JED S. RAKOFF, U.S.D.J.
Before the Court is the motion of defendant Center for Investigative Reporting, Inc. ("CIR"), for judgment on the pleadings, as well as CIR's Rule 11 motion for sanctions against plaintiff Erica Almeciga and her counsel. Subsumed within defendant's Rule 11 motion is a Daubert motion to exclude the testimony of plaintiff's handwriting expert, Wendy Carlson. On March 31, 2016, the Court issued a bottom-line Order granting CIR's motion for judgment on the pleadings and dismissing the Amended Complaint with prejudice against all defendants (including defendants Livesey and Hooper). This Opinion and Order explains the reasons for that ruling, addresses CIR's remaining motions, and directs the entry of final judgment. In particular, the Court grants defendant's motion to exclude Carlson's "expert" testimony, finding that handwriting analysis in general is unlikely to meet the admissibility requirements of
A Rule 12(c) motion is governed by the same standard as that of motions to dismiss under Rule 12(b)(6). See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006). Accordingly, to survive a motion for judgment on the pleadings, "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). As a result, for purposes of deciding defendant's Rule 12(c) motion, the following allegations drawn from plaintiff's Amended Complaint are assumed to be true.
Defendant CIR is an investigative reporting organization that produces reports in various media formats on such subjects as criminal justice, money and politics, and government oversight. See Amended Complaint ("Am.Compl.") ¶ 2, ECF No. 50. In August 2012, CIR entered into a partnership with Univision Communications, Inc. ("Univision") pursuant to which "CIR agreed to provide Univision with access to CIR stories and documentaries focusing on Latin America." Id. ¶ 4. Plaintiff Erica Almeciga alleges that in March 2012 defendant Bruce Livesey, a producer for CIR, contacted plaintiff in connection with a story on which Livesey was working regarding plaintiff's romantic partner at the time, Rosalio Reta. Id. ¶¶ 5, 9-13. Reta was and remains an inmate at Woodville Penitentiary in Texas and was a former member of the Los Zetas Drug Cartel, id. ¶¶ 8-9, a drug trafficking organization that is "among the most brutal in all of Mexico" and "among the most violent in the world," id. ¶ 27.
Almeciga travelled to Woodville, Texas to meet with Livesey and his co-producer, defendant Josiah Hooper, for an interview on August 14, 2012. Id. ¶ 15. According to the Amended Complaint, Almeciga's participation in the interview was "conditioned upon the explicit requirement" that defendants conceal her identity, id. ¶ 14, which defendants orally agreed to do, id. ¶ 16. Around the same time, Almeciga was interviewed by the Canadian Broadcasting Corporation (CBC)
Sometime in late 2013, CIR and Univision posted the CIR video report about Reta and the Los Zetas cartel (the "CIR Report") to their respective YouTube channels. Id. ¶¶ 19-20. The CIR Report, entitled "I was a Hitman for Miguel Trevino," id. ¶ 5, has since been viewed over 250,000 times on CIR's YouTube channel and over 3,000,000 times on Univision's
In August 2014, plaintiff's counsel sent CIR a letter demanding that CIR cease and desist from showing the CIR Report without concealing Almeciga's identity. Id. ¶ 33. In response, defendant produced a standard release form (the "Release") purportedly signed by plaintiff, authorizing CIR to use plaintiff's "name, likeness, image, voice, biography, interview, performance and/or photographs or films taken of [her] ... in connection with the Project." Id.; Def. CIR's Answer to Am. Compl., Ex. A, ECF No. 48-1. Plaintiff denies having ever seen or signed the Release. See Am. Compl. ¶ 34.
On April 23, 2015, plaintiff filed this action in New York Supreme Court against defendants CIR, Livesey, Hooper, Univision, and Univision Noticias, asserting a breach-of-contract claim against CIR, fraud and fraudulent-concealment claims against CIR, Livesey, and Hooper, and a negligence claim against Univision. Plaintiff subsequently added unjust enrichment claims against CIR and Univision in the operative Amended Complaint filed on July 24, 2015.
On June 4, 2015, CIR, with the consent of Hooper and Livesey, removed the action to this Court, asserting that the Univision defendants, both of which are citizens of New York, were fraudulently joined, and that, without them, the Court had diversity jurisdiction. On June 26, the Univision defendants moved to dismiss the claims against them, and, on July 1, plaintiff moved to remand. The Court denied plaintiff's motion, finding that the Univision defendants were not properly joined under 28 U.S.C. § 1441(b)(2) because plaintiff's claims against Univision failed as a matter of law. See Memorandum Order dated Aug. 17, 2015, at 6-16, ECF No. 49. For the same reason, the Court granted the Univision defendants' motion to dismiss with prejudice. Id. at 16.
CIR then filed the instant Rule 12(c) motion, contending that plaintiff's breach of contract claim must be dismissed because it is barred by New York's Statute of Frauds and that plaintiff's remaining fraud claims and unjust enrichment claim must be dismissed because they are duplicative of her barred breach of contract claim and impermissibly attempt to circumvent the Statute of Frauds.
New York's Statute of Frauds renders "void" any oral contract that "[b]y its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime." N.Y. Gen. Oblig. Law. § 5-701(a)(1). Put differently, if a contract is not capable of complete performance within one year, it must be in writing to be enforceable.
Here, the alleged oral agreement entered into by plaintiff and defendants was by its (alleged) terms intended to apply in perpetuity. Plaintiff does not plead that defendants' agreement to conceal Almeciga's identity was in any way limited in duration; indeed, reading such a limitation into the agreement would frustrate its purpose given the severe consequences of breach that plaintiff alleges. See Robins v. Zwirner, 713 F.Supp.2d 367, 375
Plaintiff, misapprehending the Statute of Frauds, argues that the "contract at issue was not only `capable' of being performed within one year, but that the contract was actually performed by Plaintiff within one year of its making." Pl. Erica Almeciga's Mem. of Law in Opp. to CIR Defs. Mot. for J. on the Pleadings ("Pl.'s Opp.") at 3, EOF No. 59. On plaintiff's view, the fact that plaintiff upheld her end of the bargain to participate in the interview (within one year) precludes any Statute of Frauds argument. Id. at 4. Plaintiff thus appears to be laboring under the mistaken impression that the Statute of Frauds is concerned with partial performance of an oral contract. It is not. Rather, it requires that an oral agreement be capable of complete performance within a year to be enforceable.
New York law is well settled on this point. See, e.g., Cron v. Hargro Fabrics, Inc., 91 N.Y.2d 362, 368, 670 N.Y.S.2d 973, 694 N.E.2d 56 (1998) (the Statute of Frauds "relates to the performance of the contract and not just of one party thereto"); Guilbert v. Gardner, 480 F.3d 140, 151 (2d Cir.2007) ("[F]ull performance by all parties must be possible within a year to satisfy the Statute of Frauds." (internal quotation marks omitted)). "[T]he fact that the plaintiff has fully completed her performance under the contract as that contract is described by her is of no moment" where "the defendant's performance... will continue in perpetuity," as it would here under the alleged contract. Myers v. Waverly Fabrics, 101 A.D.2d 777, 475 N.Y.S.2d 860, 861 (1st Dep't 1984), aff'd in part sub nom. Meyers v. Waverly Fabrics, Div. of F. Schumacher & Co., 65 N.Y.2d 75, 489 N.Y.S.2d 891, 479 N.E.2d 236 (1985). Nor would it matter if defendants had performed for a year or more after entering into the alleged agreement and then breached. The dispositive point is that defendants could not complete their performance within one year since their obligation was an ongoing one.
