Once a federal court has determined that a plaintiff's jurisdiction-conferring claims are not insubstantial on their face, no further consideration of the merits of the claim is relevant to a determination of the court's jurisdiction of the subject matter. Thus, the district court's subject matter jurisdiction to entertain a suit based on a federal claim that is not wholly insubstantial, frivolous, or foreclosed by prior decisions of the Supreme Court, is not defeated by the defendant's assertion of a position that is properly characterized as an affirmative defense.
the “crash” of this computer should have had absolutely no impact on the production of discovery because Janet Lima testified that she “dropped” the computer she had used for the last five years in late December 2006, after the court-ordered deadline for production had come and gone.
*143 Parts of this program [Window Washer] were initially created on the morning of June 12, 2007, the same morning Scheltema arrived to “search” for responsive documents.... Lima admitted installing and running Window Washer on her computer the morning Scheltema arrived on June 12, 2007.... She further testified that she never ran Window Washer again.
Disciplinary sanctions under Rule 37 are intended to serve three purposes. First, they ensure that a party will not benefit from its own failure to comply. Second, they are specific deterrents and seek to obtain compliance with the particular order issued. Third, they are intended to serve a general deterrent effect on the case at hand and on other litigation, provided that the party against whom they are imposed was in some sense at fault.
[I]f parties are allowed to flout their obligations, choosing to wait to make a response until a trial court has lost patience with them, the effect will be to embroil trial judges in day-to-day supervision of discovery, a result directly contrary to the overall scheme of the federal discovery rules. Moreover, ... compulsion of performance in the particular case at hand is not the sole function of Rule 37 sanctions. Under the deterrence principle of [National Hockey League ], plaintiff's hopelessly belated compliance should not be accorded great weight. Any other conclusion would encourage dilatory tactics, and compliance with discovery orders would come only when the backs of counsel and the litigants were against the wall.
End of Document.