Leon v. M.I. Quality Lawn Maintenance, Inc. et al
Filing
410
ORDER Denying 328 Defendants' Motion for Relief from Final Judgment and For Sanctions. Signed by Ch. Magistrate Judge Andrea M. Simonton on 11/29/2018. See attached document for full details. (par)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 10-20506-CIV-SIMONTON
EDEL LEON, JAVIER GONZALEZ,
et al.,
Plaintiffs,
v.
M.I. QUALITY LAWN
MAINTENANCE, INC., et al.,
Defendants.
/
ORDER DENYING DEFENDANTS’ MOTION FOR RELIEF
FROM FINAL JUDGMENT AND FOR SANCTIONS
This matter came before the Court upon Defendants’ Motion for Relief From Final
Judgment and For Sanctions, ECF No. [328]. 1 The Plaintiffs have filed a Response, ECF
No. [336]. The Defendants did not file a Reply; although the Defendants responded to the
Plaintiffs’ arguments during oral argument held by the Court, ECF No. [404].
After a thorough review of the record, the undersigned concludes that the
Defendants are not entitled to the relief they seek because: 1) pursuant to Rule 60(b) the
Defendants’ Motion is not timely and the Defendants have failed to demonstrate that they
were unable to present their case fully and fairly due to the alleged improper actions of
Plaintiffs; 2) the Defendants have failed to demonstrate that the judgment was obtained
by “fraud on the court” as required to invoke the Court’s inherent powers, as noted in
Rule 60(d)(3); and, 3) the Defendants’ request for an award of attorneys’ fees pursuant to
the Court’s inherent powers to sanction Plaintiffs’ misconduct is untimely. Accordingly,
1
The Honorable Patricia A. Seitz, United States District Judge, has referred this matter to
the undersigned for all necessary and proper action as required by law including trial by
jury and entry of final judgment, ECF No. [96].
the Defendants’ Motion for Relief From Final Judgment and For Sanctions, ECF No. [328],
is Denied.
I.
BACKGROUND
This action involves claims by five workers, including Plaintiff Edel Leon, against
their former employer, a lawn maintenance company, M.I. Quality Lawn Maintenance,
(“M.I. Quality”) and its owner, Mitchell Igelko, for overtime violations of the Fair Labor
Standards Act, 29 U.S.C. § 201, et seq., (“FLSA”). In the Amended Complaint, Plaintiffs
Leon and Gonzalez also alleged retaliatory discharge in violation of that Act, ECF No.
[6]. 2
On July 17, 2012, following a ten-day trial, the jury found in favor of Plaintiffs
Javier Gonzalez and Edel Leon on their retaliation claims. The jury awarded Javier
Gonzalez $23,180.00 in damages for net loss of wages and benefits and $25,000.00 in
damages for emotional pain and anguish. The jury awarded Edel Leon $22,900.00 in
damages for net loss of wages Yeand benefits and $25,000.00 in damages for emotional
pain and anguish, ECF Nos. [192] [188]. After determining that Plaintiffs Gonzalez and
Leon were entitled to an award of liquidated damages, on February 28, 2013, the Court
entered final judgment in favor of Leon in the amount of $70,800.00 and in favor of
Gonzalez in the amount of $71,360.00, ECF Nos. [241] [242].
More than nine months after the entry of Final Judgment, the Defendants filed the
instant Motion for Relief from Final Judgment and for Sanctions, ECF No. [328]. In that
Motion, the Defendants seek relief from the Final Judgment entered on behalf of Edel
Leon based upon the Defendants’ contention that Plaintiff Leon’s judgment was obtained
through fraud and Leon’s perjurious testimony at trial, ECF No. [328].
2
This action was severed from 09-22243-CIV-SEITZ, another FLSA action against the
same Defendants. The other Plaintiffs in the action whose cases were tried with
Plaintiffs Gonzalez and Leon are Kelly Phillips, Luisa Ginsberg and Luis Solorzano.
Those Plaintiffs are not involved in the instant Motion.
2
The undersigned stayed enforcement on Plaintiff Leon’s Judgment pending an
evidentiary hearing on the Motion, ECF No. [339]. 3
II.
THE POSITIONS OF THE PARTIES
As stated above, following entry of Final Judgment on behalf of Plaintiffs Edel
Leon and Javier Gonzalez’s claims for retaliatory discharge, Defendants filed the instant
Motion seeking to set aside Leon’s judgment pursuant to Federal Rule of Civil Procedure
60(b)(3). Defendants allege that Leon, with the assistance of his wife, Plaintiff Kelly
Phillips, obtained a judgment by fraud and repeatedly perjured himself during his trial,
ECF No. [328] at 2-3. In the Motion, the Defendants allege the following specific acts of
fraud, misrepresentation, and/or misconduct: 1) Phillips stated under oath that Leon was
not receiving overtime at his new employment when, in fact, he was: 2) Leon and Phillips
stated under oath that Leon was paying 100% of his health insurance at his new
employment when, in fact, he was not; 3) Leon and Phillips stated under oath that it took
Leon about three (3) months to find a new job when, in fact, it did not; 4) Phillips
requested that Mr. Cooper [Leon’s new employer] pay Leon his overtime via separate
checks—outside of payroll—so that if Defendants’ attorneys contacted Mr. Cooper or
requested documents from him, they would not discover that Leon was, in fact, receiving
more compensation than what he was testifying to during his depositions, the jury trial in
this case, and the bench trial on front wages; and 5) Phillips admitted to Mr. Cooper that
Leon was not emotionally distressed by surveillance cameras and, instead, was only
saying that to get more money awarded to him in the underlying lawsuit, ECF No. [328] at
3.
3
In addition, the Court denied the Verified Motion for Attorneys Fees filed on behalf of
both Plaintiffs Gonzalez and Leon, ECF No. [250], pending the resolution of the
Defendant’s Motion for Relief from Judgment, ECF No. [339]. Subsequent to the instant
Motion being filed, Plaintiff Gonzalez filed a Partial Satisfaction of Judgment which states
that he has received payment from Defendants in full satisfaction of the Final Judgment
in favor of Plaintiff Gonzalez, ECF No. [376].
