author: BARTLE, District Judge:

text:
    Robyn CHRISTIANSEN, Gene Christiansen, Plaintiffs-Appellees, v. WRIGHT MEDICAL TECHNOLOGY, INC., Defendant-Appellant.
    No. 16-12162
    United States Court of Appeals, Eleventh Circuit.
    (March 20, 2017)

      Michael L. McGlamry, Kimberly J. Johnson, William U. Norwood, Neal Kirkland Pope, Pope McGlamry. Kilpatrick Morrison & Norwood, PC, Atlanta, GA, for Plaintiffs-Appellees.

      Dana Jeffrey Ash, Sean K. Burke, Sharon L. Caffrey, J. Scott Kramer, Robert M. Palumbos, Matthew A. Taylor, Duane Morris, LLP, Philadelphia, PA, William D. Barwick, Duane Morris, LLP, Atlanta, GA, for Defendant-Appellant.
    Before WILSON and JILL PRYOR, Circuit Judges, and BARTLE , District Judge.

       Honorable Harvey Bartle III, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.

   BARTLE, District Judge:

Defendant Wright Medical Technology, Inc. appeals from the entry against it of a $2,100,000 judgment in this products liability case following a jury verdict in favor of plaintiff Robyn Christiansen and after the district court’s denial in part of the defendant’s renewed motion for judgment as a matter of law or a new trial.

The trial in this case, was the first bellwether trial in a multidistrict litigation involving over 500 cases concerning the Wright Medical Conserve “metal-on-metal” hip. replacement device designed and manufactured by the defendant. At trial, Christiansen alleged that Wright Medical was liable for design defect based on strict liability and negligence. She also brought claims of fraudulent misrepresentation, negligent misrepresentation, and fraudulent concealment related to the hip replacement device. She asserted that metal debris from the hip replacement device had caused her physical impairment and severe pain. There was no dispute that Christiansen received the hip replacement device in Utah and that Utah law applied.

Wright Medical now contends that the district court erred in ordering the jury to continue deliberations after the jury had already begun to deliver its verdict. Wright Medical also argues that the district court erred in its instructions on Utah’s products liability law with regard to the unavoidably unsafe product defense in Comment k of Section 402A of the Restatement (Second) of Torts.

I.

The trial in this matter began on November 9, 2015, and jury deliberations commenced on November 19, 2015. On the second day of deliberations, the jury notified the district court that it had reached a unanimous verdict. The district judge reviewed the verdict sheet in the presence of the jury, and, at his instruction, the deputy clerk then began to read the verdict. The first question, denominated as Question 1A, stated:

Do you find by a preponderance of the evidence that Wright Medical’s hip replacement device was defectively designed?

The jury answered “No.” The instruction on the verdict sheet immediately below the jury’s answer read:

If you answered NO to Question 1A, stop, and sign and date this form. If you answered YES to Question 1A, proceed to Question IB.

(Bolded text in original). Even though it had answered “No,” the jury did not stop there. It made nine other findings on the verdict sheet, awarded compensatory and punitive damages, and apportioned liability between the parties. It found that Wright Medical was liable for negligent misrepresentation and awarded $662,500. It also found that, in making those misrepresentations, the defendant’s conduct was “willful and malicious,” “intentionally fraudulent,” or “manifested a knowing and reckless indifference towards, and a disregard of, the-rights of others, including Ms. Christian-sen.” It awarded $2,500,000 in punitive damages. With respect to the question on the verdict sheet about comparative fault, it found Wright Medical 78.7% at fault and Christiansen 21.24% at fault.

Before the deputy clerk could proceed beyond the answer to Question 1A, the district court realized that the jury’s responses on the verdict sheet were inconsistent and halted the further reading of the verdict sheet. The court instructed the jury to “take the form back into the jury room, and please carefully read the instructions that are given to you after— beginning on page one and reevaluate whether you have properly filled out the form.”

After the jury had returned to the jury room, the court told counsel that the jury’s responses had not conformed to the court’s instructions:

We all agreed on the jury form and we all agreed on the instructions and we all agreed at the charge conference that certain findings precluded further findings, and I need to make sure that they understand that. And then I need to make sure that, having understood that, that they complete the form in accordance with the instructions, and I’m going to have them complete the form again. But I think they need that — they need to be told that the instructions which have been agreed upon by counsel for both parties are essential to their findings. So that’s what I intend to do.

Thereafter, the court had the jury return to the courtroom. It explained to the jury:

Ladies and gentlemen, I want to tell you something and then ask you to go back into the jury room and do whatever you think in your considered judgment is necessary for you to reach your verdict, including after what I say, if you think you need to deliberate more, I want you to do that.
But let me explain this jury form. The jury form was created to walk you through findings that you are required to make and findings that you are not supposed to make if you make certain other findings, and that’s why all the instructions are in there.
And so when it says — and you have to follow the instructions specifically because they are an essential part of the verdict form and the way that you are supposed to reach your verdict. And from what my reading was that you — is that you needed to — I needed to make sure that you went back, and I want you to go back again, and make sure you fully understand the instructions.

The court suggested that the jury reread the verdict sheet out loud to ensure that all members of the jury understood the instructions. It explained that “what everybody wants here is to make sure that we have given you the proper instructions and tools to reach a verdict, which is what everybody wants.”

Wright Medical moved to have the court accept the jury’s finding in answer to Question 1A that there was no design defect and enter judgment in its favor and against the plaintiff. The court denied the motion. It concluded “that the jury, in my considered legal and practical opinion, they did not understand the instructions in the form.”

The jury was directed to resume deliberations. Minutes later, it informed the court that it did not understand the verdict sheet and sought further explanation. The court acknowledged that the verdict sheet was not “drafted in a way that, in your first working with it, that you fully understood it.” With the consent of counsel, the court revised the verdict sheet instructions to clarify that the jury should not complete the remainder of the sheet if it answered “No” to Question 1A. The instruction now stated:

If you answered NO to Question 1A, stop. Do not complete the remainder of the form. The foreperson should sign and date the form and tell the Court Security Officer you have a ver-diet. If you answered YES to Question 1A, proceed to Question IB.

(Bolded text in original).

The following explanatory note was attached to the revised verdict sheet and delivered to the jury:

Ladies and Gentleman:
In response to your comment that you do not understand the verdict form, I have revised the form by adding clarifying language in certain of the instructions. The instructions where clarifying language was added are identified with an asterisk.
If this language does not answer your questions about how to complete the form, please tell the Court Security Officer so I can respond before you continue your deliberations.
Finally, if in following the instructions you were required to answer Question 1C, please make the Special Factual Findings on page 7. If you ended up not answering Question 1C, do not make the Special Factual Findings on page 7.

The court also recharged the jury, which thereafter resumed deliberations.

After approximately one half day of deliberations, the jury informed the court that it was unable to reach a verdict. The court advised it to continue deliberations. The following day, one of the jurors submitted a note to the court in which the juror reported that deliberations were taking an “extensively long time as one of the jurors doesn’t look at the evidence through the perspective of the law.” A few hours later, the foreperson sent a note which stated: “We are unable to provide a verdict and complete the verdict form. We have one juror that has decided no longer to participate in the jury and the process to reach a unanimous verdict.”

In the presence of counsel, the court interviewed the juror who had been accused of refusing to deliberate. After the juror had left the room, counsel and the court discussed his testimony, and the court reviewed the transcript. At the request of counsel, the court asked the juror to return to the room to answer additional clarifying questions:

THE COURT: I went back and read the question I asked you, and I didn’t do a very good job of that. So I’m going to try again. Let me just be a little bit more careful. Let’s go back to the jury form. You obviously read the jury form?
JUROR: Yes, sir.
THE COURT: And the jury form basically has some questions, and the jury is supposed to answer yes or no to those questions. And you have seen those questions that are required to be answered yes or no?
JUROR: Yes, sir.
THE COURT: And then after most of the questions, there is an instruction in bold. You have seen those, haven’t you?
JUROR: Yes, sir.
THE COURT: And what it does is it looks at the answer to the question right above the instruction, and it will say if you answered yes, then it instructs you to do specific things. If you answer the question no, it tells you to do something different.
JUROR: Exactly.
THE COURT: So I don’t want to focus on any specific question, but has there been during your deliberations a question where you have voted with the others on how to answer the question— have there been times when you agreed with the answer to the question? Has that happened?
JUROR: Yes, it has.
THE COURT: And then when you go down and look at the instruction, is the answer to that question an instruction that you disagree with and that you haven’t been able to follow?
JUROR: Haven’t been able to follow? In some instance, yes.
THE COURT: And is that because you disagree that the instruction would lead to a result that you think should happen?
JUROR: My answer is different from what some of the others had, yes.
THE COURT: And when you say your answer — you answered differently, there •are others that say here is what the instruction says, this is what we have to do, is it your position is I know that’s what the instruction says, but I can’t agree with it because I think that would lead to the wrong result?
JUROR: Yes, sir.

