KENNETH J. GONZALES, District Judge.
Discovery in civil litigation is, at its core, a fact-finding, truth-seeking process. As such, it demands good faith, unambiguous, direct and forthright participation from litigants. It is because these objectives have been frustrated here that Defendant BNSF Railway Company (BNSF) has filed the instant Motion to Dismiss Plaintiff's Complaint as a Sanction for Plaintiff's Willful Abuse of Discovery Process (Motion to Dismiss), filed November 16, 2018. (Doc. 56). Plaintiff Jeremy LaJeunesse (LaJeunesse) filed his response in opposition on December 20, 2018, and BNSF filed its reply on January 24, 2019. (Docs. 64 and 73). Having considered the briefing and exhibits, the record, and the applicable law, the Court grants BNSF's Motion to Dismiss, dismisses this case with prejudice, and retains jurisdiction over the parties to determine the issue of attorney's fees and costs.
LaJeunesse filed this Federal Employers Liability Act (FELA) claim against his former employer, BNSF, on March 6, 2018. (Doc. 1). FELA creates a federal cause of action for employees of "[e]very common carrier by railroad" when those employees are injured at work and engaged in activities "further[ing] . . . interstate or foreign commerce . . . or . . . directly or closely and substantially[ ] affect[ing] such commerce." 45 U.S.C. § 51.
LaJeunesse worked as a Motorized Track Inspector at the BNSF railyard in Belen, New Mexico, on December 20, 2017, when he allegedly drove his BNSF-assigned Kubota at approximately 5-8 miles per hour and "unexpectedly . . . struck a consecutive series of 3 large washed-out holes that were about 18" deep." (Doc. 1) at 2. LaJeunesse contends the injury occurred around 10:00 a.m. and caused "immediate pain in his back, but continued working the rest of his shift." (Id.) The parties agree that LaJeunesse "was in the course and scope of his employment" at the time of the alleged incident and that his "duties at the time . . . [were] in furtherance of interstate commerce." (Doc. 15) at 3.
The sole count brought against BNSF claims "negligence; violation of [FELA]," based on BNSF's purported failure to: 1) "maintain the Kubota in a safe operating condition;" 2) "provide LaJeunesse with a work vehicle that was of sufficient size to safely carry the tools and equipment required for his assigned duties;" and 3) "maintain the right-of-way alongside the lead track in a safe condition." (Doc. 1) at 3.
BNSF now moves for dismissal of LaJeunesse's complaint as a sanction for LaJeunesse's alleged discovery abuse, under Federal Rules of Civil Procedure 26, 37, and 41, and the Court's inherent authority. (Doc. 53). Specifically, BNSF alleges LaJeunesse lied, under oath, in written discovery responses and at his deposition; purposefully engaged in obstructionist behavior at his deposition; and misrepresented facts or otherwise obstructed BNSF's access to discoverable information.
LaJeunesse argues that his "lies" are nothing more than miscommunications or misunderstandings. To the extent the Court disagrees with this description, LaJeunesse contends that BNSF obtained access to all information it sought and may make use of the "lies" as concededly fertile grounds for cross-examination at trial.
"It has long been understood that `[c]ertain implied powers must necessarily result to our Courts of justice from the nature of their institution,' powers `which cannot be dispensed with in a Court, because they are necessary to the exercise of all others.'" Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (quoting United States v. Hudson, 7 Cranch 32, 34 (1812)); Chavez v. City of Albuquerque, 402 F.3d 1039, 1043 (10th Cir. 2005) (quoting Chambers, 501 U.S. at 43). Such inherent equitable powers include the power to "impose the sanction of dismissal with prejudice because of abusive litigation practices during discovery." Garcia v. Berkshire Life Ins. Co., 569 F.3d 1174, 1179 (10th Cir. 2009).
Dismissing a case for discovery abuse rests within the sound discretion of the trial court. Chavez, 402 F.3d at 1044. However, "[b]ecause dismissal is such a harsh sanction, it is appropriate only in cases of `willfulness, bad faith, or [some] fault of petitioner.'" Id. (alteration in original) (quoting Archibeque v. Atchison, Topeka, and Santa Fe Railway Co., 70 F.3d 1172, 1174 (10th Cir. 1995)). Factors courts should consider when determining whether dismissal is an appropriate sanction include:
Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992) (internal citations and quotation omitted). "This list is not exhaustive, nor are the factors necessarily equiponderant." Chavez, 402 F.3d at 1044. Dismissal is warranted when "the aggravating factors outweigh the judicial system's strong predisposition to resolve cases on their merits." Ehrenhaus, 965 F.2d at 920.
At issue is the conduct of LaJeunesse and his counsel throughout the discovery phase of this lawsuit. BNSF points to written discovery responses and LaJeunesse's deposition as the primary sources of misinformation. To assess the multifarious issues raised in the Motion to Dismiss, the Court addresses, in the order presented, the individual instances of misconduct alleged by BNSF.
As an initial matter, the Court notes that LaJeunesse verified his interrogatory answers on June 21, 2018, "under penalty of perjury" and stated that his answers were "true and correct to the best of [his] knowledge, information and belief." (Doc. 56-3). LaJeunesse testified under oath at his July 10, 2018, deposition. (Doc. 56-4) at 39 (court reporter's certification that she administered oath to LaJeunesse). At his deposition, LaJeunesse testified that all of his answers were truthful to the best of his ability, that he understood he was testifying under penalty of perjury, and that he did not want to change any of his answers. (Doc. 56-4) at 37-38 (LaJeunesse Dep. 453:16-455:18).
Interrogatory No. 9 asked LaJeunesse:
(Doc. 56-5) at 3-4. LaJeunesse answered:
(Id.) at 4.
At his deposition, La Jeunesse testified consistently with his Interrogatory answer that he previously experienced back pain when he injured his back in 2012, and that the 2012 injury was his first experience with back pain. (Doc. 56-4) at 26-27 (LaJeunesse Dep. 361:25-362:5).
