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Knox v. United States

United States District Court, D. Connecticut

July 27, 2016

ANITRA KNOX
v.
UNITED STATES

          RULING ON DEFENDANT’S MOTION FOR SANCTIONS [DOC. #94]

          HON. SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is the motion of defendant the United States (“defendant”) for sanctions against plaintiff Anitra Knox (“plaintiff”). [Doc. #94]. Plaintiff, appearing pro se, has filed a “Motion to Continue Proceedings, ” which the Court construes as plaintiff's response to the Motion for Sanctions. [Doc. #109].[1] Defendant filed a Reply brief on June 28, 2016. [Doc. #112]. For the reasons articulated below, the Court GRANTS, in part, and DENIES, in part, defendant's Motion for Sanctions [Doc. #94].

         I. Background

         On December 12, 2012, plaintiff, through her then-counsel Anthony Lasala, initiated this matter pursuant to the Federal Tort Claims Act against the United States. [Doc. #1].[2] Plaintiff alleges that she slipped and fell at the West Haven Veterans Administration Hospital (the “VA”), and as a result, sustained injuries. Id. Specifically, plaintiff alleges that she “suffered and sustained the following injuries and losses ... (a) radial head fracture of the right elbow; (b) injuries to the right wrist, arm, elbow and shoulder; (c) sprain/strain of the lumbar spine; (d) sprain/strain of the cervical spine; (e) injuries to the right knee; [and] injuries to the contiguous muscles, ligaments, nerves, soft tissues, glands, bones and joints of the injured parts.” [Doc. #1, at ¶11]. On February 28, 2013, defendant appeared and filed its Answer to the Complaint. [Doc. ##7, 8]. The parties filed their Rule 26(f) Report on July 3, 2013. [Doc. #13]. Thereafter, the parties engaged in discovery and settlement discussions through December 2015. The parties consented to the jurisdiction of a United States Magistrate Judge on January 15, 2016. [Doc. #50]. On February 1, 2016, this matter was transferred to the undersigned. [Doc. #52]. Neither party has filed dispositive motions.

         In response to this Court's final pretrial order [Doc. #55], on March 1, 2016, the parties filed their Joint Trial Memorandum. [Doc. #57]. Defendant also filed a motion in limine, which sought to preclude plaintiff's late-disclosed expert witness, Dr. Jonathan Grauer, M.D., from testifying at trial [Doc. #58]. On March 30, 2016, the Court granted this motion, absent objection, and precluded Dr. Grauer from testifying in an expert capacity, but not as a fact witness. [Doc. #64].[3] Shortly after issuing this Ruling, the Court scheduled a telephonic conference for April 20, 2016, to address the appropriate parameters of Dr. Grauer's trial testimony as a fact witness. [Doc. #65].

         During this telephonic conference, on April 20, 2016, counsel for plaintiff, Anthony Lasala informed the Court that on April 18, 2016, plaintiff had contacted him and Attorney Wynne in writing and terminated their services as her counsel. [Doc. #68]. In light of this development, the Court scheduled an in-person hearing for April 25, 2016, to address plaintiff's termination of her counsel's services and her plans for proceeding with trial. [Doc. ##68, 69]. The Court required plaintiff's personal appearance at this hearing. Id.

         On April 21, 2016, defendant filed a “Report to the Court” regarding plaintiff's proffered witness, Dr. Grauer, and newly discovered evidence which purportedly impacted the extent of Dr. Grauer's testimony (hereinafter the “Report”). [Doc. #79].[4] In this Report, defendant represents that it “recently discovered a prior lawsuit the plaintiff was involved which establishes that the plaintiff suffered from prior injuries to her back.” Id. at 3 (sic). Defendant continues: “This lawsuit as well as the plaintiff's prior back injuries were never disclosed to the defendant. Moreover the plaintiff denied, under oath during her deposition, that she had filed a prior lawsuit or suffered prior back injuries and the plaintiff's prior back injuries and accidents were not disclosed to her treating physicians, the most important being Dr. Grauer.” [Doc. #79 at 3]. In light of this information, defendant contended that Dr. Grauer's testimony, even as a fact witness, was unreliable, and that, as will be discussed further below, plaintiff would be unable to sustain her burden of proving damages.