The court determined that the juror was unwilling to follow the instructions on the verdict sheet. The juror was dismissed without objection from either party.

The seven remaining members of the jury then returned to the jury room. Thirty minutes later, the jury notified the court that it had reached a verdict. In contrast to its answer on the first verdict sheet, the jury found in response to Question 1A that the hip replacement device was defectively designed and unreasonably dangerous. -It determined that the design defect was present at the time that Wright Medical sold the device to the plaintiff and caused her harm. In this regard, it awarded her $550,000 in damages. The jury also found that Wright Medical had not met its burden to prove that the device could not be made safe for its intended use, even applying the best available testing and research, and that the benefit of the hip replacement device justified the risk. In response to “Special Factual Findings” regarding this conclusion, the jury indicated that Wright Medical had failed to prove that the hip replacement device, properly manufactured, was accompanied by proper directions and warnings.

The jury further determined that Wright Medical had made a negligent misrepresentation about the device and awarded $450,000 in additional damages. It also found that, in making those misrepresentations, the defendant’s conduct was “willful and malicious,” “intentionally fraudulent,” or “manifested a knowing and reckless indifference towards, and a disregard of, the rights of others, including Ms. Christiansen.” It awarded $10,000,000 in punitive damages. It decided that Chris-tiansen was not at fault to any degree.

After the verdict was announced in the courtroom, each member of the jury was polled. The district court accepted the unanimous verdict. Judgment was initially entered in the amount of $1,000,000 in compensatory damages and $10,000,000 in punitive damages. Wright Medical filed a post-trial “renewed motion for judgment as a matter of law, or in the alternative, motion for new trial, and to amend the judgment.” In disposing of that motion, the court reduced the award of punitive damages to $1,100,000.

II.

Wright Medical first argues that the district court erred in failing to grant judgment as a matter of law in its favor based on the jury’s finding on the original verdict sheet in its answer to Question 1A that there was no design defect because the jury was instructed to proceed no further in the event of a “no” answer. Wright Medical contends that the district court was required to accept the jury’s finding that there was no design defect and deem any further answers by the jury to subsequent questions to be nullities rather than inconsistencies. In the alternative, it asserts that the district court should have ordered a new trial.

We first consider the district court’s determination that the answers on the original verdict sheet were inconsistent. Pursuant to Rule 49 of the Federal Rules of Civil Procedure, the district court has authority to identify an inconsistency on a general verdict sheet containing answers to special interrogatories and either enter judgment, order further deliberations, or order a new trial. See Fed. R. Civ. P. 49(b). “While the district court’s application of Rule 49(b) is reviewed only for abuse of discretion, its threshold determination that the jury returned a general verdict inconsistent with its answers to special interrogatories is a mixed question of law and fact ... subject to plenary review.” Wilbur v. Corr. Servs. Corp., 393 F.3d 1192, 1199 (11th Cir. 2004) (citations omitted). This Court recently summarized the relevant legal principles in Reider v. Philip Morris USA, Inc., 793 F.3d 1254 (11th Cir. 2015). There, it explained that “[a] verdict is inconsistent when there is ‘no rational, non-speculative way to reconcile ... two essential jury findings.’ ” See id. at 1259 (quoting Witt v. Norfe, Inc., 725 F.2d 1277, 1278 (11th Cir. 1984)). “To determine whether a conflict in the verdict can be reconciled, a district court must ask whether the jury’s answers could reflect ‘a logical and probable decision on the relevant issues ... submitted.’ ” Id. (quoting Burger King Corp. v. Mason, 710 F.2d 1480, 1489 (11th Cir. 1983)).

The jury’s findings on the original verdict sheet were inconsistent. At the charge conference, the parties and the district court agreed that if the jury were to find that the hip replacement device was not defectively designed, this finding would preclude further findings and require a verdict in favor of Wright Medical. In other words, Christiansen could prevail on her negligent misrepresentation claim only if the jury first found that there was a design defect. Thus, the original verdict sheet instructed the jurors that if they found that there was no design defect, they were to “stop, and sign and date this form.” Nevertheless, the jury recorded on the original verdict sheet both that there was no design defect and that Wright Medical had made a negligent misrepresentation. These findings are inherently inconsistent as there is “no rational, non-speculative way to reconcile” these findings. See id. (quoting Witt, 725 F.2d at 1278).

We reject Wright Medical’s invitation to ignore this inconsistency on the theory that the jury’s response to Question 1A is controlling and any additional responses have no legal effect. It is apparent from these contradictory and irreconcilable responses that the jury did not understand the instructions on the original verdict sheet. If the jury had understood these instructions, it would not have continued to answer additional questions before it. Yet, the jury continued to respond to additional questions thereby rendering its finding in Question 1A irreconcilably inconsistent with its additional answers.

Wright Medical further argues that even if the district court was correct in not entering judgment in its favor, it erred in ordering further deliberations rather than a new trial. In this regard, Wright Medical contends that because the district court stopped publication of the jury verdict immediately after the jury had announced that there was no design defect, the jurors were left with the impression that the district court disapproved of its finding as to no design defect.

Where the jury’s responses cannot be reconciled, “the district court has the discretion to direct the jury to further consider its answers and the verdict, or order a new trial.” See Reider, 793 F.3d at 1259; Wilbur v. Correctional Servs. Corp., 393 F.3d 1192, 1199 (11th Cir. 2004). “[I]f the jury returns two inconsistent verdicts, the trial court may resubmit the issue to them for clarification.” Univ. Computing Co. v. Lykes-Youngstown Corp., 504 F.2d 518, 547 (5th Cir. 1974). “It is often preferable for a district court to direct the jury to reconsider its verdict in an attempt to eliminate the inconsistency in order to avoid a new trial.” Reider, 793 F.3d at 1259.

In Dietz v. Bouldin, 579 U.S. -, 136 S.Ct. 1885, 195 L.Ed.2d 161 (2016), the United States Supreme Court “h[eld] that a federal district court has the inherent power to rescind a jury discharge order and recall a jury for further deliberations after identifying an error in the jury’s verdict.” Id. at 1890. There, the jury had “returned a legally impermissible verdict” but “[t]he trial judge did not realize the error until shortly after he excused the jury.” Ift By the time that the district court recognized the error in the verdict, it had already informed the jury that it was “discharged,” the jury had already left the courtroom, and one of the jurors had left the building to collect a hotel receipt. Id. at 1890-91. None of the jurors had spoken to anyone about the case. In addition to holding that reassembling the jury and ordering it to resume deliberations was permissible, the Supreme Court declared that “[i]n the normal course, when a court recognizes an error in a verdict before it discharges the jury, it has the express power to give the jury a curative instruction and order them to continue deliberating.” Id. at 1892.

Here, upon recognizing the inconsistency in the jury verdict, the district court, consistent with Dietz and Reider, immediately halted publication of the verdict and instructed the jury that an error had been made. At that point, only the finding as to the design defect claim had been announced. Wright Medical argues that this stopping point in the publication of the jury’s findings biased further jury deliberations. This contention lacks merit. From a review of the record, the district court acted in a neutral and non-biased manner in acknowledging and addressing the inconsistent verdict. Rather than bias the jury against finding that there had been no design defect, the district court’s clarifying instruction emphasized that such a finding was legally permissible. The district court also recharged the jury. Any inconsistencies between the jury’s findings on the original verdict sheet and the supplemental verdict sheet can be explained by the. jury’s failure to understand the verdict sheet instructions. Under these circumstances, it was not an abuse of discretion for the district court to order the jury to continue deliberating.

m.