3
In support of these claims, the Defendants have submitted an Affidavit from Lance
Cooper, the owner of Best Equipment & Repair, Inc., and Best Vest Corporation, which
conducts business as Perrine Rentals, ECF No. [329]. According to the Affidavit, on or
about August 10, 2009, Edel Leon applied for a job at Perrine Rentals, and began working
during the week of August 24, 2009, ECF No. [329] at ¶¶ 3, 5. 4 The Affidavit generally
describes the negotiations between Lance Cooper, Edel Leon and Edel Leon’s wife, Kelly
Phillips, related to the terms of Edel Leon’s employment, including benefits and rate of
pay, at Perrine Rentals. In the Affidavit, Lance Cooper states that Kelly Phillips was very
adamant about the way Edel Leon was to receive his pay, insisting that Cooper only pay
Leon for overtime through a supplemental check outside of payroll so that it would
appear that Leon was making less money which would help Phillips and Leon in their
lawsuit against Mitchell, ECF No. [329] at ¶ 8. The Affidavit discusses the health
insurance provided to Leon through Perrine Rentals, and wage payments made to Leon
between August 2009 to January 2013. Throughout the Affidavit, Lance Cooper also
discusses his interaction with Defendant Mitchell, and the lawsuits between the Plaintiffs
and Defendant Mitchell. Finally, Cooper states that when Perrine Rentals closed in
November of 2012, Leon was transferred to Best Equipment where Leon worked while
being under video surveillance, without incident, ECF No. [329] at ¶¶ 20, 21. 5
4
The Affidavit states that Leon began working during the week of August 24, 2013. The
undersigned presumes that the 2013 date is an error, and the date that Lance Cooper
avers Leon began working is during the week of August 24, 2009.
5
Lance Cooper’s Affidavit references several documents related to Edel Leon’s
employment with Perrine Rentals that are attached to the Affidavit. Specifically, the
Defendants have submitted Edel Leon’s Application for Employment indicating that Leon
is available to begin work on August 24, 2009, and Lance Cooper’s handwritten notes,
ECF No. [329-1], a copy of Perrine’s bookkeeping records for payments made to Leon
between September 2, 2009 and November 30, 2012, ECF No. [329-2], and Perrine
Rentals’ 2009 and 2010 payroll records, which reflect certain health insurance plan
deductions, ECF No. [329-3] [329-4].
4
As to the timeliness of the Defendants’ Motion, the Defendants assert that on
March 11, 2013, Edel Leon and Kelly Phillps, filed a separate action in this District against
Mitchell’s Lawn and Mitchell Igelko seeking an award of damages for retaliation and
slander arising from the Defendants’ purported actions which related to this matter, (1320854-CIV-MORENO) (hereinafter “The Defamation Action.”). Defendants assert that
while investigating The Defamation Action, Defendants’ Counsel interviewed Lance
Cooper, a witness in that action, and discovered that Leon and Phillips had concocted
and filed this instant lawsuit to fraudulently obtain a Final Judgment against the
Defendants, ECF No. [328] at 2-3.
Based upon the information obtained from Lance Cooper, Defendants argue that
Leon and Phillips’ perjured testimony was critical to the judgment because the jury
awarded Leon the exact amount in damages that Leon would have made from
Defendants during the three months he was unemployed. As relief, the Defendants seek
an Order staying the enforcement of Leon’s final judgment pending the resolution of the
instant motion, sanctions against Leon and Phillips and ultimately an Order setting aside
the final judgement.
In response, Plaintiff Leon argues that Cooper has fabricated evidence against
Leon and calls into question Cooper’s motives for coming forward, ECF No. [336] at 4-5.
Plaintiff depicts Cooper as a bitter bankrupt who holds a grudge against, and personal
animosity toward, both Leon and his attorneys. Plaintiff argues that, at best, Defendants
advance only a factual attack on Leon’s judgment, which is not a proper basis to grant a
Rule 60(b)(3) motion. Plaintiff also argues that fraud between parties and perjury does
not constitute a “fraud on the court” requiring a court to set aside a judgment; rather,
only the most egregious conduct, such as bribery of a judge or members of the jury
constitutes “fraud on the court.” ECF No. [329] at 7-8, 10-12. Plaintiff also maintains that
5
Defendants’ request for relief should be denied for their lack of diligence in pursuing the
Cooper evidence since it could have been discovered before the trial of this matter.
The Plaintiffs have also submitted Affidavits from Edel Leon and Kelly Phillips that
deny many of the allegations set forth in Lance Cooper’s Affidavit, and reassert that Edel
Leon did not begin working for Perrine Rentals until November of 2009, ECF Nos. [336-3]
[336-4]. In addition, in her Affidavit, Kelly Phillips denies that she discussed with Lance
Cooper emotional distress damage claims raised by Edel Leon, or anything regarding
cameras, ECF No. [336-3] at 3.
III.
LEGAL FRAMEWORK AND ANALYSIS 6
A.
Relief from Judgment Pursuant to Fed. R. Civ. P. 60(b)(3),
Rule 60(b)(3) permits relief from judgment where the movant shows “fraud
(whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an
opposing party.” Fed. R. Civ. P. 60(b)(3). To obtain relief under Rule 60(b)(3), “the
moving party must prove by clear and convincing evidence that the adverse party
6
Rule 60. Relief From a Judgment or Order, provides in relevant part,
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just
terms, the court may relieve a party or its legal representative from a final judgment,
order, or proceeding for the following reasons:
...
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
...
(c) Timing and Effect of the Motion.
(1) Timing. A motion under Rule 60(b) must be made within a reasonable time--and for
reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or
the date of the proceeding.
(d) Other Powers to Grant Relief. This rule does not limit a court's power to:
...
(3) set aside a judgment for fraud on the court.
6
obtained the verdict through fraud, misrepresentations, or other misconduct. The moving
party must also demonstrate that the conduct prevented them from fully presenting his
case.” Waddell v. Hendry Cty. Sheriff’s Office, 329 F.3d 1300, 1309 (11th Cir. 2003)
(citation omitted). In addition, Fed. R. Civ. P. 60(c) provides that a motion under Rule
60(b)(3) must be made within a reasonable time and no more than a year after the entry of
the judgment or order or the date of the proceeding.
For the following reasons, the undersigned denies the Defendants’ request to set
aside the judgment based upon Rule 60(b)(3)
1. The Defendants’ Motion Was Not Made within a Reasonable Time
Final Judgment in this case was entered in favor of Edel Leon and Javier Gonzalez
on February 28, 2013, and the instant Motion was filed on December 4, 2013. Thus, the
Motion was filed within one year after the entry of judgment, ECF Nos. [242] [328].
However, a motion is not timely pursuant to Rule 60 merely because it was filed less than
one year after the entry of judgment. See Harduvel v. General Dynamics Corp., 801 F.
Supp. 597 (M.D. Fla. Aug. 15, 1992) (citing White v. Am. Airlines, Inc., 915 F.2d 1414, 1425
(10th Cir. 1990)). Rather, the Rule expressly requires that the motion also be filed within
a “reasonable” time. “A determination of what constitutes a reasonable time depends on
the circumstances in an individual case, and in making the determination, courts should
consider whether the parties have been prejudiced by the delay and whether a good
reason has been presented for failing to take action sooner.” Rease v. AT&T Corp., 358 F.
App'x 73, 75 (11th Cir. 2009) (citing BUC Int'l Corp. v. Int'l Yacht Council Ltd., 517 F.3d
1271, 1275-76 (11th Cir. 2008) (internal quotations omitted).
