Of the Ninth Circuit, sitting by designation. * 

# U nit edStates C ou rt o f App eal s

For t h e Firs t C ircu it

No. 08-1753 REMEXCEL MANAGERIAL CONSULTANTS, INC., MARÍA S. KORTRIGHT, Plaintiffs, Appellees,

v. EDGARDO ARLEQUÍN, MUNICIPALITY OF GUAYANILLA, Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO [Hon. Salvador Casellas, U.S. District Judge]

Before Torruella, Tashima, and Lipez, Circuit Judges. *

Jorge Martínez-Luciano, with whom Johanna M. Emmanuelli Huertas and Emil Rodríguez-Escudero were on brief, for appellants. Pedro R. Vázquez III, for appellees.

October 1, 2009-2- LIPEZ, Circuit Judge . We consider for the s e c o n d time this political discrimination case, in which plaintiffs claim they were denied payment for services performed on behalf of the municipality of Guayanilla, Puerto Rico, in violation of the First Amendment. In the original appeal, we vacated the district court's dis m i s s a l o f t h e c a s e f o r f a i l u r e t o s t a t e a c l a i m , h o l d i n g that the plaintiffs' complaint adequately pleaded the necessary elements of a political discrimination act i o n under 42 U.S.C. § 1983. Ramírez v. Arlequín, 447 F.3d 19, 25 (1st Cir. 2006). Subsequent to our decision, the district court reinstated th e c l a ims and eventually entered a default judgment against defendants, the municipality of Guayanilla, Puerto Rico ("the Municipality"), and its mayor, Edgardo Arlequín, as a result of repeated discovery violations.

In this appeal, defendant s a rgue that: 1) the district court abused its discretion in entering the default judgment, and 2) even in light of the default judgment, the plaintiffs cannot prevail because their complaint does not make out a prima facie case of political discrimination. For reasons we shall explain, we conclude that there was no abuse of discretion in the entry of a default judgment, and that the law of the case doctrine bars defendants' attempt to reargue the adequacy of plaintiffs' complaint. We therefore affirm.-3- I. A. Background

Alt h ough the background facts of this complaint are described in our earlier decisi o n i n this case, id. at 20-22, we will recount them here succinctly. Plaintiff Remexcel Managerial Consultants ( " Remexcel") is a company owned by Reinaldo Ramírez. Remexcel entered into a cont r a ct with the former mayor of Guayanilla, Ceferino Pacheco Guidicelli ("Mayor Pacheco"), a member of the New Progressive Party ("NPP"), to perform accounting services for the Municipality that would identify residents who owed taxes. Id. at 20-21. Remexcel was to receive ten percent of the m o n e y obtained as a result of its services. When Remexcel identified a t a x deficiency of $4,444,058.87 owed to the Municipalit y b y Stinnes Interoil, an oil supply company, the Municipality info r m e d Stinnes of that determination, and Stinnes filed a lawsuit against the Municipalit y i n Puerto Rico Superior Court seeking to dispute any outstanding tax liability. See Veba Oil Supply v. Municipality o f Guyanilla, Civ. No. JCO 96-003 (Super. Ct. Ponce).

Plaintiff María S. Kortright is a lawyer who was hired by Mayor Pacheco and the Municipality to defend that lawsuit under a contingency arrangement which, like the agr e e m ent with Remexcel, would pay her ten percent of the money collected as a result of her work. Ramírez, 447 F.3 d a t 2 1 . Working on the case until 2000,-4-

Kortright filed the summary judgment motions which led to a favorable resolution of the case for the Municipality. Id. After she performed this work, howe v e r , defendant Edgardo Arlequín ("Mayor Arlequín") took office, replacing Mayor Pacheco. Mayor Arlequín is a member of the Popular Democratic Party ("PDP"). Id.