Pursuant to a records release, BNSF obtained a June 28, 2010, medical record from Certified Nurse Practitioner (CNP) Susan Banks, with whom LaJeunesse had an ongoing treatment relationship, indicating an appointment for "sciatic nerve?" pain with an intensity of 8/9 out of 10, that persisted for over a month. (Doc. 56-7) at 1. The note reads: "Shooting pain at coccyx [sic] — intermit — is rt moving heavy objects x 1 month." (Id.) In the history section, the note reads: "One month ago, he was working on a thinning project for soil conservation and he was sharpening a saw and bent over and suddenly felt a sharp pain in R posterior iliac crest. Now the pain is bilateral in the S-I joint area and it hurts to lie down or bend over." (Id.) LaJeunesse experienced "point tenderness posterior S-I joint area[;] full [range of motion] hips 0 pain[;] pain on flexion at waist." (Id.) CNP Banks diagnosed LaJeunesse with back strain, sent him for lumbar-spine x-rays, referred him to "Dr. Michael Crawford in Santa Fe for chiropractic [treatment]," and advised him to follow-up as necessary. (Id.) at 2.
LaJeunesse never clarified or amended his deposition testimony or his Interrogatory answer. Instead, he submitted a Declaration in response to the Motion to Dismiss. (Doc. 64-2) (Declaration of J. LaJeunesse). In relevant part, that Declaration states:
(Id.) at ¶ 2.
In response to the Motion to Dismiss, LaJeunesse contends he "simply forgot" about the 2010 incident because it "resulted from bending over rather than a memorable injury," and because "eight years elapsed before the interrogatory and deposition." (Doc. 64) at 6. He also argues that this is essentially a non-issue because he disclosed CNP Banks as a witness in initial disclosures. (Id.) at 4-6.
The Court finds it not credible that LaJeunesse did not remember month-long pain that prevented him from comfortably standing up or laying down, and which resulted in spinal x-rays. Notably, LaJeunesse never submitted amended interrogatory responses or corrected his deposition testimony. This failure to recall a previous back injury does not constitute a mere oversight, but instead evinces a pattern of LaJeunesse misrepresenting his history and abilities.
Interrogatory No. 5 asked LaJeunesse to:
(Doc. 56-5) at 2. LaJeunesse answered:
(Id.)
At his deposition, LaJeunesse testified that after the December 20, 2017, incident, his doctor put him on a light duty restriction, meaning that he could lift no more than twenty (20) pounds. (Doc. 56-4) at 13 (LaJeunesse Dep. 127:5-15). LaJeunesse stated, however, that he has lifted more than twenty (20) pounds at the gym since December 20, 2017, but has done so "[v]ery little, very little." (Id.) (LaJeunesse Dep. 127:16-18). The following exchange occurred when BNSF asked what things LaJeunesse had done at the gym since December 20, 2017:
Q: So not weighted squats, but just physical weights?
(Doc. 56-4) at 13-14 (LaJeunesse Dep. 128:1 - 133:24). LaJeunesse continued:
During the deposition, BNSF confronted LaJeunesse with surveillance video of a man who appears to be LaJeunesse performing multiple repetition sets of squats on a Smith machine, time stamped April 22, 2018, at 7:56:48AM. (Doc. 56-9) (Clip 3). When asked if he recognized the person in the video or recognized himself in the video, LaJeunesse responded: "I don't know who it is. I can't tell. It's too blurry," and "[i]t's too blurry, no." (Doc. 56-4) at 31 (LaJeunesse Dep. 416:6-7; 416:20). When asked what the person in the video was doing, this exchange followed:
(Doc. 56-4) at 32 (LaJeunesse Dep. 420:9-16).
BNSF pressed LaJeunesse on whether he had squatted 275 pounds since December 2017. The following exchange transpired:
(Doc. 56-4) at 32 (LaJeunesse Dep. 420:23 - 421:14).
The Court reviewed the weight-lifting video, along with photographs of LaJeunesse and portions of LaJeunesse's videotaped deposition, and notes that the individual in the video resembles LaJeunesse.
Upon completion of this third, heaviest set, the man returns the 45-pound weight plates to the rack, and returns to the Smith Machine with 50 pounds of weight on the bar. (Id.) (Clip 3 at 3:12-3:41). The man then returns to the bar and performs two sets of weighted standing lunges to a 90-degree bend of the knees, with each set comprising multiple lunges per leg. (Id.) (Clip 3 at 3:42 - 5:27).
In response to Requests for Admissions propounded to him after the deposition, LaJeunesse ultimately admits that he is the man in the weight-lifting video. (Doc. 56-14) at 2.
LaJeunesse asserts, in response to the Motion to Dismiss, that he did not recognize himself in the video at the time of his deposition because the "video was played on a small tablet and was of poor quality." (Doc. 64) at 7. He further argues that BNSF "assumes the quantity of weight added and the weight of the bar in its Motion without evidence." (Id.)
Finally, LaJeunesse notes that a Smith Machine differs from free lifting or dead lifting, including the notion of dead lifting a child from a bent over position. Notably, BNSF submitted a Los Lunas Police Department lapel video, dated January 12, 2018, as Exhibit 47 to its Reply. In the video, LaJeunesse is seen holding what appears to be a 14-month old child, including bending over and standing up with the child in his arms. The Court notes no apparent distress or discomfort. (Doc. 73-7).
In his Declaration, LaJeunesse states:
(Doc. 64-2) at ¶ 3.
The Court finds it disingenuous, at best, that LaJeunesse claims he could not recognize himself in the video. Furthermore, the argument that BNSF "assumes" the amount of weight loaded on the Smith Machine is simply specious. The weight lifting video obviously shows LaJeunesse loading two 45-pound plates on each of the bar, after loading one 25-pound plate on each side of the bar. It is not believable that LaJeunesse did not remember squatting over 200 pounds at the gym within two months of his deposition.