Here, in addition to arguing that the Motion is timely because it was filed within
one year from entry of the Final Judgment, the Defendants argue that the Motion was
brought within a reasonable time because “Defendants only discovered the facts cited
herein during their discovery of the allegations in the recently filed Defamation
7
Complaint and have acted with due diligence since said discovery to verify the accuracy
of all the information discovered before presenting it to the Court.” ECF No. [328] at 15.
The Defendants’ contention that they have acted with due diligence regarding the
Plaintiffs’ alleged perjurious conduct is belied by the record. As discussed in detail
below, the record establishes that prior to trial, the Defendants had sufficient information
to believe that Plaintiff Leon was not truthful in his assertions in his deposition regarding
when he obtained employment after being terminated by the Defendants. See infra, pgs.
10-15. The “newly” discovered evidence cited by Defendants does not unearth new,
previously unknown acts of perjury, but rather confirms what the Defendants believed at
the time of trial, and at the time of the entry of the final judgment; that Leon lied about his
subsequent employment. Further, none of the “new” discovery that the Defendants rely
upon to establish their contention that their Motion is timely, support their contention
that it was Leon and Phillips’ plan “to make it appear as if Leon’s firing was retaliatory
measure” as alleged in by the Defendants in the Motion, ECF No. [328] at 16. Rather,
almost all of the evidence presented in the Lance Cooper Affidavit and the attachments,
other than the discussion of surveillance cameras, relate to the timing and details of
Leon’s employment at Perrine Rentals, and not the circumstances of his termination by
the Defendants. As such, it is unclear why the Defendants did not seek relief related the
Plaintiffs’ actions until December 4, 2013, nearly fifteen months after the jury’s July 12,
2012 verdict, and more than nine months after the Court’s February 28, 2013, entry of
Final Judgment in favor of the Plaintiffs. 7
7
The Court recognizes that the Defendants seek relief under Rule 60, which pertains to
Relief from a Judgment or Order. Given that the information that gives rise to the
Defendants’ claims of perjury was known to the Defendants prior to the trial and thus
prior to the entry of the Final Judgment, the Defendants could have raised these issues
during trial and well before entry of the Final Judgment if the jury had reached an
adverse verdict, and through a Rule 59 Motion.
8
Further, although arguably the Plaintiffs have not suffered significant prejudice,
other than a delay in satisfaction of the monetary judgment, the Plaintiffs, like all parties,
have an interest in finality, which in this case was delayed by the Defendants’ filing of the
instant Motion. See Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981)). Simply put,
given that the Defendants were aware of the facts related to the Plaintiffs’ purported
misconduct, the undersigned concludes that the Defendants have not established that
the Motion seeking relief from judgment was brought within a reasonable time.
Other Courts have similarly held that a party’s failure to seek Rule 60(b) relief
within a reasonable time, where the party knew of the grounds for such relief, is a basis
for denying a Rule 60(b) motion. See Stansell v. Revolutionary Armed Forces of
Colombia, 771 F. 3d 713, 738 (11th Cir. 2014) (refusing to consider 60(b)(3) claims where
five-month delay in filing motion for relief was unreasonable); Jimenez v. Stone, 604 F.
App’x. 753, 755 (10th Cir. 2015) (concluding that plaintiff’s eight-month delay in filing
60(b)(3) motion based on fraud was unreasonable where plaintiff knew or reasonably
should have known the purported grounds for motion much earlier); Columbia
Communications Corp. v. EchoStar Satellite Corp., 2 F. App’x. 360, 367 (4th Cir. 2001)
(finding fifteen month delay in bringing 60(b)(3) motion unreasonable, when issues of
case were briefed and argued before and during trial); DiVito v. Fid. & Deposit Co., 361
F.2d 936, 939 (7th Cir. 1966) (finding defendant had offered no convincing explanation of
its four and one-half month delay, after discovery of significant evidence of fraud); Del
Fuoco v. Wells, Case No. 8:03–CV–161–T–23TGW, 2007 WL 42960, at *6 (M.D. Fla. Jan.4,
2007) (observing that plaintiff failed to provide any reason at all, much less a good
reason, why the information contained in the documents was not presented sooner than
it was); Nat'l Org. for Women, Inc. v. Scheidler, Case No. 86 C 7888, 2001 WL 301143, at *5
(N.D.Ill. Mar. 28, 2001) (opining delay of seven months between learning of basis for Rule
60(b)(3) motion and filing was unreasonable where no proffered explanation provided).
9
Accordingly, the undersigned finds it appropriate to deny the Defendants’ Motion
on this basis alone, but as discussed below, also finds that the Defendants have failed to
meet the other requirements of Rule 60(b)(3), to warrant the relief they seek.
2.
The Defendants Have Not Demonstrated that They Were Unable to
Present Their Case Fully and Fairly Due to Plaintiffs’ Conduct
Even assuming arguendo that the Defendants brought the claims raised in the
instant Motion within a reasonable time, and that Plaintiff Leon and Phillips perjured
themselves, the Defendants would still not be entitled to the relief they seek because the
Defendants have not demonstrated that they were unable to present their case fully and
fairly due to Plaintiffs Leon and Phillips’ alleged misconduct. “A party cannot
successfully bring a Rule 60(b)(3) motion where the ‘pursuit of the truth was [not]
hampered by anything except [the movant’s] own reluctance to undertake an assiduous
investigation.’” Armstrong v. The Cadle Co., 239 F.R.D. 688, 695 (S.D. Fla. 2007) (internal
citation omitted) (alterations in original)). See also Diaz v. Methodist Hosp., 46 F.3d 492,
497 (5th Cir. 1995) (“When a party is capable of fully and fairly presenting her case
notwithstanding ‘fraud, misrepresentation, or other misconduct,’ the trial court does not
err when it denies a Rule 60(b)(3) motion.”). Indeed, the purpose of Rule 60(b)(3) is not to
correct outcomes that may be factually incorrect, but to rectify those that were unfairly
obtained. See Diaz, 46 F.3d at 497; Karak v. Bursaw Oil Corp., 288 F.3d 15, 21–22 (1st Cir.
2002) (“When a party is capable of fully and fairly preparing and presenting his case
notwithstanding the adverse party's arguable misconduct, the trial court is free to deny
relief under Rule 60(b)(3).”); 12 James Wm. Moore, Moore's Federal Practice, ¶ 60.43[1][c]
(3d ed.1998) (“Rule 60(b)(3) should not reward the lazy litigant who did not adequately
investigate his or her case. ...”).
