Gerald Hester v. Vision Airlines, Inc. , 687 F.3d 1162 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERALD HESTER, 
Plaintiff-Appellee, No. 11-15646
v.  D.C. No.
2:09-cv-00117-
VISION AIRLINES, INC., RLH-RJJ
Defendant-Appellant.

GERALD HESTER,  No. 11-15761
Plaintiff-Appellant, D.C. No.
v.  2:09-cv-00117-
VISION AIRLINES, INC., RLH-RJJ
Defendant-Appellee.
 OPINION
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Senior District Judge, Presiding
Argued and Submitted
April 19, 2012—San Francisco, California
Filed July 18, 2012
Before: Alfred T. Goodwin, Stephen Reinhardt, and
Mary H. Murguia, Circuit Judges.
Opinion by Judge Goodwin
8291
8294 HESTER v. VISION AIRLINES
COUNSEL
Edward H. Wasmuth, Jr., Smith, Gambrell & Russell, LLP,
Atlanta, Georgia, for the defendant-appellant-cross-appellee.
David M. Buckner, Grossman, Roth, P.A., Coral Gables, Flor-
ida, for the plaintiff-appellee-cross-appellant.
OPINION
GOODWIN, Circuit Judge:
Appellant Gerald Hester, a former pilot for Vision Airlines,
sued Vision on behalf of a Class of other pilots and flight
crew employees to recover “hazard pay,” which Hester and
the Class alleged Vision had accepted on their behalf and
never paid to them. After nearly two years of discovery dis-
putes between Vision and the Class, the district court sanc-
tioned Vision by striking its Answer, entered default
judgment against Vision, and held a jury trial to determine
damages.
Vision appeals, arguing (1) that the district court abused its
discretion by striking Vision’s Answer, (2) that the claims in
the Complaint are legally insufficient to support the default
judgment, and (3) that the district court abused its discretion
by certifying the Class. We reject Vision’s arguments and
affirm those orders. The Class cross-appeals, arguing that the
district court erred in dismissing, on the morning of trial, the
Class’s claim for punitive damages. We agree and reverse the
order dismissing the Class’s claim for punitive damages.
HESTER v. VISION AIRLINES 8295
I. Facts and procedural history
During the U.S. military occupation of Iraq and Afghani-
stan, the United States established an “air bridge” to deliver
supplies through war zones to U.S. posts in Baghdad, Iraq,
and Kabul, Afghanistan. The United States contracted with
private airlines to deliver supplies to those posts, and it pro-
vided “hazard pay” for the pilots and crew members of those
airlines.
In 2004, the United States contracted with Capital Aviation
to provide bi-weekly flights to Baghdad and Kabul. The con-
tract provided one set of funds for the flight services by Capi-
tal Aviation and another set of funds for the hazard pay for the
pilots and crew members.
Pursuant to the contract, every pilot, first officer, and inter-
national relief officer was to receive $5000 in hazard pay per
round-trip flight. Every other crew member on the flights,
including attendants and mechanics, was to receive $3000 in
hazard pay per round trip.
The contract contained a “pass-through” provision to
ensure that the hazard pay actually made it to the pilots and
crew members who were risking their lives by transporting
supplies through war zones. The pass-through provision
required Capital Aviation to pass the hazard pay through to
any subcontractors, who were also required to pass the hazard
pay through to their employees without taking a cut for them-
selves.
Capital Aviation subcontracted with Vision Airlines to pro-
vide the flights to and from Baghdad and Kabul. For the aver-
age round-trip flight, Capital Aviation received from the
United States $27,000 in hazard pay on behalf of the pilots
and crew members. Capital Aviation then paid that full
amount to Vision.