LaJeunesse testified, under oath, at his deposition that his physical therapist instructed him to exceed the twenty-pound lifting restriction and had given him a written regimen that included lifting 45-pound plates. (See Doc. 56-4) at 13 (LaJeunesse Dep. 128:7-13, quoted supra). He further stated that the physical therapist "has me working out on his regimen," which included lifting "at the most" 30 pounds and using a Total Gym, "so it's your own body weight[.]" (Id.) (LaJeunesse Dep. 129:14-19, quoted supra).
Later in the deposition, LaJeunesse admitted to picking up a 45-pound plate after December 20, 2017, but stated that this did not violate the 20-pound lifting restriction. (Doc. 56-4) at 33 (LaJeunesse Dep. 422:23 - 423:9). The following exchange unfolded:
(Doc. 56-4) at 33 (LaJeunesse Dep. 422:23 - 424:10). BNSF pressed LaJeunesse on the lifting restriction:
(Doc. 56-4) at 33-34 (LaJeunesse Dep. 425:7 - 427:11). LaJeunesse testified that he did not know if the written regimen said he should lift 45-pound plates or do squats with 200 pounds. (Doc. 56-4) at 34 (LaJeunesse Dep. 427:12-25). Despite testifying that he did not know what exercises were listed on the written regimen, LaJeunesse stated that he does not bring the paper to the gym with him because "it's already become [his] routine" and he has been doing that routine for an extended period of time. (Id.) (LaJeunesse Dep. 428:1-12).
The physical therapist, Isaac Aragon, Doctor of Physical Therapy (DPT), produced a letter explaining that he had been treating LaJeunesse for "Lumbar Disc Degeneration and Spondylosis from 1/4/18 to 4/19/18." (Doc. 56-15). Aragon expressly states that LaJeunesse "was eventually discharged from care, as [Aragon] felt he was fully independent with home exercise program, and applying rehab principles to his own workout regimen." (Id.) Further, Aragon "cleared [LaJeunesse] for participation in resistance training and cardiovascular exercise while adhering to the aforementioned principles, making clear that [LaJeunesse] is to remain under the restrictions set forth by his referring provider until notified otherwise." (Id.)
The "written regimen" includes body weight exercises — that is, using one's body as the only weight — and two exercises using a weight: a "bird dog," including a five-pound row exercise; and wall squats with a Swiss ball, holding a six-pound weight. (Doc. 56-17) at 1-3; see also (Doc. 56-20) (Paradigm exercises).
Request for Admission 12 asked LaJeunesse to "[a]dmit that squatting 200 pounds or more of weights added to your body weight was not part of the `regimen' provided to you by your physical therapist that you testified about on July 10, 2018." (Doc. 56-14) at 2. LaJeunesse marked "DENY" and explained: "As Plaintiff previously explained, he understood that he was permitted to lift weights equal or less than his body weight, so this would depend on his body weight." (Id.)
LaJeunesse later responded to BNSF's Second Requests for Admission, served on him on October 4, 2018 (see Doc. 50) (Certificate of Service):
14. Admit that no documents exist that reflects any instruction given to you by any medical provider to perform exercises at the gym or at home that involve exceeding the lifting restrictions give to you by Dr. Esparza.
RESPONSE: ADMIT.
15. Admit that none of your medical providers gave you verbal instructions to perform exercises at the gym or at home that involve exceeding the lifting restrictions give to you by Dr. Esparza.
RESPONSE: ADMIT.
(Doc. 56-18).
In response to the Motion to Dismiss, LaJeunesse asserts that he was "mistaken about his physical therapist's instructions." (Doc. 64) at 10. In his Declaration, LaJeunesse states:
(Doc. 64-2) at ¶ 6.
The Court finds that LaJeunesse's answers are, at best, inconsistent and knowing misrepresentations. On the one hand, he admits that no medical provider instructed him to exceed the 20-pound lifting restriction. On the other, he submits a Declaration to this Court, under penalty of perjury, averring that he believed Isaac Aragon told him he could lift up to 200-pounds. LaJeunesse cannot have it both ways. Furthermore, LaJeunesse declares that he has over twenty years of weight lifting experience. No person with that much physical training experience could believe that a body weight restriction imposed following an injury would mean loading the bar with weight equal to one's body weight. Indeed, "body weight" exercises mean, as established by Isaac Aragon and the written exercise sheets, using one's body as the weight.
LaJeunesse testified that he had not gone to the gym at all in the thirty (30) days preceding his deposition on July 10, 2018. (Doc. 56-4) at 12 (LaJeunesse Dep. 124:13-18). LaJeunesse testified that, prior to this recent hiatus, the physical therapist had him "on a pretty good regimen . . . going like three days a week," with semi-weekly appointments at Paradigm (the physical therapist's office), after which LaJeunesse would go to Planet Fitness (a gym). (Id.) (LaJeunesse Dep. 125:6-16). He then testified that he had not been to Planet Fitness in about 60 days, his "account is already closed there and everything," and he had not joined another gym. (Id.) (LaJeunesse Dep. 125:17-25). BNSF attempted to confirm that LaJeunesse had not been to Planet Fitness for the preceding 60 days. LaJeunesse equivocated, and stated: "Within 60 days, maybe, maybe — I could pull a log. I would say maybe three times in 60 days, mostly to do some light cardio and stretching, but not much." (Id.) at 13 (LaJeunesse Dep. 126:3-6). Later in the deposition, LaJeunesse reverted to saying he had not been to Planet Fitness "in almost two months." (Id.) at 35 (LaJeunesse Dep. 431:18-23).
BNSF subpoenaed LaJeunesse's Planet Fitness logs. The logs reflect that, prior to his July 10, 2018, deposition, LaJeunesse checked in at Planet Fitness on:
(Doc. 56-12) at 1 (Planet Fitness logs).
After his deposition, LaJeunesse checked in at Planet Fitness on:
(Id.) at 2. The logs submitted in evidence stop after September 8, 2018.
Indeed, the payment records attached to the Motion to Dismiss reflect no break in LaJeunesse's Planet Fitness membership from at least February 17, 2018, through at least September 19, 2018. (Id.)