Here, the record clearly establishes that well in advance of the trial, the
Defendants had reason to believe and evidence to support a claim that, despite Plaintiff
10
Leon’s representations to the contrary, Plaintiff Edel Leon had obtained other
employment within days after his termination from M.I. Quality Lawn. First, Plaintiff has
submitted an April 13, 2010 letter written by former Counsel for the Defendants, Carmen
Rodriguez, and submitted to the Unemployment Appeals Commission that states that
Ms. Rodriguez has evidence that two days after Edel Leon’s termination, Leon obtained
employment elsewhere, ECF Nos. [352-1] [381-2]. That letter further states that when the
Employer, who is identified as MI Quality Maintenance I, attempted to proffer evidence of
the Claimant’s (Edel Leon) subsequent employment in the hearing before the
Unemployment Compensation Appeals, the Appeals Referee denied the admission of
“any evidence that the Claimant was employed elsewhere during the time period for
which he claims to be entitled to benefits.” ECF No. [381-2] at 4. Ms. Rodriquez further
states in the letter that the evidence would deem the Claimant’s claim for unemployment
compensation to be fraudulent, and would have bearing on the Claimant’s credibility,
ECF No. [381-2] at 4. Thus, it is clear that as early as April of 2010, Defendants’ former
counsel had reason to believe that any representation by Edel Leon, or any witnesses,
including Kelly Phillips, that Edel Leon remained unemployed for three months after his
termination for MI Quality, likely was untrue.
This conclusion is supported by a review of certain questions posed to Edel Leon
by Defendants’ former counsel’s at Leon’s July 13, 2010 deposition. During his
deposition, after Leon testified that he began work at Perrine Rentals three months after
he was terminated by the Defendants, Defendants’ Counsel asked Leon why there would
be pictures of him wearing a Perrine Rentals uniform three days after he stopped
working at M.l. Quality, ECF No. [328-2] at 21-22. Such questioning suggests that
Counsel believed, at the time of the deposition, that Leon was not truthful regarding the
timing of when he obtained new employment subsequent to this termination by the
Defendants.
11
Further, in preparation for an evidentiary hearing related to the Defendant’s
Motion, the Plaintiff propounded Requests for Admissions on Defendants’ current
counsel which requested, among other things that the Defendants admit or deny that on
July 13, 2010, the date of Leon’s deposition, Defendants had knowledge that Edel Leon
was working at Perrine Rentals, ECF No. [388-1]. 8 In response, the Defendants stated,
“Based on Adriana Igelko’s representation to Defendants that she personally observed
Edel Leon’s truck and Edel Leon himself at Perrine Rentals (in what seemed to be a
Perrine Rentals Uniform) Defendants had a good faith basis to believe Edel Leon was
working at Perrine Rentals a few days after he was terminated from Defendant’s
employment.” ECF No. [388-1] at 1. Also, although the Defendants denied that they were
in possession of any video or photographs capturing Edel Leon working at Perrine
Rentals shortly after he was terminated by the Defendants, in response to another
Request for Admission, Defendants admitted that they attempted to proffer evidence at
Edel Leon’s Unemployment Compensation hearing that Edel Leon obtained subsequent
employment, ECF No. [388-1] at 4.
In addition, in Response to Plaintiff’s Interrogatory No. 3, which inquired about the
Defendants’ basis for questioning Edel Leon at his July 13, 2010 deposition about videos
of Mr. Leon working at another position after his termination, the Defendants stated,
“Adriana Igelko personally witnessed Edel Leon and his truck at Perrine Rentals, in what
seemed to be a Perrine Rentals Uniform, a few days after Edel Leon was terminated from
Defendant’s employment. On the same day she took pictures of Edel Leon.” ECF No.
[388-2] at 3. Based upon this record, the undersigned concludes that because the
Defendants, and their Counsel, had reason to believe that Edel Leon may have obtained
8
The Defendants’ Motion for Relief from Judgment was originally set for an evidentiary
hearing. However, after the Court held oral argument on the Motion, it became clear that
an evidentiary hearing was not necessary because the Defendants were unable to
demonstrate that they were entitled to relief even if the Plaintiffs had perjured
themselves.
12
employment shortly after his termination, the Defendants had the capability to fully and
fairly prepare and present their case notwithstanding Plaintiffs Leon and Kelly’s arguable
misconduct, i.e. perjury. 9
At the oral argument on the Motion for Relief for Judgment, Defendants sought to
avoid this determination by arguing that during the course of discovery in this action,
whenever the Defendants sought information about when Plaintiff Leon began working at
Perrine Rentals, Plaintiffs Edel Leon and Kelly Phillips would provide perjurious answers.
Defendants argued that as a result, prior to the trial in this case, Defendants did not have
evidence that Plaintiff Leon began working at Perrine Rentals as early as three days after
being terminated by the Defendants. The Defendants additionally stated at the oral
argument that they had issued a subpoena to Lance Cooper prior to trial but Cooper
failed to respond to the subpoena. The Defendants thus argued that they did not have
sufficient evidence of Edel Leon’s fraud until they obtained the bank statements and
payroll checks in the subsequent litigation (the Defamation Action) that reflected that
Plaintiff Leon began working for Lance Cooper at Perrine Rentals much earlier than
testified to by both Leon and Phillips at trial and in discovery.
The Defendants’ contention on this point is without merit. The question for
purposes of establishing whether the Defendants are entitled to Rule 60(b)(3) relief under
the facts of this case is whether, prior to trial, the Defendants had reason to believe that
Plaintiff Edel Leon was not being truthful in his deposition and representations made
during discovery regarding when he started to work for Perrine Rentals. The trial
transcript provides an affirmative answer to this query, as evidenced by the following
9
As noted by the Plaintiff in Response to the Defendants’ Motion for Relief from Final
Judgment, regardless of whether Defendants actually had photos and/or surveillance
video, or whether Defendants asked certain questions at Leon’s deposition in bad faith,
Defendants had knowledge of where Leon was employed long before the trial took place.
With that knowledge, Defendants’ counsel could have deposed Lance Cooper or
subpoenaed his records relating to Edel Leon including Leon’s employment application,
punch cards and pay records, ECF No. [336] at 6.
13
exchange between Defendants’ current Counsel and Edel Leon during the cross
examination of Leon:
Q:
You stated yesterday you started working at Perrine Rentals, I believe your
testimony was, and correct me if I’m wrong, three months after you were terminated from
M.I. Quality Lawn?
A:
Approximately three months after Mitch fired me, I started working for
Perrine.
Q:
Do you remember applying two to three days after you were terminated
from Mitchell’s Lawn or M.I. Quality Lawn Maintenance, applying to Perrine Rentals?
A:
Yes.
Q:
What you’re telling the ladies and gentlemen of the jury is that it took them
three months to hire you?
A:
Yes.
Q:
Sir, are you sure it wasn’t three weeks?
A:
Can I explain the reason why I was hired?
Q:
Sure, once you answer my question, you can explain whatever you want.
A:
I applied later, but it took around three months to get the job.
Q:
My question is, are you sure it didn’t take three weeks?