We next turn to the challenge of Wright Medical to the charge of the district court concerning the defense against strict liability under Utah law for unavoidably unsafe products set forth in Comment k to Section 402A of the Restatement (Second) of Torts. Comment k states:

Unavoidably unsafe products. There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. An outstanding example is the vaccine for the Pasteur treatment of rabies, which not uncommonly leads to very serious and damaging consequences when it is injected. Since the disease itself invariably leads to a dreadful death, both the marketing and use of the vaccine are fully justified, notwithstanding the unavoidable high degree of risk which they involve. Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of which for this very reason cannot legally be sold except to physicians, or under the prescription of a physician. It is also true in particular of many new or experimental drugs as to which, because of lack of time and opportunity for sufficient medical experience, there can be no assurance of safety, or perhaps even of purity of ingredients, but such experience as there is justifies the marketing and use of the drug notwithstanding a medically recognizable risk. The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.

Restatement (Second) of Torts § 402A cmt. k (Am. Law Inst. 1965).

The district court delivered the following instruction to the jury concerning the unavoidably unsafe product defense:

Wright Medical has asserted in this case a defense that the hip replacement device was unavoidably safe and thus was not defective. To prove this defense, Wright Medical must prove by preponderance of the evidence the following elements. First, that when the hip replacement device was made, it could not be made safe for its intended use even applying the best available testing and research. Second, the benefit of the hip replacement device justified its risk. And, third, the product, properly manufactured, was accompanied by proper directions and warnings. If Wright Medical proves these elements by a preponderance of the evidence, the hip replacement device is not defective.

Wright Medical contends that the district court erred in instructing the jury to apply a case-by-case analysis that takes into account whether the specific product at issue was properly manufactured and accompanied by proper directions and warnings. Instead, Wright Medical asserts that the district court should have instructed the jury that the defense is a categorical bar to liability if the jury finds that the device could not be made safe for its intended use and that the benefit justified the risk. The availability of an affirmative defense is a question of law reviewed de novo. See Peter Letterese & Assocs., Inc. v. World Inst. of Scientology Enters., Int’l, 533 F.3d 1287, 1319-20 n.38 (11th Cir. 2008).

In Grundberg v. Upjohn Co., 813 P.2d 89 (Utah 1991), the Utah Supreme Court rejected the case-by-case approach and adopted Comment k as a categorical bar against strict liability with regard to a particular class of products, namely, pharmaceutical drugs that have been approved by the United States Food and Drug Administration. It “h[eld] that a drug approved by the United States Food and Drug Administration (“FDA”), properly prepared, compounded, packaged, and distributed, cannot as a matter of law be ‘defective’ in the absence of proof of inaccurate, incomplete, misleading, or fraudulent information furnished by the manufacturer in connection with FDA approval.” Id. at 90. In announcing this rule, the Utah Supreme Court “acknowledge^] that by characterizing all FDA-approved prescription medications as ‘unavoidably unsafe,’ we are expanding the literal interpretation of comment k.” Id Nonetheless, it extended this defense applicable to FDA-approved prescription drugs because “[i]n its role as ‘both a health promoter ... ' and ... a public protector,’ the FDA employs a comprehensive scheme of premarket screening and post-market surveillance to ensure the safety and efficacy of all licensed medications.” See id. at 96 (quoting New Drug and Antibiotic Regulations, 50 Fed. Reg. 7452 (Feb. 22, 1985)).

Wright Medical asserts that the Utah Supreme Court would extend the categorical bar against strict liability to medical devices, such as its hip replacement device. Because the Utah Supreme Court has not spoken on the issue, we must predict how it would decide this case. See Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1348 (11th Cir. 2011); Guideone Elite Ins. Co. v. Old Cutler Presbyterian Church, Inc., 420 F.3d 1317, 1326 (11th Cir. 2005). In Grundberg, the Court adopted the categorical bar against strict liability for pharmaceutical drugs on the premise that those products have satisfied the requirements of a comprehensive FDA approval process:

A drug is designed to be effectively administered to specific individuals for one or a number of indications. To determine whether a drug’s benefit outweighs its risk is inherently complex because of the manufacturer’s conscious design choices regarding the numerous chemical properties of the product and their relationship to the vast physiologic idiosynera-cies of each consumer for whom the drug is designed. Society has recognized this complexity and in response has reposed regulatory authority in the FDA. Relying on the FDA’s screening and surveillance standards enables courts to find liability under circumstances of inadequate warning, mismanufacture, improper marketing, or misinforming the FDA-avenues for which courts are better suited. Although this approach denies plaintiffs one potential theory on which to rely in a drug products liability action, the benefits to society in promoting the development, availability, and reasonable price of drugs justifies this conclusion.
In light of the strong public interest in the availability and affordability of prescription medications, the extensive regulatory system of the FDA, and the avenues of recovery still available to plaintiffs by claiming inadequate warning, mismanufacture, improper marketing, or misrepresenting information to the FDA, we conclude that a broad grant of immunity from strict liability claims based on design defects should be extended to FDA-approved prescription drugs in Utah.^

Grundberg, 813 P.2d at 98-99. The Court emphasized that “[n]o other class of products is subject to such special restrictions or protections in our society.” Id. at 96.

Even if the Utah Supreme Court were to extend the bar against strict liability to FDA-approved medical devices, we predict that it would not extend it to the hip replacement device at issue here because the record is silent as to whether that device had obtained FDA approval. At oral argument, Wright Medical conceded that it did not present any evidence at trial as to whether its hip replacement device was approved by the FDA. Thus, even if Utah law would extend the categorical bar to FDA-approved medical devices, Wright Medical has not met its burden to prove that this affirmative defense applies to its hip replacement device.

On this record, any categorical bar to liability for an unavoidably unsafe product was not available to Wright Medical under Utah law. Accordingly, the district court did not err in failing to give such an instruction to the jury. Any error by the district court in instructing the jury on the unavoidably unsafe defense did not affect the result in this case because the jury-found that Wright Medical had not proven the defense. Thus, the district court’s error was harmless.

IV.

We affirm the order of the district court denying the motion of Wright Medical for judgment as a matter of law or for a new trial. The judgment in favor of plaintiff Robyn Christiansen and against defendant Wright Medical for $2,100,000 stands.

AFFIRMED.

      . Before trial, Gene Christiansen abandoned his loss of consortium claim. That claim is not at issue in this appeal.

      . The district court granted in part the motion of Wright Medical to the extent that it sought a reduction in punitive damages from $10,000,000 to $1,100,000. The motion was otherwise denied.

