Nieman v. Grange Mutual Casualty Company et al

Filing 74

OPINION (See Written Opinion): The Motion for Preliminary Injunction [d/e 66 ] is DENIED. The Temporary Injunction previously entered is Vacated. The Motion for Sanctions [d/e 62 ] is DENIED IN PART, to the extent that the Motion requests dismissal. It is otherwise held in Abeyance. The stay on any filings is hereby Vacated. Entered by Judge Richard Mills on 8/31/2012. (VM, ilcd)

E-FILED

Friday, 31 August, 2012 02:42:49 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JASON LEE NIEMAN,
Plaintiff,
v.
GRANGE MUTUAL INSURANCE
COMPANY and INTEGRITY
MUTUAL INSURANCE
COMPANY,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

No. 11-3404

OPINION
RICHARD MILLS, U.S. District Judge:
On August 7, 2012, Defendants Grange Mutual Casualty Company
(Grange) and Integrity Mutual Insurance Company (Integrity) filed a
Motion for Sanctions. On August 9, 2012, the Defendants filed a Motion
for Preliminary Injunction. Pro Se Plaintiff Jason Lee Nieman has filed a
Response to both Motions. On August 16, 2012, the Court heard oral
argument on those Motions. Mr. Nieman appeared on his own behalf.
Attorney Brian P. Paul appeared on behalf of Grange and Integrity.

I.
The Plaintiff filed the Complaint on November 3, 2011, asserting a
number of claims against various Defendants.

Several claims and

Defendants have since been dismissed. The remaining claims are against
Grange and Integrity. Generally, the Plaintiff asserts that Defendants
retaliated against him in violation of Title VII after learning of his prior
protected activity.

He also asserts claims pursuant to the Age

Discrimination in Employment Act.
Prior to the Hearing, in an Order entered on August 10, 2012, the
Court temporarily enjoined the Plaintiff from doing any of the following
without first obtaining leave of Court:
(1) filing any action, complaint, or claim for relief against any witness,
Grange Mutual Casualty Company, Integrity Mutual Insurance Company,
or any of their affiliates, subsidiaries, agents, insurers, representatives,
employees, or attorneys; and
(2) contacting directly Integrity’s insurers or any party to this
litigation represented by counsel without counsel present.

2

At the Hearing, Mr. Paul stated that between the time that the
Defendants filed their Motion for Preliminary Injunction and the Court’s
entry of a Temporary Injunction, Mr. Nieman filed another EEOC charge
against Integrity and its Counsel, supplemented his criminal charges and
professional ethics complaints, and sent a Rule 11 letter to Counsel stating
that his emails were mis-characterized. See Transcript of Oral Argument,
23-24.
II.
In their Motion for Sanctions, relying on Chambers v. NASCO, Inc.,
501 U.S. 32,44-45, 51 (1991), the Defendants ask the Court to use its
inherent power to dismiss this case with prejudice and award them
attorney’s fees and costs for what they allege is the Plaintiff’s abuse of the
judicial process. They claim that Plaintiff’s purpose in engaging in this
conduct is to obtain a large and unmerited settlement. “District judges
have the inherent authority to impose sanctions–including dismissal–when
a litigant engages in conduct that abuses the judicial process.” White v.
Williams, 423 F. App’x 645, 646 (7th Cir. 2011).

3

Specifically, the Defendants contend that Plaintiff’s litigation tactics
have included the following:
libel, subornation of perjury, unfounded lawsuits against
individuals, a spurious lawsuit in Ohio federal court, frivolous
motions to the court, baseless EEOC Charges, baseless Charges
to Wisconsin Equal Rights Division, Illinois Department of
Human Rights, and Missouri Human Rights Department,
request for U.S. Attorney investigation into criminal allegations,
request for Wisconsin Office of Lawyer Regular investigation,
repeated complaints to Defense Counsel’s Managing Partner,
complaint to Grange’s Board of Directors, threats to run up
defense costs, threats of sanctions, threats to sue potential
witnesses if they fail to provide favorable evidence, threats to
damage counsel’s professional career, threats that Integrity
executives and inside counsel will lose their jobs, and threats of
criminal prosecution.
Defs’ Mot. for Sanctions, at 2. Mr. Paul stated that since the motion was
filed, the Plaintiff has supplemented various ethics and criminal complaints
and also threatened to report him to the Illinois Attorney Registration and
Disciplinary Commission. See Transcript of Oral Argument, 22. Both in
their Motion for Preliminary Injunction and at the Hearing, the Defendants
allege that although the Plaintiff sometimes represented in pleadings that
he would not be seeking any sanctions, he immediately thereafter
threatened the Defendants and their Counsel with sanctions, disbarment
4