The complaint alleg es that after taking office, Mayor Arlequín began "a pattern and practice of discrimination by taking adverse action against anyone associated with the prior New Progressive Party administration at any level," and, as a result, refused to continue the Municipality's professional association with the plaintiffs. Kortright was replaced as counsel for the Veba Oil case. According to the complaint, "[t]he new counsel did nothing of record but enter his appearance before the court granted summary judgment for the Municipality in the amount of $4.5 mill i o n , b a s e do n K o r t r i g h t ' s w o r k
. " I d
. T h e n e wl a w y e r t h en settled the suit for $1.8 million to be paid to the Municipality. Id. The plaintiffs brought suit under 42 U.S.C. § 1983, alleging, inter alia, that their First Amendment a s s o ciational rights were violated because Mayor A r l equín and the Municipality refused to pay them money they were rightfully owed solely because of their association with Mayor Pacheco. Defendants moved in the district court to dismiss the suit fo r f a ilure to state a claim. The district court granted the motion, concluding that, pursuant to the Supreme Court's decisions in Elrod v. Burns, 427 U.S. 347The district court also determined that, unlike his company 1 Remexcel, plaintiff Ramírez lacked standing to bring suit. We accepted the dismissal of Ramírez's claims because h e d i dnot contest that ruling. Id. at 22. -5- (1976), and Branti v. Finkel, 445 U.S. 507 (1980), plaintiffs' jobs were not entitled to protection from political discrimination because they involved policymaking positions. Ramírez, 447 F.3d at 21-22. 1 In the appeal brought by plaintiffs, we were "called upon to decide whether a deliberate executive decision by a state actor, based only on a partisan political change of a dministration, to deprive independent contractors of a payment to which they are legally entitled, violates the contractors' First Amendment rights." Id. at 20. Ruling favora b l y f o r the plaintiffs, we concluded that the Elrod/Branti doctrine's exemption of policymakers from protection against political affiliation discrimination does n o t a p ply "to someone who is neither a government employee nor seeks a c o ntinuing relationship with the
gove r n m e n t , b u t w h o m e r e l y a s k s t o b e p a i d i n a c c o r d a n c e with a contract which that person has already performed." Id. at 23. We wrote that, "[a]lthough we must always be concerned about consti t u t i o n a l i z i n gt r a d i t i o n a l c o mm o n l a wc l a i m s , w e s e e no theoretical bar to the First Amendment claim that is alleged here." Id. We went on to say that "Remexcel and Kortright must plead that they engaged in protected association, that they were entitled to payment under their contracts, and that the Municipality denied the28 U.S.C. § 1927 reads : "Any attorney . . . who so 2 multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." -6- payment in retaliation for their exercise of associational rights. These elements are adequately pleaded in the complaint." Id. at 25 (citation omitted). Hence we reversed the district court's dismissal of Remexcel's and Kortright's First Amendment retaliation claims. B. The Renewed Proceedings in the District Court

1. Defendants' motion for judgment on the pleadings In light of our decision, the district c o u rt re-opened the case on June 22, 2006. App r o x imately two months later, on August 30, 2006, the Municipality filed a motion for judgment on the pleadings, arguing that "plaintiffs failed to state a theory of political discrimination that, even with evidentiary support, would constitute a violation o f said parties' First Amendment rights." See Fed. R. Civ. P. 12(c). Plaintiffs opposed the motion and asked the court to impose sanctions pursuant to 28 U.S.C. § 1927, because of defendants' unreasonable and vexatious multiplication of proceedings. 2

On December 1, 2006, the district c o urt denied the Municipality's motion for judgment on the pleadings, noting our ruling in the first appeal that the complaint adequately pleaded a First Amendment retaliation claim. It also granted plaintiffs'The standard for evaluating a motion to dismiss is the same 3 as that for a motion for judgment on the pleadings. See, e.g., Citi b a n k G l o b a l M a r k e t s , I n c . , v . R o d r í g u e z S a n t a n a , e t a l
. , 573 F.3d 17, 23 (1st Cir. 2009) ("to survive a motion to dismiss (or a motion for judgment on the pleadings), the c omplaint must plead facts that raise a right to relief above the speculative level."); see also Charles Alan Wright and Arthur R. Miller, 5 Federal Practice and Procedure § 1203 ("[T]he form and sufficiency of a statement of a claim for relief under Rule 8(a)(2) may be tested by a motion to dismiss for failure to state a claim upon which relief can be granted, Rule 12(b)(6), [or] by a motion for judgment on the pleadings, Rule 12(c) . . . ."). The defendants never filed such a petition. 4
-7- motion for sanctions because we had already decid e dthat defendants' arguments lacked merit. Quoting our decision in Cruz 3 v. Savage, 896 F.2d 626, 632 (1st Cir. 1990), it noted that "[t]his is the type of multiplying of proceedings that § 1927 is designed to avoid . . . . Counsel for the Municipality acted 'in disregard of whether his conduct constitu t e [ d ] harassment . . . thus displaying a serious and studied disregard for the orderly process of justice.'" The court went on to say:

Filing a motion for judgment on the pleadings, based in arguments already rejected by a court of higher level is clearly vexatious conduct that disregards the orderly process of justice and must be sanctioned .
. . . If the Municipality, or its Counsel, disagreed with the First Circuit's decision, it should have filed a [petition for] certiorari before the United States Supreme Court. 4 The district court ordered the defendants to pay $2,000 to the plaintiffs "in satisfaction of excess costs, expenses, and attorneys' fees they reasonably incurred in re-litigating an issues previously ruled on by a higher court."-8- 2. Discovery violations On September 18, 2006 , October 11, 2006, and January 9, 2007, plaintiffs moved to com p e l the production of requested discovery and for sanctions based on defendants' consistent failure to provide discovery, as well as their alleged failures to appear at scheduled depositions and to respond to a subpoena duces tecum. Defendants opposed the motions, arguing, inter alia, that they had not answered the discovery r e q u e sts because they had objected to them. On April 19, 2007, the district court granted plaintiffs' motions to compel and denied their motions for sanctions. Because the response to plaintiffs' motions t o c o mpel depended on the merits of defendants' objections to the requests for discovery, the court painstakingly addressed each of defendants' objections. Before compelling the production of any of t h e objected-to materials, it explained why it disagreed with the defendants that the requested information was either irrelevant or privileged.

In rejecting plaintiffs' request for sanctions, the court explained that it did not fault the defendants for refusing to produce the objected-to documents until the court had ruled on those objections. It did, however, admonish the defendants for not producing other documents to which it had not objected. It went on:

We refuse . . . to make an account here of each document requested and produced, and those which remain to be produced. Defendants are to make such an e x e r cise and comply with-9- this order by the time provided below . . . . Should counsel continue to have differences of this sort, the Court will schedule such a conference and will not hesitate to impose sanctions upon the party engaging in professional misconduct, or both parties if the Court finds both responsible. 3. Default Judgment Despite the district court's admonishment, defendants failed to respond to the discovery requests on time. Instead, approximately two weeks aft e r t h e new deadline for the discovery responses, defendants, according to plaintiffs, "delivered . . . a hodgepodge of documents, unnumbered, unidentified, and without any
attem p t t o specify which document related to which request." Plaintiffs then asked the court to impose a default judgment as a sanction for defendants' failure to provide responsive discovery. On December 6, 2007, the district court granted that motion.

Again, the c o u rt carefully explained its reasoning. It said that the defendants' failure to respond adequately was "just the cherry on top of the sundae," in light of defendant s ' many other failures to abide by its orders. It described the troubled history of the discovery process i n this case and how it had previously sternly warned defendants that it would issue sanctions for failure to comply with its April 19, 2007 order. The court also listed four separate orders it had issued during the course of the litigation warning defendants that it would issue sanctions if they failed to cooperate with discovery, and also cited its-10-

December 1, 2006 order impo s i n g sanctions for defendants' "vexatious" and "stubborn" conduct.

4. The "Motion to Set Aside Default"
A he a r i n go n d a m a g e s w a s s e t f o r M a r c h 2 4 , 2 0 0 8
. On Easter Sunday, the eve of trial, the Municipality moved in the district court to set aside the default judgment, arguing that the "recent" decision of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), mandated that result. In fact, Twombly had been decided in May 2007 -- ten months before the Municipality's motion "to set aside default" and two months before the entry of default judgment. In their motion, defendants o n c e a gain argued that the complaint did not state a claim for relief. This time, they a d d e d t he new twist that "under Twombly, plaintiffs' complaint would never have survived defendants' Rule 12(b)(6) motion."