Turning to plaintiff's fraud claim (Count Two), under New York law plaintiff must plead: "(1) a material misrepresentation or omission of fact (2) made by defendant with knowledge of its falsity (3) and intent to defraud; (4) reasonable reliance on the part of the plaintiff; and (5) resulting damage to the plaintiff." Crigger v. Fahnestock & Co., 443 F.3d 230, 234 (2d Cir.2006).
However, New York law bars fraud claims that "arise[] out of the same facts as plaintiff's breach of contract claim, with the addition only of an allegation that
Trying to avoid this bar, plaintiff submits that her fraud claim is premised, not on the same underlying facts as her breach of contract claim, but rather on the allegedly forged Release. This characterization is at odds with her Amended Complaint, which, in pleading the fraud claim, alleges that defendants "provided Plaintiff and Reta with intentionally misleading information, such as promises to conceal her identity ... which the Defendants were reasonably certain promoted Ms. Almeciga's reliance and ultimate participation" (Am. Compl. ¶ 53 (emphasis added)) and that defendants' "promise to Plaintiff that her identity would be protected, and that her face would not appear in their Report, was made without any intention of performance" (id. ¶ 54 (emphasis added)). To be sure, plaintiff also alleges that defendants forged the Release, id. ¶ 44, and that defendants "benefitted substantially by using the Release as justification to air the interview of [p]laintiff without concealing her identity," id. ¶ 46. But that does not state any cause of action by itself, since, among much else, plaintiff plainly did not rely in any respect on the Release she maintains she never signed and was a forgery. Rather, the gravamen of her fraud claim is that defendants entered into an oral (contractual) agreement with plaintiff that they had no intention of honoring, which is precisely the sort of duplicative fraud claim that is not cognizable under New York law.
Plaintiff's fraudulent concealment claim (Count Three) must also be dismissed as duplicative of her breach of contract claim. To plead fraudulent concealment under New York law, plaintiff must allege "(1) that the defendant failed to meet its duty to disclose ... (2) that the defendant had an intent to defraud or scienter, (3) [that] there was reliance on the part of the plaintiff, and (4) damages." Brass v. Am. Film Techs., Inc., 987 F.2d 142, 152 (2d Cir.1993). "A duty to disclose information can arise under New York law where (1) there is a fiduciary relationship between the parties; (2) one party makes a partial or ambiguous statement that requires additional disclosure to avoid misleading the other party; or (3) one party to a transaction possesses superior knowledge of the facts not readily available to the other, and knows that the other is acting on the basis of mistaken knowledge." Fertitta v. Knoedler Gallery, LLC, 2015 WL 374968, at *11 (S.D.N.Y. Jan. 29, 2015) (internal quotation mark omitted). "However, the intention to breach does not give rise to a duty to disclose. Instead, the duty to disclose must exist separately from the duty to perform under the contract." TVT Records v. Island Def Jam Music Grp., 412 F.3d 82, 91 (2d Cir.2005). Here, plaintiff appears to plead that defendants
Although plaintiff's pleading of her fraudulent concealment claim does not even mention the Release, plaintiff once again pivots in her briefing and argues that defendants were under a duty to disclose to plaintiff their intent to use a forged release to license the CIR Report to Univision as well as their intent to use the Release to avoid litigation with plaintiff. See Pl.'s Opp. at 13. This arguments fails, however, because the Release is simply the mechanism by which defendants allegedly concealed their breach of contract: it cannot support an independent fraud claim under the circumstances. Indeed, it is well settled under New York law that "alleged concealment of a breach is insufficient to transform what would normally be a breach of contract action into one for fraud." Rosenblatt v. Christie, Manson & Woods Ltd., 2005 WL 2649027, at *10 (S.D.N.Y. Oct. 14, 2005) (internal quotation mark omitted); see also, e.g., Compagnia Importazioni Esportazioni Rapresentanze v. L-3 Commc'ns Corp., 2007 WL 2244062, at *6 (S.D.N.Y. July 31, 2007) (dismissing fraud claims on this basis); Ray Larsen Assocs., Inc. v. Nikko Am., Inc., 1996 WL 442799, at *5 (S.D.N.Y. Aug. 6, 1996) (same); Fisher v. Big Squeeze (N.Y.), Inc., 349 F.Supp.2d 483, 489 (E.D.N.Y.2004) (dismissing fraudulent concealment claim on this, basis where defendants were alleged to have fraudulently calculated profits subject to distribution under contract through the creation of false or misleading financial statements).
The facts of IKEA North American Services, Inc. v. Northeast Graphics, Inc., 56 F.Supp.2d 340 (S.D.N.Y.1999) are instructive. There, plaintiff IKEA engaged the defendants (a graphic designer and mass-mailer distributor) to produce a holiday brochure to be mailed to millions of homes throughout the United States and Canada. Id. at 341-42. In response to inquiries as to the status of the project, the defendants assured IKEA and its agent that the project was proceeding apace and created thirteen fraudulent postal register statements purportedly confirming the mailing of nearly 3 million brochures. Id. at 342. Applying the principle that "attempted concealments of contractual breach" do not give rise to independent actions for fraud, the Court granted defendants' motion to dismiss the fraud claims with prejudice. Id. at 342-43. Like the forged postal register statements in IKEA, the alleged forged Release at issue here constitutes, at worst, an attempted concealment of contractual breach. As such, plaintiff's fraud claims are no more than dressed-up breach of contract claims and are hereby dismissed.
With respect to plaintiff's unjust enrichment claim against defendant CIR, plaintiff posits that because there is a "bona fide dispute concerning the existence of the contract at issue ... [she] is not required to elect her remedies, and may proceed on her unjust enrichment claim as well as her breach of contract claim." Pl.'s Opp. at 15. While that may be true in the main, there are exceptions, and this case involves one of them: "A party may not circumvent the Statute of Frauds by repleading an already barred breach of contract claim as a claim for unjust enrichment." Four Star Capital Corp. v. Nynex Corp., 183 F.R.D. 91, 108
While the Rule 12(c) motion was brought on behalf of defendant CIR, and not defendants Livesey or Hooper (neither of whom had been served at the time the motion was brought), the claims against Livesey and Hooper fail for the same reasons they fail against defendant CIR, and the Court has ample authority in such circumstances to dismiss them as to these defendants as well. See Antidote Int'l Films, Inc. v. Bloomsbury Pub., PLC, 467 F.Supp.2d 394, 399 (S.D.N.Y.2006) ("[W]hile dismissing a complaint as to a non-moving defendant is not an ordinary practice, a district court may dismiss claims sua sponte for failure to state a claim, at least so long as the plaintiff had notice and an opportunity to be heard on the issue." (internal quotation marks omitted)). Accordingly, plaintiff's Amended Complaint is dismissed with prejudice as against all remaining defendants.