      . In full, the verdict sheet included the following questions and answers. Page one read:
      Design Defect
      IA. Do you find by a preponderance of the evidence that Wright Medical’s hip replacement device was defectively designed?
      [No.]
      If you answered NO to Question 1A, stop, and sign and date this form. If you answered YES to Question 1A, proceed to Question IB.
      IB. Do you find by a preponderance of the evidence that the hip replacement device was unreasonably dangerous?
      [No response indicated.]
      If you answered NO to Question IB, stop, and sign and date this form. If you answered YES to Question IB, proceed to Question 1C.
      Although the questions continued onto the following page, the foreperson signed and dated the bottom of the first page.
      Page two of the verdict sheet, contained the following questions and answers:
      IC. Do you find by a preponderance of the evidence that when Wright Medical made the hip replacement device, it could not be made safe for its intended use even applying the best available testing and research, and that the benefit of the hip replacement device justified its risk?
      [No response indicated.]
      Proceed to Question ID.
      ID. Do you find by a preponderance of the evidence that the design defect was present at the time Wright Medical sold the hip replacement device that was implanted in Plaintiff?
      [No.]
      If you answered NO to Question ID, stop, and sign and date this form. If you answered YES to Question ID, proceed to Question IE.
      IE. Do you find by a preponderance of the evidence that the design defect was a cause of harm to Plaintiff?
      [No response indicated.]
      If you answered NO to Question IE, stop, and sign and date this form. If you answered YES to Question IE, proceed to Question IF.
      IF. Do you find by a preponderance of the evidence that Plaintiff is entitled to recover compensatory damages?
      [No response indicated.]
      If your answer is "Yes,” what amount? [No response indicated.]
      Proceed to Question 2A.
      Again, although the questions continued onto the next page, the foreperson signed and dated the bottom of the second page.
      The verdict sheet continued:
      Fraudulent Misrepresentation
      2A. Do you find by clear and convincing evidence that Wright Medical made fraudulent misrepresentations about the hip replacement device implanted in Plaintiff?
      [No.]
      If you answered NO to Question 2A, proceed to Question 3A. If you answered YES to Question 2A, proceed to Question 2B.
      2B. Do you find by clear and convincing evidence that Wright Medical's fraudulent misrepresentations about the hip replacement device implanted in Plaintiff was a cause of harm to Plaintiff?
      [No response indicated.]
      If you answered NO to Question 2B, proceed to Question 3A. If you answered YES to Question 2B,‘ proceed to Question 2C.
      2C. Do you award damages in addition to any amount awarded in response to Question IF?
      [No response indicated].
      If your answer is "Yes,” in what additional amount? [No response indicated.]
      Proceed to Question 3A.
      Negligent Misrepresentation
      3A. Do you find by clear and convincing evidence that Wright Medical made negligent misrepresentations as to the hip replacement device implanted in Plaintiff? [Yes.]
      If you answered NO to Question 3A, proceed .to Question 4A. If you answered YES to Question 3A, proceed to Question 3B.
      3B. Do you find by clear and convincing evidence that Wright Medical’s negligent misrepresentations as to the hip replacement device implanted in Plaintiff was a cause of harm to Plaintiff?
      [Yes.]
      If you answered NO to Question 3B, proceed to Question 4A. If you answered YES to Question 3B, proceed to Question 3C.
      3C. Do you award damages in addition to any amount awarded in response to Question IF, and any additional amount you may have awarded in Question 2C?
      [Yes.]
      If your answer is “Yes,” in what additional amount? [$662,500]

        Proceed to Question 4A.
      Fraudulent Concealment
      4A. Do you find by clear and convincing evidence that Wright Medical fraudulently concealed or failed to disclose an important fact or facts to Plaintiff or Dr. Rasmussen about the hip replacement device implanted in Plaintiff?
      [No.]
      If you answered NO to Question 4A, proceed to Question 5A. If you answered YES to Question 4A, proceed to Question 4B.
      4B. Do you find by clear and convincing evidence that Wright Medical’s fraudulent concealment or failure to disclose an important fact or facts to Plaintiff or Dr. Ram-sussen [sic] about the hip replacement device implanted in Plaintiff was a cause of harm to Plaintiff?
      [No response indicated.]
      If you answered NO to Question 4B, proceed to Question 5A. If you answered YES to Question 4B, proceed to Question 4C.
      4C. If your answer is "Yes,” do you award damages in addition to any amount awarded in response to Question IF, and any additional amount you may have awarded in Questions 2C and 3C?
      [No response indicated.]
      If your answer is "Yes," in what additional amount? [No response indicated.]
      Proceed to Question 5A.
      Punitive Damages
      5A. Do you find by clear and convincing evidence that Wright Medical's conduct: (i) was willful and malicious; (ii) was intentionally fraudulent; or (iii) manifested a knowing and reckless indifference towards, and a disregard of, the rights of others, including Ms. Christiansen for any of the below conduct?
      [check all that apply]
      In making misrepresentations as to the hip replacement device? [Checked.]
      In fraudulently concealing information as to the hip replacement device? [Not checked.]
      If you checked either of the above, what, if any, amount of punitive damages, in addition to any other damages you may have awarded, do you award against Wright Medical?
      [$2,500,000]
      Proceed to Question 6A.
      Comparative Fault
      6A. Was Plaintiff also at fault in causing Plaintiff's harm?
      [Yes.]
      If you answered NO to Question 6A, stop, and sign and date this form. If you answered YES to Question 6A, please state below what percentage each of the below parties is responsible for Plaintiffs harm.
      Wright Medical: [78.70%]
      Plaintiff: [21.24%]
      Although there was still one page remaining in the verdict sheet, the foreperson signed and dated the bottom of this page.
      The final page of the verdict sheet read:
      Special Factual Findings
      The Court requests that you make special factual findings regarding your answer in response to Question 1C. If you answered "No” to Question 1C, please indicate below which facts Wright Medical failed to prove by a preponderance of the evidence.
      [check all that apply]
      When the hip replacement device was made, it could not be made safe for its intended use even applying the best available testing and research. [Not checked.] The benefit of the hip replacement device justified its risk. [Not checked.]
      The hip replacement device, properly manufactured, was accompanied by proper directions and warnings. [Checked.]
      (Bolded text in original). The bottom of the verdict sheet was signed and dated by the foreperson in the space designated for signature.

      . The jury’s findings with regard to comparative fault do not total 100%.

      . The court also interviewed the foreperson and the juror who had submitted the first note.

      . In full, the verdict sheet stated the following:
      Design Defect
      1A. Do you find by a preponderance of the evidence that Wright Medical’s hip replacement device was defectively designed?
      [Yes.]
      *If you answered NO to Question 1A, stop. Do not complete the remainder of the form. The foreperson should sign and date the form and tell the Court Security Officer you have a verdict. If you answered YES to Question 1A, proceed to Question IB.
      IB. Do you find by a preponderance of the evidence that the hip replacement device was unreasonably dangerous?
      [Yes.]
      *If you answered NO to Question IB, stop. Do not complete the remainder of the form. The foreperson should sign and date the form and tell the Court Security Officer you have a verdict. If you answered YES to Question IB, proceed to Question 1C.
      IC. Do you find by a preponderance of the evidence that when Wright Medical made the hip replacement device, it could not be made safe for its intended use even applying the best available testing and research, and that the benefit of the hip replacement device justified its risk?
      [No.]
      Proceed to Question ID.
      ID. Do you find by a preponderance of the evidence that the design defect was present at the time Wright Medical sold the hip replacement device that was implanted in Plaintiff?
      [Yes.]
      *If you answered NO to Question ID, stop. Do not complete the remainder of the form. The foreperson should sign and date the form and tell the Court Security Officer you have a verdict. If you answered YES to Question ID, proceed to Question IE.
      IE. Do you find by a preponderance of the evidence that the design defect was a cause of harm to Plaintiff?
      [Yes.]
      *If you answered NO to Question IE, stop. Do not complete the remainder of the form. The foreperson should sign and date the form and tell the Court Security Officer you have a verdict. If you answered YES to Question IE, proceed to Question IF.
      IF. Do you find by a preponderance of the evidence that Plaintiff is entitled to recover compensatory damages?
      [Yes.]
      If your answer is "Yes,” what amount? [$550,000]
      The foreperson signed her initials next to the damages award. The verdict sheet continued:
      Proceed to Question 2A.
      Fraudulent Misrepresentation
      2A. Do you find by clear and convincing evidence that Wright Medical made fraudulent misrepresentations about the hip replacement device implanted in Plaintiff?
      [No.]

