BY ANY NAME, "SUBJECTIVE BAD FAITH" WOULD SMELL THE SAME.

In Lanard Toys Ltd. v. Dolgencorp LLC, NO. 3:15-CV-849-J-34PDB, 2019 WL 1003134 (M.D. Fla. March 1, 2019) (Barksdale, USMJ), the Court denied a defendant's request either for dismissal of the case with prejudice or alternatively for sanctions.  The defendant's motion appealed to the Court's "inherent powers."

In this case, the question of exercising the Court's inherent powers to sanction attorneys involved the standard of proof of "subjective bad faith."  The Court held in this case that it saw the attorneys' record conduct the same way, whether under a high standard of clear and convincing proof or under a lower standard more or less based on the circumstances:

Many courts require clear and convincing evidence of subjective bad faith.  [Citations omitted.]  There does not appear to be binding precedent in the Eleventh Circuit on that standard.  [Citation omitted.]  The Eleventh Circuit has held, however, that dismissal of a case is “warranted only upon a clear record of delay or willful contempt and a finding that lesser sanctions would not suffice.” Mingo v. Sugar Cane Growers Co-op of Fla., 864 F.2d 101, 102 (11th Cir. 1989) (internal quotation marks omitted) (emphasis in original).

    Here, the result would be the same whether the clear-and-convincing standard or the lesser preponderance standard applies.

Lanard Toys Ltd. v. Dolgencorp LLC, NO. 3:15-CV-849-J-34PDB, 2019 WL 1003134, at *2 n. 3 (M.D. Fla. March 1, 2019).

Nonetheless, on this record and in this case, the Court declined the opportunity to dismiss as well as the opportunity to sanction:

          Here, the circumstances described by the defendants—and uncontested or largely uncontested by Lanard—show carelessness (or maybe even professional incompetence) resulting from many documents, many markings under the protective order, different lawyers practicing in different states in different cases (this case and the bankruptcy case), and an apparent absence of protocol effective against improper disclosures. But the defendants do not show the subjective bad faith or egregious conduct required for the Court to take the unusual step of exercising inherent authority to sanction the lawyers. Dismissal of the entire case with prejudice would be particularly inappropriate under the circumstances presented.

Lanard Toys Ltd. v. Dolgencorp LLC, NO. 3:15-CV-849-J-34PDB, 2019 WL 1003134, at *2 (M.D. Fla. March 1, 2019).

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