the Italian

Almawave defendants because they did not file the

discovery motions and because Loop’s claims were found

to have substantial support. Pet. 11-12, 22. Both assertions

are wrong.

a. Almaviva and Almawave-Italy contested personal

jurisdiction, so the district court let them provide

discovery via Almawave-USA, as they agreed to be bound

by Almawave-USA’s discovery activity. ER2635-2636.

Black-letter law allows non-moving defendants to benefit

from dismissal sanctions when the misconduct prejudices

them. See Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 F.3d

1051, 1058 (9th Cir. 1998); Payne v. Exxon Corp., 121 F.3d

503, 509-510 (9th Cir. 1997) (citing FDIC v. Daily, 973 F.2d

1525, 1532 (10th Cir. 1992)). This was no windfall; as the

Fourth Circuit noted, all defendants were prejudiced by

Loop’s refusal to disclose the factual bases for its claims.

b. In claiming that the district court found that their

claims had substantial evidentiary support, Petitioners

cite two rulings addressing the Italian defendants’ motion

to dismiss for lack of personal jurisdiction. The first ruling

17

merely found a sufficient basis to conduct jurisdictional

discovery. ER2213-ER2214. The second merely found a

sufficient basis to find personal jurisdiction. Dkt. 726 at 9

(June 8, 2016). These rulings addressed only Respondents’

motion to dismiss and did not address the merits. See id.

(“The Court finds that it is not necessary to resolve the

conflicting testimony at the motion to dismiss stage.”).

II. The Circuits Do Not Split on the Standards for

Nonmonetary Civil Sanctions.

The asserted circuit split does not exist. All circuits

use variations of the Ninth Circuit’s tests for Rule 37(b)(2)

sanctions. All apply heightened due process standards. All

recognize post-Bauxites that punishment and deterrence

remain valid considerations. The supposed divide as to

whether to follow NHL or Bauxites is belied by the cases.

1. Petitioners fail to discuss the standards for

determining whether dismissal is warranted. The Ninth

Circuit applies multiple tests.

First, per NHL and Roadway Express, the Ninth

Circuit limits terminating sanctions to “extreme

circumstances,” when “the violations were due to

willfulness, bad faith, or fault of the party.” Commodity

Futures Trading Com’n v. Noble Metals Int’l, Inc., 67 F.3d

766, 771 (9th Cir. 1995) (citations omitted).

Second, it recognizes that due process considerations

require that the sanction be “specifically related to the

particular ‘claim’ which was at issue in the order to provide

discovery.” Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d

585, 591 (9th Cir. 1983) (quoting Bauxites, 456 U.S. at

18

707). This is the very standard that Petitioners insist is

not recognized by the Ninth Circuit.

Third, the court must weigh: “(1) the public’s interest

in expeditious resolution of litigation; (2) the court’s need

to manage its docket; (3) the risk of prejudice to the

defendants; (4) the public policy favoring disposition of

cases on their merits; and (5) the availability of less drastic

sanctions.” Malone v. U.S. Postal Serv., 833 F.2d 128, 130

(9th Cir. 1987) (citation omitted).

Fourth, the less-drastic-alternative factor considers

feasibility of alternative sanctions, prior use of lesser

sanctions, and prior notice/warnings of possible dismissal.

Id. at 132.

Finally, inherent-authority sanctions require bad

faith or behavior “tantamount to bad faith.” Leon v. IDX

Sys. Corp., 464 F.3d 951, 961 (9th Cir. 2006).

Petitioners never explain how these standards fall

short of Bauxites or conflict with other circuits. Instead,

they make case-specific factual complaints: lack of notice

(which is wrong, as discussed infra), unfair windfall (also

wrong, see supra), and lack of an evidentiary hearing

(which is not mandatory). See Pet. 21-25. They claim

that bad faith was not found but gloss over the court’s

findings of willful misconduct and deceptive practices that

undermined the integrity of the proceedings—deliberate

and flagrant disobedience of court orders and blatant

misrepresentations about meet-and-confer efforts (which

were proven false by court-ordered phone records). See

App. 63a-72a.

19

2. The Ninth Circuit follows Bauxites. Petitioners

quote snippets from cases citing NHL and from two

dissenting opinions (one unreported and one from 35

years ago) disagreeing on factual grounds. See Pet. 2932. To point out the obvious: citations to NHL do not

signal disregard of Bauxites. NHL and Bauxites are

complementary, not mutually exclusive.

Petitioners charge that the Ninth Circuit applies a

“watered-down” version of Bauxites requiring a “close

nexus between [the] misconduct and the merits of the

case,” id. at 32 (quoting App. 58a), but Bauxites requires

only that the sanction be “specifically related” to the

claim. 456 U.S. at 707. In a bizarre exercise of semantic

hairsplitting, Petitioners insist that “specifically related”

is more stringent than “close nexus” or “closely related.”