        If you answered NO to Question 2A, proceed to Question 3A. If you answered YES to Question 2A, proceed to Question 2B.
      2B. Do you find by clear and convincing evidence that Wright Medical's fraudulent misrepresentations about the hip replacement device implanted in Plaintiff was a cause of harm to Plaintiff? [No response indicated.]
      If you answered NO to Question 2B, proceed to Question 3A. If you answered YES to Question 2B, proceed to Question 2C.
      2C. Do you award damages in addition to any amount awarded in response to Question IF?
      [No response indicated].
      If your answer is "Yes,” in what additional amount? [No response indicated.]
      Proceed to Question 3A.
      Negligent Misrepresentation
      3A. Do you find by clear and convincing evidence that Wright Medical made negligent misrepresentations as to the hip replacement device implanted in Plaintiff?
      [Yes.]
      If you answered NO to Question 3A, proceed to Question 4A. If you answered YES to Question 3A, proceed to Question 3B.
      3B. Do you find by clear and convincing evidence that Wright Medical’s negligent misrepresentations as to the hip replacement device implanted in Plaintiff was a cause of harm to Plaintiff?
      [Yes.]
      If you answered NO to Question 3B, proceed to Question 4A. If you answered YES to Question 3B, proceed to Question 3C.
      3C. Do you award damages in addition to any amount awarded in response to Question IF, and any additional amount you may have awarded in Question 2C?
      [Yes.]
      If your answer is "Yes,” in what additional amount? [$450,000]
      Proceed to Question 4A.
      Fraudulent Concealment
      4A. Do you find by clear and convincing evidence that Wright Medical fraudulently concealed or failed to disclose an important fact or facts to Plaintiff or Dr. Rasmussen about the hip replacement device implanted in Plaintiff?
      [No.]
      If you answered NO to Question 4A, proceed to Question 5A. If you answered YES to Question 4A, proceed to Question 4B.
      4B. Do you find by clear and convincing evidence that Wright Medical’s fraudulent concealment or failure to disclose an important fact or facts to Plaintiff or Dr. Ram-sussen [sic] about the hip replacement device implanted in Plaintiff was a cause of harm to Plaintiff?
      [No response indicated.]
      If you answered NO to Question 4B, proceed to Question 5A. If you answered YES to Question 4B, proceed to Question 4C.
      4C. If your answer is "Yes,” do you award damages in addition to any amount awarded in response to Question IF, and any additional amount you may have awarded in Questions 2C and 3C?
      [No response indicated.]
      If your answer is "Yes,” in what additional amount? [No response indicated.]
      Proceed to Question 5A.
      Punitive Damages
      5A. Do you find by clear and convincing evidence that Wright Medical's conduct: (i) was willful and malicious; (ii) was intentionally fraudulent; or (iii) manifested a knowing and reckless indifference towards, and a disregard of, the rights of others, including Ms. Christiansen for any of the below conduct?
      [check all that apply]
      In making misrepresentations as to the hip replacement device? [Checked.]
      In fraudulently concealing information as to the. hip replacement device? [Not checked.]
      If you checked either of the above, what, if any, amount of punitive damages, in addition to any other damages you may have awarded, do you award against Wright Medical?
      [$10,000,000]
      Proceed to Question 6A.
      Comparative Fault
      6A. Was Plaintiff also at fault in causing Plaintiff’s harm?
      [No.]
      *If you answered NO to Question 6A, make the Special Factual Findings on Page 7 if required. After doing so, sign and date this form because your verdict is complete. If you answered YES to Question 6A, please state "below what percentage each of the below parties is responsible for Plaintiffs harm. After doing so, please make the Special Factual Findings on Page 7 if required.
      Wright Medical: [No response indicated.]
      Plaintiff: [No response indicated.]
      Special Factual Findings
      The Court requests that you make special factual findings regarding your answer in response to Question 1C. If you answered "No” to Question 1C, please indicate below which facts Wright Medical failed to prove by a preponderance of the evidence.
      [check all that apply]
      When the hip replacement device was made, it could not be made safe for its intended use even applying the best available testing and research. [Not checked.] The benefit of the hip replacement device justified its risk. [Not checked.]
      The hip replacement device, properly manufactured, was accompanied by proper directions and warnings. [Checked.]
      (Bolded text in original). The bottom of the verdict sheet was signed and dated by the foreperson in the space designated for signature.

      . In full, Rule 49 provides:
      (a) Special Verdict.
      (1) In General. The court may require a jury to return only a special verdict in the form of a special written finding on each issue of fact. The court may do so by:
      (A) submitting written questions susceptible of a categorical or other brief answer;

        (B) submitting written forms of the special findings that might properly be made under the pleadings and evidence; or
      (C) using any other method that the court considers appropriate.
      (2) Instructions. The court must give the instructions and explanations necessary to enable the jury to make its findings on each submitted issue.
      (3) Issues Not Submitted. A party waives the right to a jury trial on any issue of fact raised by the pleadings or evidence but not submitted to the jury unless, before the jury retires, the party demands its submission to the jury. If the party does not demand submission, the court may make a finding on the issue. If the court makes no finding, it is considered to have made a finding consistent with its judgment on the special verdict.
      (b) General Verdict with Answers to Written Questions.
      (1) In General. The court may submit to the jury forms for a general verdict, together with written questions on one or more issues of fact that the jury must decide. The court must give the instructions and explanations necessary to enable the jury to render a general verdict and answer the questions in writing, and must direct the jury to do both.
      (2) Verdict and Answers Consistent. When the general verdict and the answers are consistent, the court must approve, for entry under Rule 58, an appropriate judgment on the verdict and answers.
      (3) Answers Inconsistent with the Verdict. When the answers are consistent with each other but one or more is inconsistent with the general verdict, the court may:
      (A) approve, for entry under Rule 58, an appropriate judgment according to the answers, notwithstanding the general verdict;
      (B) direct the jury to further consider its answers and verdict; or
      (C) order a new trial.
      (4)Answers Inconsistent with Each Other and the Verdict. When the answers are inconsistent with each other and one or more is also inconsistent with the general verdict, judgment must not be entered; instead, the court must direct the jury to further consider its answers and verdict, or must order a new trial.
      Fed. R. Civ. P. 49.

      . Wright Medical contends that the jury delivered a special verdict, rather than a general verdict with written answers to special interrogatories. “Categorizing a verdict as a gener.al verdict, or as a special verdict under Rule 49(a), or as a general verdict with special interrogatories under Rule 49(b) should be— but too often seems not — a simple matter.’’ Mason v. Ford Motor Co., 307 F.3d 1271, 1274-75 (11th Cir. 2002). “With a special verdict, the jury’s sole function is to determine the facts; the jury needs no instruction on the law because the court applies the law to the facts as found by the jury.” Id. at 1274. In contrast, here, the district court delivered “instructions to the jury on the law to be applied to the jury’s factual findings as well as the requirement that the jury apply the law and render its verdict.” See id. at 1275. Moreover, "[bjoth the court’s instructions and the verdict form required the jury to perform the most essential function that marks a general verdict: to decide which party prevails.” See id. The verdict sheet in this case contained a general verdict with written answers to special interrogatories.

      . Wright Medical relies on a number of cases concerning inconsistent jury verdicts. See, e.g., Nimnicht v. Dick Evans, Inc., 477 F.2d 133, 135 (5th Cir. 1973); McVey v. Phillips Petroleum Co., 288 F.2d 53, 59 (5th Cir. 1961). To the extent that those cases are not distinguishable from this case, they are inconsistent with the Supreme Court’s recent decision in Dietz v. Bouldin, 579 U.S. -, 136 S.Ct. 1885, 195 L.Ed.2d 161 (2016).

      . The decisions of the Court of Appeals for the Fifth Circuit as that court existed on September 30, 1981 are binding precedent in the Court of Appeals for the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981).

      . Wright Medical also contends that the dismissal of a juror who refused to follow the instructions of the court, taken alongside the resubmission of the case to the jury, biased deliberations. We are not persuaded. Not only did Wright Medical fail to object to the dismissal of this juror, but it has offered no persuasive reason why this dismissal tainted jury deliberations.

      . Because we conclude that the jury's verdict for Christiansen on her strict liability design defect claim suffices to support the verdict, we need not and do not decide whether the jury found that Christiansen proved all the elements of her negligent design defect claim.


source: Caselaw Access Project

author: WILSON, Circuit Judge:

license: Public Domain

text:
    PURCHASING POWER, LLC, Plaintiff-Appellant, v. BLUESTEM BRANDS, INC., Defendant-Appellee.
    No. 16-11896
    United States Court of Appeals, Eleventh Circuit.
    (March 20, 2017)

      Robert Bernard Harwood, Jr., Rosen Harwood, PA, TUSCALOOSA, AL, Ashby Kent Fox, Burr & Forman, LLP, Oscar N. Persons, Strickland Brockington Lewis, LLP, ATLANTA, GA, Joseph W. Letzer, Elizabeth Bosquet Shirley, Burr & For-man, LLP, BIRMINGHAM, AL, for Plaintiff-Appellant. •
    Kerry L. Bundy, Randall Eugene Kahnke, Charles F. Webber, Katrina M. Gossett, Jeffrey P. Justman, Amanda Jane Rome, Faegre Baker Daniels, LLP, MINNEAPOLIS, MN, Audra Ann Dial, George L. Murphy, Jr., Hillary Dawn Rightler, Kilpatrick Townsend & Stockton, LLP, ATLANTA, GA, for Defendant-Appellee.
    Before WILSON and JILL PRYOR, Circuit Judges, and BUCKLEW, District Judge.

