Shearson Loeb Rhoades, Inc., Gerald Jones and Roy Fink /crossclaimants- v. Victor Fuentes Quinard and Alma L

751 F.2d 1102 40 Fed.R.Serv.2d 1426

SHEARSON LOEB RHOADES, INC., Gerald Jones and Roy Fink, Plaintiffs/Crossclaimants-Appellees, v. Victor Fuentes QUINARD and Alma L. Fuentes, Defendants/Crossdefendants-Appellants. WAGER BAY, N.V., Plaintiff-Appellant, v. SHEARSON/AMERICAN EXPRESS, INC., Defendant-Appellee. SHEARSON/AMERICAN EXPRESS, INC., Crossclaimant-Appellee, v. Victor Fuentes QUINARD, Crossdefendant-Appellant.

Nos. 83-6486, 84-5523.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 7, 1984. Decided Jan. 15, 1985.

Samuel Keesal, Jr., Long Beach, Cal., for plaintiffs/crossclaimants-appellees.

M. Van Smith, Palo Alto, Cal., for defendants/crossdefendants-appellants.

Appeal from the United States District Court for the Central District of California.

Before SNEED, ANDERSON and FERGUSON, Circuit Judges.

FERGUSON, Circuit Judge:

1

This is a consolidated appeal of two actions involving commodity futures trading accounts. The facts which led to a default judgment against defendants in one action and the dismissal of the other arise out of the willful and deliberate disobedience of a discovery order, willful concealment of evidence, and attempted fabrication of false evidence.

2

The record demonstrates that the misconduct was so aggravated that the district court acted well within its discretion in rendering a default judgment against the defendants in action No. 83-6486. Fed.R.Civ.P. 37(b)(2)(C); United States v. Sumitomo Marine & Fire Insurance Co., 617 F.2d 1365, 1369 (9th Cir.1980).

3

The court did not err in dismissing the action in No. 84-5523, either. The pretrial order confirmed the fact that the plaintiff in that action was bound by the acts of the defendants in No. 83-6486.

4

We also find that the appeals are frivolous because the arguments of error are wholly without merit. Double costs and attorney fees are therefore warranted. Fed.R.App.P. 38; Gattuso v. Pecorella, 733 F.2d 709, 710 (9th Cir.1984).

It is therefore ordered:

5

1. The appeals in Nos. 83-6486 and 84-5523 are affirmed.

6

2. The appellees in both cases are awarded double costs against the appellants.

7

3. The appellees in both cases are awarded their attorney fees, the reasonable amounts of which are to be determined by affidavits to be filed within 20 days of the filing of this disposition. Appellants shall have 10 days to file a response.