8296 HESTER v. VISION AIRLINES
In the summer of 2005, at the beginning of Vision’s perfor-
mance under the contract, Vision did pay some of the hazard
pay to its pilots, but by August of that year, Vision stopped
paying hazard pay to any of its employees, and it kept the
money for its own benefit. In addition to ceasing its intermit-
tent distribution of hazard pay, Vision also fired all pilots and
crew members who knew about or had previously received
hazard pay, and it replaced them with employees who were
unaware that they were entitled to it.
In January 2009, Hester filed a class action Complaint in
district court on behalf of Vison’s pilots and crew members
on the relevant flights. The court certified the Class. The
Class’s theories included unjust enrichment, money had and
received, and conversion. The Complaint alleged that, since
September 2005, Vision had received and retained more than
$21 million in hazard pay on behalf of its pilots and flight
crews, and the Class sought damages in that amount.
In April 2009, the Class sent Vision interrogatories and
requests for production, requesting “all communications and
documents that relate to hazard pay.” Vision responded by
affirming that “Defendant has no documents or communica-
tions relating to hazard pay.”
In July, the Class filed a motion to compel Vision to pro-
duce the requested documents and to respond to the interroga-
tories. In October, the court held a hearing on the motion to
compel. At the hearing, Vision told the court that it had not
produced the requested documents because “there is no haz-
ard pay.” In response, the Class’s counsel showed the court
some of Vision’s invoices, which the Class had obtained by
subpoenaing third parties in Virginia. At least one invoice
contained line entries such as “hazardous duty bonus,” “haz-
ardous duty flight deck bonus,” “hazardous duty bonus, flight
crew,” and “hazardous duty bonus, cabin crew.” Vision
claimed that that invoice was merely an “internal document”
that Vision had used to calculate the total bid, and because
HESTER v. VISION AIRLINES 8297
Vision never actually paid a hazardous duty pay differential
to any of its flight crews, there was no hazard pay. Vision also
told the court that, in the contract between Vision and its
upstream contractors, “there is no amount that is separated or
allocated for hazard pay.”
At the end of the hearing, the court denied the Class’s
motion to compel because the court determined that the par-
ties had failed to meet and confer sufficiently to figure out
what each side needed to produce. The court granted a 120-
day discovery extension.
Vision eventually turned over some documents to the
Class, but before doing so, Vision used a black marker to
obscure large portions of those documents, redacting what
appeared to be text, numbers, and invoice entries. Vision did
not provide a privilege log or claim that the redacted informa-
tion was privileged. Because of the redacted documents, the
Class’s expert witness was not able to complete his report by
the deadline, so the Class filed a motion to extend that dead-
line.
The Class filed a second motion to compel, and in Septem-
ber 2010, the court granted that motion and ordered Vision to
produce the requested documents by September 17, 2010. On
September 29, the court held a pretrial conference, at which
it learned that Vision still had not produced the documents as
ordered. The court again ordered Vision to produce the docu-
ments. On October 5, the day after the trial was initially
scheduled to begin, Vision still had not complied with the
order to produce the documents, so Hester filed a motion for
sanctions.
On October 8, the court scheduled a hearing and ordered
Vision to show cause why the court should not strike Vision’s
Answer and enter a default judgment. The court’s written
order to show cause stated that “[t]he Court believes that
Vision’s conduct has interfered with the Court’s ability to
8298 HESTER v. VISION AIRLINES
hear this case, delayed litigation, disrupted the Court’s timely
management of its docket, wasted judicial resources, and
threatened the integrity of the Court’s orders and the orderly
administration of justice.” The written order also warned
Vision that “[f]ailure to comply with the Local Rules of Prac-
tice, the Federal Rules of Civil Procedure, and the Court’s
orders may result in sanctions, up to and including case-
dispositive sanctions.”
On October 14, Vision responded to the motion for sanc-
tions by providing a few of the requested documents. On
October 15 and October 22, Vision filed supplemental
responses, both of which contained a few more responsive
documents.