and criminal activity. Mr. Paul stated that Mr. Nieman has sent more than
ten emails threatening sanctions. See Transcript of Oral Argument, 10.
In a previous Order, the Court noted conduct on the part of the
Plaintiff that appeared to be “deeply troubling.” See Order [d/e 69], at 3.
For example, in their Motion for Sanctions, the Defendants allege that
Plaintiff has accused Counsel and others of engaging in criminal conduct.
In an email to Counsel’s managing partner on August 2, 2012, the Plaintiff
accuses Counsel and a witness of engaging in criminal misconduct. See
Defs.’ Memo. in Supp. of Mot. for Sanctions, Ex. 33. The Plaintiff further
stated:
While I am absolutely incensed by the conduct of your clients
and Mr. Croysdale I would rather see finality in this case sooner
rather than later. Accordingly, I encourage you to discuss this
matter with Mr. Croysdale and/or your clients to see if perhaps
they should reconsider their current negotiations stance.
Notwithstanding, I will be forwarding supplements to the U.S.
Attorney and the Wisconsin ORC due to previous notifications,
as the recent revelations strengthen my allegations and or
concerns that perjury, witness intimidation, and /or witness
bribery may well have occurred in this case as to Mr. Gipson,
and perhaps beyond.
Id. On July 29, 2012, the Plaintiff sent an email to a member of the Grange

5

Board of Directors stating that he had been unable to convince “the
primary contacts or attorneys to take this case seriously.” He further
warned of potential “catastrophic” exposure, “likely exposing Integrity
and/or Grange to a potential jury verdict of seven figures or more, along
with other related costs and damages.” See Defs’ Memo. in Supp. of Mot.
for Sanctions, Ex. 31.
While motions to dismiss were pending in this case, on March 19,
2012, the Plaintiff emailed Counsel for the Defendants and said, in part:
[T]he other challenge you face is that if your clients, or your
firms, take part in unwarranted factual denials you will expose
client and attorney alike to Rule 11 and/or section 1927
sanctions. You may rest assured that I am very thorough in my
inquiries, including discovery practice, and do not miss much.
It is also a matter of public record that in the Nationwide matter
the parties agreed to “amicably conclude” the case while two
Plaintiff’s motions were pending, one to compel discovery
response/for sanctions and a second seeking second sanctions
related to alleged evidence manufacturing. As I recall the
chronology, the parties agreed to conclude the dispute less than
30 days after that last pleading was filed.
See Defs.’ Memo. in Supp. of Mot. for Sanctions, Ex. 9.
More recently, in a July 30, 2012 email to Counsel, the Plaintiff
stated, in part:
6

To the extent you are telling your clients they can win this case,
I believe you are doing them, and yourself, a disservice. The
wise opponent knows when to seek compromise and peace.
Only a fool insists on waging a losing war to the end. If your
clients insist on taking the latter route I suspect that it will
damage and/or destroy one or more careers within
Integrity/Grange. Additionally, it will likely do no good to your
reputation, particularly if you are beaten by a pro se litigant.
See Defs.’ Memo. in Supp. of Mot. for Sanctions, Ex. 30.
These are just some examples of correspondence from the Plaintiff
wherein he has accused individuals of criminal acts and/or ethical
violations. Based on the quoted passages and the other examples, it appears
reasonable to infer that part of the Plaintiff’s strategy throughout the
litigation has been to use the threat of criminal liability and/or ethical
sanctions in the hope of obtaining a favorable settlement.
III.
The Court previously observed that it is also a very serious matter to
harass a witness or accuse a witness of engaging in criminal conduct. The
Plaintiff sent a letter dated Jun 28, 2012, to Jeff Gipson, an employment
recruiter who was deposed in connection with this case. See Defs.’ Memo.
in Supp. of Mot. for Sanctions, Ex. 19. Mr. Nieman stated in part:
7

