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Haeger v. Goodyear Tire & Rubber Co.

United States Court of Appeals, Ninth Circuit

June 8, 2017

Leroy Haeger; Donna Haeger, husband and wife; Barry Haeger; Suzanne Haeger, husband and wife, Plaintiffs-Appellees,
v.
Goodyear Tire & Rubber Company, an Ohio corporation, Defendant-Appellant, and Spartan Motors, Inc., a Michigan corporation; Gulfstream Coach, Inc., an Indiana corporation, Defendants,
v.
Roetzel & Andress, LPA; Basil J. Musnuff, Movants. Leroy Haeger; Donna Haeger, husband and wife; Barry Haeger; Suzanne Haeger, husband and wife, Plaintiffs-Appellees,
v.
Goodyear Tire & Rubber Company, an Ohio corporation, Defendant-Appellant.

         On Remand From the United States Supreme Court D.C. No. 2:05-cv-02046-ROS.

          Pierre H. Bergeron, Squire Sanders LLP, Cincinnati, Ohio; George Brandon, Squire Sanders LLP, Phoenix, Arizona; Jill G. Okun, Squire Sanders LLP, Cleveland, Ohio, for Defendant-Appellant/Defendant The Goodyear Tire & Rubber Company.

          Mark I. Harrison, Jeffrey B. Molinar, Osborn Maledon, PA, Phoenix, Arizona, for Movant/Movant-Appellant Basil J. Musnuff.

          Andrew M. Jacobs, Katherine V. Foss, Snell & Wilmer LLP, Tucson, Arizona; James R. Condo, Lisa M. Coulter, Snell & Wilmer LLP, Phoenix, Arizona, for Movant-Appellant Graeme Hancock.

          John J. Egbert, Jennings Strouss & Salmon, PLC, Phoenix, Arizona; David L. Kurtz, The Kurtz Law Firm, Scottsdale, Arizona, for Plaintiffs-Appellees.

          Before: J. CLIFFORD WALLACE, MILAN D. SMITH, JR. and PAUL J. WATFORD, Circuit Judges.

         SUMMARY[*]

         Waiver / Sanctions

         On remand from the U.S. Supreme Court in Goodyear Tire & Rubber Co. v. Haeger, 137 S.Ct. 1178 (2017), the panel vacated the district court's $2.7 million sanctions award, and remanded to the district court for proceedings consistent with the Supreme Court's opinion.

         Dissenting from the panel's decision to remand, Judge M. Smith would retain jurisdiction over the case, and decide in the first instance whether Goodyear Tire waived any causation challenge to the district court's $2 million contingency sanctions award. Judge M. Smith would find that Goodyear Tire waived any causation challenge, and conclude that because the district court's contingency sanctions award should stand, no further involvement by the district court was necessary.

          ORDER

         Defendant-Appellant Goodyear Tire & Rubber Company's unopposed motion for supplemental briefing is DENIED.

         Pursuant to the opinion of the Supreme Court in Goodyear Tire & Rubber Co. v. Haeger, 137 S.Ct. 1178 (2017), the district court's $2.7 million sanctions award is VACATED, and, by vote of a majority of the panel judges, the matter is REMANDED to the district court for proceedings consistent with the Supreme Court's opinion.

          M. SMITH, Circuit Judge, dissenting:

         I respectfully dissent from the panel's decision to remand this case to the district court. The Supreme Court remanded the case to us to determine, in the first instance, whether Defendant-Appellant Goodyear Tire & Rubber Company (Goodyear) waived any causation challenge to the district court's $2 million contingency sanctions award. See Goodyear Tire & Rubber Co. v. Haeger, 137 S.Ct. 1178, 1190 (2017) ("The possibility of waiver should therefore be the initial order of business below. If a waiver is found, that is the end of this case. If not, the District Court must reassess fees in line with a but-for causation requirement."). Plaintiffs-Appellees' (the Haegers) theory of waiver is premised on Goodyear raising a specific causation challenge before the district court to only $722, 406.52 of the fees and costs sought by the Haegers. As such, the record is already complete, and no additional fact finding is necessary. ...


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