Assaf v. Cottrell, Inc. et al

Filing 101

WRITTEN Opinion entered by the Honorable James F. Holderman on 10/27/2011: The court previously denied 90 Cottrell, Inc.'s Motion to Dismiss Plaintiff's Complaint for Fraud on the Court 75 before the submission of Defendant's reply . After reconsidering with the benefit of Cottrell, Inc.'s Reply in Support of Motion to Dismiss for Fraud on the Court 93 , Cottrell, Inc.'s Motion to Dismiss Plaintiff's Complaint for Fraud on the Court 75 is, for the reasons sta ted in the Statement section of the order, once again denied. A status hearing is set for 12/20/11 at 9:00 am. The parties are once again encouraged to consider settlement. Signed by the Honorable James F. Holderman on 10/27/2011: Mailed notice (am)

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

James F. Holderman

CASE NUMBER

10 C 85

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

10/27/2011

Yasser Assaf vs. Cottrell, Inc. et al.

DOCKET ENTRY TEXT

The court previously denied [90] Cottrell, Inc.’s Motion to Dismiss Plaintiff’s Complaint for Fraud on the
Court [75] before the submission of Defendant’s reply. After reconsidering with the benefit of Cottrell,
Inc.’s Reply in Support of Motion to Dismiss for Fraud on the Court [93], Cottrell, Inc.’s Motion to Dismiss
Plaintiff’s Complaint for Fraud on the Court [75] is, for the reasons stated in the Statement section of the
order, once again denied. A status hearing is set for 12/20/11 at 9:00 am. The parties are once again
encouraged to consider settlement.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
Defendant Cottrell, Inc. seeks dismissal of plaintiff Yasser Assaf’s complaint because of the inconsistent
statements under oath in Assaf’s Supplemental Answers to Defendant’s Cottrell, Inc.’s Interrogatories (Dkt. No.
75, Ex. D) and in his answer to defense counsel’s deposition questions (Dkt. No. 75, Ex. A). Specifically, in the
interrogatory answers, Assaf stated that “[i]mmediately prior to the accident I drove a vehicle to the upper deck
of a Cottrell trailer. I stepped out of the vehicle and fell.” Supplemental Answers to Defendant’s Cottrell, Inc.’s
Interrogatories (Dkt. No. 75, Ex. D) ¶ 2. By contrast, in his deposition, Assaf explained that the vehicle was
already mistakenly on the trailer, and that the accident occurred when he climbed onto the trailer to enter the car
and drive it off. Assaf Dep. (Dkt. No. 75, Ex. D) 92-94. Defendant points out that the inconsistencies are
exacerbated by evidence from the notes of plaintiff’s expert witness and the testimony of Assaf’s coworker, both
of which have further inconsistencies with Assaf’s deposition testimony.
Perjury is “‘false testimony concerning a material matter with the willful intent to provide false testimony,
rather than as a result of confusion, mistake, or faulty memory.’” Montano v. City of Chicago, 535 F.3d 558, 564
(7th Cir. 2008) (citation omitted). The court finds that in this case, merely pointing out the inconsistency in
Assaf’s statements is insufficient to show a willful intent to provide false testimony. “There is a marked
difference between a witness who knowingly lies about a material matter and a witness who is impeached with
a prior inconsistent account of a sudden and chaotic event that happened years ago. The former is almost always
perjury; the latter may be the product of confusion, mistake, or faulty memory.” Montano v. City of Chicago,
535 F.3d 558, 566 (7th Cir. 2008). Given the circumstances here—the generality of Assaf’s interrogatory
answers, the imprecision and ambiguity of the expert’s notes, and the nearly two years between the incident and
plaintiff’s testimony about it—the court defines to infer that Assaf had a willful intent to commit perjury.
10C85 Yasser Assaf vs. Cottrell, Inc. et al.

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STATEMENT
To be sure, Assaf’s various statements indicate that both Assaf and his lawyers have failed to exercise
due care in preparing this case for trial. Moreover, the inconsistent statements will provide the defendants ample
ammunition for cross-examination at trial, should the case progress so far. But they do not amount to perjury,
at least without some further evidence that Assaf willfully lied. Cottrell, Inc.’s Motion to Dismiss Plaintiff’s
Complaint for Fraud on the Court (Dkt. No. 75) is denied.

10C85 Yasser Assaf vs. Cottrell, Inc. et al.

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