                                                                       FILED
                                                           United States Court of Appeals
                                     PUBLISH                       Tenth Circuit

                    UNITED STATES COURT OF APPEALS                  May 15, 2018

                                                                 Elisabeth A. Shumaker
                          FOR THE TENTH CIRCUIT                      Clerk of Court
                      _________________________________

XYNGULAR, a Delaware corporation,

     Plaintiff Counter Defendant -
     Appellee,

v.

MARC SCHENKEL, an individual,

     Defendant Counterclaimant Third-
     Party Plaintiff - Appellant,                  No. 16-4193

v.


RUDY REVAK, an individual; MARY
JULICH, an individual; STEVE KOLE,
an individual; MARC WALKER, an
individual; BRUCE JENSEN, an
individual; DAN MURPHY, an
individual; RUSSELL FLETCHER, an
individual; JIM NORTHROP, an
individual; ROBERT SPANGLER, an
individual; SYMMETRY
CORPORATION, a Delaware
corporation; GLOBAL VENTURES
MANAGEMENT SERVICES LLC, a
Delaware limited liability company;
ALYTIS, LLC; GLOBAL VENTURES
PARTNERS,

     Third-Party Defendants - Appellees.
                     _________________________________
                    Appeal from the United States District Court
                              for the District of Utah
                       (D.C. No. 2:12-CV-00876-RJS-PMW)
                      _________________________________

Stephen Q. Wood (Mary Anne Q. Wood, with him on the briefs), Wood Balmforth LLC,
Salt Lake City, Utah, for Defendant Counterclaimant Third-Party Plaintiff - Appellant.

Mark F. James, Hatch, James & Dodge, P.C., Salt Lake City, Utah (Mitchell A. Stephens
and Justin L. James, Hatch, James & Dodge, P.C., Salt Lake City, Utah, with him on the
brief for Plaintiff Counter Defendant-Appellee, and Stephen E. W. Hale, Laura G.
Kennedy, Matthew J. Ball, and Rita M. Cornish, Parr Brown Gee & Loveless, P.C., Salt
Lake City, Utah, with him on the briefs, for Third-Party Defendants - Appellees), for
Plaintiff Counter Defendant-Appellee.
                         _________________________________

Before BRISCOE, SEYMOUR, and LUCERO, Circuit Judges.
                   _________________________________

LUCERO, Circuit Judge.
                    _________________________________

      Marc Schenkel appeals the dismissal by the district court of his claims against

Xyngular Corporation and various third parties as a sanction for abuse of what he

claims was pre-litigation discovery. Because we have not previously decided

whether pre-litigation conduct that did not give rise to the substantive claims in a

case is sanctionable by dismissal of a party’s claims, the issue remains an open

question in our circuit. We conclude that termination sanctions are permissible when

pre-litigation conduct is aimed at manipulating the judicial process and is unrelated

to the conduct that gave rise to the substantive claims in a case. Because the district




                                           2
court did not abuse its discretion in concluding that these conditions were met in the

present case, we exercise jurisdiction under 28 U.S.C. § 12911 and affirm.

                                           I

      Xyngular Corporation, a marketing company, was formed in 2009. Schenkel

worked at Xyngular from the company’s inception, performing various services in

exchange for an ownership interest. In 2010, the relationship between Schenkel and

Xyngular’s directors soured. Schenkel believed the company was paying excessive

amounts to Symmetry and Global Ventures Management Services (“GVMS”),2 two

entities that were owned by the Xyngular directors and performed certain services for

Xyngular. Believing that these activities amounted to illegal self-dealing, Schenkel

sent Xyngular a demand letter on September 1, 2011, in which he asked the Board of

Directors to investigate. He also requested that the Board pursue claims against

certain Xyngular employees for misappropriation of corporate assets, corporate

waste, self-dealing, and usurpation of corporate opportunities. Between mid-2010

and mid-2011, Schenkel asked Ian Swan, who was a Xyngular shareholder and IT

consultant at GVMS, to gather documentation regarding the suspected self-dealing

and the number of shares to which Schenkel was entitled. In October 2011, Swan

began to provide Schenkel with the requested documents.