         Also on April 21, 2016, plaintiff filed a Motion for Permission to attend the April 25, 2016, hearing by video conference. [Doc. #76]. The Court scheduled a telephone conference for April 22, 2016, to address this motion and required both plaintiff and her counsel participate in this telephonic conference. [Doc. #78]. During this conference, plaintiff orally sought a six month continuance of the May 12 and 13, 2016, trial dates. [Doc. #83]. The Court granted this motion, in part, and rescheduled the bench trial to August 9 and 10, 2016. [Doc. ##84, 85]. At this time, the Court also addressed the then-pending motions filed by Attorneys Lasala and Wynne, and set a deadline of May 13, 2016, for plaintiff's replacement counsel, or plaintiff appearing pro se, to file an appearance. [Doc. #85]. The Court directed defendant to file any motions relating to matters raised in its April 21, 2016, Report no later than May 20, 2015. [Doc. #85]. Plaintiff filed her pro se appearance on May 12, 2016. [Doc. #93]. On that same date, defendant filed the motion for sanctions now at issue. [Doc. #94].

         Plaintiff's pro se appearance was improperly faxed to the District of Connecticut Clerk's office and filed on a State Superior Court form. See Doc. #93. Accordingly, the Court entered an Order directing plaintiff to re-file her appearance on the proper form, a copy of which was provided in the docket. [Doc. #95]. The Court further required plaintiff to participate in electronic filing, and provided for her completion a Consent to Electronic Notice by Pro Se Litigant. Id. The Court scheduled yet another telephonic conference for May 19, 2016, to address plaintiff's pro se appearance in this matter. [Doc. ##95, 96].

         During the May 19, 2016, telephonic status conference, the Court granted the Motions to Withdraw previously filed by Attorneys Lasala and Wynne. [Doc. ##96, 100]. The Court additionally entered a scheduling order requiring any amendments to the Joint Trial Memorandum, in light of the newly discovered evidence, to be filed on or before the close of business on June 30, 2016. [Doc. #98]. During this conference, the Court also advised plaintiff that her response to defendant's motion for sanctions was due on or before June 2, 2016. Plaintiff expressed her understanding.

         On May 24, 2016, plaintiff re-filed her Notice of Pro Se Appearance, as well as a Motion to Participate in Electronic Filing, and Consent to Electronic Notice. [Doc. ##101, 102, 103]. The Court granted plaintiff's Motion to Participate in Electronic Filing on May 25, 2016. [Doc. #104]. The Clerk's Office provided plaintiff with the materials and hyperlinks necessary to complete the online PACER training program, the completion of which was a prerequisite to plaintiff receiving an ECF login and password. See Doc. #106. On June 10, 2016, the Court entered an order requiring plaintiff to notify the Clerk's office that she had completed the PACER training so that she could receive an ECF login and password. Id. The Court also entered an Order requiring plaintiff to file her response to defendant's motion for sanctions forthwith, or risk having the Court grant the motion, in whole or in part, absent objection. [Doc. #107]. The Clerk's office provided plaintiff with her ECF login and password on June 13, 2016. [Doc. #108]. The Court, having received no response to the motion for sanctions, entered a second order providing plaintiff with a final opportunity to oppose the motion for sanctions, and set a June 15, 2016, response deadline. Id.

         In accordance with this Order, on June 15, 2016, plaintiff filed her Motion to Continue Proceedings, which the Court construes as her response to the pending motion for sanctions. [Doc. #109] . The motion for sanctions seeks dismissal of this matter, with prejudice. [Doc. #94]. Alternatively, defendant requests that the Court preclude plaintiff from introducing any evidence of her alleged back injury. Id. The Court will further address the contentions of the parties below.

