-12- would long ago have granted a motion by respondent to dismiss the case for failure to state a claim. However, petitioner's continued refusal to bring forward any evidence to support those deductions, culminating in his statement at the calendar call that he was conceding them in the interests of pressing his section 83 claim on appeal, leads us to conclude that they were either totally unfounded or asserted merely for purposes of delay. As a result, respondent has been put to considerable trouble and expense. In addition, petitioner has repeatedly acted in derogation of the pretrial standing order and other orders of this Court. All of this would lead us to conclude that petitioner should be sanctioned. However, upon consideration of the fourth factor (the sufficiency of lesser sanctions) the preference expressed by the Court of Appeals for the Fourth Circuit in Hillig v. Commissioner, 916 F.2d at 174-175, for monetary sanctions rather than dismissal leads us to choose a monetary sanction, for which respondent has also moved, rather than dismissal. We discuss the monetary sanction infra. At the pretrial calendar call, we stated that we would treat petitioner's Statement of Legal Claims as a motion for summary judgment. In addition, by our order of October 13, 1995, the facts set forth in respondent's proposed stipulation of facts were deemed established for purposes of this case pursuant to Rule 91(f). Inasmuch as petitioner wishes to press his "legal" arguments, as opposed to the assignments of factual errorPage: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Next
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