On March 24, 2008, the dist r i c t court rejected the "eleventh hour" motion as both "untimely" and "without merit." The court characterized the motion as a "misnamed" motion for reconsideration of the defendants' earlier motion for judgment on the pleadings, because it only ar g u ed the sufficiency of the pleadings and did not otherwise argue that the default was an abuse of discretion. The court stated that:

[U]nder the more stringent Twombly standard, Plaintiffs still plead a cause of action. T h e y a r g u e t h a t t h e y w e r e e n t i t l e d t o some payments under a contract with the Municipality and that the new Mayor, a member of t h e PDP, refused to pay them only because-11- of Plaintiffs' association with the former Mayor, a member of the NPP. Citing our earlier decision in this case, the court remarked that "said discrimination is exactly what the First Amendment is designed to protect, and therefore, [plaintiffs] have plead enough to show plausible entitlement to relief under the First Amendment." After the damages hearing, the court entered judgments of $180,000, plus pre- and post-judgment interest, for both Remexcel and Kortright. This appeal followed.
II. Defendants challenge the imposition of the default judgment as a sanction for their repeated discovery violations. We review the entry of a default judgment for abuse of discretion. Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 25-26 (1st Cir. 2006). The party challenging this type of sanction "'bears a heavy burden of demonstrating that the trial judge was clearly not justified in entering a n o r d e r of [default] under Rule 37.'" Id. at 25, (modification in original) (quoting Spiller v. U.S.V. Labs, Inc., 842 F.2d 535, 537 (1st Cir. 1988)).

The entry of a default judgment "provides a useful remedy when a litigant is confronte d b y an obstructionist adversary and plays a constructive role in maintaining the orderly and efficient administration of justice." KPS & Assocs., Inc. v. Designs by FMC, Inc., 318 F.3d 1, 13 (1st Cir. 2003) (quotation marks and citation omitted). Nonetheless, i t is a "drastic" sanction, Affanato v.-12-

Merrill Bros., 547 F.2d 138, 140 (1st Cir. 1977) (quotation marks and citation omitted), that runs contrary to the goals of resolving cases on the merits and avoiding "harsh or unfair results." KPS & Assocs., 318 F.3d at 13 (quotation marks and citation omitted). "Since default judgments implicate sharply conflicting policies . . . the trial judge, who is usually the person most familiar with the circumstances of the case and is in the b e s t position to

ev a l u a t e t h e g o o d f a i t h a n d c r e d i b i l i t y o f t h e p a r t i es, is entrusted with the task of ba l a ncing these competing considerations." Id. (quotation marks and citation omitted).

Defendants have but one argument in suppo r t of their contention that the district court abused its discretion in entering t h e d efault judgment -- namely, that the district court abused its discretion in ordering the production of the documents in the first place. "District courts exercise broad discretion to manage discovery matters," and we review discovery orders for abuse

o f d iscretion. Heidelberg Americas, Inc. v. Tokyo Kikai Seisakusho, Ltd., 333 F.3d 38, 41 (1st C i r . 2 0 0 3). "[W]e may reverse a district court only upon a clear showing of manifest injustice, that is, where the lower court's discovery o r d er was plainly wrong and resulted in substantial prejudice t o the aggrieved party." In re: Subpoena to Witz e l , 5 3 1 F .3d 113, 117 (1st Cir. 2008) (quotation marks and citations omitted).

The court carefully categorized the interrogatories and document req u e s t s by the type of information sought, and thenThe district court recognized this principle, writing, for 5 example, that "[t]he production of said evidence might lead to circumstantial evidence in support of Pl a i n tiff's case." In support of that conclusion, the court cited our decision in Pueguero-Moronta v. Gabriel S a n tiago, 464 F.3d 29, 45 (1st Cir. 2006), for the proposition that "[a] plaintiff bringing a political discri m ination claim bears the burden of producing sufficient direct or circumstantial evidence from which a jury reasonably may infer that [his] constitutionally protected conduct -- i n t his -13- explained why the information in each category was relevant. For example, for one such category the court explained:

All of the questions and requests for documents directed to establish the reasons for the terminations or non renewal of Plaintiffs' contract and the persons responsible for or having knowledge of these reasons are clearly relevant to determine whether the termination of their contracts was neutral or discriminatory in nature. Also, all questions that might lead to information about the circumstances surrounding the termination or non renewal of Plaintiffs' contract with the Municipality are relevant as well.

For anot h e r category of requests, the court explained that "questions related to changes in the Municipality's personnel after Mayor Arlequín took over are r e l e vant to Plaintiffs' allegations that the Mayor engaged in a custom and/or practice of discriminating against all employees and contractors hired or engaged by the prior administration." In the end, almost every objection was categorized in this manner and the court's rejection of it explained. The scope of discovery is broad, and "to be discoverable, information need only appear to b e ' r easonably calculated to lead to the discov e r yof admissible evidence.'" 5case, political affiliation . . . was a substantial or motivating

factor behind [his] dismissal." (Emphasis added, other modifications in original.) -14- Cusumano v. Microsoft Corp., 162 F.3d 708, 716 n.5 (1st Cir. 1998) (quoting Fed. R. Civ. P. 26(b)(1)).