         II. Discussion

         Defendant seeks to impose sanctions under two different theories: under the Court's inherent authority, and under Rule 37 of the Federal Rules of Civil Procedure. The basis for defendant's request is that counsel for defendant “discovered new evidence that greatly impacted Dr. Grauer's testimony as well as the overall merits of this lawsuit.” [Doc. #94-1 at 4].[5]“During the final preparation for the plaintiff's cross examination for trial, ” defense counsel discovered a summary judgment ruling issued by District Judge Robert N. Chatigny, in a case where plaintiff claimed she was denied a position as a City of New Haven firefighter as a result of gender and race discrimination. [Doc. #94-1 at 8]; see also Knox v. New Haven, 357 F.Supp.2d 449 (D. Conn. 2005).[6] Judge Chatigny found the following facts established for purposes of summary judgment: “Plaintiff was examined on February 25, 2002. In connection with the examination, she reported that she had injured her back in 1993 and again in 2000, and that she was currently having back pain due to a bulging disc sustained in a car accident.” Id. at 450. (internal citation to record omitted). Defendant represents that these prior back injuries are in the same location where plaintiff claims to have injured herself in the present matter. [Doc. #94-1]. The record supports this representation. Compare, e.g., Doc. #94-6 (August 30, 2015, Dr. Grauer report noting, inter alia: “no documentation of preexisting condition”; degenerative changes and disc herniation at L5-S1 of plaintiff's lumbar spine; and that “[b]y histories provided and records reviewed, the onset of symptoms are temporally linked to the injury in question [i.e., the slip and fall at the VA]”), with Doc. #80-1 at 2, 6 (plaintiff's medical records noting that she sustained a herniated disc in L5 as a result of the 1993 car accident). Compare, e.g., Doc. #1 at ¶11(d) (Complaint alleging plaintiff sustained a “sprain/strain of the cervical spine” as a result of the slip and fall at the VA), with Doc. #80-1 at 7 (plaintiff's medical records noting assessment of “Cervical Sprain Strain” as result of 2001 car accident). Accordingly, because plaintiff's prior back injuries and prior lawsuit were never disclosed, defendant now seeks the imposition of sanctions, including dismissal. The Court turns first to whether sanctions are warranted under the Court's inherent authority.

         A. Sanctions Under the Court’s Inherent Authority

         In addition to seeking sanctions under Rule 37, defendant, although not specifically referring to it as such, also seeks to invoke the inherent authority of the Court to impose sanctions on the theory that plaintiff has perpetrated a “fraud on the Court[.]” [Doc. #94-1 at 14]. See Jung v. Neschis, No. 01CV6993(RMB)(THK), 2009 WL 762835, at *13 (S.D.N.Y. Mar. 23, 2009) (“In the instant situation, where Defendants contend that Plaintiffs have committed fraud on the court by fabricating evidence and making misrepresentations to the Court, it is the Court's inherent authority that provides the primary basis on which to act.”).

         1. Legal Standard

         The “Court has the inherent power to do whatever is reasonably necessary to deter abuse of the judicial process and assure a level playing field for all litigants.” Shangold v. Walt Disney Co., No. 03CV9522(WHP), 2006 WL 71672, at *4 (S.D.N.Y. Jan. 12, 2006) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991)). “Because of their very potency, inherent powers must be exercised with restraint and discretion.” Chambers, 501 U.S. at 44 (citing Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980)). “Sanctions for fraud are warranted if it is established by clear and convincing evidence that [a party] has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate the action.” N.Y. Credit & Fin. Mgmt. Grp. v. Parson Ctr. Pharmacy, Inc., 432 F. App'x 25 (2d Cir. 2011) (citation and internal quotation marks omitted)(alteration modified); see also Almeciga v. Ctr. for Investigative Reporting, Inc., No. 15CV4319(JSR), 2016 WL 2621131, at *17 (S.D.N.Y. May 6, 2016) (“[A]s a general matter, a court should not impose sanctions on a party or attorney pursuant to its inherent authority unless it finds, by clear and convincing evidence, that the party or attorney knowingly submitted a materially false or misleading pleading, or knowingly failed to correct false statements, as part of a deliberate and unconscionable scheme to interfere with the Court's ability to adjudicate the case fairly.” (citation omitted)).

