MATTHEW W. BRANN, District Judge.
This is not an ordinary case with ordinary parties. But don't take the Court's word for it—simply ask the Plaintiffs themselves. Harisadhan Patra and Petula Vaz, former audiology professors at Bloomsburg University in Columbia County, Pennsylvania, have fired two sets of attorneys since commencing this "unique" employment discrimination case in late 2014. During a subsequent telephonic status conference, Doctors Patra and Vaz informed the Court that, contrary to its recommendation, they would not seek new counsel, as they are "uniquely positioned" to prosecute their own case.
Shortly thereafter and in the midst of discovery, the pair filed this motion, which alleges that the Defendants, through their counsel at the Pennsylvania Office of Attorney General, committed "fraud on the Court." Since then, Dr. Vaz has contacted my Chambers on approximately five different occasions to inquire as to the motion's status.
I have thoroughly reviewed Plaintiffs' allegations of impropriety and concluded that the complained-of occurrences are either wholly innocuous or best left for cross-examination. Quite certainly, however, Keli M. Neary, Esquire, and her colleagues at the Attorney General's Office have not attempted to defraud this Court. For the following reasons, Plaintiffs' motion to impose sanctions is denied.
"[W]hen presented with a
Construed liberally, Plaintiffs' motion essentially requests that this Court impose sanctions on the Defendants for what they term "fraud upon the Court."
Federal Rule of Civil Procedure 11(b)(1) states as follows:
Because Rule 11 "was designed to prevent abuse," courts have fashioned an objective test to implement it.
Thus, the "standard for testing conduct is reasonableness under the circumstances."
Rule 37(a), which outlines the requisite procedures that must be followed before seeking a motion to compel, provides, in pertinent part, as follows:
Its counterpart, Rule 37(b), provides for penalties in the event of noncompliance with an order compelling discovery. In pertinent part, it reads:
"If the court enters an order compelling discovery under Rule 37(a) and the order is disobeyed, the second step of the two-step process may be invoked under Rule 37(b)."
For litigants to adequately demonstrate fraud upon the Court, they must prove: "(1) an intentional fraud; (2) by an officer of the Court; (3) which is directed at the Court itself; and (4) in fact deceives the Court."
Plaintiffs' motion for sanctions failed to conform to the requirements imposed by the Local Rules.
Plaintiffs allege that Dr. Wislock falsely documented Defendants Dr. Richard Angelo and Dr. Jorge E. Gonzalez as not having served as "supervisors" in the Audiology and Speech Pathology Department for certain time periods relevant to this case.
From the outset, the Court considers this a somewhat peripheral argument, given that supervisory capacity under federal law is determined not so much by title but by actual authority. "[A]n employee is a `supervisor' for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim."
First, Plaintiffs merely allege that the document that Dr. Wislock provided was "not factually correct."
That procedural reality is fatal to this and several other of Plaintiffs' allegations. The claimed inconsistencies (to the extent that they even are inconsistencies) are just as compatible with mistake or inadvertence as they are with willful falsification. The applicable
Moreover, Plaintiffs' decision to forego additional depositions pending the outcome of this dispute, despite the Court's admonition otherwise, is necessarily fatal to any claim under Rule 37. Because no motion to compel was filed, no Court Order upon which a Rule 37(b) motion for sanctions may be grounded ever existed.
In addition, the lack of discovery renders this motion largely premature, as little evidence exists about which any reasonable comparisons may be made. The Court understands that the instant dispute would have hampered discovery in some ways, but conducting depositions in as feasible a manner as possible would have permitted the Plaintiffs to confront these witnesses on the alleged inconsistencies and to construct a complete factual record.
Even reaching the substantive law, Plaintiffs' claims fail to establish fraud upon the Court. Fraud upon the Court typically relates to the reopening of a final judgment. That is why courts apply such a stringent standard. The matter here between Plaintiffs and Defendants has not been finally adjudicated. In fact, the Court has yet to make any finding on the merits. Accordingly, fraud upon the Court is inapplicable. Nonetheless, the Court will address the remaining elements required for an adequate fraud upon the Court claim.
Plaintiffs fail the first element because they have not proven with clear and convincing evidence that Defendants' counsel acted intentionally to commit fraud. Plaintiffs offer only vacant claims that Dr. Wislock intentionally falsified documentation without offering any contrasting evidence. Thus, because Plaintiffs have not overcome the "high hurdle," their claim fails on this independent ground.