A:
Ah-ha, that’s right.
Q:
Sir, what if I tell you that I have surveillance of you working at Perrine
Rentals after three weeks of your termination of employment at M.I. Quality Lawn
Maintenance?
A:
I would be surprised.
Q:
You would be surprised?
A:
Yes.
...
14
Q:
So you didn’t work at Perrine Rentals three weeks after M.I. Quality Lawn
Maintenance, correct?
A:
That’s right.
ECF No. [315] at 9-10. Given that this line of questioning demonstrates that Defendants’
Counsel suspected at trial that Leon began working at Perrine Rentals shortly after he
was terminated, the Defendants have failed to offer any explanation for why an Affidavit
or deposition testimony was not obtained from Lance Cooper prior to the
commencement of the trial in this action. The Defendants further fail to explain why they
did not seek assistance from the Court when Lance Cooper failed to respond to the
subpoena served on him by the Defendants. The Defendants contend that although they
failed to raise these claims to the Court earlier, once the Defendants obtained bank
statements and pay check records for Leon from Lance Cooper, the Defendants acted
with due diligence to verify the accuracy of all of the information discovered before
presenting it to the Court, ECF No. [328] at 15. This statement begs the question of why
the Defendants failed to obtain those very same bank statements and pay check records
in the earlier litigation. At the oral argument, in response to the Court’s inquiry on this
point, Counsel for the Defendants stated that the case was a tough one with lots of
moving parts. While the undersigned acknowledges that there were a variety of factual
and legal issues litigated in this matter, that fact cannot serve to excuse the failure of a
party to obtain the information necessary to fully and fairly present its case through the
use of the discovery tools readily available to the parties.
It is for this reason that Defendants’ reliance on Abrahamsen v. Trans-State
Express, Inc., 92 F. 3d 425 (6th Cir. 1996) is misplaced. Leaving aside the fact that the
Abrahamsen opinion was issued by the Sixth Circuit Court of Appeals which is not
binding on the undersigned, in that case, there was no dispute that the plaintiffs, who
moved for relief from judgment pursuant to Rule 60(b) were taken by surprise by the
15
evidence that was not disclosed until after trial, and that, as a result, the plaintiffs were
prevented from fully and fairly presenting their case. Id. at 429.
For the same reasons, Defendants’ reliance on on Harre v. A.H. Robins Co., 750 F.
3rd 1501 (11th Cir. 1985) is also misplaced. In Harre, the Eleventh Circuit stated:
We are convinced that, had counsel for the Appellants been
aware that [the witness] had not actually directed,
participated in or even observed the experiments he
described, it would have made a difference in their approach
to the case, and particularly in their cross-examination of
[that witness]. Therefore, we conclude that Appellants were
prejudiced by the discrepancies in [the witness’] testimony.
Id. at *1505. (emphasis added). Rozier v. Ford Motor Co., 573 F.2d 1332, 1342 (5th Cir.
1978), which is cited by Defendants, is also distinguishable. In Rozier, the reviewing
court examined whether the nondisclosure of certain information prevented the plaintiff
from fully and fairly presenting her case, and concluded that the disclosure of that
information would have made a difference in the way plaintiff’s counsel approached the
case or prepared for trial. The Defendants in the case at bar have not suggested how
they would have approached this case differently or prepared for trial differently had they
had the “new” discovery provided by Lance Cooper. This omission is likely due to the
fact that the information and evidence which the Defendants had in their possession
prior to trial, or that could have obtained through an assiduous investigation, was
sufficient for the Defendants to advance their theory of the Plaintiffs’ fraud and
misrepresentation at the trial.
In this regard, this case is very similar to C.L. Taylor v. Texgas Corp., 831 F. 2d
255 (11th Cir. 1987) where the Eleventh Circuit vacated a trial court’s ruling that the
defendant was entitled to Rule 60(b)(3) relief where the plaintiff gave untruthful testimony
at a hearing regarding pension payments he was receiving. In remanding the case to the
district court, the reviewing court observed that because the defendant itself knew that it
had been making pension payments to the plaintiff, even if defendant’s counsel was not
16
aware, the defendant could not show that the plaintiff’s failure to mention the pension
payment prevented the defendant from fully and fairly presenting its case. Id. at 259-260.
See also, Waddell v. Hendry Cty. Sheriff’s Office, 329 F.3d 1300, 1309-1310 (11th Cir.
2003) (affirming district court’s denial of a motion seeking relief pursuant to Rule 60(b)(2)
and (3) related to the court’s summary judgment ruling because plaintiff failed to seek to
depose a witness prior to summary judgment, and did not seek to stay the court’s
summary judgment ruling, until the plaintiffs could conduct the discovery needed to
defend against the defendants’ motion for summary judgment.)
Similarly, in Brinklys v. Duke, No. 3:14-cv-121—J-34MCR, 2017 WL 3521744, *1
(M.D. Fla. Aug. 16, 2017), the plaintiffs contended that the defendants engaged in
misconduct and committed a fraud upon the Court by withholding “newly discovered”
evidence, misrepresenting an arrest report, and “cherry picking” evidence to support a
pre-determined conclusion regarding the defendants’ motion for summary judgment. The
court concluded that because the plaintiffs had in their possession or had available to
them prior to the court’s entry of the Summary Judgment Order, the very evidence of
which they complained, the plaintiffs were not entitled to rely on that evidence to serve
as the basis for relief under Rule 60(b)(3). Accord Brown v. Press Repair Eng'g Sales &
Serv., Inc., No. 8:07-cv-931-T-27MAP, 2008 WL 2433504, at *2 (M.D. Fla. Jun. 16, 2008)
(“Plaintiff has not shown that any conduct by Defendants prevented him from fully and
fairly presenting his case, as the evidence on which Plaintiff relies was in Plaintiff’s
possession or available to Plaintiff before the Court entered its order of dismissal.”).
Finally, in Armstrong v. The Cadle Co., 239 F.R.D. 688, 694 (S.D. Fla. 2007), the
court concluded that the defendant failed to establish that they were entitled to Rule
60(b)(3) relief based upon the defendant’s contention that the plaintiff’s testimony at trial
was directly contradicted by deposition testimony and answers to interrogatories
previously provided by that plaintiff in two related state court actions. The court
17
concluded that because the defendant was fully aware of the plaintiff’s answers to
interrogatories and his deposition testimony prior to trial, the defendant knew that the
plaintiff’s trial testimony was inconsistent and therefore should have challenged the
plaintiff’s credibility at trial. Id. at 695. However, because the defendant affirmatively
elected not to attack the plaintiff’s credibility, defendant failed to establish that the
plaintiff’s purported perjury denied the defendant the full and fair opportunity to try its
case. Id.
Accordingly, Defendants herein are not entitled to relief pursuant to Fed. R. Civ. P.