Defendant CIR seeks sanctions against plaintiff for allegedly perpetrating a fraud upon the Court, and against her counsel for willfully blinding himself to her misrepresentations. Since the outcome of defendant's Rule 11 motion is affected by the admissibility vel non of the proffered opinion of plaintiff's handwriting expert that the Release was forged, the Court first addresses the admissibility of that expert opinion.
Shortly before the expert disclosure deadline in this case, plaintiff engaged a reputed handwriting expert, Wendy Carlson, to provide an opinion on the authenticity of plaintiff's signature on the Release.
See Decl. of Thomas Burke dated Sept. 14, 2015 ("Sept. 14 Burke Decl."), Ex. 2, ECF No. 58-2.
On August 18, 2015, plaintiff's counsel sent an email to Carlson asking her to provide a Rule 26 report by the next day that analyzed the Release against purported "known" signatures of the plaintiff. Plaintiff's counsel provided numerous purported "known" signatures to Carlson (all of which were either dated after the initiation of the parties' dispute or were undated), a representative example of which is as follows:
Sept. 14 Burke Decl., Ex. 16 ("Carlson Expert Report") at Ex. Kl. After comparing these "known" signatures to the signature on the Release, Carlson opined, in an expert report submitted August 20, 2015, that "[b]ased on [her] scientific examination" the signature on the Release was a forgery. Id. at 7.
On December 4, 2015, the Court held a combined evidentiary hearing on CIR's Rule 11 motion and a "Daubert" hearing on the admissibility of Carlson's testimony. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). At the hearing, Carlson admitted that she had no basis for knowing (other than the representation of plaintiff's counsel) that the purported "known" signatures she had received were actually plaintiff's, such that she could not definitively state whether the "known" signatures had been forged or whether the Release had been forged. See Transcript dated Dec. 4, 2015 ("Dec. 4 Transcript"), at 55-57, ECF No. 88. For that reason, the Court asked plaintiff to write her signature on a piece of paper 10 times in open court (the "In-Court Signatures"). Id. at 90. Although Carlson observed that plaintiff was writing these signatures "very slow[ly]," id. at 104, nonetheless, at the Court's request and on consent of all involved, Carlson prepared a supplemental report following the hearing, submitted on December 9, 2015, in which she found that the author of the In-Court Signatures (i.e., plaintiff) was the author of the purported "known" signatures that formed the basis of Carlson's initial expert report, and that, once again, her opinion, "[b]ased on [her] scientific examination," was that the signature on the Release was made by someone other than plaintiff, i.e., was a forgery, see
In order for expert testimony to be admissible under the Federal Rules of Evidence, Rule 702 requires that an "expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue," that "the testimony is based on sufficient facts or data" and "is the product of reliable principles and methods," and that "the expert has reliably applied the principles and methods to the facts of the case." Fed.R.Evid. 702. "[T]he proponent of expert testimony has the burden of establishing by a preponderance of the evidence that the admissibility requirements of Rule 702 are satisfied." United States v. Williams, 506 F.3d 151, 160 (2d Cir.2007).
While "Rule 702 embodies a liberal standard of admissibility for expert opinions," Nimely v. City of New York, 414 F.3d 381, 395 (2d Cir.2005), "nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). Rather, Daubert has "charged trial judges with the responsibility of acting as gatekeepers to exclude unreliable expert testimony" and junk science from the courtroom. Fed.R.Evid. 702 advisory committee's note to 2000 amendment. With respect to expert opinions purporting to offer scientific conclusions in particular, Daubert states that courts should ordinarily pay particular attention to whether the expert's methodology has or can be tested, whether it has been subject to peer review and publication, whether it has a known error rate, whether it is subject to internal controls and standards, and whether it has received general acceptance in the relevant scientific community. See Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786. While expert testimony that does not fare well under these particular standards may still sometimes be admissible as non-scientific expert testimony pursuant to the doctrine of Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (discussed infra), it is the Court's role to ensure that a given discipline does not falsely lay claim to the mantle of science, cloaking itself with the aura of unassailability that the imprimatur of "science" confers and thereby distorting the truth-finding process.
Initially, testimony by putative handwriting experts was met with skepticism by U.S. courts. Through the late 19th century, many jurisdictions did not admit it at all and the enterprise was viewed with suspicion. See Risinger, Handwriting Identification § 33:3; Hoag v. Wright, 174 N.Y. 36, 42, 66 N.E. 579 (1903) ("The opinions of experts upon handwriting, who testify from comparison only, are regarded by the courts as of uncertain value, because in so many cases where such evidence is received witnesses of equal honesty, intelligence, and experience reach conclusions not only diametrically opposite, but always in favor of the party who called them."). To persuade the courts that their expertise was legitimate, the early handwriting experts therefore "claim[ed] the mantle of science":
Mnookin, Scripting Expertise, 87 Va. L.Rev. at 1786-87.
Against this background, the tide shifted in favor of admissibility when Albert Osborn, widely recognized as a progenitor of modern forensic document examination, embarked with John Henry Wigmore (of Wigmore on Evidence fame) on a decades-long campaign to promote handwriting analysis as a scientific endeavor. Risinger, Handwriting Identification § 33:3 ("Osborn's book, Osborn's personality, and Osborn's relationship with Wigmore, are the cornerstones upon which respect for asserted handwriting identification expertise in the United States was built."). The vision was perhaps best realized when Osborn (among other handwriting experts) testified that the man accused of kidnapping and murdering Charles Lindbergh's baby had written the ransom notes at issue. "Osborn became a celebrity" and the place of handwriting analysis in the courtroom became firmly entrenched: "In the half century after the [Lindbergh case], no reported opinion rejected handwriting expertise, nor was much skepticism displayed towards it." Id. This was despite some highly-publicized instances where handwriting experts got it wrong. Indeed, when the notorious journalist Clifford Irving convinced a book publisher in the early 1970's that Howard Hughes had authorized him to write Hughes's autobiography, it was Osborn's firm that mistakenly authenticated Irving's forgeries of Hughes's handwriting as genuine, concluding that it was "impossible" that anyone other than Hughes could have authored the forgeries. See Robert R. Bryan, The Execution of the Innocent: The Tragedy of the Hauptmann-Lindbergh and Bigelow Cases, 18 N.Y.U. Rev. L. & Soc. Change 831, 844 n.48 (1991). Thereafter, however, Irving confessed that he had forged Hughes's signature and pled guilty to a federal felony arising therefrom. Id.; see also Lawrence Van Gelder, Irving Sentenced to 2½ Year Term, N.Y. Times, June 17, 1972, at 1, 34.