Pet. 32. They never explain the difference or account for

cases using “specifically related.” See Adriana Int’l Corp.

v. Thoeren, 913 F.2d 1406, 1413-1414 n.6 (9th Cir. 1990);

Fjelstad v. Am. Honda Motor Co., 762 F.2d 1334, 1342 (9th

Cir. 1985); Munoz-Santana v. U.S. I.N.S., 742 F.2d 561,

564 (9th Cir. 1984); Wyle, 709 F.2d at 591. Such semantics

do not warrant this Court’s attention.

3. The circuits do not split over whether Bauxites

diverges from NHL.

a. The circuits’ standards generally coincide. See

James Wm. Moore, Moore’s Federal Practice 3d § 27.56[6],

at 37-106-107 (2019) (listing eight common factors “that are

likely to be included in most of [the cases]”). Petitioners

do not contend that the variations warrant certiorari.

20

b. Petitioner’s argument that the Third, Fourth,

Eighth, Eleventh, and D.C. Circuits prohibit punitive

sanctions and disavow NHL, whereas the First, Second,

Ninth, and Tenth Circuits allow them (Pet. 27-37) is wrong.

First, Petitioners’ binary view misperceives the

purposes as mutually exclusive, either punitive or

remedial, but not both. No such division exists. See Fuery,

900 F.3d at 469 (“It is true that the district court used

some language of punishment, but what is also clear is

that the district court assessed the total effect of the

misconduct on the integrity of the proceedings and issued

a sanction which would ‘maintain ... the integrity of the

trial process.’”) (quoting U.M.W., 512 U.S. at 832). Indeed,

Petitioners acknowledge that the Fifth Circuit considers

both purposes but dismiss these as anomalous hybrid

sanctions. Pet. 33-34.

Second, the supposedly strict Third, Fourth, Eighth,

Eleventh, and D.C Circuits recognize dual remedial and

punitive/deterrent goals:

• Third Circuit: Hoxworth v. Blinder, Robinson

& Co., 980 F.2d 912, 922 (3d Cir. 1992) (dismissal

“must be available ... not merely to penalize…, but

to deter”) (citing NHL); Mindek v. Rigatti, 964 F.2d

1369, 1374 (3d Cir. 1992) (same); Hicks v. Feeney,

850 F.2d 152, 156 (3d Cir. 1988) (dismissal “is a

necessary tool to punish parties who fail to comply

with the discovery process and to deter future

abuses.”) (citing NHL).

• Fourth Circuit: Rangarajan v. Johns Hopkins

Univ., 917 F.3d 218, 226 (4th Cir. 2019) (“punishing

21

culpable persons, compensating harmed persons,

and deterring similar conduct in the future”), cert.

denied, No. 18-1453, 2019 WL 2211561 (U.S. June

24, 2019) (quoting United States v. Shaffer Equip.

Co., 11 F.3d 450, 462 (4th Cir. 1993)); Anderson v.

Found. for Advancement, Educ. & Emp’t of Am.

Indians, 155 F.3d 500, 504 (4th Cir. 1998) (“the need

for deterrence”); Mut. Fed. Sav. & Loan Ass’n v.

Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir.

1989) (citing NHL).

• Eighth Circuit: Everyday Learning Corp. v.

Larson, 242 F.3d 815, 817-818 (8th Cir. 2001)

(court has broad discretion to dismiss, even if “less

extreme” sanction would suffice, when misconduct

is deliberate or in bad faith); Avionic Co. v. Gen.

Dynamics Corp., 957 F.2d 555, 558 (8th Cir. 1992)

(same) (citing NHL).

• Eleventh Circuit: Carlucci v. Piper Aircraft

Corp., 775 F.2d 1440, 1447 (11th Cir. 1985) (“Rule

37 sanctions were designed … to deter those who

might be tempted” absent “such a deterrent.”)

(quoting NHL); Lyons v. O’Quinn, 746 F. App’x

898, 901 (11th Cir. 2018) (same); Goodman v. New

Horizons Cmty. Serv. Bd., No. 05-14717, 2006

WL 940646, at *2 (11th Cir. Apr. 12, 2006) (same);

Adolph Coors Co. v. Movement Against Racism

and the Klan, 777 F.2d 1538, 1548 (11th Cir. 1985)

(purpose of Rule 37 is to “deter future abuse of

discovery”; affirming default and citing NHL).

• D.C. Circuit: Parsi v. Daioleslam, 778 F.3d 116, 118

(D.C. Cir. 2015) (“We have previously recognized a

22

trial judge’s authority to punish and deter abuses of

the discovery process, and we do so again today.”);

Wash. Metro. Area Transit Comm’n v. Reliable

Limousine Serv., LLC, 776 F.3d 1, 6 (D.C. Cir.