      1
         Pursuant to Rule 54(b), the district court entered final judgment on
Schenkel’s counterclaims and third-party claims, permitting Schenkel to appeal its
interlocutory ruling and staying the remaining proceedings pending this appeal.
       2
         GVMS has since changed its name to Altyis.
                                           3
      On September 13, 2012, Xyngular filed suit against Schenkel, seeking a

declaratory judgment that he was entitled to only two thousand shares and that his

position as Master Distributor was terminated along with any accompanying rights.

Xyngular also alleged that Schenkel committed corporate waste and misappropriated

corporate resources. Schenkel responded by asserting a number of counter-claims

and third-party claims. He argued that he was entitled to 2,600 shares, a permanent

seat on Xyngular’s Board of Directors, and a non-terminable position in Xyngular’s

distribution chain. He also alleged that Xyngular’s directors had engaged in self-

dealing, concealed the presence of lead in the company’s products, and perpetuated

sales tax fraud committed by Symmetry. Schenkel attached several documents he

received from Swan as exhibits to his original answer, counter-claim, and third-party

complaint.

      Schenkel subsequently sought a temporary restraining order (“TRO”) to

restore his ownership interest, restore his seat on the Board of Directors, and prevent

the Xyngular directors from looting the company. During a hearing on the TRO

request, Xyngular’s counsel questioned the propriety of Schenkel’s receipt of

documents from Swan. Xyngular later moved for terminating sanctions,3 alleging

that Schenkel encouraged Swan to steal documents belonging to Xyngular,

Symmetry, GVMS, and others. Xyngular argued that many of these documents were


      3
        Specifically, Xyngular asked the court to dismiss Schenkel’s claims with
prejudice. We refer to such a remedy as a “terminating sanction.” See Conn. Gen.
Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007).

                                           4
kept on GVMS servers, which made Schenkel’s use of them in seeking a TRO

improper. Schenkel responded that Swan was authorized to access the documents,

that Swan gave the documents to Schenkel voluntarily, and that Schenkel intended to

use them to blow the whistle4 on Xyngular’s directors—not for the purpose of

litigation. He further alleged that Xyngular had spoliated evidence and retaliated

against him for whistleblowing. After the court allowed additional discovery, both

parties filed cross-motions for terminating sanctions.

      The district court denied Schenkel’s motion. As to Xyngular’s motion, the

court found that Schenkel encouraged Swan to remove documents from GVMS’s

servers and then collected, reviewed, and used those documents in support of his

claims. It further found that the documents belonged to Xyngular, GVMS,

Symmetry, and various other companies. The court noted that although Swan had

authorization to access the GVMS servers on which the documents were stored, there

was no evidence that Swan had authority to remove the documents, possess them, or

give them to third parties. Even though Schenkel’s conduct occurred before

litigation officially began, the court determined he had obtained the documents in

anticipation of litigation and used them to support his claims. It also held that, as a

Xyngular shareholder, Schenkel was not entitled to receive the documents in the

manner he did because he did not use the proper procedure to inspect the company’s


      4
        Schenkel reported what he believed to be the Xyngular directors’ illegal
conduct to the FBI and handed over some of the documents to the agency.
Additionally, Schenkel spoke with the IRS and Santa Clara County Tax Assessor
about a tax fraud scheme the Xyngular directors were allegedly employing.
                                            5
books and records. Finally, the court concluded that Xyngular had met its burden in

showing that Schenkel acted willfully, in bad faith, and with fault. It dismissed

Schenkel’s claims without entering default against Schenkel on Xyngular’s claims.

Additionally, the court excluded the documents Schenkel obtained from Swan from

evidence and awarded Xyngular and the third parties their costs and fees in bringing

the sanctions motions. Schenkel timely appealed.

                                           II

      Schenkel first argues that the district court exceeded its inherent powers by

imposing sanctions for pre-litigation conduct. He largely relies on our decision in

Towerridge, Inc. v. T.A.O., Inc., 111 F.3d 758 (10th Cir. 1997), for the proposition

that a district court has inherent authority to sanction only: (1) “bad faith occurring

during the course of litigation that is abusive of the judicial process” and (2) “bad

faith in bringing an action or in causing an action to be brought.” Id. at 768

(quotation omitted).

      “We review a court’s imposition of sanctions under its inherent power for

abuse of discretion.” LaFleur v. Teen Help, 342 F.3d 1145, 1149 (10th Cir. 2003)

(quotation omitted). “An abuse of discretion occurs when the district court bases its

ruling on an erroneous conclusion of law or relies on clearly erroneous fact findings.”