60(b)(3), because they have not demonstrated that they were unable to present their case
fully and fairly due to the Plaintiffs’ purported misconduct. 10
3.
The Court Need Not Determine Whether Defendants Have
Established by Clear and Convincing Evidence that Plaintiff Leon
and Phillips Perjured Themselves at Trial
The Defendants contend that Plaintiff Leon committed perjury during his July 13,
2010 deposition by stating that Leon waited three months before finding another job, and
that Plaintiff Leon and Phillips committed perjury at trial by testifying that Leon was not
compensated for health insurance at his new job, and that Leon suffered mental anguish
due to cameras at the Defendants’ place of employment.
As stated in Armstrong v. The Cadle Co., 239 F.R.D. 688, 691 (S.D. Fla. 2007),
“Misconduct may be established by proving that the opposing party willfully committed
perjury.” Accord Kissinger-Campbell v. Harrell, No. 8:08-cv-568, 2009 WL 10670803, at *1
10
The undersigned notes that the Defendants also are not entitled to relief under Rule
60(b)(6), the “catchall” section that provides relief from judgment for “any other reason
that justifies relief.” Relief under Rule 60(b)(6) applies only to cases that do not fall into
any of the other provisions of Rule 60(b). Rule 60(b)(6) cannot be used to obtain relief
also available under Rule 60(b)(2) (new evidence) and 60(b)(3) (a fraud on the court or
misrepresentation or misconduct by the opposing party). Rease v. AT&T Corp., 358 F.
App’x 73, 76 (11th Cir. 2010).
18
(M.D. Fla. Dec. 16, 2009) (“Misconduct may be shown by evidence that the opposing
party withheld information called for by discovery or willfully committed perjury.”).
Thus while perjury of the nature alleged by Defendants may provide a basis for
seeking Rule 60(b)(3) relief, and it appears that the Defendants have significant evidence
that may demonstrate that Plaintiffs Leon and Phillips were not truthful in their testimony
regarding Leon’s subsequent employment, the undersigned need not reach that
determination because, as discussed above, the purported falsity of the statements
made by Plaintiffs was known by the Defendants well in advance of the trial, and did not
prevent the Defendants from presenting their case fully at trial.
However, that notwithstanding, the undersigned notes that even if Plaintiff Leon
had obtained subsequent employment three days after he left the Defendants’ employ
and his new employer paid for his health insurance, those facts go to the determination
of the amount of damages, and not whether Leon was retaliated against by the
Defendants in violation of the FLSA, which was the cause of action litigated in this
matter. In other words, a finding that Edel Leon had not been truthful about when he
began working at Perrine Rentals would not, in and of itself, relieve the Defendants from
a finding of liability. To the extent that the Defendants believe that Plaintiffs Leon and
Phillips “invented this lawsuit for stealing thousands of dollars from Igelko and his
companies”, ECF No. [328] at 16, because the Defendants were able to present this
theory to the jury, as discussed above, they are not entitled to Rule 60(b)(3) relief, even if
such misconduct could be established.
One other point bears noting. The Defendants contend that the new evidence
establishes that Plaintiff Leon, with the assistance of Kelly Phillips, orchestrated his
firing so that he could advance a fraudulent claim of FLSA retaliatory termination, ECF
No. [328] at 16. Specifically, the Defendants argue that Lance Cooper’s statements that
Edel Leon applied for and secured employment at Perrine Rentals even before he was
19
terminated by the Defendants is evidence of this scheme, ECF No. [328] at 16. However,
Lance Cooper’s Affidavit on this issue, if true, only establishes that Leon applied for a
job at Perrine Rentals prior to being terminated by the Defendants and indicated to Lance
Cooper that he would be available for work beginning on August 24, 2009, five days after
he was terminated, ECF No. [329] at 1-2. Significantly, the Defendants fail to
acknowledge that the Plaintiffs argued at trial that Edel Leon joined an FLSA lawsuit in
another action on August 17, 2009, and that he was terminated, two days later, on August
19, 2009. Thus, it is not unreasonable to conclude the jury may have believed that it was
not Leon’s fabricated insubordination, as described by the Defendants, that resulted in
his termination, but Leon’s involvement in an FLSA lawsuit that prompted his firing by
the Defendants. Similarly, the fact that Leon searched for other employment prior to
being terminated does not demonstrate, let alone establish by clear and convincing
evidence, that Plaintiffs Leon and Phillips were engaged in an elaborate scheme to
perpetrate a fraud upon the Court. Rather, a jury may have believed that Leon, with or
without the urging of his wife Kelly Phillips, began to look for other employment, for any
number of reasons, including in anticipation that once the Defendants were made aware
of his involvement in an FLSA lawsuit, that he would be retaliated against. 11
11
In any event, it is this very type of Monday morning quarterbacking that could have
been avoided had the Defendants followed-up with discovery based upon their belief that
Leon was not truthful regarding his subsequent employment and presented such
discovery to the jury. Indeed, it undermines the very purpose of having a jury trial if,
after verdict, the losing party is able to continually press the merits of its case by
presenting additional evidence to the Court that could have been obtained and presented
to the jury during the trial of the matter.
The peril of accepting the Defendants’ approach to resolving factual inconsistencies
post-trial is even more evident with regard to Defendants’ contention that Edel Leon did
not suffer any damages due to the surveillance cameras, but only made such false
allegations so that he could claim emotional distress damages. On this issue, in their
Motion, the Defendants assert that, in his Affidavit, Lance Cooper swears that “Phillips
told him jokingly that her attorney was claiming emotional distress for Leon because of a
purported issue Leon has with video cameras.” ECF No. [328] at 13. Lance Cooper’s
Affidavit further states that throughout the court of his employment at Best Equipment,
20
B.
Court’s Inherent Authority to Set Aside Judgment
In their Motion, in addition to seeking relief pursuant to Rule 60(b)(3), the
Defendants seek relief pursuant to the Court’s inherent authority, ECF No. [328] at 18.
However, it is not entirely clear whether the Defendants only seek sanctions pursuant to
the Court’s inherent authority, or also seek to have the Final Judgment set aside based
upon the Court’s inherent power. This uncertainty is due to the Defendants’ assertion in
the Motion that the Court may, pursuant to its inherent powers, vacate its own judgment
upon proof that a fraud has been perpetrated upon the Court, ECF No. [328] at 18. The
Defendants made similar assertions at the oral argument on the Motion. Thus, in an
abundance of the caution, the undersigned examines whether, under the facts of this
case, the Defendants are entitled to have the Final Judgment vacated based upon the
Court’s inherent authority for a fraud perpetrated against the Court.
It is beyond dispute, that the Court’s inherent power allows a federal court to
vacate its own judgment upon proof that a fraud has been perpetrated upon the court.