In recent years, however, Daubert has spurred some courts to scrutinize handwriting analysis anew, and several district courts have found testimony from purported handwriting experts inadmissible under Daubert. See, e.g., United States v. Hidalgo, 229 F.Supp.2d 961, 966 (D.Ariz.2002) (collecting cases); see also United States v. Hines, 55 F.Supp.2d 62, 70-71 (D.Mass. 1999) (admitting such testimony "to the extent that [the expert] restricts her testimony to similarities or dissimilarities between the known exemplars and the robbery note" but prohibiting the expert from "render[ing] an ultimate conclusion on who penned the unknown writing"). At least as many courts, however, continue to fully admit testimony by handwriting experts, often invoking the field's historical pedigree and affirming the validity of the field as a general matter. See, e.g., United States v. Crisp, 324 F.3d 261, 271 (4th Cir.2003) (noting that "handwriting comparison testimony has a long history of admissibility" and finding that the "the
In the Second Circuit, however, the issue of the admissibility and reliability of handwriting analysis is an open one. See United States v. Adeyi, 165 Fed.Appx. 944, 945 (2d Cir.2006) ("Our circuit has not authoritatively decided whether a handwriting expert may offer his opinion as to the authorship of a handwriting sample, based on a comparison with a known sample."); United States v. Brown, 152 Fed. Appx. 59, 62 (2d Cir.2005) (same). As such, the Court is free to consider how well handwriting analysis fares under Daubert and whether Carlson's testimony is admissible, either as "science" or otherwise.
Carlson, like other handwriting experts, purports to use the "ACE-V" methodology in conducting handwriting comparison, an acronym for "Analyze, Compare, Evaluate, and Verify."
Id. at 5.
At the Daubert hearing, Carlson elaborated on the ACE-V method as follows:
Dec. 4 Transcript, at 69-70.
Carlson further explained:
Id. at 61.
On its face, this bears none of the indicia of science and suggests, at best, a form of subjective expertise. Indeed, in her testimony at the Daubert hearing, Carlson appeared to concede as much, affirming that what she was "chiefly relying on [] is not what we would call science in the sense of physic[s] or chemistry or biology," but rather "experience" such that she knows what "to look for ... in a way that the everyday layperson would not." Dec. 4 Transcript, at 63. Yet this did not stop her from stating, in her second report submitted a few days after this testimony, that her latest opinions were "[b]ased on [her] scientific examination" and "scientific methodology." Supplemental Expert Report at 6, 8. It therefore behooves the Court to examine more specifically whether the ACE-V method of handwriting analysis, as described by Carlson, meets the common indicia of admissible scientific expertise as set forth in Daubert.
The first Daubert factor is whether the methodology has been or can be tested. See Daubert, 509 U.S. at 590, 113 S.Ct. 2786 ("[S]cience ... represents a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement." (quoting Brief for American Association for the Advancement of Science et al. as Amici Curiae 7-8)). To this Court's knowledge, no studies have evaluated the reliability or relevance of the specific techniques, methods, and markers used by forensic document examiners to determine authorship (as opposed to their overall ability to "get it right" — a subject discussed under the rubric of error rate, infra). For example, there are no studies, to this Court's knowledge, that have evaluated the extent to which the angle at which one writes or the curvature of one's loops distinguish one person's handwriting from the next. Precisely what degree of variation falls within or outside an expected range of natural variation in one's handwriting — such that an examiner could distinguish in an objective way between variations that indicate different authorship and variations that do not — appears to be completely unknown and untested. Ditto the extent to which such a range is affected by the use of different writing instruments or the intentional disguise of one's natural hand or the passage of time. Such things could be tested and studied, but they have not been; and this by itself renders the field unscientific in nature. See United
As such, it is hardly surprising that Carlson's expert report reads more like a series of subjective observations than a scientific analysis (e.g., "the `e', `c's, upper `g' loop, and `a's in the questioned signature are more narrow than the known signatures which display fuller, rounder letters" (Carlson Expert Report at 6)). Indeed, as noted, Carlson herself conceded as much at the Daubert hearing.
To be sure, "no one has ever doubted that there [is] information in a handwriting trace that might be used for attribution of authorship under some circumstances." D. Michael Risinger, Appendix: Cases Involving the Reliability of Handwriting Identification Expertise Since the Decision in Daubert, 43 Tulsa L.Rev. 477, 494 (2007). The rub "is simply that we don't know what those circumstances are, and when humans are or are not good at such attributions, regardless of their own claims at skill." Id. Until the forensic document examination community refines its methodology, it is virtually untestable, rendering it an unscientific endeavor.
The second Daubert factor concerns whether the methodology has been subject to peer review and publication. Of course, the key question here is what constitutes a "peer," because, just as astrologers will attest to the reliability of astrology, defining "peer" in terms of those who make their living through handwriting analysis would render this Daubert factor a charade. While some journals exist to serve the community of those who make their living through forensic document examination, numerous courts have found that "[t]he field of handwriting comparison... suffers from a lack of meaningful peer review" by anyone remotely disinterested. United States v. Saelee, 162 F.Supp.2d 1097, 1103 (D.Alaska 2001) ("[S]ome articles are presented at professional meetings for review [but] there is no evidence that any of these articles are subjected to peer review by disinterested parties, such as academics."). "There is no peer review by a `competitive, unbiased community of practitioners and academics,'" as would be expected in the case of a scientific field. Hines, 55 F.Supp.2d at 68 (quoting United States v. Starzecpyzel, 880 F.Supp. 1027, 1038 (S.D.N.Y.1995)); United States v. Fujii, 152 F.Supp.2d 939, 940-41 (N.D.Ill. 2000) ("[T]here has been no peer review by an unbiased and financially disinterested community of practitioners and academics....").
Relatedly, as the National Academy of Sciences found in a comprehensive report issued on the forensic sciences in 2009, "there has been only limited research to quantify the reliability and replicability of the practices used by trained document examiners." Comm. on Identifying the Needs of the Forensic Science Community, Nat'l Research Council, Strengthening Forensic Science in the United States: A Path Forward ["NAS Report"] 167 (Aug. 2009). This is hardly surprising given that forensic document examination "has no academic base." Risinger, Handwriting Identification § 33:11 n.5. Indeed, as Carlson testified at deposition, "there are no colleges or universities that offer degrees in forensic document examination." Decl. of Thomas R. Burke dated Nov. 24, 2015 ("Nov. 24 Burke Decl."), Ex. A at 9, ECF No. 83-1 at 6.
Turning to the third Daubert factor, "[t]here is little known about the error rates of forensic document examiners." Saelee, 162 F.Supp.2d at 1103. While a handful of studies have been conducted, the results have been mixed and "cannot be said to have `established' the validity of the field to any meaningful degree." Hines, 55 F.Supp.2d at 69. Certain studies conducted by Dr. Moshe Kam, a computer scientist commissioned by the FBI to research handwriting expertise, have suggested that forensic document examiners are moderately better at handwriting identification than laypeople. For example, in one such study, the forensic document examiners correctly identified forgeries as forgeries 96% of the time and only incorrectly identified forgeries as genuine.5% of the time, while laypeople correctly identified forgeries as forgeries 92% of the time and incorrectly identified forgeries as genuine 6.5% of the time. Risinger, Appendix, 43 Tulsa L.Rev. at 491. Furthermore, forensic document examiners incorrectly identified genuine signatures as forgeries 7% of the time, while laypeople did so 26% of the time. Id.
Although such studies may seem to suggest that trained forensic document examiners in the aggregate do have an advantage over laypeople in performing particular tasks, not all of these results appear to be statistically significant and the methodology of the Kam studies has been the subject of significant criticism.