The district court was patient, careful, and fair in its choice of sanctions. The court had issued four warnings over the

co u rse of the litigation specifically directed at defendants' failures to respond to discovery r e q u e sts. It had previously issued milder sanctions for defendants' "vexatious" behavior. In April 2007, as noted, the court painstakingly addressed each of the objected-to discovery requests and explained why they were relevant, declining to issue sancti o n s a t that time but again

w a r n ing defendants of the harsh possibilities for failure to respond. Further, it reprimanded defendants at that time for failing to produce documents to which it had not objected, and for objecting to requests for documents that it was automatically obligated to produce "without a waiting a discovery request" pursuant to Federal Rule of Civil Procedure 26(a)(1). The court's choice of sanctions as well as the sternness of its warnings gradually escalated over the course of the litigation in response to defend a nts' persistently troublesome conduct. Under these circumstances, the district court did not abuse its discretion by entering a default judgment in response to defendants' repeated-15-

failures to respond to discovery. Indeed, its handling of the vexatious discovery conduct was exemplary.
III. Defendants concede that "an entry of default prevents the defendant f rom disputing the truth of well-pleaded facts in the complaint pertaining to liability. " Conetta v. Nat'l Hair Care Ctrs., Inc., 236 F.3d 67, 75-76 (1st Cir. 2001) (citing Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell v . Medfit Int'l, Inc., 982 F.2d 686, 693 (1st Cir. 1993)). They argue, however, that they may still contest the sufficiency of the pleadings before them. It is true that in the normal case after the entry of default a "defendant may still contest a claim on the ground that the complaint does not allege facts that add up to the elements of a cause of action." Id. at 76; see also Gowen v . F / V Quality One, 244 F.3d 64, 67 n.2 ( 1 s t C i r . 2001) ("The default judgment is conclusive as to facts but does not always defeat later legal objections" such as failure to state a claim).

This, however, is not the normal case. We ha ve previously held that plaint i f f s ' claim does adequately plead the elemen t s o f a cause of action. Ramírez, 447 F.3d 25 ("Remexcel and Kortright must p l ead that they engaged in protected associa t ion, that they were entitled to payment under their contracts, and that the Munic i p a l i ty denied the payment in retaliation for t h e i r exercise of associational rights. These elements are adequately pleaded in the complaint.") (citing Baker-16-

v. Coxe, 230 F.3d 470 , 4 7 5 ( 1 s t Cir. 2000)). In light of this history , t h e l a w of the case doctrine poses an obstacle to our reconsideration of the adequacy of the complaint.

The law of the case doctrine "pos i ts that when a court decides upon a rule of law, that deci s ion should continue to govern the same issues in subsequent stages in the same c a se." Arizona v. California, 460 U.S. 605, 618 (1983). The doctrine has
two branches. The first, relied upon by the distri c t c o u r t in rejecting the mot i o n f or judgment on the pleadings, "'prevents relitigation in the trial court of matters that were explicitly or implicitly decided by an earlier appellate decision in the same case.'" United States v. Wallace, 573 F.3d 82, 88 (1st Cir. 2009) (quoting United States v. Moran, 393 F.3d 1, 7 (1st Cir. 2004)). The second branch, which is implicate dhere, "binds successor appellate panels in a second a ppeal in the same case unless certain circumstances justify reconsideration." Negron-Alameda v. Santiago, No. 08-2360, 2009 WL 2605717 at * 3 ( 1 st Cir. Aug. 26, 2009)
. This branch "contemplates that a legal decision made at

one stage of a criminal or civil proceeding should remain the law of that case throughout the litigation, unless and until the decision is modified or overruled by a higher court." Moran, 393 F.3d at 7. We have described the many "sa l u t a ry policies" that unde rlie the law of the case doctrine, including: "afford[ing] litigants a high degree of certainty as to what claims are -- and are not -- still open for adjudication"; "further[ing] the abiding-17-

i n terest shared by both litigants and the public in finality and repose"; "promot[ing] efficiency"; and "increas[ing] confidence in the adjudicatory process." Ellis v. United States, 313 F.3d 636, 647 (1st Cir. 2002).

