See today’s Mick Haig Productions, Inc. v. Does 1-670 (5th Cir. July 12, 2012) (thanks to Howard Bashman (How Appealing) for the pointer), which suggests that lawyer Evan Stone’s chutzpah (for more on that, see the post about the original sanctions decision) is matched by his willingness to waive legal arguments by failing to raise them at the proper time:
On appeal, Stone argues that the sanctions cannot be justified under Rules 26 and 45 or under Federal Rule of Civil Procedure 11 or the inherent power of the district court. He also contends that the attorneys ad litem lacked standing to bring the sanctions motion and are not the proper recipients of the attorneys’ fees awarded by the district court. Stone raises this last argument for the first time on appeal and raised the other arguments for the first time in his untimely motion in the district court to stay sanctions pending appeal, which was filed after this appeal was initiated. None of these arguments, thus, was preserved for purposes of appeal, nor does Stone contend they were. Accordingly, all the issues Stone raises on appeal have been waived.
Nonetheless, Stone asserted, at oral argument and for the first time, that this court can consider his arguments because his appeal is one of “extraordinary circumstances,” involving only “pure question[s] of law [in which] a miscarriage of justice would result from our failure to consider [them].” AG Acceptance Corp. v. Veigel, 564 F.3d 695, 700 (5th Cir. 2009). We conclude, however, that no miscarriage of justice will result from the sanctions imposed as a result of Stone’s flagrant violation of the Federal Rules of Civil Procedure and the district court’s orders. Stone committed those violations as an attempt to repeat his strategy of suing anonymous internet users for allegedly downloading pornography illegally, using the powers of the court to find their identity, then shaming or intimidating them into settling for thousands of dollars — a tactic that he has employed all across the state and that has been replicated by others across the country.
[Footnote: See, e.g., Raw Films, Ltd. v. Does 1-32, 2011 WL 6182025, at *3 (E.D. Va. 2011) (“This course of conduct indicates that the plaintiffs have used the offices of the Court as an inexpensive means to gain the Doe defendants’ personal information and coerce payment from them. The plaintiffs seemingly have no interest in actually litigating the cases, but rather simply have used the Court and its subpoena powers to obtain sufficient information to shake down the John Does. Whenever the suggestion of a ruling on the merits of the claims appears onthe horizon, the plaintiffs drop the John Doe threatening to litigate the matter in order to avoid the actual cost of litigation and an actual decision on the merits.”).