In response to the Motion to Dismiss, LaJeunesse argues that these are simply "disagreements about the interpretations of facts—material disputes of fact," and that he "should have an opportunity to rebut the video evidence and explain with his own evidence what he was doing, how the machines and weights work, and how it affected him." (Doc. 64) at 10. LaJeunesse does not suggest or explain what his "own evidence" might be.
LaJeunesse's statements about the closure of his gym membership and his gym activities are not credible. This is not a "dispute of fact" or a "disagreement[] about the interpretation[]" a fact, it is a lie. To the country, despite being confronted with a video showing him squatting over 200 pounds, LaJeunesse stated that he did only "some light cardio and stretching" at the gym, but nothing else. These statements were deliberately false.
At 11:37 a.m. on December 20, 2017, shortly after the incident at issue, LaJeunesse emailed jfry@atsff.org (his union representative), Benedict J. Griego, Carl E. Gallegos, and Raymond J. Chavez. (Doc. 56-2) (email). LaJeunesse titled his email: "Non injury statement." (Id.) The email reads: "Carl this is to inform you that the Kubota I have been using for the MTI inspections is very rough riding. A solution would be to provide a vehicle to avoid claiming any back injuries. Sent from my iPhone." (Id.)
Interrogatory No. 8 and LaJeunesse's answer read:
(Doc. 56-5) at 3.
Nonetheless, at his deposition, LaJeunesse testified that his December 20, 2017, email was the first time he told anyone at BNSF, in writing, that the Kubota was insufficient to perform his duties or otherwise warranted any concern. (Doc. 56-4) at 15 (LaJeunesse Dep. 171:7-21).
In response to the Motion to Dismiss, LaJeunesse argues that he told the truth at the deposition because he testified to one email communication and two verbal communications. (Doc. 64) at 11.
The Court notes that the email communication at issue occurred after the alleged injury. Indeed, while LaJeunesse did testify to two verbal conversations with Ray Chavez that predate the alleged injury, his interrogatory answer states that he had "many verbal and email conversations" with Ray Chavez and Carl Gallegos before the alleged incident on December 20, 2017. The Court finds LaJeunesse's statements and testimony regarding his prior complaints, at best, misleading.
LaJeunesse obtained a medical marijuana, or medical cannabis, card following the alleged December 20, 2017, incident. (Doc. 56-4) at 2 (LaJeunesse Dep. 16:21 - 17:3) (testifying he obtained medical marijuana card in 2018). When asked if he had used marijuana recreationally prior to obtaining the medical marijuana card, LaJeunesse stated: "Never, never ever." (Id.) (LaJeunesse Dep. 17:15-18). LaJeunesse continued to be clear about his lack of prior marijuana use:
(Doc. 56-4) at 2-3 (LaJeunesse Dep. 17:19 - 18:19).
Later in the deposition, BNSF confronted LaJeunesse with a 2006 charge for possession of marijuana. The following exchange occurred:
(Doc. 56-4) at 8 (LaJeunesse Dep. 102:7 - 104:7).
In response to the Motion to Dismiss, LaJeunesse argues that he differentiated between "recreational" marijuana use and being a "smoker," and somehow misapprehended that recreational use means something different than "simply using marijuana in a non-medical context." (Doc. 64) at 12. LaJeunesse contends he "did not believe he was a recreational user, because he did not use it every day," and, therefore, he did not lie at the deposition. (Id.) at 13.
In addition to failing to acknowledge, in the first instance, his prior drug use, LaJeunesse exhibits continued obstructionist conduct. LaJeunesse's argument that he misunderstood or differently understood the meaning of "recreational" marijuana use is not credible. Instead of directly addressing the question and admitting that he occasionally used marijuana, in whatever form, between 2000 and 2018, LaJeunesse knowingly and intentionally obstructed the discovery process and made his deposition unnecessarily contentious.
Early in discovery, BNSF asked LaJeunesse about his communications in the 48 hours following the alleged incident on December 20, 2017. Specifically, Interrogatory No. 7 asked LaJeunesse to "describe in detail all of your activities and communications that are related to the December 20, 2107 [sic] incident in the 48 hours after that incident, including, but not limited to, who you communicated with about the incident and what you told each of them." (Doc. 56-5) at 2. LaJeunesse answered: "I communicated with RDM Carl Gallegos, Safety Assistant BJ Griego, DE Raymond Chavez as described above." (Id.) at 3.
At his deposition, LaJeunesse testified that he also spoke with Jeff Fry, his union representative, but did not remember anything about the call. (Doc. 56-4) at 22 (LaJeunesse Dep. 314:2-24).
LaJeunesse's call log, disclosed as part of his initial disclosures, shows nine phone calls between 8:55 p.m. on December 20, 2017, and 8:53 a.m. on December 21, 2017. (Doc. 56-23) (LaJeunesse phone log). The call log reflects one incoming phone call and eight outgoing calls. The outgoing calls were all to different phone numbers, and the log shows the called numbers were located as follows: four in Albuquerque, New Mexico; one in Houston, Texas; one in Beaumont, Texas; one to Seguin, Texas; and one toll-free number. (Id.) At least one of those phone calls, made at 8:55 p.m. on December 20, 2017, was to a personal injury lawyer. (Doc. 56) at 26 (713-425-7200 returns to Sammons and Berry, P.C., in Houston, Texas).
While LaJeunesse initially asserted that he called the Houston law firm on the recommendation of Jeff Fry, (doc. 64-3) at 3 (LaJeunesse Dep. 313:19-23), he later admitted that he did not speak to Mr. Fry until 8:03 a.m. the next morning, December 21, 2017, (doc. 56-4) at 23 (LaJeunesse Dep. 332:21-25).
In response to the Motion to Dismiss, LaJeunesse asserts that he provided the call log and testified honestly about the calls, but simply did not remember the content or order of the calls made. (Doc. 64) at 15. LaJeunesse asserts he testified "to the best of his ability" at the deposition. (Id.)
