Tuesday, August 5, 2008
Two recent Seventh Circuit cases involving sanctions deserve a read:
In de Manez v. Bridgeston, in the context of forum non conveniens, the parties fought about whether Mexican courts were an available alternative forum. "The evidence showed that plaintiffs' U.S. lawyers ... had hired Mexican lawyers on a contingent-fee basis ... for the express purpose of filing a deficient complaint in an improper Mexican court." The idea, of course, was to use the dismissal to convince the federal court that Mexico was not an available adequate forum. Despite this evidence, the Seventh Circuit vacated and remanded because the party being sanctioned did not receive constitutionally adequate notice and an opportunity to be heard. Download manez.pdf
In Banco Del Atlantico v. Woods, the sanction of dismissal stuck. The court held:
The question before us on the plaintiffs’ appeal is whether Judge McKinney abused his discretion in putting an end to this case. We have cautioned that a sanction of dismissal is a last resort which can only be employed in rare cases. It is a “draconian” remedy which should be applied only in extreme situations, when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailing. That doesn’t mean, however, that it can never be used. Even Draco got it right every once in awhile, and today, when district courts have several hundred cases on their dockets, there are times when the “draconian” remedy is appropos. And that time was reached in this case.
On appeal, the plaintiffs argue, among other things, that“there was no finding or record of delay, contumacious conduct, willfulness, bad faith or fault . . . .” The argument is—if nothing else—audacious. There is, in fact, little else in the record. (citations omitted).