On October 25, the court held a hearing on the show cause
order. At that hearing, Harold Gewerter, Vision’s counsel,
affirmed that he had turned over everything that Vision had
provided him:
“No, everything that we have has been provided, Your
Honor.” “[T]here’s been no intentional delays whatsoever on
my part and none on behalf of my client, it’s just the system
and the nature of the program and getting the proper approv-
als.” “[T]hey have everything that my client has or has access
to, Your Honor. And I have made sure that within 24 hours
of me receiving anything, I’ve sent it out.” “[T]hey have
every document. There’s nothing else out there. There’s no
surprises that are going to be produced at trial.” “I assure this
Court, there has been no intentional delay whatsoever. Every-
thing that’s been done is fast as it can be done . . . .” “[T]here
are no other documents. I’ve asked that question ad nauseam
to my client and other people.” “We have produced all of the
records that we have.” “My client unfortunately doesn’t keep
a perfect set of records, it’s been a problem and — but every
record that we did have or do have has been turned over and
they now have them.”
HESTER v. VISION AIRLINES 8299
At the hearing, the court also discussed Vision’s failure to
produce a privilege log for the redacted material and the pos-
sibility of sanctioning Vision for forcing the Class to litigate
with a third party in Virginia to obtain documents that Vision
should have produced. The court warned Vision on the record
that, based on Vision’s intentional discovery violations, the
court has the authority to strike Vision’s Answer and to enter
a default judgment.
At one point in the hearing, the Class identified, as an
example of Vision’s insufficient production, a document that
Vision had produced only in heavily redacted form. That
single-page document was marked as “page 20,” although
Vision had not produced pages 1 through 19 or any pages
beyond page 20. Because Vision still had not produced an
unredacted version of page 20, the following exchange ensued
(Mr. Gewerter represents Vision, and Mr. Buckner represents
the Class):
THE COURT: Okay. I want to stay with this doc-
ument. Do you have access to this document unre-
dacted?
MR. GEWERTER: I have access but the one I
have is actually a little bit larger but it’s the same
thing, just so you know that.
THE COURT: Do you know what — do you
know what the nature of the items that are redacted
are?
MR. GEWERTER: Yes. I found those out, yes.
Your Honor, I have — do I have a copy of the unre-
dacted version? I have a — I do have that now, yes,
and I thought it was attached to the — I was out of
town last week.
THE COURT: I understand you were out of town.
8300 HESTER v. VISION AIRLINES
MR. GEWERTER: And I thought this was
attached to — even though it’s not part of the con-
tract, it’s post-contract, it’s really a reasonableness
test, I do now have it. This was done — I’m on the
cell phone back in Washington talking to my secre-
tary trying to coordinate on this as e-mails were
coming into my office.
THE COURT: You do have an unredacted copy of
this?
MR. GEWERTER: Yes, the only thing is —
THE COURT: Can you give an unredacted copy
to the plaintiff?
MR. GEWERTER: I will then, Your Honor.
THE COURT: Today.
MR. GEWERTER: Except the one they’re going
to get, so they don’t think it’s any different, the print
itself is a little bit larger and it looks like it was —
but it’s the exact same document, somehow it got
printed differently, but it’s the same document.
THE COURT: All right.
MR. BUCKNER: Judge, actually we’d like the
whole document, not just — obviously it’s Page 20
of something. I mean, we’d like the whole thing.
MR. GEWERTER: That’s the end of the contract.
What happens is when they’re all done with the con-
tract they then physically affix this to the contract to
go upstream to McNeil I should say and that’s how
this — this document is post —
HESTER v. VISION AIRLINES 8301
THE COURT: Are there 19 pages then in the con-
tract and then this is the 20th page?
MR. GEWERTER: I don’t have it because, you
know, the contract’s printed off different ways and
there is one version with 19 pages. There’s some
version with different amounts of pages. Unfortu-
nately it depends on whose computer you get this off
of, so there’s nothing else out there, Your Honor. I
have asked from the horse’s mouth, Is there anything
else out there? and I was told from six other people
sitting in a room with nine people, There’s nothing
else out there, last Friday morning.