By its second and third elements, fraud upon the Court requires an officer of the Court to act with intentional fraud and direct such fraud at the Court itself. Plaintiffs' argument again fails because Dr. Wislock, not Defendants' counsel, purportedly acted with intentional fraud and the fraud was not directed at the Court, but rather at Plaintiffs. In addition, no averments are offered as to whether counsel for the Defendant knew of or countenanced the alleged falsifications after making a reasonable inquiry into any of the documents' truth or falsity. Likewise, Plaintiffs' failure to prove extreme or abusive conduct that was unreasonable under the circumstances at the time of the filing is also fatal to any Rule 11 claim that might liberally be drawn from Plaintiffs' papers.
Lastly, fraud upon the Court requires intentional fraud to deceive the Court. Because elements one through three were not established, element four cannot be met. Plaintiffs' argument regarding incomplete designation of supervisors is therefore without merit. I note that several of these observations could be made about each of Plaintiffs' allegations, but I emphasize them here.
In addition to their claim that Dr. Wislock intentionally falsified documents, Plaintiffs also allege that Dr. Wislock lied about the circumstances of a phone call that he placed over four years ago.
In levying such an allegation, Plaintiffs point to a prior email that Dr. Patra received from Dr. Soltz, which explained that Dr. Soltz was not authorized to discuss another co-worker's personnel issues with Dr. Patra.
Plaintiffs' allegations fail to consider the tragic flaw inherent in all humans: error. Rather than a deliberate and calculated falsification, Dr. Wislock's having left a voicemail on Dr. Vaz's phone and confusing it as a contact with Dr. Patra appears to be nothing more than a simple mistake. Plaintiffs are a married couple who have brought this litigation as husband and wife. They both have also provided the same physical address to the Clerk of Court. From the outset, this gives significant credence to the notion that Dr. Wislock merely confused the two faculty members or their telephone numbers, or assumed that both spouses could be reached at that same number. Without more, Dr. Wislock's actions are more indicative of a mistake than they are willful misconduct.
Second, it is not unreasonable to conclude that were the voicemail message relevant to the instant case, any prejudice suffered by Plaintiffs was cured. Although an administrator may not discuss one spouse's complaints with the other, it would be farfetched to argue that two spouses would similarly refrain from discussing the substance of those complaints amongst themselves, especially where they are co-plaintiffs in a federal lawsuit. In fact, the posture of this motion reveals that both spouses are aware of the contested message and that the message has collective rather than individual import to this action.
This argument, like several other of Plaintiffs' objections, was lodged prematurely. To be more precise, the substance of Plaintiffs' present motion serves more appropriately as fodder for a thorough cross-examination. Federal courts typically grant advocates measurable leeway for "all such cross-examination designed to test the recollection of a witness."
All of these factors considered, I view the voicemail issue to be substantively innocuous, an error in execution or recollection that in no way constitutes an unconscionable scheme by Defendants. To the contrary, Plaintiffs would do well to recall the words of English poet Alexander Pope: "To err is human."
Plaintiffs next allege that the Defendants produced documents containing fabricated program enrollment numbers and graduation rates.
Plaintiffs again strand the Court with empty allegations. Movants may not solely rely on their "prior knowledge" about falsified data; rather, they must
Plaintiffs allege that the Defendants provided employee compensation data that "could not possibly have been accurate."
Consistent with their general approach to this litigation, Plaintiffs loft this allegation without any corroborating evidence. Rather, they base their conclusions upon mere speculation. As Human Resources Director, Mr. Reed has access to employee compensation data and has verified the reliability of such information to the best of his knowledge, fully aware of the risk of perjury.
Further, Plaintiffs' argument that the requested information "was not factually correct" is also premature, owing to Plaintiffs' refusal to conduct depositions.
Similar to the claim that Mr. Reed provided factually incorrect compensation data, Plaintiffs also allege that non-party Gay Anne Spezialetti willfully provided incorrect information regarding instructors' course assignments.
Needless to say, Plaintiffs' allegation that Ms. Spezialetti willfully provided factually incorrect information lacks a basis in fact. Plaintiffs have not supported this allegation with any evidence. Not only do Plaintiffs again make a hollow allegation, but like their prior averments, they also do so prematurely.
Contrary to what Plaintiffs might believe, attempting to intensify the pressure on Defendants by adding additional claims has not yielded any diamonds. Instead, each losing allegation has only further eroded Plaintiffs' credibility in the eyes of the Court. This see-what-sticks approach had another deleterious impact on Plaintiffs' cause: Because the Court necessarily approaches every pleading in earnest, the unbridled hurling of accusations by Plaintiffs required a thorough review of the parties' papers, all of which cost valuable time.