See Hazel–Atlas Glass Co. v. Hartford–Empire Co., 322 U.S. 238, (1944); Universal Oil
Products Co. v. Root Refining Co., 328 U.S. 575, 580, (1946). 12 This power is expressly
Leon never had a problem working with Lance Cooper despite constant video
surveillance, ECF No. [329] at 4. Thus, based upon these statements, the Defendants, in
essence, seek post-trial to have this Court hold a mini-trial on the issue of whether Kelly
Phillips, not Edel Leon, told Lance Cooper, in a joking manner, that Leon’s attorney was
claiming emotional damages due to the surveillance cameras, and, assuming that
Phillips admitted that she made such a statement what she meant by that statement, and
whether Leon actually was or was not disturbed by the surveillance cameras as
evidenced by Leon’s lack of being disturbed by the surveillance cameras at his
subsequent employment, as observed by Lance Cooper. Assuming that these
convoluted issues were even relevant to establishing Plaintiff Leon’s claims, such
inquiries should have been made at trial, rather than seventeen months after the jury
rendered its verdict on this matter.
12
In Hazel-Atlas, the Supreme Court recognized an exception to the general rule “that
judgments should not be disturbed after the term of their entry has expired,” and held
that federal courts have an inherent power to “set aside their judgments after the
expiration of the term at which the judgments were finally entered ... under certain
circumstances, one of which is after-discovered fraud.” Hazel-Atlas, 322 U.S. at 244.
21
recognized in Rule 60(d)(3), which confirms that Rule 60 “does not limit a court's power
to ... set aside a judgment for fraud on the court.”13 However, “[b]ecause of their very
potency, inherent powers must be exercised with restraint and discretion.” Id. at 44. As
explained by the Eleventh Circuit, in Brown v. S.E.C., 644 F. App’x 957 (11th Cir. March 2,
2016),
Rule 60(d)(3) provides that a court can ‘set aside a judgment
for fraud on the court.’ We have defined ‘fraud on the court’
as ‘that species of fraud which does or attempts to, defile the
court itself, or is a fraud perpetrated by officers of the court
so that the judicial machinery cannot perform in the usual
manner its impartial task of adjudging cases that are
presented for adjudication.’. . . But ‘[f]raud inter parties,
without more, should not be fraud upon the court.’
Id. (citation omitted). As such, perjury and fabricated evidence do not constitute fraud
upon the court, because they “are evils that can and should be exposed at trial,” and
“[f]raud on the court is therefore limited to the more egregious forms of subversion of
the legal process, . . . those we cannot necessarily expect to be exposed by the normal
adversary process.” Travelers Indem. Co. v. Gore, 761 F.2d 1549, 1552 (11th Cir. 1985)
(per curiam). Thus, a party commits fraud on the court where a party has sentiently set in
motion some unconscionable scheme calculated to interfere with the judicial system’s
ability impartially to adjudicate a matter by improperly influencing the trier or unfairly
hampering the presentation of the opposing party’s claim or defense. Vargas, 901 F.
Supp. 1572, 1579 (S.D. Fla. 1995) (citing Aoude v. Mobil Oil Corporation, 892 F.2d 1115,
1118 (1st Cir. 1989)). A finding of fraud should be reserved for “only the most egregious
misconduct, such as bribery of a judge or members of the jury, or the fabrication of
13
Prior to the amendments to the Federal Rules of Civil Procedure in 2007, the savings
clause for fraud on the court was contained in Rule 60(b), thus courts referred to Rule
60(b) as preserving a court's inherent power to set aside a final judgment for fraud on the
court. As part of the stylistic amendments in 2007, the savings clause language was
moved from subsection (b) to subsection (d)(3).
22
evidence by a party.” Patterson v. Lew, 265 F. App’x 767, 768 (11th Cir. 2008) (quoting
Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978)).
In S.E.C. v. E.S.M. Group, Inc., 835 F.2d 270, 273-274 (11th Cir. 1988), for example,
the Court stated, “perjury does not constitute fraud on the court ... [because] [t]his is the
type of fraud [that] litigants should discover; it does not prevent a party from gaining
access to an impartial system of justice.” (internal citations and quotations omitted);
accord Patterson, 265 F. App’x at 769; Bryant v. Troutman, 2006 WL 1640484, No. 3:05CV-162-J-20MCR. (M.D. Fla. Jun. 8, 2006) (finding that “lying under oath, giving
misleading answers under oath, thwarting Defendants’ discovery, and concealing the
existence and/or extent of both prior and subsequent injuries” in personal injury action
did not constitute fraud on the court); Dewdney v. Eckerd Corp., 2008 WL 2370155, No.
8:07-cv-567-T-24 TBM. (M.D. Fla. Jun. 26, 2008) (finding that numerous “significant
inconsistencies” in Plaintiff’s sworn testimony were not so significant as to warrant an
involuntary dismissal with prejudice); McCarthy v. American Airlines, Inc., 2008 WL
2517129, No. 07-61016-CIV. (S.D. Fla. Jun. 23, 2008) (finding that Plaintiff’s failure to
disclose prior injuries and the names of all prior treating physicians in personal injury
action did not warrant the “extreme sanction of dismissal”).
Further, where relief from a judgment is sought for fraud on the court, the movant
must establish by clear and convincing evidence the adverse party obtained the verdict
through fraud. Cox Nuclear Pharmacy, Inc. v. CTI, Inc., 478 F.3d 1303, 1314 (11th Cir.
2007). “Conclusory averments of the existence of fraud made on information and belief
and unaccompanied by a statement of clear and convincing probative facts which
support such belief do not serve to raise the issue of the existence of fraud.” Booker v.
Dugger, 825 F.2d 281, 283–84 (11th Cir. 1987) (citations, internal quotations marks, and
alterations omitted).
23
Here, the Defendants contend that Plaintiff Leon’s perjury resulted in the entry of
a fraudulent final judgment, ECF No. [328] at 18. In support of this contention, as stated
above, the Defendants assert, as they did in closing argument at trial, that Plaintiff Leon,
with the assistance of Kelly Phillips, orchestrated his firing so that he could advance a
fraudulent claim of FLSA retaliatory termination, ECF No. [328] at 16. However,
Defendants’ claim is conclusory in nature, does not provide clear and convincing
probative facts, and is not supported by any direct evidence. Moreover, this type of
allegation, even if true, does not demonstrate that a fraud was perpetrated against the
Court, rather than a litigant. See Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir.
1985) (stating “the ‘fraud on the court’ necessary to support either an independent action
or to invoke the inherent power of a court is ‘fraud which is directed to the judicial
machinery itself ... not fraud between the parties or fraudulent documents, false
statements or perjury.’”). Rather, in order to prevail on a fraud upon the court claim, a
moving party must show that the opposing party's fraud subverted the integrity of the
court to the extent that the fraud prevented the court from exercising impartial judgment.