For example, in a 2001 study in which forensic document examiners were asked to compare (among other things) the "known" signature of an individual in his natural hand to the "questioned" signature of the same individual in a disguised hand, examiners were only able to identify the association 30% of the time. Twenty-four percent of the time they were wrong, and 46% of the time they were unable to reach a result. See Risinger, Handwriting Identification § 33:34. Similarly, and strikingly, in an unpublished study conducted by the Forensic Sciences Foundation in 1984, participating labs were supplied with three handwritten letters (the "questioned" documents) and handwriting exemplars for six suspects. Two of the three letters were written by one person, who was not among the suspects for whom the examiners had exemplars, and the third letter was written by a suspect who had written his exemplars in his normal hand, but who had tried to simulate the writing of the other two letters when producing his letter. Of the 23 labs that submitted responses, 74% perceived the difference in authorship between the letters, but exactly 0% recognized that the third letter was written by a suspect who had disguised his handwriting. These results suggest that while forensic document examiners might have some arguable expertise in distinguishing an authentic signature from a close forgery, they do not appear to have much, if any, facility for associating an author's natural handwriting with his or her disguised handwriting. See Risinger, Appendix, 43 Tulsa L.Rev. at 549 ("[T]here is absolutely no empirical evidence to support the skill claim in regard to distinguishing between disguised exemplars and normal hand exemplars independent of comparison to some ... everyday writing pre-existing the obtaining of the demand exemplars.").
As such, the known error rates, as they apply to the task at hand, cut against admission.
As for the fourth Daubert factor, the field of handwriting comparison appears to be "entirely lacking in controlling standards," Saelee, 162 F.Supp.2d at 1104, as is well illustrated by Carlson's own amorphous, subjective approach to conducting her analysis here. At her deposition, for example, when asked "what amount of difference in curvature is enough to identify different authorship," Carlson vaguely responded, "[y]ou know, that's just a part of all of the features to take into context, so I wouldn't rely on a specific stroke to determine authorship." Decl. of Thomas R. Burke dated Jan. 21 ("Jan. 21. Burke Decl."), Ex. 2 at 49, ECF No. 95-2 at 43. Similarly, when asked at the Daubert hearing how many exemplars she requires to conduct a handwriting comparison, Carlson testified:
Dec. 4 Transcript, at 62-63; see also Starzecpyzel, 880 F.Supp. at 1046 (noting that forensic document examiners "lack objective standards in regard to the number of exemplars required for an accurate determination as to genuineness").
Furthermore, "there is no standardization of training enforced either by any licensing agency or by professional tradition," nor a "single accepted professional certifying body" of forensic document examiners. Risinger, Handwriting Identification § 33:11 n.5. Rather, training is by apprenticeship, which in Carlson's case, took the form of a two-year, part-time internet course, involving about five to ten hours of work per week under the tutelage of a mentor she met with personally when they were "able to connect." Nov. 24 Burke Decl., Ex. A at 13, ECF No. 83-1 at 10.
As for the final Daubert factor — general acceptance in the expert community — handwriting experts "certainly find `general acceptance' within their own community, but this community is devoid of financially disinterested parties." Starzecpyzel, 880 F.Supp. at 1038. Such acceptance cannot therefore be taken for much. A more objective measure of acceptance is the National Academy of Sciences' 2009 Report, which struck a cautious note, finding that while "there may be some value in handwriting analysis," "[t]he scientific basis for handwriting comparisons needs to be strengthened." NAS Report at 166-67. The Report also noted that "there may be a scientific basis for handwriting comparison, at least in the absence of intentional obfuscation or forgery" — a highly relevant caveat for present purposes. Id. at 167 (emphasis added). This is far from general acceptance.
For decades, the forensic document examiner community has essentially said to courts, "Trust us." And many courts have. But that does not make what the examiners do science.
Of course, just because Carlson's testimony flunks Daubert does not mean it is inadmissible under Rule 702 altogether. If, Carlson has (among other requirements) "technical" or "other specialized knowledge" that "will help the trier of fact to understand the evidence or to determine a fact in issue," her testimony may be admissible. Fed.R.Evid. 702(a). Indeed, the Supreme Court's decision in Kumho Tire "made clear that while [Daubert's] basic requirements of reliability — as they are now articulated in Rule 702 — apply across the board to all expert testimony, the more particular [Daubert] standards for scientific evidence need not be met when the testimony offered" is not scientific in nature. United States v. Glynn, 578 F.Supp.2d 567, 570 (S.D.N.Y. 2008). "[T]he test of reliability is `flexible,' and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case." Kumho Tire, 526 U.S. at 141, 119 S.Ct. 1167.
In this case, Carlson's testimony is far too problematic to be admissible under Rule 702 as technical or otherwise "specialized" expert testimony, even on a Kumho Tire approach, for at least four reasons.
First, as a threshold matter, plaintiff's counsel sought to bias Carlson from the start. In plaintiff's counsel's email to Carlson seeking to retain her, plaintiff's counsel stated flatly that "[t]he questioned document was a Release that Defendant CIR forged" and that a Rule 26 Report (to this effect) was needed from Carlson by the next day. Nov. 24 Burke Decl., Ex. B., ECF No. 83-2. He continued:
Id.
In the same vein, one of the "known" signatures that plaintiff's counsel provided to Carlson was an affidavit signed by plaintiff reciting her claim that the Release is a "fake" which "does not contain my signature." Carlson Expert Report, Ex. Kl. The affidavit concludes with Almeciga's averment that she is "truly disgusted and deeply disturbed with the manner in which CIR has forged these documents. CIR's conduct has destroyed my life!" Id.
Plaintiff's counsel also sent Carlson the letter from plaintiff's prior (uncalled) expert stating that the Release was forged, see Nov. 24 Burke Decl., Ex. B. (though
Second, the subjectivity and vagueness that characterizes Carlson's analysis severely diminishes the reliability of Carlson's methodology. Carlson describes letters in the questioned signature as "oversized" and "formed incorrectly;" as characterized by "very smooth strokes and curves" as opposed to the "very jerky, angular strokes" of the known signatures; as "more narrow" compared to the "fuller, rounder letters" of the known signatures; as "too tall when compared to the respective letters in the known signatures;" as "very symetrical [sic]" compared to the "wider, distorted loops" of the known signatures; and so on. Carlson Expert Report at 6; Supplemental Expert Report at 7. Based on such observations, Carlson concludes that the Release was not signed by Erica Almeciga. But the critical missing link is why any of these observed differences indicate different authorship at all, let alone in a context where someone has potentially disguised his or her handwriting.
Third, and relatedly, while testimony that accounted for the possibility of disguise and addressed why the "known" signatures were not the product of intentional disguise could at least have potentially assisted the trier of fact, Carlson did not offer such testimony. To the contrary, Carlson confirmed at her deposition that she was "relying on the plaintiff's representations that [the known signatures] are accurate representations of her signature." Nov. 24 Burke Decl., Ex. A at 47 (emphasis added), ECF No. 83-1 at 21; see also id. at 60, ECF No. 83-1 at 29. This is a critical flaw in Carlson's methodology because it assumes away a key issue: whether Almeciga intentionally disguised her handwriting in producing the known samples after this dispute was initiated or whether the known samples accurately represent her actual handwriting. By relying on plaintiff's counsel's representation that the "known" signatures were accurate representations of plaintiff's signature, the result of Carlson's analysis was effectively pre-ordained and her testimony cannot be considered the "product of reliable principles and methods." Fed.R.Evid. 702. In fact, Carlson's testimony has been excluded by at least one other court in part on such a basis. See United States v. LeBeau, 2015 WL 4068158, at *8 (D.S.D. June 10, 2015) ("[Carlson's] analysis and opinions entirely hinge on whether she received an accurate `known' signature from [the defendant].").