Plaintiffs also allege that Ms. Spezialetti tampered with departmental meeting minutes by removing certain information from the published versions.
In addition, Plaintiffs have yet to depose Ms. Spezialetti. The proper course of action in such a circumstance is for Plaintiffs simply to ask the witness whether she tampered with that evidence. If they believe her response is untrue, the appropriate recourse is cross-examination at trial. Thus, Plaintiffs' claim not only is without merit, but also is raised prematurely.
Plaintiffs also allege that one of Defendants' prior counsel, Thomas May, Esquire, wrote a letter to the Equal Employment Opportunity Commission (EEOC) that is overrun with falsifications.
Plaintiffs' allegation, similar to those above, fails because it is not supported by evidence (let alone that of the clear and convincing genre). In Plaintiffs' motion, they purportedly rebut each statement in Mr. May's letter by claiming that those particular facts are false.
Next, Plaintiffs' argument that Defendants are responsible for Mr. May's letter is without merit. As I noted earlier, providing similar documentation to both Plaintiffs and the EEOC seems to justify the data's legitimacy, not render it fabricated. Because the Defendants and Mr. May provide similar counter-arguments to Plaintiffs' positions, the Court would be hard-pressed to conclude that both were rampantly falsified. Conversely, the documents produced both by Defendants and Mr. May appear wholly legitimate and tend to debunk the specter of falsification that has apparently haunted the Plaintiffs.
Plaintiffs also challenge the documents found in Dr. Patra's personnel file. This contention is exceptionally premature and undoubtedly misplaced. Plaintiffs base this allegation on two grounds. First, they allege that the documents were willfully manufactured to justify Defendants' decision not to renew Dr. Patra's employment contract. They believe this violated Dr. Patra's due process rights. Second, Plaintiffs contend that these documents were not requested in discovery and therefore constitute fraud upon the Court.
Plaintiffs again claim the Defendants willfully fabricated documents without offering any support. Plaintiffs cannot continue to request the Court to review an exhibit in the hopes that it will discern and propound an argument on their behalf—particularly if that argument is fantasized or based upon some fraudulent conduct secreted away within the document's four corners. Contrary to their belief, Plaintiffs have yet to provide clear and convincing evidence to support their allegation that Defendants fabricated documents.
Moreover, Plaintiffs' allegation that Dr. Patra's due process rights were violated is without merit. In the public employment setting, the Due Process clause "protects a liberty interest in reputation only when the plaintiff shows a `stigma' to reputation
Plaintiffs suffered no due process violation here. In particular, the Defendants did not disseminate false or defamatory impressions about the Plaintiffs that would in any way prevent Plaintiffs from finding other employment. In fact, Plaintiffs were offered other employment from a comparable university after Defendants notified them that their contracts would not be renewed.
Plaintiffs use this allegation of a due process violation as a backdoor vehicle to challenge the information found in the personnel file. As I discussed above, Plaintiffs decided to forego examining Defendants and challenging documents via deposition prior to filing this motion. Plaintiffs thus again resort to mere allegations unsupported by concrete facts.
Plaintiffs' also allege that they received unrequested documents in discovery and that such productions constitute fraud upon the Court. That contention is equally without merit. First, that the Defendants may have produced marginally greater discovery than what might be admissible at trial is not abhorrent or violative of the federal rules. To the contrary, it is precautionary. Second, I note that this perceived issue is likely compounded by Plaintiffs' failure to retain counsel. As such, Plaintiffs' argument is without merit.
Of all of the discovery disputes that I have faced in my tenure as a district court judge, none have involved a claim that the opposing party has produced too much. That was the case until I confronted this matter. Specifically, Plaintiffs contend that a significant portion (about 50%) of Defendants' discovery productions was irrelevant, thus violating the rules that govern such exchanges.
However, the Court finds that Defendants' overcautious productions were designed to ensure, to the best of their abilities, that the
Last, Plaintiffs suggest that counsel for the Defendants violated the state-law equivalent of Model Rules of Professional Conduct 3.3 and otherwise engaged in sanctionable conduct by providing false representations. To begin, sanctions under Federal Rule of Civil Procedure 11 must "be based on [a party's] objective knowledge or belief at the time of the filing of a challenged paper."
Plaintiffs' contention that Ms. Neary violated Model Rule of Professional Conduct 3.3 is also meritless.
For the foregoing reasons, Plaintiffs' motion alleging fraud on the Court is denied. The Court would again advise the Plaintiffs to seek the assistance of counsel.
An appropriate Order memorializing my holding and setting forth renewed case management deadlines follows.
