Of the Ninth Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

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
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LIPEZ, Circuit Judge. We consider for the second 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

dismissal of the case for failure to state a claim, holding that

the plaintiffs' complaint adequately pleaded the necessary elements

of a political discrimination action 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 the claims 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, defendants argue 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.
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I.

A. Background

Although the background facts of this complaint are

described in our earlier decision in 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 contract 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 money obtained as a result of its services. When Remexcel

identified a tax deficiency of $4,444,058.87 owed to the

Municipality by Stinnes Interoil, an oil supply company, the

Municipality informed Stinnes of that determination, and Stinnes

filed a lawsuit against the Municipality in Puerto Rico Superior

Court seeking to dispute any outstanding tax liability. See Veba

Oil Supply v. Municipality of 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 agreement with Remexcel,

would pay her ten percent of the money collected as a result of her

work. Ramírez, 447 F.3d at 21. Working on the case until 2000,
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Kortright filed the summary judgment motions which led to a

favorable resolution of the case for the Municipality. Id. After

she performed this work, however, defendant Edgardo Arlequín

("Mayor Arlequín") took office, replacing Mayor Pacheco. Mayor

Arlequín is a member of the Popular Democratic Party ("PDP"). Id.

The complaint alleges 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

million, based on Kortright's work." Id. The new lawyer then

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 associational

rights were violated because Mayor Arlequín 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 for failure 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. 347
The 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 he did not

contest that ruling. Id. at 22.

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(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 administration, to

deprive independent contractors of a payment to which they are

legally entitled, violates the contractors' First Amendment

rights." Id. at 20. Ruling favorably for the plaintiffs, we

concluded that the Elrod/Branti doctrine's exemption of

policymakers from protection against political affiliation

discrimination does not apply "to someone who is neither a

government employee nor seeks a continuing relationship with the

government, but who merely asks to be paid in accordance with a

contract which that person has already performed." Id. at 23. We

wrote that, "[a]lthough we must always be concerned about

constitutionalizing traditional common law claims, we see 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 the
 28 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." 

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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 court re-opened

the case on June 22, 2006. Approximately 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 of 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 court 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.,

Citibank Global Markets, Inc., v. Rodríguez Santana, et al., 573

F.3d 17, 23 (1st Cir. 2009) ("to survive a motion to dismiss (or a

motion for judgment on the pleadings), the complaint 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

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motion for sanctions because we had already decided that

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 constitute[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."
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2. Discovery violations

On September 18, 2006 , October 11, 2006, and January 9,

2007, plaintiffs moved to compel 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 requests 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 to compel 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 the 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 exercise and comply with
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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 after the new deadline for the discovery

responses, defendants, according to plaintiffs, "delivered . . . a

hodgepodge of documents, unnumbered, unidentified, and without any

attempt to 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 court 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 defendants' many

other failures to abide by its orders. It described the troubled

history of the discovery process in 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
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December 1, 2006 order imposing sanctions for defendants'

"vexatious" and "stubborn" conduct. 

4. The "Motion to Set Aside Default" 

A hearing on damages was set for March 24, 2008. 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 once again argued that the complaint

did not state a claim for relief. This time, they added the new

twist that "under Twombly, plaintiffs' complaint would never have

survived defendants' Rule 12(b)(6) motion." 

On March 24, 2008, the district 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 argued 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.

They argue that they were entitled to some

payments under a contract with the

Municipality and that the new Mayor, a member

of the PDP, refused to pay them only because
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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 an order 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 confronted by 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, it is a "drastic" sanction, Affanato v.
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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 best position to

evaluate the good faith and credibility of the parties, is

entrusted with the task of balancing these competing

considerations." Id. (quotation marks and citation omitted). 

Defendants have but one argument in support of their

contention that the district court abused its discretion in

entering the default 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

of discretion. Heidelberg Americas, Inc. v. Tokyo Kikai

Seisakusho, Ltd., 333 F.3d 38, 41 (1st Cir. 2003). "[W]e may

reverse a district court only upon a clear showing of manifest

injustice, that is, where the lower court's discovery order was

plainly wrong and resulted in substantial prejudice to the

aggrieved party." In re: Subpoena to Witzel, 531 F.3d 113, 117

(1st Cir. 2008) (quotation marks and citations omitted). 

The court carefully categorized the interrogatories and

document requests by the type of information sought, and then
 The district court recognized this principle, writing, for 5

example, that "[t]he production of said evidence might lead to

circumstantial evidence in support of Plaintiff's case." In

support of that conclusion, the court cited our decision in

Pueguero-Moronta v. Gabriel Santiago, 464 F.3d 29, 45 (1st Cir.