In a vacuum, the Court may have credited LaJeunesse's statements that he simply does not remember the people with whom he spoke immediately following the accident, the order in which he spoke to them, or the substance of those conversations. The Court finds, in the broader context of this litigation, that it is not believable that LaJeunesse does not remember speaking with an attorney eight hours before he went to the hospital, (doc. 56-4) at 23 (LaJeunesse Dep. 330:2-4 ("A: At 4:00[a.m.], I made the decision a little earlier when I went to the restroom, and, yes, I decided to go to the hospital."), does not remember the substance of his conversations with at least the attorney and Fry, and does not remember that he spoke to Fry — the union representative — until after he had gone to the hospital.
At LaJeunesse's deposition, BNSF introduced three of his social media posts. After the deposition, BNSF served its Second Set of requests for Production. (See Doc. 39) (Certificate of Service). Request for Production No. 25 asked LaJeunesse to "provide copies of all photographs or video posted by Plaintiff or anyone acting on his behalf on Facebook, MySpace, Google+, YouTube, Instagram, Plenty of Fish, or any other social networking website and mobile social media applications from December 20, 2017, to the present." (Doc. 56-19) at 1.
The Response states:
(Id.) at 1-2.
BNSF, convinced that LaJeunesse possessed other responsive documents, approached LaJeunesse and his counsel to resolve the issue. After some not always professional exchanges and attempts to resolve the issue, LaJeunesse produced "a few more screen shots of social media[]". (Doc. 56-31).
Ultimately, LaJeunesse neither objected to nor fully complied with the Request for Production. (See, e.g. Doc. 56-33) (additional photos not produced by LaJeunesse).
In response to the Motion to Dismiss, LaJeunesse argues that he "has long understood that his former BNSF supervisors . . . were Facebook `friends' and had immediate access to his public and private Facebook posts." (Doc. 64) at 16. LaJeunesse argues that his failure to properly respond to Request for Production No. 25 is excusable because "he believed Defendant already could access" those materials. (Id.) at 16-17. Indeed, in his Declaration, LaJeunesse states: "I assume that John and Carl take screenshots of everything I post anywhere and give it to BNSF's lawyers." (Doc. 64-2) at ¶ 8. Therefore, LaJeunesse asserts he did not misrepresent his social media use.
LaJeunesse points to no authority which would permit him to neither object nor respond to a request for production based on having Facebook friends or Instagram followers who work for the opposing party. Indeed, LaJeunesse tacitly admits to having responsive materials that he knowingly and willfully refused to produce. The Court finds that LaJeunesse knowingly, intentionally, and willfully misrepresented his social media use in response to Request for Production No. 25.
LaJeunesse has owned at least one motorcycle at a time for the last fifteen years. (Doc. 56-4) at 19 (LaJeunesse Dep. 229:3-8). At the time of his deposition, LaJeunesse owned a Harley-Davidson Fat Bob motorcycle, could not remember if he purchased the motorcycle before or after December 20, 2017, but testified that he did not buy a new one "recently." (Id.) (LaJeunesse Dep. 227:12 - 228:6). When asked how frequently he rides the motorcycle, LaJeunesse stated: "Not too often unfortunately, but I would say maybe I like to go once a week, somewhere, at least to get on it. I feel like I've — spending my money somewhere." (Id.) (LaJeunesee Dep. 228:9-13).
After the deposition, BNSF sent LaJeunesse a request to produce "[a]ny and all service, repair, purchase or sale records for any motorcycle or motorbike owned by you from December 20, 2017, to the present date." (Doc. 56-19) at 1 (Request for Production No. 24). LaJeunesse responded that he "has no documents responsive to this request, any documents are outside the requested date range." (Id.)
BNSF followed up on this issue by letter dated September 5, 2018. (Doc. 56-28) at 2 (letter to LaJeunesse's counsel). In the letter, BNSF states: "We believe Plaintiff purchased a Harley Davidson in February 2018 and/or March 2018. So is he saying responsive documents just aren't in his possession? He hasn't gotten any oil changes on any of his bikes in the last eight months?" (Id.) LaJeunesse's counsel responded via email on September 26, 2018, and stated: "It is my understanding that Mr. Lajeunesse has not purchased a motorcycle in the timeframe given based on his deposition. It is my understanding that he has had no oil changes because he has not been riding the motorcycle much if it all since his injury." (Doc. 56-29) at1 (response letter from LaJeunesse's counsel).
However, LaJeunesse posted a photo of a motorcycle to his Instagram account on March 27, 2018, with the caption, "New Bae! #harleydavidson #fatbob #114 #bobber #projectbobber." (Doc. 56-26) at 2. Additionally, a Sales Deal Summary from Duke City Harley-Davidson, produced pursuant to a subpoena from BNSF, shows that LaJeunesse purchased the Harley softail Fat Bob motorcycle on March 27, 2018, for a total unit price of $19,489.00, with an additional $1,241.67 in other fees. (Doc. 56-35). LaJeunesse made a $900.00 down payment, and financed the remaining $19,830.67 through Harley-Davidson at 22.350% APR over an 84-month term. (Id.) All told, LaJeuensse committed to make 84 monthly payments of $468.85, totaling $39,383.40. (Id.)
The record suggests LaJeunesse never corrected or updated his response to the Request for Production or his deposition testimony to reflect the motorcycle purchase.
In response to the Motion to Dismiss, LaJeunesse's counsel appears to take responsibility for this "misunderstanding." The Response states: "It became clear during good-faith correspondence that Plaintiff's counsel misinterpreted Plaintiff's testimony and believed he said he did not purchase a motorcycle after the injury." (Doc. 64) at 13. Thus, LaJeunesse argues that he was honest at the deposition and any disingenuous response to the Request for Production fell to counsel's lack of competence, diligence, and/or communication.
The Court finds this episode particularly troubling because it implicates the attorney/client relationship. Counsel's statements, however, are not material to deciding this Motion. Instead, the Court notes that LaJeunesse committed himself to $40,000 of payments on a motorcycle over a period of seven years, while claiming that he is too injured to ride the motorcycle and too injured to work. The Court finds it unbelievable that LaJeunesse did not remember purchasing the Fat Bob motorcycle three-and-a-half months before his deposition, and construes LaJeunesse's misrepresentations on this point as willful and knowing.