While I am not a lawyer, and cannot give you legal advice, your
testimony leads me to believe that you are very much ignorant
and/or misinformed about the nature of employment law and
compliance issues, many of which would appear to relate
directly to your occupation and company. I would encourage
you to seek out a reliable source of information as to this
aspect. If you do not, I fear that at some point you will be
involved in a legal matter again, and lacking critical education
and/or knowledge about these issues I anticipate that you may
not be pleased with the process or the outcome. . . .
I also believe that honorable people sometimes make mistakes.
To the extent that someone felt that they were under improper
influence, either by way of promised or agreed incentives or as
to fear of loss of business or damage to business prospects, one
could understand how a reasonable person might be tempted by
such things. But in the context of a federal lawsuit and a sworn
deposition it would seem that such temptations would need to
be resisted fully. However, if you made a very human error
yesterday, or in the period leading up to your deposition, and
wanted to take affirmative action to correct that error and set
the record straight, it is possible that you may have that
opportunity. But I am also confident that were such a situation
to occur, and as more and more time were to pass between the
date of the error and the revelation of truth and/or omission,
the ability to extricate one’s self from the possible ramifications
of such actions would appear to decline. Accordingly, if any of
this has occurred, you may well want to seek legal advice if it is
your intent to try and correct such errors or omissions which
may have occurred.
Id. The quoted passages appear to be a rather blatant attempt to persuade
the witness to change his testimony. On July 27, 2012, the Plaintiff
8

emailed Mr. Gipson to threaten legal action. See Defs.’ Memo. in Supp. of
Mot. for Sanctions, Ex. 27. The Plaintiff filed an EEOC charge against
Gipson and requested dual filings with the Missouri Human Rights
Commission and the Illinois Department of Human Rights, stating that
“these actions represent some of the worst possible acts imaginable by Mr.
Gipson, or his apparent co-conspirators, that could possibly be admitted
within an employment discrimination and/or retaliation matter.” Id.
On July 29, 2012, the Plaintiff sent a letter to the United States
Attorney of the Central District of Illinois. Mr. Nieman accuses Counsel
and employees of the Defendant of “persuad[ing] and/or intimidat[ing]”
Mr. Gipson into committing perjury. See Defs. Memo. in Supp. of Mot. for
Sanctions, Ex. 29.

The letter states that “Gipson likely knowingly

committed perjury by the way of making false statements, by withholding
material information, and/or by falsely asserting a lack of knowledge or
recollection one or more times during his deposition of June 28, 2012.” Id.
The Plaintiff informed the Court that the U.S. Attorney forwarded his
letter to the Federal Bureau of Investigation. Mr. Nieman further stated

9

that the FBI was not conducting an investigation at this time. The Plaintiff
provided the case number and related information and was told by Special
Agent Moody that the FBI would monitor the case. See Transcript of Oral
Argument, 26-27.
On July 31, 2012, Mr. Nieman emailed Mr. Gipson and stated in
part:
My EEOC charge against you (delivered yesterday) and the
referral to the U.S. Attorney (hand delivered yesterday) are no
joke. But I have nothing against you and do not wish to see
you damaged or destroyed to the extent that you made one or
more mistakes in trying to accommodate the requests of a
valued client as you try to make a living for yourself and your
family in a challenging economy. I believe seriously however
that if you hold firm to your story, which obviously has serious
issues as to credibility, and if you repeat these statements in
federal court that you may end up doing something that cannot
be undone and which could end up resulting in very serious
consequences for you if you indeed have committed and/or were
to commit perjury by way of such testimony.
See Defs’ Memo. in Supp. of Mot. for Sanctions, Ex. 32. Moreover, the
Plaintiff encouraged Mr. Gipson to tell the truth, stating that if his
“recollections and/or records indeed confirm what [Mr. Nieman] believe[s]
they will, then it “will allow us all to avoid the stress of a trial.” Id. It is

10

difficult to interpret this as anything but an effort to harass or intimidate
a witness.
The Plaintiff accused Mr. Gipson of claiming a “false lack of
recollection” at his deposition of June 28, 2012, apparently due to his
stated failure to remember certain details about a couple of brief telephone
calls that had occurred more than 20 months earlier. Mr. Paul stated that
Mr. Gipson was asked 260 substantive questions. Mr. Gipson responded
that he did not know the answer or could not recall as to 31 of the
questions. This is unremarkable for an employment recruiter who probably
spends a significant amount of time on the telephone. It would not at all
seem unusual for a witness to answer “I don’t know” or “I don’t recall” or
to forget certain details, particularly about what might be described as a
couple of routine business calls that had occurred almost two years earlier.
According to Mr. Paul, the telephone calls were approximately ten minutes
and one minute in length. See Transcript of Oral Argument, 17. As to one
call, the dispute was over who called whom. Id. The other issue involved
whether Mr. Gipson recalled calling an Integrity executive after talking to