2006), for the proposition that "[a] plaintiff bringing a political

discrimination claim bears the burden of producing sufficient

direct or circumstantial evidence from which a jury reasonably may

infer that [his] constitutionally protected conduct -- in this

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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 another category of requests, the court explained that

"questions related to changes in the Municipality's personnel after

Mayor Arlequín took over are relevant 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 be 'reasonably

calculated to lead to the discovery of admissible evidence.'"5
case, political affiliation . . . was a substantial or motivating

factor behind [his] dismissal." (Emphasis added, other

modifications in original.)

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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

course of the litigation specifically directed at defendants'

failures to respond to discovery requests. 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 sanctions at that time but again

warning 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 awaiting 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 defendants' persistently troublesome conduct. Under these

circumstances, the district court did not abuse its discretion by

entering a default judgment in response to defendants' repeated
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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 from 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 (1st Cir. 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 have

previously held that plaintiffs' claim does adequately plead the

elements of a cause of action. Ramírez, 447 F.3d 25 ("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 the payment in

retaliation for their exercise of associational rights. These

elements are adequately pleaded in the complaint.") (citing Baker
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v. Coxe, 230 F.3d 470, 475 (1st Cir. 2000)). In light of this

history, the law of the case doctrine poses an obstacle to our

reconsideration of the adequacy of the complaint.

The law of the case doctrine "posits that when a court

decides upon a rule of law, that decision should continue to

govern the same issues in subsequent stages in the same case."

Arizona v. California, 460 U.S. 605, 618 (1983). The doctrine has

two branches. The first, relied upon by the district court in

rejecting the motion for 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 implicated here, "binds successor

appellate panels in a second appeal in the same case unless

certain circumstances justify reconsideration." Negron-Alameda v.

Santiago, No. 08-2360, 2009 WL 2605717 at *3 (1st 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 "salutary policies" that

underlie 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
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interest 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, however, exceptions to the law of the case

doctrine's "presumption against reconsideration." Id. at 647-48.

Defendants argue that one such 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 appeal we had, in a

different case, "reconsidered the interpretation of federal law

set forth in Doe v. Anrig I, and we concluded that it 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 determining 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 not be dismissed for failure to state a claim unless it

appears beyond a doubt that the plaintiff can prove no set of

facts in support of his claim which would entitle him to relief."
 The district court 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.

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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 to pile

up further citations to show that Conley's "no

set of facts" language has been questioned,

criticized, and explained away long

enough. . . . The phrase is best forgotten as

an incomplete, negative gloss on an accepted

pleading standard: once a claim has been

stated adequately, it may be 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 plausibly suggesting (not merely consistent

with)" entitlement to relief. Id. at 557. It further explained:

[W]e do not require heightened fact pleading

of specifics, but only enough facts to state

a claim to relief that is plausible on its

face. Because the plaintiffs here have not

nudged their claims across the line from

conceivable to plausible, their complaint must

be dismissed.

Id. at 570.

We agree with the district court that even after

Twombly's clarification of the pleading standard, plaintiffs have

still pleaded a cause of action. Although our earlier opinion 6

parenthetically quoted Conley's "no set of facts" language,

Ramirez, 447 F.3d at 24-25, we did not base our decision in that
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case on the remote possibility that plaintiffs would eventually

show some unknown set of facts to support their claim. Indeed, in

describing how Conley's "no set of facts" language has been

"questioned, criticized, and explained 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), where we stated that "when a

plaintiff under § 1983 supplies facts to support his claim, we do

not think that Conley imposes a duty on the courts to conjure up

unpleaded facts that might turn a frivolous claim of

unconstitutional official action into a substantial one."

Although we did not explain our earlier decision using Twombly's

language, we essentially concluded, in conformity with Twombly's

requirements, that plaintiffs had pleaded "enough facts to state

a claim to relief that is plausible on its face." Twombly, 550

U.S. at 570. Twombly does not, therefore, present a change in

intervening law that justifies the application of the exception to

the law of the case doctrine dependent on such a change. Ellis,

313 F.3d at 648.

The law of the case doctrine thus bars our

reconsideration of defendants' claim that the plaintiffs have not

pled a cognizable theory of retaliation under the First Amendment.

If defendants feel victimized by this outcome, they have only
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themselves to blame. Their stubborn refusal to participate in

discovery precluded the possibility of any factual development

that might have helped their case. Disobeying the orders of the

trial court has exacted a heavy price. Defendants have now

forfeited the opportunity to make their arguments on a more

developed record.

Affirmed.