There are, howeve r, exceptions to the law of the case doctrine's "presumption against reconsideration." Id. at 647-48. Defendants argue that one su c h exception is applicable here involving "a material change in controlling law." Id. at 648. In
Doe v. Anring, for example, we revisited an earlier ruling because in the period between the first and second ap p e a l w e h ad, in a different case, "re c o n s idered the interpretation of federal law set forth in Doe v. Anrig I, and we conclude d t h a t i t was erroneous." 728 F.2d 30, 31 (1st Cir. 1984).

The defendants argue that we have a similar situation here because, in the period between the first appeal and this one, the Supreme Court clarified the standard for determ i n i n g the adequacy of pleadings. In Twombly, 550 U.S. 544, the Supreme Court rejected an earlier description of the standard for stating a claim, set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), and quoted in our first decision in this case. Ramirez, 447 F.3d at 24-25. Twombly rejected Conley's statement that "a complaint should no t b e d i s m issed for failure to state a claim unless it appears bey o n da doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."The district co u r t admonished the defendants for raising 6 this argument so late in the game -- Twombly had been decided ten months before the defendants moved for re-evaluation of the pleadings in light of that case. Furthermore, Twombly had already been decided when the district court entered the default judgment. Nevertheless, because the district court reached the arguments on the merits, we do as well. -18- Twombly, 550 U.S. at 561 (quoting Conley, 355 U.S. at 45-46). The Twombly court explained that:

We could go on, but there is no need t o pile up further citations to show that Conley's "no set of facts" language has be e n questioned, criti c ized, and explained away long enough.
. . . The phrase is best forgotten as an incomplete, negative glos s o n an accepted pleading standard: once a claim h a s been stated adequately, it ma y b e supported by showing any set of facts consistent with the allegations in the complaint. Id. at 562-63. Twombly explained that a sufficient complaint must contain "allegations plausib l y suggesting (not merely consistent with)" entitlement to relief. Id. at 557. It further explained:

[W]e do n o t require heightened fact pleading of specific s, but only enough facts to state a claim to relie f t h a t is plausible on its face. Because the p l a i n tiffs here have not n u d g e d t h e i r c l a i m s a c r o s s t h e l i n e from conceivable to plausible, their complaint must be dismissed. Id. at 570.

We agree with the district court that e v e n after Twombly's clarification of the pleading standard, plaintiffs have still pleaded a cause of action. Although our e a r l i e r opinion 6 parenthetically quoted Conley's "no set of facts" language, Ramirez, 447 F
. 3 d a t 2 4 -25, we did not base our decision in that-19-

case on the remote po s sibility that plaintiffs would eventually show some unknown set of facts to support their claim. Indeed, in descri b i n gh o wC o n l e y ' s " n o s e t o f f a c t s " l a n g u a g e h a s b een "questioned, criticized, and exp l a i n e d away long enough," the Supreme Court listed our circuit as an example of the "judges and
commentators [who] have balked at taking the literal terms of the Conley passage as a pleading standard." Twombly, 550 U.S. at 562. It parenthetically quoted our opinion in O'Brien v. DiGrazia, 544 F.2d 543, 546 n.3 (1st Cir. 1976 ) , w h e r e we stated that "when a plaintiff under § 1983 supplies facts to support his claim, we do not think that Conley imposes a d u t y o n the courts to conjure up

un p l e a d e d f a c t s t h a t m i g h t t u r n a f r i v o l o u s c l aim of unconstitutional official acti o n into a substantial one." Although we did not explain our e a rlier decision using Twombly's language, we essentially concluded, in conformity wit h Twombly's requirement s , t h at plaintiffs had pleaded "enough facts to state a claim to relief that is plausible on its f a c e . " T wombly, 550 U.S. at 570. Twombly d o e s n o t , therefore, present a change in intervening law that justifies the application of the exception to the law of the case doctrine depend e n t o n s u ch a change. Ellis, 313 F.3d at 648.

The law of the case d o c t r i ne thus bars our reconsideration of defendants' claim that the plaintiffs have not pled a cognizable theory of retaliation under the First Amendment. If defendant s f eel victimized by this outcome, they have only-20-

themselves to blame. Their stubborn refu s a l t o participate in discove r y precluded the possibility of any factual development that might have helped their case. Disobeying the orders of the trial court has exacted a heavy pri c e. Defendants have now forfeited the o p p o r tunity to make their arguments on a more developed record.

Affirmed.