Ashby v. McKenna, 331 F.3d 1148, 1149 (10th Cir. 2003) (quotation omitted). In

concluding that Schenkel’s conduct was sanctionable, the district court considered

not only Schenkel’s misappropriation of Xyngular’s documents, but also his use of

them in anticipation of litigation and during the litigation itself. We agree that under

                                            6
Towerridge, a court may exercise its inherent powers to sanction bad-faith conduct

that abuses the judicial process, including pre-litigation acts that directly affect a

lawsuit.

       While not addressing pre-litigation conduct per se, the Supreme Court has held

that “[a]s long as a party receives an appropriate hearing . . . the party may be

sanctioned for abuses of process occurring beyond the courtroom.” Chambers v.

NASCO, Inc., 501 U.S. 32, 57 (1991). Although we held in Towerridge that “an

award of attorneys’ fees may not be premised solely on prelitigation conduct,” we

observed that the bad faith at issue in that case “lay solely in [defendant]’s

prelitigation acts which gave rise to [plaintiff]’s substantive claim.” Towerridge, 111

F.3d at 765, 768. By contrast, Schenkel’s misconduct was not the basis for

Xyngular’s original suit, which stemmed from contractual disputes between the

parties. Instead, the misconduct centered on his method of gathering evidence related

to those substantive claims. Although it took place before litigation began,

Schenkel’s misconduct was intended to improperly influence the judicial process.5

       Our sibling circuits have affirmed terminating sanctions where bad faith pre-

litigation conduct extended into court proceedings. See, e.g., Eagle Hosp.

Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir. 2009)

(affirming a sanction of dismissal for a party whose “ongoing ability to intercept


       5
         At the time Swan provided Schenkel with the misappropriated documents,
Schenkel was consulting with transactional counsel. In mid-2011, he retained and
consulted with litigation counsel. And by the end of 2011, he had created a privilege
log that withheld documents on the basis of “work product.”
                                             7
confidential and privileged emails” both before and during litigation would make

adjudication of his claims untenable); Jackson v. Microsoft Corp., 78 F. App’x 588,

589 (9th Cir. 2003) (unpublished) (affirming a terminating sanction for a party’s pre-

litigation receipt of privileged information because defendant “would be unfairly

prejudiced were the case to go forward”).

                                            III

      Schenkel argues that the district court, when selecting a sanction, abused its

discretion because it improperly applied the factors articulated in Ehrenhaus v.

Reynolds, 965 F.2d 916 (10th Cir. 1992), and the clear-and-convincing-evidence

standard. “[O]utright dismissal of a lawsuit . . . is a particularly severe sanction, yet

is within the court’s discretion.” Chambers, 501 U.S. at 45. In Ehrenhaus, we

established five factors that district courts should consider before imposing dismissal

as a sanction:

      (1) the degree of actual prejudice to the defendant; (2) the amount of
      interference with the judicial process; . . . (3) the culpability of the
      litigant, . . . ; (4) whether the court warned the party in advance that
      dismissal of the action would be a likely sanction for noncompliance,
      . . . ; and (5) the efficacy of lesser sanctions.

Ehrenhaus, 965 F.2d at 921 (quotation and citations omitted).

      We have additionally held that, “[b]ecause dismissal is such a harsh sanction,

it is appropriate only in cases of willfulness, bad faith, or some fault.” Chavez v.

City of Albuquerque, 402 F.3d 1039, 1044 (10th Cir. 2005) (quotation and brackets

omitted). And although our circuit has no precedent precisely on point, persuasive

authority from our sibling circuits indicates that a clear and convincing standard

                                            8
applies. See Maynard v. Nygren, 372 F.3d 890, 891 (7th Cir. 2004); Shepherd v.

Am. Broadcasting Cos., Inc., 62 F.3d 1469, 1472 (D.C. Cir. 1995); Aoude v. Mobil

Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989). We therefore apply the same

standard to this case.

      Schenkel contends the record lacks clear and convincing evidence that any

document he received was confidential, privileged, or contained trade secrets. This

argument misapprehends the district court’s reasoning in imposing sanctions.