The tainting effect of Carlson's assumption in this regard may be gleaned from what she infers on the basis of her observation that the "signature on the questioned document is written with great fluidity and a faster speed, unlike the known signatures that display a slower, more methodical and unrefined style of
Fourth, also diminishing Carlson's credibility are a number of striking contradictions between her Report and her in-court testimony. Thus, while Carlson purported to apply the ACE-V method in her expert report, see Carlson Expert Report at 6, she admitted at the Daubert hearing that she did not have time to obtain a verification of her opinion in this case and that her report was inaccurate in this respect, see Dec. 4 Transcript, at 70-71, 76. Virtually by definition, then, Carlson failed to "reliably appl[y] the principles and methods" in question "to the facts of this case." Fed. R.Evid. 702(d); see also United States v. McDaniels, 2014 WL 2609693, at *5 (E.D.Pa. June 11, 2014) (disqualifying handwriting expert who purported to apply ACE-V method but who failed to provide evidence that she had actually done so).
Several courts that have found themselves dubious of the reliability of forensic document examination have adopted a compromise approach of admitting a handwriting expert's testimony as to similarities and differences between writings, while precluding any opinion as to authorship. See, e.g., Rutherford, 104 F.Supp.2d at 1192-94. That Solomonic solution might be justified in some circumstances, but it cannot be here where the Court finds the proffered expert's methodology fundamentally unreliable and critically flawed in so many respects. Such testimony would be more likely to obfuscate the issues in this case than to "help the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702(a). It would be an abdication of this Court's gatekeeping role under Rule 702 to admit Carlson's testimony in light of its deficiencies and unreliability. Accordingly,
Having determined that Ms. Carlson's expert opinion is inadmissible under Rule 702, the Court turns to the merits of defendant's Rule 11 motion.
Rule 11 of the Federal Rules of Civil Procedure requires attorneys filing papers with the court to certify "that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances ... (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery." Fed.R.Civ.P. 11(b)(3). If "the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation." Fed. R.Civ.P. 11(c)(1). "[T]he standard for triggering the award of fees under Rule 11 is objective unreasonableness." Margo v. Weiss, 213 F.3d 55, 65 (2d Cir.2000). In addition, Rule 11 "sanctions may not be imposed unless a particular [factual] allegation is utterly lacking in support." O'Brien v. Alexander, 101 F.3d 1479, 1489 (2d Cir.1996). Indeed, "Rule 11 sanctions are not warranted where the `evidentiary support is merely weak and the claim is unlikely to prevail.'" Mealus v. Nirvana Spring Water N.Y. Inc., 2015 WL 4546023, at *6 (N.D.N.Y. July 28, 2015) (quoting Scientific Components Corp. v. Sirenza Microdevices, Inc., 2007 WL 1026411, at *2 (E.D.N.Y. Mar. 30 2007)). And "[e]ven if the district court concludes that the assertion of a given claim violates Rule 11... [t]he decision whether to impose a sanction for a Rule 11(b) violation is ... committed to the district court's discretion." Perez v. Posse Comitatus, 373 F.3d 321, 325 (2d Cir.2004).
Separate and apart from Rule 11, a court has the inherent power to impose sanction on a party for perpetrating a fraud on the Court. Such sanctions "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.'" New York Credit & Fin. Mgmt. Grp. v. Parson Ctr. Pharmacy, Inc., 432 Fed.Appx. 25, 25 (2d Cir.2011) (quoting Scholastic, Inc. v. Stouffer, 221 F.Supp.2d 425, 439 (S.D.N.Y.2002)) (internal quotation marks omitted). "Because of their very potency, inherent powers must be exercised with restraint and discretion." Chambers v. NASCO, Inc., 501 U.S. 32, 44, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). Accordingly, "as 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." Braun ex rel. Advanced Battery Techs., Inc. v. Zhiguo Fu, 2015 WL 4389893, at *17 (S.D.N.Y. July 10, 2015); see also McMunn v. Mem'l Sloan-Kettering Cancer Ctr., 191 F.Supp.2d 440, 445 (S.D.N.Y.2002) ("the essence of a fraud upon 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").
CIR asserts that sanctions are warranted because the totality of the evidence demonstrates that plaintiff fabricated the key factual allegations underlying her lawsuit — to wit, that defendants promised
At the evidentiary hearing, defendants Livesey and Hooper both testified that plaintiff never expressed interest in having her identity concealed at the time of the interview, that they never promised to conceal plaintiff's identity, and that plaintiff signed the Release in their presence. See Dec. 4 Transcript, at 6-10 (Hooper), 31-33 (Livesey). The key factual evidence offered in support of plaintiff's claim is thus her own testimony; but, for the following reasons, plaintiff is not a remotely credible witness and her allegations collapse under scrutiny.
As an initial matter, plaintiff's version of events is undermined by her own contemporaneous conduct in connection with the interview. On July 17, 2013, a day after the CIR Report was published, Livesey and Hooper each emailed plaintiff a link to an abridged version of the CIR Report available on YouTube. See Sept. 14 Burke Decl. ¶ 5; see id., Exs. 5, 6. This version of the CIR Report included footage from plaintiff's interview, with plaintiff's name, face, and relationship to Rosalio Reta revealed. Plaintiff responded to these emails separately the next day, asking both Livesey and Hooper to call her (and advising Livesey that it was "important"). Id., Ex. 5. Hooper also sent plaintiff an email on July 17, 2013 in which he "apologize[d] for the misspelling of [plaintiff's] name" in the Spanish version of the Report. Id., Ex. 7. Plaintiff responded to this email on July 21, 2013 asking Hooper to call her regarding a question she had. Id.
Yet, the evidence shows that plaintiff did not raise concerns about the revelation of her identity until almost a year later, in June 2014. See Dec. 4 Transcript, at 35-36 (defendant Livesey testifying that plaintiff first raised concerns in June 2014); id. at 134-35 (Stephen Talbot testifying as to same). Plaintiff's substantial delay in raising any concerns about the revelation of her identity casts significant doubt on her allegation that defendants promised not to conceal her identity, particularly given the severe harm that the breach of that promise has allegedly caused her. See Am. Compl. ¶¶ 31-32.
Even more damning for plaintiff's version of events, on July 22, 2013 a link to the YouTube video of the CIR Report was posted to the Twitter account of ERYCA LEE (@eryca_reta), with the following description: "new interview of myself and my husband Rosalio Reta." Sept. 14 Burke Decl., Ex. 8. Plaintiff has disclaimed any connection to the Twitter account, and the name of the Twitter account in question was subsequently changed from "ERYCA LEE" to "hacked." Sept. 14 Burke Decl. ¶¶ 6-9. But plaintiff has not offered any credible explanation as to why anyone would impersonate her on Twitter — let alone post a link to the CIR Report — and the Court finds plaintiff's claim that she did not post the tweet to be dubious. Plaintiff's apparent promotion of the CIR Report on social media is virtually irreconcilable with her claim that her participation in the interview was conditioned on her identity being concealed.