2015) (“[d]iscovery sanctions serve two purposes:

punishing disobedient parties and deterring

others”); Butera v. D.C., 235 F.3d 637, 661 (D.C. Cir.

2001) (citing “prejudice to the judicial system” and

“the need ‘to sanction conduct that is disrespectful

to the court and to deter similar conduct in the

future’”) (quoting Webb v. D.C., 146 F.3d 964, 971

(D.C. Cir. 1998) (in turn quoting Shea v. Donohoe

Constr. Co., 795 F.2d 1071, 1075 (D.C. Cir. 1986)).

Petitioners’ cases from these “strict” circuits generally

reverse terminating sanctions for fact-specific reasons,

not because they reject NHL. See, e.g., Estate of Spear

v. Comm’r, 41 F.3d 103, 115 (3d Cir. 1994) (insufficient

prejudice and bad faith); Wilson v. Volkswagen of Am.,

Inc., 561 F.2d 494, 517-521 (4th Cir. 1977) (clearly erroneous

factual findings; lesser sanctions not considered).

Third, the supposedly lax circuits do follow Bauxites

and require that the sanction be “just” and “related” to

the misconduct or require consideration of less drastic

sanctions. See, e.g., Fashion House, Inc. v. Kmart Corp.,

892 F.2d 1076, 1081 (1st Cir. 1989); Daval Steel Prods.

v. M/V Fakredine, 951 F.2d 1357, 1366 (2d Cir. 1991);

Knowlton v. Teltrust Phones, Inc., 189 F.3d 1177, 1182

(10th Cir. 1999).

23

There is no circuit conflict. 3 The only “confusion”

about the standards is Petitioners’ view that punitive and

remedial purposes are mutually exclusive.

III. The Lower Courts Applied Bauxite Heightened

Standards.

This case does not present the legal issues raised

by the Petition. The district court did consider whether

dismissal was needed to cure the harm caused, found

that a close relationship existed, and was affirmed by the

Ninth Circuit.

1. Judge Gilliam devoted two sections of his opinion

to this issue.

First, he considered the prejudice caused by

Petitioners’ misdeeds. See App. 50a-52a. He applied

the correct standard that violations that “impair the

defendant’s ability to go to trial or threaten to interfere

with the rightful decision of the case,” support terminating

sanctions. App. 51a (citing Adriana, 913 F.2d at 1412).

And he correctly determined that the failure to produce

documents, answer interrogatories, allow depositions, and

disclose trade secrets had obstructed defendants’ ability

“to learn what, if any, support Plaintiff has for its claims,”

thereby prejudicing their “ability to defend themselves”

and stymying “the search for truth.” App. 51a-52a.

Second, Judge Gilliam added a lengthy section

addressing “Due Process Considerations,” App. 57a-62a,

3. Petitioners do not discuss Sixth, Seventh, or Federal

Circuit standards.

24

in which he applied the exact test required by Bauxites,

whether the sanctions are “just” and “specifically related

to the particular ‘claim’ which was at issue in the order to

provide discovery.’” App. 57a (quoting Wyle, 709 F.2d at

591, in turn quoting Bauxites, 456 U.S. at 707). Again, the

court made damning findings. It cited an interrogatory

seeking factual support for allegations going “to the heart

of all of Plaintiff’s allegations,” to which Loop responded

by directing Almawave to “all productions by all parties

and non-parties,” “any further materials has [sic] may be

obtained through discovery or otherwise,” referring to

“thousands of bates numbers without explanation,” and

providing “nearly 100 pages of allegations that appear[ed]

to be cut and pasted” from the SAC. App. 57a. Loop failed

to amend despite orders to do so. App. 57a-58a. This

obfuscation of the basis for Loop’s claims, and others like

it (Judge Gilliam cited it as a “representative example”)

made dismissal the only option, as it was “impossible to

have confidence that Defendants or the Court have access

to the facts and that any resolution at trial would be fair

and just.” App. 58a. See also App. 62a (due to Loop’s

discovery abuse, there would “never be assurance of

proceeding on true facts”) (citation omitted).