LaJeunesse does not claim a brain injury or any other sort of mental infirmity. Furthermore, he testified that he had not used medical marijuana for approximately three days prior to his deposition, (Doc. 56-4) at 2 (LaJeunesse Dep. 14:9-21), nothing impaired his ability to answer questions truthfully, (id.) at 37 (LaJeunesse Dep. 453:16-25), and he understood he was testifying under penalty of perjury, (id.) at 38 (LaJeunesse Dep. 454:3-5). After confirming these things, the following exchange occurred:
(Doc. 56-4) at 38 (LaJeunesse Dep. 454:17 - 454:18).
Nonetheless, LaJeunesse answered questions with some variant of "I don't know" or "I don't remember" a purported 293 times during the deposition. (Doc. 56) at 32. Some, though certainly not all, examples of "I don't know" or "I don't remember" include not being able to identify his truck in video or photographs, not being able to identify himself in video, not recognizing or remembering conversations immediately following his alleged accident, and not knowing or remembering the size of the potholes that allegedly caused his injury. Below, the Court addresses three instances of LaJeunesse's obstructionist behavior at the deposition.
With respect to LaJeunesse's inability to identify his truck, the following exchange transpired after LaJeunesse viewed a surveillance video of him and his truck at a Home Depot:
(Doc. 56-4) at 29-30 (LaJeunesse Dep. 407:14-16; 409:10-12; 409:25 - 412:24).
The Home Depot video LaJeunesse viewed is attached to the Motion to Dismiss as Doc. 56-9, clips 1 and 2. The Court reviewed these videos. Clip 1 is fourteen seconds long and time-stamped at 2:46:55 p.m. on April 21, 2018. (Doc. 56-9) (Clip 1). The video begins with LaJeunesse standing on the ground near a truck. The tailgate of the truck is open, and the opened tailgate is approximately elbow-height on LaJeunesse. (Id.) at 0:01. LaJeunesse then lifts his left leg straight onto the tailgate and jumps up. (Id.) at 0:02. Once in the back of the truck, LaJeunesse is bent all the way over at the waist, with both hands appearing to be on the truck bed, both feet on the truck bed, and his knees slightly bent. (Id.) LaJeunesse then stands up, with no apparent discomfort. (Id.) at 0:03. From 0:04-0:07, the video shows LaJeunesse bending at the waist to move something in the truck. The truck is black, appears to be raised, and has what appears to be two stickers on the passenger-side of the rear window, one of which appears to be a Harley-Davidson sticker.
Clip 2 is twenty-eight seconds long and time-stamped at 2:47:11 p.m. on April 21, 2018. (Doc. 56-9) (Clip 2). This clip depicts LaJeunesse standing in the back of the raised, black truck and moving a box, which LaJeunesse claimed was empty. (Id.) at 0:01. LaJeunesse then slides four stacked deck or patio chairs in the back of the truck. (Id.) at 0:11. At 0:18, LaJeunesse bends at the waist and proceeds to slide a patio table box to the back of the truck bed. (Id.) at 0:18-0:23. Finally, LaJeunesse squats to approximately a ninety-degree bend at the knees and jumps from the raised truck bed to the ground, where he sticks the landing with no apparent difficulty or discomfort. (Id.) at 0:25-0:28.
The truck visible in Clips 1 and 2 appears substantially similar to LaJeunesse's black Dodge Ram. Compare this photograph, (doc. 56-26) at 2 (exh. 26d), of LaJeunesse's truck, from his Instagram account:
(Id.) (Exh. 11d).
The Court finds it unbelievable that LaJeunesse could not recognize his own truck. In reaching this finding, the Court notes the similarity of the rear-tire rims and the Harley-Davidson stickers on the passenger-side of the truck's rear window. As ownership of the truck has no bearing on the merits of this case, the Court finds LaJeunesse's repeated and false denials to be obstructionist, unnecessary, and abusive.
The Court discussed the weight-lifting video supra, and provided photographs for comparison at footnote 3. After LaJeunesse viewed the weight-lifting video at his deposition, the following exchange occurred:
(Doc. 56-4) at 31-32 (LaJeunesse Dep. 414:6 - 420:16).
Having reviewed the video, the Court notes that the video is not unviewably blurry, and further notes that both the individual's identity and the nature of his actions are reasonably clear. Accordingly, the Court finds LaJeunesse's repeated statements that he could identify neither himself nor the activity to be intentionally false and obstructionist.
In his Complaint, LaJeunesse alleges that he drove over three 18-inch deep potholes in the Kubota. (Doc. 1) at ¶ 4. When asked about the potholes at his deposition, the following occurred:
(Doc. 56-4) at 20 (LaJeunesse Dep. 259:4-23); 26 (LaJeunesse Dep. 360:10 - 361:17).
In response to the Motion to Dismiss, LaJeunesse attempts to discount BNSF's complaints about the pot hole deposition testimony as arising because BNSF was "not satisfied" with his testimony. (Doc. 64) at 17.
However, BNSF raised a legitimate complaint because LaJeunesse refused to squarely answer a direct question. Next, the Court finds it implausible that LaJeunesse could not remember and describe the potholes that he allegedly struck, unexpectedly, at five to eight miles per hour, with such force as to cause a protracted spinal injury. The claimed potholes at issue constitute a seminal fact in this case, and a fact uniquely within LaJeunesse's knowledge. LaJeunesse's failure and refusal to testify directly, despite repeated, clear questions, constitutes intentional and willful obstruction of the discovery process.
Simply, BNSF moves for dismissal of this case with prejudice, as well as an award for its costs and attorney's fees, as a sanction for LaJeunesse's personal misconduct during discovery. LaJeunesse argues that he has neither willfully nor even inadvertently abused the discovery process, rendering dismissal and an award of costs and attorney's fees inappropriate. Abundant evidence, however, belies that argument. Based on the willful discovery violations discussed above, the Court finds that LaJeunesse knowingly, intentionally, and willfully lied under oath and abused the discovery process on multiple occasions and to such a degree that dismissal with prejudice is the only appropriate sanction. The Court cannot allow LaJeunesse to abuse the judicial process.