....
THE COURT: So, if I understand what it is that
you’ve told the Court is, is that except for this docu-
ment [Page 20] which is now redacted that you have
an unredacted copy and that you can provide, as to
all the other documents that Mr. Buckner has talked
about that it is your understanding from Vision that
the documents either do not exist or what does exist
have been disclosed?
MR. GEWERTER: That’s correct.
The court then ordered Vision to produce a unredacted ver-
sion of Page 20 to the Class by the end of that day, October
25. Vision did not produce Page 20. Instead, Vision produced
a different document, labeled “Section 6.3.3,” which had
never before been produced, although it was responsive to
discovery requests. Also, Vision did not produce the larger
document of which Section 6.3.3 was apparently a part.
On November 3, the court ordered Vision’s Answer
stricken, default judgment entered, and a jury trial to be held
8302 HESTER v. VISION AIRLINES
to determine damages. The court explained Vision’s discov-
ery violations in a written order.
That same day, Vision finally turned over an unredacted
version of Page 20. Vision’s counsel stated that he had “just
received [Page 20] minutes ago from a secure location.”
Vision did not produce pages 1 through 19 or any other pages
of the larger document.
A few days later, the court held the jury trial on damages.
Before the jury was selected, the court ordered that “the jury
will not be permitted to entertain punitive damages” because
“the complaint does not establish sufficient evidence, nor
clear and convincing evidence as required by the Nevada
Revised Statutes,” of conduct justifying punitive damages.
After two days of trial, the jury returned a damages verdict of
$4,509,268, which, after including interest and costs, became
a judgment totaling $5,270,230.06.
II. Discussion
We first address the district court’s order striking Vision’s
Answer. A court’s order imposing sanctions is reviewed for
abuse of discretion. Dreith v. Nu Image, Inc., 648 F.3d 779,
786 (9th Cir. 2011); Jorgensen v. Cassiday, 320 F.3d 906,
912 (9th Cir. 2003). “If a party . . . fails to obey an order to
provide or permit discovery,” the court may impose sanctions,
including “striking pleadings in whole or in part.” Fed. R.
Civ. P. 37(b)(2)(A)(iii); see also, e.g., Dreith, 648 F.3d at
786. “Where the sanction results in default, the sanctioned
party’s violations must be due to the willfulness, bad faith, or
fault of the party.” Jorgensen, 320 F.3d at 912 (internal quota-
tion marks omitted). A court’s finding that conduct is willful
or in bad faith is reviewed under the “clearly erroneous” stan-
dard. Id.In this case, the district court found that “Vision has inten-
tionally delayed production of documents, misrepresented its
HESTER v. VISION AIRLINES 8303
current and past production to both the Court and the Class,
and otherwise engaged in bad faith conduct.” The court’s
findings (1) that Vision violated the court’s discovery order
and (2) that Vision did so willfully and in bad faith are both
supported by evidence in the record and the court’s own cred-
ibility determinations. Vision does not argue that it did not
violate the discovery order or that its actions were not willful
and in bad faith.
Vision’s sole argument is that the district court abused its
discretion because it failed to consider less drastic sanctions,
which is one of the factors that a district court must consider
before striking a pleading. See, e.g., Dreith, 648 F.3d at 788.
Because the district court thoroughly discussed less drastic
sanctions in its written order, Vision’s argument is meritless.
Although a default judgment sanction is “a harsh penalty
imposed only in extreme circumstances, we will overturn [it]
only if we have a ‘definite and firm conviction that it was
clearly outside the acceptable range of sanctions.’ ” Id. (cita-
tion omitted) (quoting Malone v. U.S. Postal Serv., 833 F.2d
128, 130 (9th 1987)).
