Duran v. Lafarge North America Inc.

Filing 51

ORDER denying 41 Defendants Motion and Incorporated Memorandum in Support for Sanctions by Magistrate Judge Kristen L. Mix on 9/7/2011.(erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-01807-WJM-KLM
DONANCIO DURAN,
Plaintiff,
v.
LAFARGE NORTH AMERICA, INC.,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant’s Motion and Incorporated
Memorandum in Support for Sanctions [Docket No. 41; Filed July 18, 2011] (the
“Motion”). Plaintiff filed a Response in opposition to the Motion on August 17, 2011 [Docket
No. 48], and Defendant filed a Reply on August 26, 2011 [Docket No. 50]. The Motion is
ripe for review. For the reasons stated below, the Court DENIES Defendant’s Motion.
Plaintiff sues his former employer, the Defendant, because he believes he was
wrongly terminated on the basis of his national origin. See Sched. Ord., Docket No. 25 at
2. In the Motion at hand, Defendant asks the Court to dismiss Plaintiff’s claims with
prejudice and award it fees and costs, or in the alternative, permit an adverse inference jury
instruction plus fees and costs. The basis for this request is an allegation that Plaintiff gave
false testimony under oath during his deposition in three primary areas relevant to his
claims: 1) cell phone use while employed with Defendant, 2) employment after his
employment with Defendant was terminated, and 3) past criminal convictions. Defendant

1

contends that Plaintiff willfully falsified his testimony, as he knew that the answers he stated
during his deposition were incorrect.
In response, Plaintiff avers that he testified “to the best of his recollection,” and the
oversights were inadvertent. Plaintiff represents that he “was extremely nervous during his
deposition and . . . in no way intentionally offered false testimony to bolster his claims
against Defendant.” Response, Docket No. 48 at 3. Plaintiff asserts that in any event,
Defendant was not prejudiced by his omissions or missteps as Defendant eventually
obtained the correct information. Id. at 6.
Review of the briefing demonstrates to the Court that Defendant is asking the Court
to impermissibly substitute its judgment for the judgment of a jury in determining the
credibility of Plaintiff’s testimony.

Unlike the circumstances described in the cases

Defendant relies upon, Defendant does not support its accusations of willfulness with
evidence that Plaintiff knowingly gave false testimony or otherwise fabricated evidence.
Instead, the record could be construed to show that Plaintiff mistakenly gave false
testimony, which was corrected by evidence now in Defendant’s possession, that is, the
phone records and interrogatory responses. Regarding the omission of the name of
Plaintiff’s employer at the time of the deposition (also not previously disclosed by Plaintiff),
Defendant has not been prejudiced, as counsel for both Defendant and Plaintiff are now
informed, and Defendant does not assert that the omission has precluded its ability to
properly prepare a defense.1 The Court is not positioned to make determinations on the
credibility of a witness, nor may it “substitute its choice for that of the jury between

1

In any event, Plaintiff attests that he willingly “signed unlimited releases for Defendant to
request information relating to Plaintiff’s work history.” Response, Docket No. 48 at 5.

2

conflicting elements in the evidence.” Medtronic Navigation, Inc. v. BrainLAB Medizinische
Computersystems GmbH, 417 F. Supp. 2d 1188, 1198 (D. Colo. 2006) (in the context of
a Rule 50(b) motion). See also, e.g., Rath v. Attorney General of Colorado, No. 06-cv00419-WYD, 2008 WL 1930633, at *8 (D. Colo. May 1, 2008) (“the credibility of witnesses
is a matter solely within the province of the jury”); Rawson v. Sears, Roebuck and Co., 554
F. Supp. 327, 329-30 (D. Colo. 1983) (“since the nature of a discrimination claim involves
issues of intent and state of mind, in addition to credibility of witnesses, [the court] cannot
resolve this as a matter of law.”).
By filing the Motion, Defendant inappropriately entrenches the Court in a “he said,
she said” dispute about contradictions in evidence. Evidentiary contradictions are the basic
crux of why disputes are litigated. If both parties agreed as to the veracity and quality of
evidence, it is likely the suit would have settled before the filing of dispositive motions, if not
before the suit was commenced. However, as is the case in many lawsuits, this matter
rests on the veracity and quality of the evidence as related to both parties’ positions. The
Court thus declines to award sanctions as a consequence of discrepancies in Plaintiff’s
testimony that were subsequently corrected, particularly in the absence of actual evidence,
not merely conjecture, indicating willful fabrication.
IT IS HEREBY ORDERED that the Motion is DENIED.
Dated September 7, 2011 at Denver, Colorado.

BY THE COURT:
s/ Kristen L. Mix
Kristen L. Mix
United States Magistrate Judge

3