The Court is vested with the authority to impose sanctions, including involuntary dismissal, for a party's failure to comply with the discovery requirements set by local and federal procedural rules. Chambers, 501 U.S. at 43 (holding courts have inherent authority to manage cases, including dismissal for abusive practices); Garcia, 569 F.3d at 1179 (holding district court has authority to dismiss case with prejudice for abusive discovery practices; Fed. R. Civ. P. 26(g)(3) (giving court authority to sanction party for false discovery responses); Fed. R. Civ. P. 37 (providing court with sanction authority for various discovery abuses); Fed. R. Civ. P. 41(b) (allowing for involuntary dismissal if plaintiff fails to comply with federal rules). Sanctions imposed under this authority aim to penalize bad actors and deter those who might be tempted to flout the rules or abuse the judicial process. Nat'l Hockey League v. Met. Hockey Club, Inc., 427 U.S. 639, 643 (1976). The Tenth Circuit has affirmed dismissal with prejudice as a discovery sanction in multiple cases involving less pervasive and/or less severe abuse than that perpetrated by LaJeunesse.
For example, in Archibeque v. Atchison, Topeka and Santa Fe Ry. Co., the Tenth Circuit affirmed dismissal with prejudice of a plaintiff's FELA claim where the plaintiff lied about the extent of previous medical treatment to the allegedly injured body part. 70 F.3d 1172, 1173-74 (10th Cir. 1995). In that case, the plaintiff hid and lied about a ten-year history of pain in her hips and lower back. Id. at 1174. No other discovery abuses were noted in that case. While LaJeunesse did not hide a ten-year history of back pain, he engaged in more broad-spectrum and pervasive discovery abuse.
In Chavez, the Tenth Circuit affirmed dismissal with prejudice after a jury trial where the plaintiff provided knowingly false and perjurious interrogatory answers and deposition testimony. 402 F.3d at 1042. There, the plaintiff, contrary to his discovery responses, admitted at trial that police had pursued him in a car chase prior to his arrest, and that he had evaded arrest. Id. The Tenth Circuit found no abuse of discretion in the district court's conclusion that "[t]he fact that Plaintiff may have gained nothing as a result of his perjury does not mean that he should not be sanctioned for his conduct, particularly where analysis of the other Ehrenhaus factors calls for the imposition of severe consequences." Id. at 1045-46.
In Rodriguez v. Presbyterian Healthcare Servs., the plaintiff brought a claim against her former employer for damages stemming from denied leave under the Family Medical Leave Act. 2012 WL12896388, at *2 (D.N.M. 2012), aff'd 515 Fed. Appx. 761 (10th Cir. 2013). That plaintiff lied about obtaining other employment while simultaneously accepting medical leave and short-term disability payments. Id. During her deposition, the plaintiff provided "false information concerning her start date [at the other job], her working hours there, and when she informed [her employer] of her employment [elsewhere]." Id. She "engaged in the wholesale obstruction of the discovery process" by answering "I don't know" or "I don't recall" more than 350 times during her deposition, including to basic questions about her employment status and her life. Id. at n.1.
While these cases support a dismissal with prejudice here, the Court, nonetheless, analyzes the Ehrenhaus factors with respect to this case.
False and misleading evidence "substantially prejudices an opposing party by casting doubt on the veracity of all the culpable party's submissions throughout litigation." Freddie v. Martin Transport Ltd., 428 Fed. Appx. 801, 804 (10th Cir. 2011); see also Garcia v. Berkshire Life Ins. Co. of Am., 569 F.3d 1174, 1180 (10th Cir. 2009) (same). Defendants faced with false testimony are "forced to either attempt independent corroboration of each submission, at substantial expense of time or money, or accept the possibility that every document or statement submitted [by Plaintiff] is incomplete or inaccurate." Id. (alteration in original) (quotation omitted). False testimony is intolerable because it is a "flagrant offense" to the truth seeking function of the lawsuit proceedings. ABF Freight Sys., Inc., 114 S.Ct. 835, 839 (1994).
BNSF expended considerable time and effort investigating and identifying LaJeunesse's false statements. LaJeunesse intentionally misled BNSF and this Court regarding his prior injury history and his activities and capabilities following the alleged injury. Furthermore, he obfuscated the truth and obstructed the discovery process regarding the central issue in the case: the size and location of the alleged potholes. In this position, BNSF was "forced either to attempt independent corroboration of each
submission, at substantial expense of time and money," or to accept the possibility that every document or statement submitted by LaJeunesse is incomplete or inaccurate. Id. at 1180. The Court finds that BNSF was substantially and materially prejudiced by the expense and doubt resulting from LaJeunesse's repeated and intentionally false statements and misrepresentations.
"[W]hen false evidence or testimony is provided under oath, knowingly and with intent to deceive, a party commits a fraud on the court." Garcia, 569 F.3d at 1181. "[T]he greatest consequence of lying under oath is the affront to the law itself." ABF Freight Sys., 510 U.S. at 320; Rodriguez, 2012 WL 12894833, at *10 (quoting same). "Lying under oath . . . erodes public confident in the judiciary and interferes with the judicial process. Turning a blind eye to false testimony erodes the public's confidence in the outcome of judicial decisions, calls into question the legitimacy of courts, and threatens the entire judicial system." Villa v. Dona Ana Cty., 2011 WL 13291099, at *14 (D.N.M. 2011) (quotation omitted), aff'd 500 Fed. Appx. 790 (10th Cir. 2012).
As discussed above, LaJeunesse not only obstructed the discovery process and forced BNSF to double-check every representation, he also lied under oath—at his deposition and in interrogatory answers. Sanctions are necessary to deter deceptive and misleading conduct.