       Honorable Susan C. Bucklew, United States District Judge for the Middle District of Florida, sitting by designation.

   WILSON, Circuit Judge:

This case demonstrates the difficulty of applying established diversity jurisdiction principles to 21st-century business organizations. When determining citizenship of the parties for diversity jurisdiction purposes, a limited liability company (LLC) is a citizen of every state that any member is- a citizen of. And it is common for an LLC to be a member of another LLC. Consequently, citizenship of LLCs often' ends up looking like a factor tree that exponentially expands every time a member turns out to be another LLC, thereby restarting the process of identifying the members of that LLC. The simplest misstep has the potential to derail years of litigation and result in a massive financial sanction, as happened here. It is in everyone’s best interest, both the litigants’ and the courts’, to verify that diversity jurisdiction exists before proceeding with the case. Everyone involved in this case trusted that diversity jurisdiction existed, but no one verified it. The law firms involved trusted their clients. The clients trusted their lawyers. The law firms trusted each other, and the district court trusted them. But there was no verification.

I. Facts

This case began when Purchasing Power LLC (Purchasing Power), represented by the law firm Burr & Forman (B&F), sued Bluestem Brands Inc. (Bluestem) in Georgia state court in December 2011. Blues-tem, a citizen of Minnesota and Delaware, sought to remove the case to federal court based on diversity jurisdiction. Counsel for Bluestem, Randall Kahnke, emailed counsel for Purchasing Power, Joe Letzer, to determine the citizenship of Purchasing Power for diversity purposes.

The citizenship of an LLC is the citizenship of each member. Purchasing Power has one member — -Purchasing Power Holdings LLC (Holdings). Holdings’ members were individual residents of Georgia and three LLCs — (1) Rockbridge Growth Equity LLC (Rockbridge), (2) Falcon Investment Advisors LLC (Falcon), (3) and Stephens-Purchasing Power LLC (Stephens). To determine the citizenship of Purchasing Power, one would need to know the citizenship of the members of LLCs thrice removed (Purchasing Power -» Holdings -» Rockbridge/Falcon/Ste-phens). Letzer and other B&F attorneys instructed the officers of Purchasing Power that they needed to know the residences of the LLC members to respond to Kahnke’s request. Letzer was aware that Bluestem was a citizen of Minnesota and Delaware. After receiving several guarantees from Richard Carrano — the CEO, President, and Corporate Secretary of Purchasing Power — that none of the LLC members were from Minnesota or Delaware, Letzer responded to Kahnke in an email: “[W]e are informed by our client that none of the members of the LLC are resident citizens of either the states of Minnesota or Delaware. We trust this gives you the essential information you requested to assess removability on diversity grounds.” Kahnke attached this email to Bluestem’s removal petition filed on January 25, 2012, as the only evidence that complete diversity existed.

On August 3, 2012, Bluestem served written discovery requests on Purchasing Power, which included two requests for production of documents relating to the identity, residency, and citizenship of Holdings’ members (Request 41) and of the LLC members (Request 42). B&F stated that it would comply with Request 41 but asked for a confidentiality agreement first. B&F objected to Request 42 because Purchasing Power did not have the requested information in its care, custody, or control; Purchasing Power either did not know who the LLC members were or could not compel the LLC members to turn over the information. Also, B&F did not believe the information was relevant because jurisdiction had already been established and would be supported by the documents in Request 41. On' November 12, 2012, Bluestem’s counsel sent a letter to B&F stating that Request 42 was relevant because it related to jurisdiction. On November 19, 2012, B&F responded that (1) it could not obtain some of the information demanded in Request 42 (the identity of the LLC members) and (2) the information was irrelevant because Letzer’s email was sufficient for “determining subject matter jurisdiction in this case.”

Following the November 19 response, neither Bluestem, nor B&F, nor the district court took additional steps to verify that subject matter jurisdiction existed. On May 19, 2014, the district court granted summary judgment in favor of Bluestem on all claims. On appeal, we noted that the pleadings did not sufficiently allege Purchasing Power’s citizenship. This started an inquiry, more than two years after removal, that led to the realization that there was no diversity jurisdiction.

What B&F failed to realize, and no one bothered to investigate, w;as that Falcon, one of the LLCs, did not own an interest in Holdings directly. Falcon’s interest in Holdings was owned by a corporation that Falcon had set up for tax purposes. Hence, instead of the ownership flow chart being Falcon LL.C -» Holdings -> Purchasing Power, it was Falcon LLC -⅝ Falcon Inc. -> Holdings Purchasing Power. The relevant party for Purchasing Power’s diversity citizenship was Falcon Inc., the corporation that owned the interest in Holdings. Falcon Inc. was incorporated in Delaware, of which Bluestem was a citizen, and destroyed diversity jurisdiction.

After this realization, the district court sanctioned B&F under the court’s inherent power and Rule 26(g)(3) of the Federal Rules of Civil Procedure. The district court found that B&F misrepresented to either the court or Bluestem on five occasions that diversity of citizenship existed — (1) in Letzer’s email, (2) in the Joint Preliminary Report and Discovery Plan, (3) in the Amended Complaint, and (4-5) in proposed amended complaints. The district court found that the B&F lawyers “failed completely to perform their professional duties to the Parties and the Court in this matter” and ordered B&F to pay Bluestem $582,385 in fees and costs.

B&F appeals the sanctions order. We reverse the district court’s sanction.

II. Standard of Review

We review sanctions orders for an abuse of discretion. See Amlong & Amlong, P.A v. Denny’s, Inc., 500 F.3d 1230, 1237 (11th Cir. 2007). “An abuse of discretion occurs when the district court applies an incorrect legal standard, applies the law in an unreasonable or incorrect manner ... or ignores or misunderstands the relevant evidence.” Sciarretta v. Lincoln Nat’l Life Ins., 778 F.3d 1205, 1212 (11th Cir. 2015) (internal quotation marks omitted).

III. Inherent Power Sanctions

Courts have the inherent power to police those appearing before them. Chambers v. NASCO, Inc., 501 U.S. 32, 46, 111 S.Ct. .2123, 2133, 115 L.Ed.2d 27 (1991). A court’s inherent power is “governed not by rule or statute but by the control necessarily vested in ' courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Id. at 43, 111 S.Ct. at 2132 (citing Link v. Wabash R.R., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1389, 8 L.Ed.2d 734 (1962)). This power “must be exercised with restraint and discretion” and used “to fashion an appropriate sanction for conduct which abuses the judicial process.” Id. at 44-45, 111 S.Ct. at 2132-33. A court may exercise this power “to sanction the willful disobedience of a court order, and to sanction a party who has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Marx v. Gen. Revenue Corp., 568 U.S. 371, -, 133 S.Ct. 1166, 1175, 185 L.Ed.2d 242 (2013) (citing Chambers, 501 U.S. at 45-46, 111 S.Ct. at 2133-34). The dual purpose of this power is to vindicate judicial authority without resorting to a contempt of court sanction and to make the prevailing party whole. See Chambers, 501 U.S. at 46, 111 S.Ct. at 2133. The key to unlocking a court’s inherent power is a finding of bad faith. See Sciarretta, 778 F.3d at 1212.

The district court found that B&F acted in bad faith when it failed to investigate adequately Purchasing Power’s citizenship before it represented to Bluestem and the court that diversity jurisdiction existed. We hold that this was an abuse of discretion because the district court applied an incorrect standard for inherent power sanctions and ignored or misunderstood relevant evidence. While the specific reasons justifying reversal are examined below, the general reason we reach this conclusion is that B&F’s conduct did not amount to conduct that “abuse[d] the judicial process.” See Chambers, 501 U.S. at 45, 111 S.Ct. at 2133.