[1] A court must consider the following five factors before
striking a pleading or declaring default: “(1) the public’s
interest in expeditious resolution of litigation; (2) the court’s
need to manage its docket; (3) the risk of prejudice to the
other party; (4) the public policy favoring the disposition of
cases on their merits; and (5) the availability of less drastic
sanctions.” Id. (internal quotation marks omitted).
[2] In this case, the district court considered each of those
factors and made the following determinations:
(1) “[T]he public interest in the expeditious resolution of
cases . . . [is] best served by striking Vision’s answer and
entering a default against it.”
8304 HESTER v. VISION AIRLINES
(2) “[T]he Court’s interest in managing its docket [is] best
served by striking Vision’s answer” because Vision’s “inten-
tional, bad faith conduct in the discovery process” “has led to
multiple hearings and motions before this Court which have
nothing to do with the merits of this case, but have been nec-
essary due to Vision’s misconduct. These extra motions and
hearings have interfered with the Court’s ability to efficiently
manage its docket in a manner fair to all parties with pending
cases.”
(3) “Vision’s conduct has prejudiced the Class and limited
the Class’ ability to try this case . . . .”
(4) “While public policy favors that cases be heard on their
merits, Vision has done everything it can to prevent such res-
olution. Through its conduct, Vision has attempted to ensure
that an accurate and fair trial on the merits of this case will
never happen.”
(5) The court devoted special attention to the availability of
less drastic sanctions. It “carefully weighed the impact and
severity of this sanction and . . . considered whether alterna-
tive sanctions would be sufficient,” but it “determined that no
alternative sanction would be sufficient and Vision’s conduct
warrants striking its Answer.” The court explained why nei-
ther a discovery extension nor an adverse inference instruc-
tion would be sufficient under the circumstances.
[3] Vision’s argument that the court failed to adequately
consider less drastic sanctions relies on Computer Task
Group, Inc. v. Brotby, 364 F.3d 1112 (9th Cir. 2004) (per
curiam), in which this court identified three factors to assess
whether a district court had adequately considered less drastic
sanctions: (1) whether the district court “explicitly discussed
the alternative of lesser sanctions and explained why it would
be inappropriate,” (2) whether the district court had “imple-
mented lesser sanctions before ordering the case dismissed,”
HESTER v. VISION AIRLINES 8305
and (3) whether the district court had “warned the offending
party of the possibility of dismissal.” Id. at 1116.
In this case, the district court warned Vision on the record
several times about the possibility of a case-dispositive sanc-
tion, and the court’s written order contained an explicit, three-
and-a-half-page discussion of why less drastic sanctions were
insufficient. Therefore, because the first and third factors of
Computer Task Group show that the court did adequately
consider lesser sanctions, Vision’s argument focuses on the
second factor, emphasizing that the district court did not
implement lesser sanctions before striking Vision’s Answer.
[4] The fact that a court does not implement a lesser sanc-
tion before striking an answer is not dispositive. It is just one
factor. And Vision’s own authority, Computer Task Group,
minimized that factor by holding that, in light of the defen-
dant’s “willful disobedience,” the district court “could reason-
ably conclude that additional lesser sanctions would be
pointless” because “[i]t is appropriate [for a district court] to
reject lesser sanctions where the court anticipates continued
deceptive misconduct.” Id. at 1116-17 (first alteration in origi-
nal) (quoting Anheuser-Busch, Inc. v. Natural Beverage Dis-
tribs., 69 F.3d 337, 352 (9th Cir. 1995)).
[5] Here, the district court considered Vision’s willful dis-
obedience, the pointlessness of lesser sanctions, and its antici-
pation of continued deceptive conduct by Vision:
In the Court’s view, Vision will act to delay this
litigation and prevent discovery by any means neces-
sary. The Court has no reason to believe that given
an extension Vision would now begin to adhere to its
obligations and comply with the Court’s orders. Nor
does the Court believe that Vision could rectify the
harm that it has already caused by not preserving
documents. To extend discovery would merely give
8306 HESTER v. VISION AIRLINES
Vision what it desires—further delay—and would
simply validate Vision’s misconduct.