The Court finds that the judicial process has been undermined by LaJeunesse's conduct in this litigation, and that LaJeunesse has interfered with the judicial process by engaging in deceptive and misleading tactics, lying under oath, and necessitating court intervention.
Dismissal with prejudice is the harshest of sanctions, and mandates some "willfulness, bad faith, or fault of the petitioner." Archibeque, 70 F.3d at 1174. There is no question that LaJeunesse is culpable. He lied under oath on numerous occasions, including material and immaterial falsehoods. He professed, under oath, that he did not remember or could not recall otherwise clearly memorable details at least 200 times. The Court does not presume to know what kind of advice LaJeunesse may have received, but his conduct was his own. It is clear that LaJeunesse willfully and intentionally obstructed the discovery process and misled or lied to BNSF.
The Court finds that LaJeunesse's pervasive pattern of misrepresentation, obstruction, and outright lies was undertaken knowingly, intentionally, and in bad faith. Thus, LaJeunesse is personally culpable for the above-discussed violations. He was able to provide more complete and truthful responses, but failed to do so as required by law and the oath under which he testified.
"Notice is not a prerequisite for dismissal under Ehrenhaus." Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1149 (10th Cir. 2007) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 632 (1962) (upholding dismissal with prejudice predicated on trial court's inherent authority and stating that "absence of notice as to the possibility of dismissal . . . [does not] necessarily render such a dismissal void.")); Archibeque, 70 F.3d at 1175 (affirming dismissal pursuant to Ehrenhaus despite absence of warning about imminent dismissal).
The Court has not previously warned LaJeunesse that dismissal would be a likely sanction for continued abusive, obstructionist, and untruthful conduct during discovery. However, such a warning was not necessary here. In circumstances such as these, where a party has lied under oath, it is unnecessary to warn that party before dismissing the case with prejudice. Chavez, 402 F.3d at 1045. "Once a witness swears to give truthful answers, there is no requirement to warn him not to commit perjury or, conversely to direct him to tell the truth. It would render the sanctity of the oath quite meaningless to require admonition to adhere to it." Webb v. Texas, 409 U.S. 95, 97 n. * (1972) (citation and quotation omitted). "[B]ecause the perjurious testimony was given under oath, an additional warning would have been superfluous." Chavez, 402 F.3d at 1045.
Therefore, the Court finds that it was not necessary to provide LaJeunesse with an additional warning that his case would be dismissed with prejudice if he lied during discovery.
The misconduct in this case is not limited to a single event. Instead, LaJeunesse evinced a pattern of willful disregard of discovery obligations and the sanctity of his oath. Dismissal with prejudice is necessary not only to "penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent." Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976). Additionally, it is not mandatory for the Court to impose a lesser sanction, other than dismissal, first. Hobratschk v. Perretta, 210 F.3d 389, 2000 WL 313530, at *2 (10th Cir. 2000).
When confronted with all of his misdeeds, LaJeunesse does not admit his oath and discovery violations, but instead argues that they create fertile ground for cross-examination. The Court finds this redirection to be another step in LaJeunesse's inability or refusal to accept and comply with discovery obligations in this case.
The Court finds that LaJeunesse repeatedly and willfully obscured, hid, and outright denied the truth in response to interrogatories, requests for admissions, requests for production, and deposition questions. There is no conceivable set of circumstances, no matter how generously construed in LaJeunesse's favor, under which his conduct could be considered anything other than intentional and abusive. As such, lesser sanctions cannot address the magnitude of the discovery abuse at issue here.
In sum, the Ehrenaus factors weigh against LaJeunesse and in favor of dismissal with prejudice. These factors, as applied to the facts of this case, outweigh the judiciary's strong interest in resolving claims on their merits. Indeed, the Tenth Circuit has affirmed dismissal of cases on similar and less egregious grounds, as discussed above. Here, LaJeunesse's pervasive pattern of misrepresentation, obstruction, and outright lies render the Court's decision to grant BNSF's Motion to Dismiss this case neither close nor marginal. For the reasons discussed above, BNSF's Motion to Dismiss with prejudice is granted pursuant to Federal Rules of Civil Procedure 26(g)(3), 37(b)(2) and (c), and 41(b).
Where a motion for sanctions is granted under Rule 37(b), the court generally "must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure . . . ." Fed. R. Civ. P. 37(b)(2)(C). Additionally, Rule 26(g)(3) provides that the Court "must impose an appropriate sanction on the signer [of disclosures and discovery responses], the party on whose behalf the signer was acting, or both[, and t]he sanction may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation." Additionally, "a court may assess attorney's fees when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons." Chambers, 501 U.S. at 45-46 (internal citation and quotation omitted).
The Court has found that LaJeunesse willfully, wantonly, and in bad faith failed to comply with his oath, failed to submit true and accurate interrogatory answers, and allowed misleading and incomplete responses to requests for production. Accordingly, the Court concludes that it must award sanctions against LaJeunesse.
Within ten days from the date of entry of this Memorandum Opinion and Order, BNSF will file a motion for costs and fees, supported by bills and/or affidavits, detailing which violations it believes warrant costs and fees, and totaling the claimed requests. BNSF's motion will be no more than 20 pages long, exclusive of exhibits. Within ten days from BNSF's filing of its motion for costs and fees, LaJeunesse will respond to the motion, including clear identification of disputed costs and fees. LaJeunesse's response will be no more than 20 pages long, exclusive of exhibits. No reply will be considered. Any motion or response that does not comply with these deadlines will not be considered.
For the reasons discussed above, the Court finds that LaJeunesse knowingly and intentionally lied under oath, made material and false misrepresentations, and abused the discovery process. No sanction less severe than dismissal with prejudice exists to adequately address the egregious misconduct in this case. Accordingly, the Court grants BNSF's Motion to Dismiss and grants BNSF's request for an award of costs and attorney's fees. The parties will brief the costs and attorney's fees issue as outlined above. The Court will not enter final judgment in this case until it has resolved the costs and attorney's fees issue.
IT IS, THEREFORE, ORDERED that