A. Incorrect Standard

In laying out the standard for inherent power sanctions the district court stated that: “The issue here, thus, is whether [B&F’s] specious inquiry .into [Purchasing Power]’s jurisdiction and their jurisdictional misrepresentations were reckless.” Also, the district court relied on cases discussing sanctions under 28 U.S.C. § 1927 and Rule 11 to state that inherent power sanctions are governed by an objective standard. That is an incorrect recitation of the standard for inherent power sanctions. The standard is a subjective standard with a narrow exception for conduct tantamount to bad faith. Furthermore, recklessness alone does not constitute conduct tantamount to bad faith.

As a starting point, the inherent-powers standard is a subjective bad-faith standard. The Supreme Court recently summarized the scope of a court’s inherent powers, stating: “[A] court has [the] inherent power to award attorney’s fees to a party whose litigation efforts directly benefit others, to sanction the willful disobedience of a court order, and to sanction a party who has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Marx, 568 U.S. at -, 133 S.Ct. at 1175 (citing Chambers, 501 U.S. at 45-46, 111 S.Ct. at 2133-34). Our circuit has linked inherent power sanctions with subjective bad faith — “there is nothing preventing a federal court from exercising its inherent power to sanction an attorney, a party, or a law firm for their subjective bad faith.” In re Mroz, 65 F.3d 1567, 1576 (11th Cir. 1995). And in Barnes, we stated that “[a] finding of bad faith is warranted where an attorney ... argues a meritorious claim for the purpose of harassing an opponent.” Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998) (internal quotation marks omitted). If inherent-powers sanctions were governed by a purely objective standard, we would never sanction an attorney for a meritorious claim. A meritorious claim would always be objectively reasonable. We can only sanction attorneys for meritorious claims by discerning their subjective intent. More recently, the requirement for subjective bad faith was reinforced in Sciarretta when we quoted with approval the Second Circuit’s statement that inherent powers sanctions require subjective bad faith. See Sciarretta, 778 F.3d at 1212 (citing Muhammad v. Walmart Stores E., L.P., 732 F.3d 104, 108 (2d Cir. 2013) (“[S]ua sponte sanctions ... should issue only upon a finding of subjective bad faith.”)).

The Supreme Court has confirmed by implication that a court’s inherent power is governed by a subjective standard. Dissenting in Chambers — a case outlining a court’s inherent power — Justice Kennedy raised the concern that the Court’s holding would open the floodgates for more sanctions because of the lack of guidance on what constituted bad faith. Chambers, 501 U.S. at 68, 111 S.Ct. at 2145 (Kennedy, J., dissenting) (“[T]he Court’s bad-faith standard, at least without adequate definition, thwarts the first requirement of due process, namely, that all are entitled to be informed as to what the State commands or forbids.” (internal quotation marks omitted)). The majority responded in footnote 11, stating that “Rule 11 was amended in 1983 precisely because tfie subjective bad-faith standard was difficult to establish and courts were therefore reluctant to invoke it as a means of imposing sanctions.” Chambers, 501 U.S. at 47 n.11, 111 S.Ct. at 2134 n.11. As such, “there is little risk that courts will invoke their inherent power to chill the advocacy of litigants attempting to vindicate all other important federal rights.” Id. (internal quotation marks omitted). In other words, Justice Kennedy’s fears were unfounded because the subjective nature of the inherent powers standard restricts a court’s ability to impose sanctions.

However, in the absence of direct evidence of subjective bad faith, this standard can be met if an attorney’s conduct is so egregious that it could only be committed in bad faith. See Roadway Exp., 447 U.S. at 767, 100 S.Ct. at 2465 (stating that inherent powers require a finding that “counsel’s conduct ... constituted or was tantamount to bad faith” (emphasis added)). This is not the same as simple recklessness, which can be a starting point but requires something more to constitute bad faith. See. Barnes, 158 F.3d at 1214 (holding that recklessness can constitute bad faith if the recklessness is “particularly egregious” or if a party raises an argument that is “reckless [and] frivolous”). The district court’s standard required a showing of only recklessness and nothing more. That is the incorrect standard.

The idea of recklessness sufficing to unlock a court’s inherent powers comes from Barnes, which stated, “[a] finding of bad faith is warranted where an attorney knowingly or. recklessly raises a frivolous argument, or argues a meritorious claim for the purpose of harassing an opponent.” Id. (internal quotation marks omitted) (emphasis added). The key to understanding the Barnes quote is that it is not saying recklessness suffices; it is saying recklessness plus a frivolous argument suffice. That Barnes quote originates from a Ninth Circuit opinion, stating:

For sanctions to apply, if a filing is submitted recklessly, it must be frivolous, while if it is not frivolous, it must be intended to harass. Thus, while it is true that reckless filings may be sanctioned, and nonfrivolous filings may also be sanctioned, reckless nonfrivolous filings, without more, may not be sanctioned.

In re Keegan Mgmt. Co., Sec. Litig., 78 F.3d 431, 436 (9th Cir. 1996). Recklessness alone does not satisfy the inherent powers standard; there must be more.

If a district court is unsure whether to sanction a party under its inherent powers, it should look to the guidance of the Supreme Court in Chambers. The purpose of the inherent power is both to vindicate judicial authority without resorting to contempt of court sanctions and to make the non-violating party whole. See Chambers, 501 U.S. at 45-46, 111 S.Ct. at 2133. The inherent power must be exercised with restraint and discretion. This power is not a remedy for protracted litigation; it is for rectifying disobedience, regardless of whether such disobedience interfered with the conduct of the trial. See id. at 44, 111 S.Ct. at 2132. Courts considering whether to impose sanctions under their inherent power should look for disobedience and be guided by the purpose of vindicating judicial authority. None of these concerns are present here.

B. Consideration of Relevant Evidence

In assessing whether a party should be sanctioned, a court examines the wrongdoing in the context of the ease, including the culpability of other parties. See id. at 50, 111 S.Ct. at 2136 (reviewing sanctions “in the circumstances of this case”). The district court failed to afford due consideration to evidence relevant to this inquiry, specifically: (1) Bluestem’s removal burden, (2) Bluestem’s submissions to the court, and (3) B&F’s efforts to identify Purchasing Power’s citizenship.

1. Removal Burden

“A party removing a case to federal court based on diversity of citizenship bears the burden of establishing the citizenship of the parties.” Rolling Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004) (per curiam); see also Scimone v. Carnival Corp., 720 F.3d 876, 882 (11th Cir. 2013) (“[T]he burden of establishing removal jurisdiction rests with the defendant seeking removal.”). Although Bluestem carried the burden of establishing diversity jurisdiction at all times, the district court excused Bluestem’s failure because Purchasing Power objected during discovery to a request aimed at establishing jurisdiction. An objection does not relieve Bluestem of its duty to establish diversity jurisdiction. Bluestem had a responsibility to raise the issue of Purchasing Power’s' objection with the court. Failure to bring the issue to the district court was a failure of its duty as the removing party. Purchasing Power’s actions do not excuse this failure.

2. Submissions to the Court

The district court did not account for problematic submissions to the court from Bluestem. In the submissions, Bluestem represented that jurisdiction existed and set forth questionable assertions.

Bluestem stated in its removal petition that “Purchasing Power, a Georgia limited liability company, has no members that are citizens of either Minnesota or Delaware. (See Exhibit B).” Exhibit B is the email from Letzer that stated, “[W]e are informed by our client that none of the members of the LLC are resident citizens of either the states of Minnesota or Delaware.” Bluestem stated as fact what B&F relayed only as knowledge. Although this misrepresentation might initially seem trivial, it obscured what would have been a red flag. To begin with, Bluestem did not need to state in its removal petition the citizenship of Purchasing Power. See Corp. Mgmt. Advisors, Inc. v. Artjen Complexus, Inc., 561 F.Sd 1294, 1297 (11th Cir. 2009) (“If a party fails to specifically allege citizenship in their notice of removal, the district court should allow that party to cure the omission, as authorized by § 1653.” (internal quotation marks omitted)). If Bluestem had stated in its removal petition what knowledge it actually had — Purchasing Power believes none of its members are citizens of Minnesota or Delaware— instead of what it stated — Purchasing Power has no members that are citizens of Minnesota or Delaware — there is a greater chance that the district court would have been alerted to the fatal jurisdictional issue earlier. Instead, by stating as fact what was only Purchasing Power’s belief, Bluestem shielded a potential issue that would have thwarted its removal efforts.