2. The Ninth Circuit affirmed on this basis. App. 5a.

3. The dismissal further satisfies due process per

Bauxites because the failure to provide required discovery

constitutes a tacit admission by Loop that its claims lack

merit. Long before Bauxites, this Court held that “the

refusal to produce evidence material to the administration

of due process was but an admission of the want of merit

in the asserted defense,” and thus provides a sufficient

basis consistent with due process for a default judgment

25

sanction. Hammond Packing Co. v. Ark., 212 U.S. 322,

351 (1909) (quoted in Bauxites, 456 U.S. at 705). Bauxites

explains that Rule 37(b)(2)(A) “embodies the standard

established in Hammond Packing … for the due process

limits on such rules.” Id.4

4. The Ninth Circuit faithfully applies this standard.

See, e.g., Conn. Gen. Life Ins. Co. v. New Images of

Beverly Hills, 482 F.3d 1091, 1097 (9th Cir. 2007) (“The

most critical factor to be considered in case-dispositive

sanctions is whether ‘a party’s discovery violations make

it impossible for a court to be confident that the parties

will ever have access to the true facts.’”) (citation omitted);

Valley Eng’rs, 158 F.3d at 1057-1058 (“Dismissal is

appropriate where a ‘pattern of deception and discovery

abuse made it impossible’ for the district court to conduct

a trial ‘with any reasonable assurance that the truth would

be available.’”) (citation omitted). Sanctions that fail this

test get reversed. See Tripati v. Corizon Inc., 713 F. App’x

710, 711 (9th Cir. 2018); Hernandez v. City of El Monte, 138

F.3d 393, 399 (9th Cir. 1998); United States ex rel. Wiltec

Guam, Inc. v. Kualahuu Constr. Co., 857 F.2d 600, 602

(9th Cir. 1988); Halaco Eng’g Co. v. Costle, 843 F.2d 376,

380-382 (9th Cir. 1988); Fjelstad, 762 F.2d at 1336, 13421343; Phoceene Sous-Marine, S. A. v. U.S. Phosmarine,

Inc., 682 F.2d 802, 807 (9th Cir. 1982).

Thus, Petitioners’ contention that the dismissal was

purely punitive is demonstrably false. They ignore the

rulings that dismissal was necessary because their denial

4. Petitioners’ claim that Hammond Packing applies only

when no discovery is provided (Pet. 18-19) is wrong. See 8B Charles

Alan Wright, et al., Federal Practice and Procedure § 2283 (3d ed.

2010) (discussing Hammond Packing and constitutional limits).

26

of discovery had made a fair trial impossible and instead

quote isolated snippets and mischaracterize statements by

counsel. See Pet. 19-20, 21.5 As the district court concluded,

Petitioners’ discovery stonewalling and adamant refusal

to reverse course made dismissal the only viable remedy.

IV. The Petition Makes Important Misstatements.

In addition to misstating applicable law and

ignoring their misconduct, Petitioners make significant

misstatements, e.g.:

• “[O]f the six defendants, none … moved for these

sanctions.” Pet. 3. Almawave requested terminating

sanctions three times, twice for discovery violations

(SER0701, SER0703) and once for pretrial-order

violations (SER1141-SER1142).

• Loop’s “core claims” “relied on largely undisputed

facts.” Pet. 9. All of Loop’s claims were sharply

disputed.

5. Petitioners selectively quote excerpts to make it appear

that, after Loop was ordered to show cause, Almawave preferred

to go to trial. They omit the text (underlined here) showing that

counsel referred to an earlier time before its position had changed:

I asked that pro hac vice be revoked, but that the trial

not be continued precisely because we want a trial on

the merits. Or at least we did. Our client was hoping

to defend itself on the merits. We never got there, and

it doesn’t look like we’ll ever get there.

But that is why I specifically said we don’t want the

trial continued. It was more important to us to get a

trial on the merits.

ER2610 (emphasis added).

27

• The relevant procedural facts are “straightforward

and not reasonably disputed.” Pet. 9. Suffice it to

say, a comparison of the parties’ statements of facts

shows wildly disparate views.

• The Italian Almawave defendants refused to

provide “any merits discovery.” Pet. 10. This

bizarre argument that Loop never received any

discovery from the Italian affiliates is false. Loop

received full discovery: 54,000 pages of Italian

documents, depositions of the requested Italian

witnesses, and a stipulation that all discovery

responses by Almawave-USA applied to the Italian

entities. ER2633-2635. Loop litigated this charge

below and lost decisively. ER2635-2636.

• The district court did not find that Loop “engaged

in bad faith conduct.” Pet. 12. It found that

“Plaintiff’s actions evince a persistent belief that it

is above any obligation to obey the Court’s orders,

deadlines, or rules.” App. 64a.

Such misstatements confirm that review is not

warranted.

28

CONCLUSION

For the foregoing reasons, the Petition should be

denied.

Respectfully submitted,

Mitchell Y. Mirviss

Counsel of Record

Elizabeth C. Rinehart

Venable LLP

750 East Pratt Street, Suite 900

Baltimore, MD 21202

(410) 244-7400

mymirviss@venable.com

Thomas E. Wallerstein

Venable LLP

101 California Street, Suite 3800

San Francisco, CA 94111

(415) 653-3750

Counsel for the Almawave Respondents