Sept. 14 Burke Decl., Ex. 2.
The signatures on certain Georgia state court documents, which involved a petition for a protective order filed by an Erica Almeciga against a Rosendo Gutierrez, appear (to take an illustrative few) as follows:
See Sept. 14 Burke Decl., Ex. 15 at 1.
See id. at 3.
And the signatures on the critical documents filed in Massachusetts state court in 2007 and 2008, in a litigation in which Ms. Almeciga was a defendant, appear as follows
See Def.'s Ex. 1 at 19, ECF No. 95-1 at 20.
Def.'s Ex. 1 at 20, ECF No. 95-1 at 21.
Def.'s Ex. 1 at 21, ECF No. 95-1 at 22.
The strong similarities to the naked eye between the signature on the allegedly forged Release, on the one hand, and the signatures on the state court documents, on the other, are significant because plaintiff has represented that she does not sign her name in a manner consistent with the distinctive signature on the Release. Yet plaintiff admitted at the evidentiary hearing
Plaintiff was also caught in several apparent lies at the evidentiary hearing, which further reinforces this Court's finding that plaintiff is a generally incredible and unreliable witness. For example, one of the documents filed in Georgia state court (which, to reiterate, plaintiff denied filing) is a form titled "Petitioner's Identifying Information," which lists the name, date of birth, sex, and race of each of the protected parties (in this case, plaintiff and her children), in relevant part as follows:
Sept. 14 Burke Decl., Ex. 15, ECF No. 58-15 at 11.
On cross-examination, the following colloquy took place between plaintiff and defense counsel:
Dec. 22 Transcript, at 35.
Plaintiff was then confronted with the list of capital and lower-case letters she had submitted to her handwriting expert for purposes of handwriting analysis, which was included as an exhibit to the handwriting expert's report. There, plaintiff wrote out her capital "F" as follows:
Carlson Expert Report, Ex. K2.
The colloquy continued:
Dec. 22 Transcript, at 36.
Despite plaintiff's effort to distinguish the two "F'"s when confronted with the inconvenient fact that she had already represented to her expert and the Court that she writes capital "F"'s in the unusual manner that appears in the Georgia state court documents, any layperson could tell that the "F" on the Georgia document and the "F" provided by plaintiff as a sample of her handwriting are highly similar and highly distinctive. The fact that plaintiff testified under questioning that the "F" on the Georgia document appeared to be a "7" — even when she had the context that the figure appeared under the heading for "Sex" and even when she, of course, knew that that is how she herself writes a capital "F" — confirms plaintiff's willingness to testify
Plaintiff also testified that she has never been pregnant with the child of any man other than the fathers of her three children, which was relevant because both the Georgia and Massachusetts state court documents refer to other pregnancies. See Dec. 22 Transcript, at 46. That testimony was contradicted by her boyfriend (who is not the father of any of plaintiff's children, see id. at 34-35), who, having been called to the stand by plaintiff herself (for other reasons), testified that plaintiff had been pregnant with his child in 2014 but had miscarried. Id. at 68-69.
Moreover, in contrast to defendants, who had no discernible motive to breach a promise to plaintiff to conceal her identity, there is evidence in the record indicating that plaintiff had substantial motive to fabricate her allegations. Defendant Livesey, whom the Court finds credible, testified that when plaintiff contacted him in June 2014 to raise concerns about the revelation of her identity in the CIR Report, plaintiff explained that her association with Reta was being used as "ammunition" in a custody battle over one of her children. Dec. 4 Transcript, at 36. At the evidentiary hearing, plaintiff corroborated that her association with Reta has had an "adverse effect" on her custody proceedings with respect both to her own children and her current boyfriend's children. Id. at 116. She also testified at deposition that she has "been labeled as dangerous when it comes to being around [her] children," as well as her boyfriend's son, because of her association with Reta and CIR's publication of it. Jan. 21 Burke Decl., Ex. 3 at 200, ECF No. 95-3. at 8. It thus appears likely that plaintiff filed this lawsuit — which seeks, inter alia, to impose a constructive trust "over all film footage and material shot and obtained by CIR in their Report," Am. Compl. ¶ 117(f) — in an effort to unwind a decision she regrets and to distance herself from Reta.
Given the Court's finding that plaintiff is not remotely credible and the Court's determination that her handwriting expert's testimony does not pass muster under Daubert and Kumho Tire, plaintiff is left with virtually no admissible evidence in support of her version of events in the face of a mountain of contrary evidence. Plaintiff's boyfriend, Isaac Duarte-Morillo, submitted an affidavit in which he averred that, "[a]fter looking at the signatures that people are claiming belong to Erica, I am 100% confident in saying that they are not her's [sic]. I have seen her sign her name thousand's [sic] of time's [sic]." Aff. of Kevin A. Landau dated Sept. 25, 2015 ("Landau Aff. dated Sept. 25, 2015"), Ex. 11, ¶ 18, ECF No. 72. Because of revelations at the evidentiary hearing, however, Duarte-Morillo's affidavit and accompanying testimony are of little to no value. At the evidentiary hearing, after Duarte-Morillo testified that the affidavit reflected his "wording" and that he gave this wording to "the attorney," plaintiff's counsel, to his credit, stated that this was "not accurate." Dec. 22 Transcript, at 64. Upon further questioning, Duarte-Morillo testified that he gave the information to plaintiff (and not her attorney) and that plaintiff (and not her attorney) typed the affidavit. See id. at 64-65. Duarte-Morillo then clarified that, in fact, plaintiff showed him the affidavit already typed and asked if the information
Furthermore, whatever the provenance of the affidavit, Duarte-Morillo failed to correctly identify six different signatures appearing on various of the Massachusetts state court documents as plaintiff's, despite plaintiff having confirmed that these were, in fact, her signatures. See id. at 57-58, 70-75. Thus, Duarte-Morillo's opinion that the Release does not contain plaintiff's signature — a matter of which he has no firsthand knowledge — cannot be credited.
Plaintiff also attempted to rely on an unsworn affidavit submitted by Rosalio Reta in which Reta purportedly averred that he "agreed to let Mr. Livesey interview my fiancée Ms. Almeciga on one condition (her identity not disclosed [sic]) for fear of putting a target on her head." Landau Aff. dated Sept. 25, 2015, Ex. 10, ECF No. 71. Reta further purportedly averred that "Mr. Livesey accepted an [sic] drew out a contract stating that the interview was to be conducted in a secure area and have my fiancée [sic] face blurred out for fear of reprisal." Id. As the Court indicated at the conclusion of the evidentiary hearing, these statements are plainly inadmissible hearsay; and, even if they were somehow admissible, they are largely irrelevant given that Reta had no power to determine the conditions under which plaintiff would or would not submit to an interview and given that Reta did not attach the alleged written contract he entered into with Livesey (which has not been otherwise produced or corroborated through testimony).