....
. . . It has also become evident that Vision is will-
ing to mislead the Court time after time in order to
keep from producing relevant, possibly critical, dis-
covery material.
[6] Accordingly, the district court did not abuse its discre-
tion in striking Vision’s Answer because it applied the correct
law and made findings that were supported by evidence in the
record.
We now turn to Vision’s argument that the claims and alle-
gations in the Complaint are insufficient to support a default
judgment. We review the Complaint de novo, see Knievel v.
ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005), and we hold that
the Complaint is legally sufficient.
[7] When a default judgment is entered against a party, that
party may appeal the sufficiency of the Complaint, but
“ ‘facts alleged to establish liability are binding upon the
defaulting party, and those matters may not be relitigated on
appeal.’ ” Alan Neuman Prod., Inc. v. Albright, 862 F.2d
1388, 1392 (9th Cir. 1988) (quoting Danning v. Lavine, 572
F.2d 1386, 1388 (9th Cir. 1978)). The appeal should focus on
the legal sufficiency of the claims themselves and whether
those claims are supported by factual allegations in the Com-
plaint. E.g., id.[8] First, Vision unpersuasively argues that the claims for
unjust enrichment, money had and received, and conversion
are merely conclusory. For each claim, Vision identifies a few
miscellaneous, irrelevant facts that are not alleged in the
Complaint, but Vision provides no explanation of which ele-
ments of the claims are unsupported by factual allegations.
HESTER v. VISION AIRLINES 8307
Second, Vision argues that, in Nevada, conversion applies
only to personal property and not to money. The Nevada
Supreme Court disagrees. Larson v. B.R. Enters., Inc., 757
P.2d 354, 355-56 (Nev. 1988). In Nevada, a defendant’s
wrongful dominion over a plaintiff’s commission of money is
sufficient for a conversion claim, even when no personal
property is involved. Id. Vision’s argument fails.
Third, Vision disputes the facts as they appear in the Com-
plaint. The Complaint alleges “There is no employment con-
tract between Vision and any of the Class members who
served as crew members on the flights to and from the air-
ports in Baghdad and Kabul.” Vision argues that the Class
members did have express employment contracts with Vision
and that those contracts preclude the Class’s claims for equi-
table relief.
[9] We reject Vision’s argument because it is merely an
attempt by Vision to relitigate the facts alleged in the Com-
plaint. Furthermore, throughout discovery, Vision never pro-
duced a single employment contract for any Class member, so
Vision’s version of the facts is unsupported. The Class mem-
bers were almost certainly at-will employees. Dillard Dep’t
Stores, Inc. v. Beckwith, 989 P.2d 882, 884-85 (Nev. 1999);
Am. Bank Stationary v. Farmer, 799 P.2d 1100, 1101-02
(Nev. 1990) (“[A]ll employees in Nevada are presumed to be
at-will employees.”).
We next turn to Vision’s appeal of the order certifying the
Class under Rules 23(a) and 23(b)(3) of the Federal Rules of
Civil Procedure. We review for abuse of discretion the certifi-
cation order itself, and we review for clear error any findings
of fact upon which the certification order relied. Wolin v. Jag-
uar Land Rover N. Am., LLC, 617 F.3d 1168, 1171-72 (9th
Cir. 2010).
Vision alleges that Hester had an employment contract with
Vision and that the other Class members did not. Based on
8308 HESTER v. VISION AIRLINES
those allegations, Vision argues that Hester’s claims are not
typical of the Class’s claims, that common issues of law and
fact do not predominate, and that Hester cannot adequately
represent the Class.