11

the Plaintiff. Id. at 18.
While the Plaintiff may view these phone calls to be particularly
significant, an employment recruiter might view them as no different than
any number of business calls that he is a party to on a daily basis. Mr.
Gipson may well have participated in hundreds or thousands of similar
telephone calls in the almost two years since the calls in question. Thus, it
might be more surprising if he accurately recalled the details of the
conversation. It is a very serious matter to accuse a witness of committing
perjury or related crimes. Based on the information before the Court, the
Plaintiff’s accusations related to Mr. Gipson’s testimony certainly appear
to be entirely inappropriate.
IV.
The Plaintiff denies the Defendants’ assertions and claims that he has
not engaged in a scheme to harass or threaten parties, non-parties and
Counsel in the hopes of obtaining a settlement. However, it is difficult to
draw any other conclusion when reading the emails and other
correspondence which are attached to the Defendants’ Memorandum. As

12

Mr. Paul noted, the Plaintiff did not really address those documents at the
Hearing.
Attached to the Plaintiff’s Response to the Motion for Sanctions are
several Exhibits. Several of the Exhibits are email exchanges between
Counsel for the Defendants and the Plaintiff. The Plaintiff states that he
has had to “endure repeated personal attacks and abuse,” specifically
referring to some of these emails. See Pl. Opp. to Defs’ Mot. for Sanctions,
at 6. It is apparent from these exchanges that Counsel was angry and
perhaps increasingly frustrated because of some of the previously discussed
examples of the Plaintiff’s conduct in this case. This is not at all surprising,
given that many of the emails were sent in the days immediately prior to
the date on which the Defendants’ Motion for Sanctions was filed.
Exhibit 7 to the Plaintiff’s Response is a copy of a certified letter
(which was also sent via email) from Counsel to the Plaintiff demanding
that Plaintiff retract what Counsel viewed as libelous statements about his
clients. The letter is dated August 7, 2012, which is the same date that the
Motion for Sanctions was filed, and approximately one week after the

13

Plaintiff contacted the U.S. Attorney to request an investigation into what
the Plaintiff believed were criminal acts on the part of Counsel, a witness,
and individuals associated with the Defendants. Based on Counsel’s belief
that he and his clients had recently been libeled, the tenor of his
correspondence with the Plaintiff might be expected.
V.
The Court has noted only some of the conduct that appears to be
deeply troubling. Several of the matters raised in the Defendants’ motion
have not been addressed. The Court recognizes that it has significant
discretion in imposing sanctions. The Defendants request that the Court
dismiss with prejudice the Plaintiff’s Complaint and award the Defendants
their attorney’s fees and costs.
The Court declines to dismiss the Complaint at this time. Because of
the Plaintiff’s Pro Se status, the Court finds that it would be inappropriate
to dismiss the action without first warning the Plaintiff. The Plaintiff is
hereby placed on notice that litigation tactics which are harassing and
intimidating will not be tolerated and may result in dismissal. The Court

14

has recognized that Plaintiff appears to be more able than most Pro Se
litigants and is familiar with federal court procedure and the relevant
substantive law.
The Motion for Sanctions will be Denied in Part, to the extent that
it seeks dismissal. It will otherwise be held in abeyance. However, the
Plaintiff is placed on notice that the Court will not hesitate to exercise its
inherent powers to impose appropriate sanctions, including dismissal, for
conduct that is particularly harassing, contumacious, or for any action
which is taken in bad faith.

Other potential sanctions include the

assessment of attorney’s fees and costs which are incurred as a result of
such conduct.
The Court notes that Defendants sought and obtained an Injunction
pending a ruling on their Motion for Sanctions. Because the Court is
ruling, in part, on the Motion for Sanctions, it will lift the Injunction. As
with sanctions, however, the Court will not hesitate to enter another
Injunction should the Plaintiff engage in inappropriate and/or harassing
litigation tactics.

15

Ergo, the Motion for Preliminary Injunction [d/e 66] is DENIED.
The Temporary Injunction previously entered is Vacated.
The Motion for Sanctions [d/e 62] is DENIED IN PART, to the
extent that the Motion requests dismissal. It is otherwise held in Abeyance.
The stay on any filings is hereby Vacated.
IT IS SO ORDERED.
ENTER: August 31, 2012
FOR THE COURT:
s/Richard Mills
Richard Mills
United States District Judge

16