Although the district court concluded that the documents comprised internal files

such as board meeting minutes and employees’ personal information, the inquiry that

was essential to the imposition of sanctions was not whether the documents were

confidential, privileged, or trade secrets—but rather, whether Schenkel acted

willfully, in bad faith, and with fault in a way that abused the judicial process in

collecting them. In concluding that he did so, the district court noted that Schenkel

did not attempt to use the proper procedures for a shareholder to inspect corporate

records, that he did so anticipating litigation, and that he gathered documents that

belonged not only to Xyngular but also to his other potential opponents in this

litigation. We hold that the district court did not err in concluding that this amounted

to clear and convincing evidence of Schenkel’s bad faith. See Archibeque v.

Atchison, Topeka & Santa Fe Ry. Co., 70 F.3d 1172, 1174 (10th Cir. 1995)

(concluding that a litigant exhibited bad faith warranting dismissal of her claims by

deliberately “fail[ing] to cooperate in the discovery process”).



                                            9
       We further hold that the district court permissibly applied the Ehrenhaus

factors in determining that terminating sanctions were appropriate. First, in

measuring “the degree of actual prejudice to the opposing party,” LaFleur, 342 F.3d

at 1151, the court noted that Schenkel collected over three hundred documents, that

Xyngular and the other parties could not identify the documents that he collected, and

that some of the documents contained personal information about Xyngular

employees. Although some of the documents may have been subject to discovery,

the district court noted that Schenkel’s actions amounted to a circumvention of the

discovery process and its built-in protections for parties’ interests. The district court

did not conclude that any of the documents were privileged, but it did note that

Schenkel’s actions deprived the parties of the right to argue that they were before

disclosing them in the course of litigation. It also observed that Schenkel’s actions

led the parties to expend significant time and resources resolving the issue of the

misappropriated documents.

       Second, Schenkel’s actions amounted to a substantial “interference with the

judicial process,” LaFleur, 342 F.3d at 1151, because he had, in anticipation of

pursuing legal remedies, opted out of the proper discovery procedures. Schenkel

bypassed the judicial process while nevertheless seeking to take advantage of it. As

for the third factor—the question of Schenkel’s culpability—the district court

repeated its conclusion that he had acted with willfulness, bad faith, and fault, and

that he “made a calculated decision to obtain the documents for strategic use in

litigation.”

                                           10
      The fourth factor asks “whether the litigant was warned in advance that

dismissal was a likely sanction.” LaFleur, 342 F.3d at 1151. The district court

observed that it did not have an opportunity to warn Schenkel before he received the

documents, but observed that this factor was not dispositive. See Rogers v. Andrus

Transp. Servs., 502 F.3d 1147, 1152 (10th Cir. 2007) (noting that a warning under

the fourth Ehrenhaus factor “is not a sine qua non for dismissal” (italics omitted)).

Schenkel now argues that the district court erred in dismissing his claims without

prior warning. He contends that, although some courts have imposed terminating

sanctions without a warning, those cases did not involve pre-litigation misconduct.

Schenkel does not, however, cite any authority holding that terminating sanctions in a

case like this one necessarily require prior warning. We decline to hold that

Ehrenhaus dictates such a result.

      Finally, the district court addressed the question of whether lesser sanctions

would be effective. In its analysis, the court reiterated the prejudice to the parties

that resulted from Schenkel’s circumvention of the discovery process, and noted that

any sanction short of dismissal would incentivize future litigants to similarly

misappropriate documents in anticipation of litigation. It concluded that dismissal

was the least severe sanction that would effectively cure the prejudice, deter future

misconduct, and punish Schenkel’s wrongdoing. Schenkel argues that the district

court erred in declining to impose a lesser sanction, describing the sanction he

received as unprecedented. But Schenkel never argued before the district court that

lesser alternative sanctions would be appropriate; he instead insisted that his conduct

                                           11
was not improper at all and therefore warranted no sanction. “Absent extraordinary

circumstances, we will not consider arguments raised for the first time on appeal.”

Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1143 (10th Cir. 2009).

      The imposition of sanctions is one of many matters within a trial court’s broad

discretion, and we reverse only when that discretion has been abused. LaFleur, 342

F.3d at 1149. In this case, the district court carefully analyzed the evidence and the

parties’ arguments. We do not discern any abuse of discretion in the district court’s

analysis.

                                          IV

      AFFIRMED.




                                          12