[10] Vision’s argument fails, however, because Vision did
not produce any evidence that Hester had an employment
contract with Vision. In support of its argument that an
employment contract existed, Vision refers only to a single-
page, unilateral memorandum from Vision to Hester, which
informed Hester of changes in rates at which Vision would
pay captains and first officers. The substance of that memo-
randum took effect over a year after Hester began working for
Vision, and Hester signed it only to indicate that he was “ac-
knowledging receipt of this new policy.” Nothing in this doc-
ument, which simply details changes in the pay structure for
Vision’s pilots, suggests that Hester was a party to an employ-
ment contract with Vision or that he was situated differently
from other members of the Class. Accordingly, Vision has not
shown that the court relied on clearly erroneous facts, and we
hold that the district court did not abuse its discretion in certi-
fying the Class.
[11] Finally, we turn to the Class’s cross-appeal of the dis-
trict court’s order dismissing the claim for punitive damages.
We review that order de novo. Knievel, 393 F.3d at 1072. In
this case, in which jurisdiction is based on diversity, Nevada
law determines the availability of punitive damages:
[I]n an action for the breach of an obligation not aris-
ing from contract, where it is proven by clear and
convincing evidence that the defendant has been
guilty of oppression, fraud or malice, express or
implied, the plaintiff, in addition to the compensa-
tory damages, may recover damages for the sake of
example and by way of punishing the defendant.
....
HESTER v. VISION AIRLINES 8309
If punitive damages are claimed pursuant to this sec-
tion, the trier of fact shall make a finding of whether
such damages will be assessed. If such damages are
to be assessed, a subsequent proceeding must be
conducted before the same trier of fact to determine
the amount of such damages to be assessed. The trier
of fact shall make a finding of the amount to be
assessed according to the provisions of this section.
NEV. REV. STAT. § 42.005(1), (3).
[12] As noted above, the Class’s claims are not based on
an action for breach of contract. Thus, the statute allows puni-
tive damages. Whether punitive damages are appropriate and
what amount is appropriate are questions reserved for the trier
of fact, although the court has the responsibility to determine
whether, as a matter of law, the plaintiff has offered sufficient
evidence of oppression, fraud, or malice to support a punitive
damages instruction. Wickliffe v. Fletcher Jones of Las Vegas,
Inc., 661 P.2d 1295, 1297 (Nev. 1983), abrogated on other
grounds by Countrywide Home Loans, Inc. v. Thitchener, 192
P.3d 243, 253 n.39 (Nev. 2008).
In Wickliffe, for example, the lower court dismissed the
plaintiff’s punitive damages claim after the plaintiff’s case in
chief because it determined that, as a matter of law, there was
insufficient evidence of oppression, fraud, or malice. Id. at
1296. The Nevada Supreme Court reversed, holding that there
was sufficient evidence to support the instruction. Id. at 1297.
The conduct in that case, which involved wrongful possession
of a leased vehicle, “could properly have been found to be
wrongful conduct that was willful, intentional, and done in
reckless disregard of its possible results.” Id. (internal quota-
tion marks and alteration omitted).
[13] Likewise, in this case, the Complaint alleges facts that
could allow a jury to conclude that Vision engaged in oppres-
sion, fraud, or malice when it refused to pay its employees the
8310 HESTER v. VISION AIRLINES
hazard pay they were due, when it fired those employees to
whom it had already paid hazard pay, or when it continued to
accept hazard pay monies from upstream contractors for years
with no intention of distributing that money. Accordingly, we
reverse the order dismissing the claim for punitive damages,
and we remand for a jury trial to determine whether, by clear
and convincing evidence, Vision was “guilty of oppression,
fraud or malice,” NEV. REV. STAT. § 42.005(1), when it with-
held the hazard pay from its employees.
[14] As a final note, based on the record before us, Harold
Gewerter appears to have committed numerous ethical viola-
tions. We recommend that the district court, in the exercise of
its discretion, report Mr. Gewerter to the state bar to deter-
mine whether disbarment or some other sanction is merited.
AFFIRMED in part, REVERSED in part, and
REMANDED.
Plaintiff to recover costs.