Plaintiff also asks the Court to make various inferences in favor of plaintiff's version of events, none of which withstands scrutiny. First, plaintiff makes much of the fact that the CBC aired an interview (shortly before CIR interviewed plaintiff) in which plaintiff's face was concealed for her own safety. Plaintiff asks the Court to infer that she would have requested the same of CIR. But in an email dated June 12, 2014, plaintiff asked a CBC employee involved in the CBC story, inter alia, "What made you decide to interview me in shadow? Which I greatly appreciate." Sept. 14 Burke Decl., Ex. 23. The CBC employee responded, in relevant part, that "we decided that your association with Rosalito [sic] made you vulnerable and that we had an obligation to look out for you as best we could." Id. In other words, contrary to plaintiff's contention in her Amended Complaint that the CBC concealed her identity "per [her] demand," Am. Compl. ¶ 11, this email exchange demonstrates that the CBC made this decision independently and not at plaintiff's request.
Second, plaintiff points to the fact that defendants concealed the identity of an individual and the face of a second individual in the CIR Report, the first of whom did not sign a release and the second of whom did. Plaintiff insists that this somehow supports her allegation that she reached a similar agreement with defendants that was breached. To the contrary, if anything, these facts indicate that defendants were perfectly willing to conceal an interviewee's identity when the request was made.
Third, plaintiff contends that the fact that CIR concealed plaintiff's identity in a different video report that it posted in November 2014 "plainly establishes that there was an understanding between CIR and Plaintiff that her identity would be concealed." Pl. Erica Almeciga's Mem. of Law in Opp. to CIR Defs. Mot. for Sanctions at 2, ECF No. 63. But it is hardly surprising that, as a "courtesy to her," CIR chose to conceal plaintiff's identity in media content released after plaintiff
The Court has considered the various other arguments raised and alleged inconsistencies identified by plaintiff and finds them to be without merit.
In sum, in view of all of the evidence adduced through the two-day evidentiary hearing and the copious submissions before the Court, the Court finds by clear and convincing evidence that plaintiff perpetrated a fraud on the Court by pressing critical and serious allegations that she knew to be false. Where a fraud upon the court is shown by clear and convincing evidence, courts consider five factors in fashioning an appropriate sanction: "(i) whether the misconduct was the product of intentional bad faith; (ii) whether and to what extent the misconduct prejudiced the injured party; (iii) whether there is a pattern of misbehavior rather than an isolated instance; (iv) whether and when the misconduct was corrected; and (v) whether further misconduct is likely to occur in the future." Passlogix, Inc. v. 2FA Tech., LLC, 708 F.Supp.2d 378, 394 (S.D.N.Y. 2010). Here, all five factors weigh in favor of imposing sanctions on plaintiff: plaintiff's misconduct was the product of intentional bad faith; her misconduct prejudiced defendants; the misconduct was part of an extended and troubling pattern of fabrications and denials; the misconduct has not been corrected; and further misconduct would be likely to occur if the case were to proceed.
There would be little point, however, in imposing a monetary sanction on plaintiff given that she testified that she is homeless and given that she has mental health issues and no apparent source of income. See Dec. 22 Transcript, at 23; Marvello v. Bankers Trust Co., 1999 WL 38252, at *2 n. 1 (S.D.N.Y. Jan. 27, 1999) ("Plaintiff is unemployed and appears to be dependent upon public assistance. The imposition of monetary sanctions would therefore be pointless."). CIR is aware that plaintiff is likely judgment-proof but nevertheless seeks its costs and fees incurred in defending this action, which it represents are in the hundreds of thousands. See Summation Mem. in Support of CIR's Mot. for Sanctions at 3, ECF No. 94 ("CIR recognizes that it is unlikely to recover its significant fees from Plaintiff given her financial situation...."). In such circumstances, imposing a monetary sanction on plaintiff that she is unable to pay and that could only be enforced by contempt proceedings would be tantamount to the creation of a debtor's prison — a shameful practice that the Court is not willing to facilitate.
The Court does, however, find that an appropriate sanction for plaintiff's bad-faith allegations is the dismissal of this action with prejudice, independent of this Court's granting of CIR's motion for judgment on the pleadings. To be sure "dismissal is a harsh sanction to be used only in extreme situations." McMunn v. Mem'l Sloan-Kettering Cancer Ctr., 191 F.Supp.2d 440, 461 (S.D.N.Y.2002). But "[w]hen faced with a fraud upon the court... such a[] powerful sanction is entirely appropriate." Id. Indeed, where the misconduct at issue is the knowing fabrication of the critical allegations underlying the complaint that plaintiff must prove in order to recover, it would be pointless to allow the case to proceed. Dismissal is virtually required under such circumstances.
CIR also seeks sanctions against plaintiff's counsel, whom they describe as a "willing participant" in plaintiff's fraud on the Court for having "willfully blind[ed] himself to his client's misrepresentations" and unreasonably
Specifically, in this case, where plaintiff's version of events was corroborated, at least to some degree, by others, and where plaintiff's counsel had obtained a favorable expert opinion, counsel (barely) satisfied his obligation under Rule 11 to ensure through an "inquiry reasonable under the circumstances" that his client's "factual contentions have evidentiary support." Fed.R.Civ.P. 11(b); Servicemaster Co. v. FTR Transport, Inc., 868 F.Supp. 90, 97 (E.D.Pa.1994) (Rule 11 motion denied where two experts supported plaintiff's view of the facts); Wagner v. Allied Chem. Corp., 623 F.Supp. 1407, 1411-12 (D.Md. 1985) (despite "serious factual weaknesses with several of the claims," counsel's pre-filing inquiry, which included consultation with expert, was "within the range of reasonableness" under Rule 11). To be sure, plaintiff's allegations and various denials were highly dubious in light of the contrary evidence that CIR presented to plaintiff's counsel, Duarte-Morillo's affidavit was biased and weak, Reta's unsworn affidavit was largely irrelevant, and the handwriting expert who's favorable opinion counsel sought to procure was no expert at all. But counsel could not have known what view the Court would take of this evidence (and of the admissibility of the expert report in particular), and it cannot be said that plaintiff's allegations were "utterly lacking in support" under such circumstances. O'Brien, 101 F.3d at 1489. Counsel's pursuit of this lawsuit in the face of the mounting evidence indicating his client was lying is certainly questionable and borders on unreasonable, but the Court does not find that it quite meets the high standard that must be satisfied to impose sanctions.
In sum, for the foregoing reasons, the Court in its Order dated March 31, 2016, granted defendant CIR's Rule 12(c) motion for judgment on the pleadings and dismissed the Amended Complaint with prejudice as against all defendants. Regarding CIR's Rule 11 motion and accompanying Daubert motion, the Court excludes the reports and testimony of plaintiff's handwriting expert in their entirety for failing to meet the standards of Rule 702 under both Daubert and Kumho Tire. CIR's Rule 11 motion is granted to the extent it seeks dismissal of the action for plaintiff's perpetration of a fraud upon the Court, but denied to the extent it seeks monetary sanctions against either plaintiff or her counsel.
The Clerk of the Court is hereby directed to enter final judgment dismissing plaintiff's Amended Complaint with prejudice and to close this case.
SO ORDERED.
Dec. 4 Transcript, at 63.