         “The essence of fraud on the court is when a party lies to the court and his adversary intentionally, repeatedly, and about issues that are central to the truth-finding process.” Cent. N.Y. Laborers' Health & Welfare Fund v. Fahs Constr. Grp., Inc., No. 5:13CV226, 2016 WL 1106445, at *4 (N.D.N.Y. Mar. 21, 2016) (citation and internal quotation marks omitted). “[T]he concept [of fraud upon the court] should embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” Kupferman v. Consol. Research & Mfg. Corp., 459 F.2d 1072, 1078 (2d Cir. 1972) (citation and internal quotation marks omitted) (alterations added).

         2. Analysis

         Defendant contends that plaintiff perpetrated a fraud on the court by: (1) providing false testimony at her deposition; (2) failing to disclose her prior back injury throughout the course of this litigation, including discovery; and (3) making false representations about her injuries to United States Magistrate Judge Donna F. Martinez during a settlement conference.[7] [Doc. #94-1 at 21-23]. Plaintiff responds:

I did not willfully or intentionally answer. I forgot about a 20-year old diagnosis that has not inhibited any part of my life[.] I thought the question to be in direct relation to the VA and injuries sustained there.

[Doc. #109 at 1]. Plaintiff continues:

Discovery abuse was unaware and unintentional by plaintiff. Not disclosed by plaintiff's own previous counsel still to date, discovered by defendant. ... Accurate, honest testimony given by plaintiff of what was believed to be in reference only to this case and issues of back injury or lawsuits filed. Previous counsel never corrected or informed plaintiff, questioning was generalized, not case or back injury specific as she believed.

[Doc. #109-1 at 1 (sic)]. In reply, and for substantially the same reasons set forth in their motion for sanctions, defendant contends that plaintiff's arguments are without merit. See generally Doc. #112. For the reasons articulated below, the Court declines to dismiss this case under its inherent authority.

         “Our judicial system generally relies on litigants to tell the truth and participate in discovery in good faith.” McMunn v. Mem'l Sloan-Kettering Cancer Ctr., 191 F.Supp.2d 440, 445 (S.D.N.Y. 2002) (collecting cases). “Thus, when a party lies to the court and his adversary intentionally, repeatedly, and about issues that are central to the truth-finding process, it can fairly be said that he has forfeited his right to have his claim decided on the merits.” Id. Here, although the Court has concerns regarding the conduct of plaintiff and her former attorneys, the record fails to reflect the “clear and convincing evidence” necessary to support the dismissal of this matter, with prejudice, under the Court's inherent authority.[8]

         As an initial matter, defendant alleges only one instance of perjury committed by plaintiff. “Perjury 'is false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.''' Radecki v. GlaxoSmithKline, 646 F.Supp.2d 310, 315 (D. Conn. 2009) (quoting U.S. v. Dunnigan, 507 U.S. 87, 94 (1993)), aff'd, 375 F.App'x 46 (2d Cir. 2010). Plaintiff, now pro se, represents that her deposition testimony was not made with the willful intent to provide false testimony, but rather a result of impaired memory and confusion. See generally Doc. #109 at 1; 109-1 at 1. Defendant responds that plaintiff's deposition transcript demonstrates plaintiff understood the questions posed to her. [Doc. #112 at 7].

         Upon review of plaintiff's deposition transcript, the Court is hard pressed to discern how plaintiff was confused by the line of questioning posed by defense counsel with respect to her prior injuries. For example, following defense counsel's inquiry into plaintiff's Achilles injury, the following exchange occurred:

Q: No other accidents? No other falls, car ...

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