R.C. ex rel. Alabama Disabilities Advocacy Program v. Nachman, 969 F. Supp. 682, 690
(M.D. Ala. 1997), aff'd sub nom., R.C. v. Nachman, 145 F.3d 363 (11th Cir. 1998); 11
Charles Alan Wright, et al., Federal Practice and Procedure § 2870 (3d ed. 2017). 14
The Defendants have thus failed to allege conduct by the Plaintiffs sufficient to
support a claim of fraud upon the court, and Defendants are not entitled to have the final
judgment set aside based upon the Court’s inherent powers.
14
The undersigned recognizes that courts have found that fraud on the Court may be
established where a witness and an attorney conspire to present perjured testimony. See
e.g., Cleveland Demolition Co. v. Azcon Scrap Corp., 827 F.2d 984, 986 (4th Cir.1987)
(fraud on court may exist where witness and attorney conspire to present perjured
testimony); Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir.1978) (same, where
party, with counsel's collusion, fabricates evidence). In this case, the Defendants
concede that Counsel for Leon was not aware of Leon’s alleged fraud and perjured
testimony, ECF No. [328] at 17, n. 3.
24
C.
The Defendants’ Request for the Imposition of Sanctions
Pursuant to Court’s Inherent Authority is Untimely
Finally, perhaps recognizing that the conclusory allegations contained in their
Motion are insufficient to support a claim that the Plaintiffs Leon and Phillips perpetrated
a “fraud on the court”, the Defendants assert that based on the Plaintiffs’ misconduct,
the Court should impose sanctions on the Plaintiffs by striking the Plaintiffs’ pleadings
and awarding Defendants all attorneys’ fees and costs incurred in defending this action,
ECF No. [328] at 19. The Defendants’ request is untimely. 15
In Peer v. Lewis, 606 F.3d 1306, 1315 n.10 (11th Cir. 2010), the Eleventh Circuit,
citing Prosser v. Prosser, 186 F.3d 403 (3d Cir. 1999), held that a motion for sanctions
pursuant to the court's inherent power was timely when it is filed before the entry of final
judgment. In Peer, the defendant filed motions for sanctions on October 10, 2006, and
July 9, 2007, prior to the court’s denial of the plaintiff's motion for a new trial. Id. at 1310.
As noted in Hill v. Clark, 2:10-CV-00260-WCO, 2010 WL 13018385, *5 (N.D. Ga. Aug. 16,
2012),
[A]lthough Peer did not directly hold that a motion seeking
attorney's fees under the court's inherent power would be
untimely if it was filed after the entry of final judgment, the
court approvingly cited Prosser v. Prosser, 186 F.3d 403 (3d
Cir. 1999), which the Eleventh Circuit characterized as
holding that ‘a motion for sanctions pursuant to the court's
inherent power must be filed before entry of the court's final
order’ where the ‘sanctionable conduct occurs and is
discovered before final judgment....’ Peer, 606 F.3d at 1315
n.10. Thus, Peer arguably supports the conclusion that
movant's motion for sanctions under the court's inherent
power is untimely, because all of the allegedly sanctionable
conduct occurred either prior to or immediately after the
voluntary dismissal.
15
Although the Defendants correctly observe that a Court has the authority under its
inherent power to sanction litigants for perjury or other abuses, in this case, the
purported conduct alleged to have been committed by Plaintiff Leon did not result in a
fraudulent judgment that rises to the level of fraud upon the court sufficient to set aside
the judgment in this case. The Defendants have not cited any case where a court has set
aside a judgment pursuant to its inherent power to sanction for litigation abuses, absent
a finding of fraud upon the court.
25
Id. See also, e.g., Roy v. Bd. of Cnty. Comm'rs, No. 3:06cv95/MCR/EMT, 2011 WL 4904410,
at *10 (N.D. Fla. Sept. 27, 2011) (unpublished) (denying motion for sanctions, sought
pursuant to the court's inherent power, as untimely where sanctionable conduct
occurred and was discovered before entry of final judgment) (citing Peer), Report and
Recommendation Adopted by 2011 WL 4904409 (N.D. Fla. Oct. 14, 2011) (unpublished); In
re Benevento, No. 10-25535-EPK, 2013 WL 1292671, at *9 (S.D. Fla. Mar. 27, 2013)
(unpublished) (same); USA Video Tech. Corp. v. Movielink, LLC, No. Civ. A-03-368-KAJ,
2005 WL 3418407, at *2 n.4 (D. Del. Dec. 13, 2005) (unpublished) (same). Thus, the
Defendants’ request for the imposition of sanctions after entry of final judgment related
to conduct that occurred during the course of the proceedings, that was known to the
Defendants prior to entry of the final judgment, is untimely.
Even if the Defendants’ request for the imposition of sanctions was not barred by
the prior entry of the final judgment, the undersigned concludes that the Defendants’
request for sanctions is nonetheless untimely. The Defendants correctly note that a
federal judge’s inherent power to award sanction is derived from the Court’s need to
manage its own affairs so as to achieve the orderly and expeditious disposition of cases.
Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991). In this case, the Defendants’ decision
to wait until over a year after the jury returned its verdict against the Defendants to seek
sanctions from this Court based upon the Plaintiffs’ purported misconduct and/or
litigation abuses during the trial without providing a valid reason for doing so,
undermines the very policy that Court’s cite in support the imposition of sanctions
pursuant to the Court’s inherent authority. Other than unconvincingly asserting that they
were unable to adequately present their claims regarding perjury by the Plaintiffs until
they obtained additional discovery in a subsequent action, the Defendants have failed to
26
provide a reason for their failure to seek sanctions earlier in this action. The Defendants
are therefore not entitled to relief based upon the Court’s inherent authority to sanction.
III.
CONCLUSION
Accordingly, after a careful review of the record, and for the reasons discussed
above, it is hereby
ORDERED AND ADJUDGED that Defendants’ Motion for Relief from Judgment
and for Sanctions is DENIED, ECF No. [328]. It is further
ORDERED AND ADJUDGED that on or before December 5, 2018, the Plaintiffs
may file a renewed Motion for Attorney’s Fees and Costs reflecting the attorney’s fees
and costs incurred for only the prevailing Plaintiffs, Javier Gonzalez and Edel Leon. The
Defendants may file a response on or before December 12, 2018, and the Plaintiffs may
filed a reply on or before December 17, 2018. The undersigned has determined that this
shortened time frame is appropriate since the motions and memoranda addressing
attorneys’ fees were previously filed and denied without prejudice due to the pendency
of the motion resolved by this Order. Extensions of time related to these filings will only
be granted by the Court based upon extraordinary circumstances.
DONE AND ORDERED in Chambers in Miami-Dade County, Florida, this 29th
day of November, 2018.
____________________________________
ANDREA M. SIMONTON
CHIEF UNITED STATES MAGISTRATE JUDGE
Copies via CM/ECF to:
All parties of record
27
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?