Furthermore, the Joint Preliminary Report and Discovery Plan form asked if there were any issues with jurisdiction, and neither party raised concerns about subject matter jurisdiction. Bluestem knew it was required to list all of the LLC members and knew it had not done this. Despite knowing these diversity jurisdiction deficiencies, Bluestem did not raise the issue when explicitly asked on the form.

One of B&F’s representations the district court took issue with was at the end of paragraph 3 of the amended complaint, which stated; “This Court has subject matter jurisdiction over the claims at issue in this action.” This sentence was appended to a section that discussed personal jurisdiction. Bluestem replied in its answer that “Bluestem denies the allegations contained in paragraph 3 of the Amended Complaint.” Paragraph 3 discussed both personal jurisdiction and subject matter jurisdiction. There are two possible ways to read Bluestem’s denial of paragraph 3. One interpretation is that Bluestem thought that there was an issue with subject matter jurisdiction but conspicuously kept quiet to avoid destroying diversity, a sanctionable offense in its own right. But the more likely interpretation is that Bluestem was denying the allegations regarding personal jurisdiction and admitting that there was subject matter jurisdiction. Bluestem was either more culpable than or as culpable as B&F for creating the impression that subject matter jurisdiction existed.

3. B&F’s Investigation

The district court stated that “[tjhere is no evidence that [B&F] investigated [Purchasing Power]’s citizenship.” It is unclear whether the district court meant that B&F never investigated or did not investigate before Letzer’s email to Kahnke. However, the district court’s statement is incorrect even if we assume the court was referring to B&F’s actions before Letzer’s email. Here is the extent of'B&F’s investigation prior to Letzer’s email:

■ On November 29, 2011, B&F attorneys met with Purchasing Power Officers — Richard Carrano, who is the CEO/President/Corporate Secretary, and Chadwick Delp, who is the CFO — who informed the attorneys that (1) Purchasing Power’s sole member was Holdings; (2) Holdings’ members included a number of individuals whom Carrano and Delp believed to be residents of Georgia and three LLCs — Rockbridge (an LLC of Michigan); Falcon (an LLC of Massachusetts); and Stephens (an LLC of Arkansas); and (3) the LLC members were individuals who resided in Michigan, Massachusetts, and Arkansas. One of the' officers, Delp, formerly worked at Stephens-Purchasing and was able to speak about the citizenship of the members with confidence.
■ On January 6, 2012, B&F attorney Letzer emailed Carrano asking him for the citizenship information that Bluestem requested.
■ Around January 6, 2012, Letzer called Carrano to discuss Bluestem’s request for information about Purchasing Power’s ownership. Carrano reiterated the information from the November 29 meeting. Letzer requested the residencies of all of the individual members and the members of the LLCs. Carrano stated that he did not have most of that information. He told Letzer that he would get back to Letzer.
■ On January 19, 2012, Letzer emailed Carrano again, seeking the information.
■ Around January 19, 2012, Letzer called Delp, who stated that Holdings’ members included a number of individuals who resided in Georgia and three investment LLCs — Purchasing Power Investors LLC (with members residing in Michigan); FSP III Kendrick Purchasing Power Holdings LLC (with members residing in Massachusetts); and Stephens (with members residing in Arkansas).
■ On January 20, 2012, Letzer received an email from Carrano containing a chart listing each member of Holdings and their states of residence. Carrano created this chart from information he obtained by reviewing the notice provisions in the Unit Purchase & Recapitalization Agreement (UPRA).
■ On January 20, 2012, Letzer emailed Bluestem’s counsel to inform the counsel that, based on the representations of Purchasing Power, no member was a citizen of Delaware or Minnesota.

This investigation might be lacking, but an investigation nevertheless occurred.

IV. Conclusion

We reverse the district court’s imposition of sanctions. While the requirements of diversity jurisdiction in this scenario are complicated, they are the law. No party in this case acted with bad intentions, but the result was a colossal waste of time and effort. We trust that the damage done to the parties’ credibility, finances, and time is enough of a sanction to curb their conduct and to serve as a warning to future diversity jurisdiction litigants. In the end, when the parties do not do their part, the burden falls on the courts to make sure parties satisfy the requirements of diversity jurisdiction. We must be vigilant in forcing parties to meet the unfortunate demands of diversity jurisdiction in the 21st century. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 1244, 163 L.Ed.2d 1097 (2006) (“[Cjourts, including this Court, have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.”).

REVERSED.

      . Purchasing Power and Bluestem compete in the business of "payroll deduction” sales, or the sale of goods to employees-by allowing deductions from employees’ pay.

      . A quick note on terminology, as terminology is critically important to understanding this case. "Holdings’ members” refers to the members of Holdings (i.e., the nine individuals who were residents of Georgia and the three LLCs). "LLCs” refers to the three LLCs that were members of Holdings (i.e., Rock-bridge, Stephens, and Falcon). "LLC members” refers to the members of those LLCs (i.e., the members of Rockbridge, Stephens, and Falcon).

      . The district court imposed the monetary sanction under its inherent power. The rest of this opinion will discuss the district court's application of its inherent power. The Rule 26 sanctions are overturned. Rule 26(g) applies to "disclosure[s] under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection.” Fed. R. Civ. P. 26(g)(1). Although the district court does not clearly demarcate what conduct it sanctioned under its inherent power or under Rule 26(g), the only conduct that could be properly sanctioned under Rule 26(g) was B&F's objection to Request 42. But even that conduct cannot be sanctioned under Rule 26(g).
      The district court found fault with B&F’s objection because the purpose of the objection was "to avoid discovery of information [Purchasing Power] told [B&F] it did not want disclosed.” This statement is a proper purpose of an objection and does not justify imposing Rule 26 sanctions in this instance. Further, the district court implied that B&F objected to the request despite knowing the "critical bearing” this information had on diversity jurisdiction. However, its objection was that Bluestem already had the necessary jurisdiction information and anything more was not relevant or not in Purchasing Power's control. Bluestem’s silent response to B&F's objection signaled its agreement with that view.

      . We are not saying that Rule 11 or § 1927 are governed by a subjective bad-faith standard. Rule 11 and § 1927 are governed by their own statutory scheme. The district court reached the conclusion that its inherent powers could rectify reckless conduct because.the court blurred the lines between the inherent power standard and the standard used for Rule 11 and § 1927 sanctions. While these powers can be used to punish the same areas of conduct, they are not governed by the same standard. Neither Rule 11 nor § 1927 requires a finding of bad faith. See Chambers, 501 U.S. at 47, 111 S.Ct. at 2134 ("Rule 11, for example, imposes an objective standard of reasonable inquiry which does not mandate a finding of bad faith.”); Roadway Exp., Inc. v. Piper, 447 U.S. 752, 767, 100 S.Ct. 2455, 2465, 65 L.Ed.2d 488 (1980) (upholding a sanction under § 1927 and stating that "the trial court did not make a specific finding as to whether counsel’s conduct in this case constituted or was tantamount to bad faith, a finding that would have,to precede any sanction under the court's inherent powers”). In contrast, the key to unlocking the inherent powers is a finding of bad faith (which includes other descriptors from the Supreme Court — i.e., vexatiously, wantonly, and for oppressive reasons). See Sciarretta, 778 F.3d at 1212. District courts should hesitate when using Rule 11 or § 1927 cases to justify the use of their inherent powers.

      . B&F's objection was that Bluestem already had the necessary jurisdictional information and anything more was not relevant or not in Purchasing Power’s control. The court stated that when "[the B&F attorney] offered this objection she knew full well that [Bluestem] was considering removal.” B&F objected to the request on September 4, 2012. The case was removed on January 25, 2012. Bluestem was not considering removal; it had already removed the case.

      . The district court imputed to B&F the knowledge of Eleventh Circuit citizenship requirements for LLCs. See Rolling Greens, 374 F.3d at 1022 (11th Cir. 2004) ("To sufficiently allege the citizenships of these unincorporated business entities, a party must list the citizenships of all the members of the limited liability company.”). It is only fair to impute the same knowledge to Bluestem.

      . The UPRA is one of the documents involved in the transaction that created Purchasing Power’s ownership structure,