Baricuatro et al v. Industrial Personnel and Management Services, Inc. et al

Filing 467

ORDER & REASONS granting in part and denying in part 416 Motion for Contempt and/or Sanctions; granting in part and denying in part 419 Motion for Sanctions; ORDERED that no later than 7/19/2013, dfts must file and serve a motion to fix the amount of this award, supported by affidavits and other evidentiary material as set forth in document; Opposition to motion due 7/30/2013. Signed by Magistrate Judge Joseph C. Wilkinson, Jr. (NEF: J.Engelhardt) (lag, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ISIDRO BARICUATRO, JR. ET AL.

CIVIL ACTION

VERSUS

NO. 11-2777

INDUSTRIAL PERSONNEL AND
MANAGEMENT SERVICES, INC. ET AL.

SECTION “N” (2)

ORDER AND REASONS ON MOTIONS
This is a contentiously and sometimes vituperatively conducted putative class action
by foreign workers asserting a variety of causes of action arising from their employment at
a Louisiana shipyard. The following two motions are currently pending before me:
(1)

(2)

Motion of Defendants, DNR Offshore & Crewing Servs., Inc.,
Industrial Personnel and Management Services, Inc. and Nilfil
Peralta, for Contempt and/or Sanctions, Record Doc. No. 416;
and
Motion of Defendants, Grand Isle Shipyard, Inc., Thunder
Enterprises, Inc. and Mark Pregeant, Jr., to Hold Plaintiff Erwin
Realin in Contempt and Impose Sanctions, Record Doc.
No. 419.

Defendants D&R Resources, LLC, Randolf Malapago and Danilo N. Dayao have filed a
supporting memorandum supporting adopting the motions and arguments of their codefendants. Record Doc. No. 420. Plaintiffs filed a timely opposition memorandum. Record
Doc. No. 441. Both sides have attached voluminous evidentiary materials to their
submissions, including transcripts of Realin’s deposition, its errata sheet in which he makes
substantive changes to what he said orally, and sworn written declarations.

The basic premise of the defense motions is that Realin has committed perjury in his
sworn deposition testimony and/or written declarations/affidavits filed with the court under
oath or penalty of perjury and that, as a result, he should be held in contempt and/or some or
all of his claims should be dismissed as a sanction. In addition or alternatively, defendants
seek awards of attorneys fees and costs incurred in connection with Realin’s deposition and
filing these motions. Having considered the written submissions of the parties, the evidence
attached to the motion papers, the record of the case as a whole and the applicable law,
IT IS ORDERED that the motions are GRANTED IN PART and DENIED IN
PART. I decline to make contempt findings or to recommend to the presiding district judge
dismissal or any of the other claim dispositive sanctions sought by defendants in these
motions, principally because I cannot conclude with certainty on this record that plaintiff
Realin has willfully committed perjury or has exhibited stubborn resistance to authority in
this case. The defense motions, however, clearly catalogue a variety of falsehoods in
Realin’s sworn testimony and/or written declarations requiring imposition of lesser, more
appropriate sanctions.
As to the request for a contempt finding, the United States Court of Appeals for the
Fifth Circuit has stated that “[f]ederal courts have the inherent power to punish for contempt.
Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980). The availability of that power
promotes ‘the due and orderly administration of justice’ and safeguards the court’s authority.
Id. (quoting Cooke v. United States, 267 U.S. 517, 539 (1925)). ‘Because inherent powers
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are shielded from direct democratic controls,’ [however,] the Supreme Court instructs that
‘they must be exercised with restraint and discretion.’ Id. Rather than stemming from a
‘broad reservoir,’ they are ‘implied power[s,] squeezed from the need to make the court
function.’ Crowe v. Smith, 151 F.3d 217, 226 (5th Cir. 1998).” Hornbeck Offshore
Services, L.L.C. v. Salazar, 713 F.3d 787, 792 (5th Cir. 2013) (emphasis added).

Similarly, the dispositive and draconian remedy of dismissal as a sanction is
reserved exclusively for clear records of contumacious and continuing litigation
misconduct or delay, ordinarily involving failure to comply with multiple court orders.
See Doe v. Am. Airlines, 283 F. App’x 289, 291 (5th Cir. 2008); Davis v. Auto Club
Family Ins. Co., No. 07-8545, 2008 WL 5110619, at *1 (E.D. La. Dec. 2, 2008) (Vance,
J.) (citing Fed. Deposit Ins. Corp. v. Conner, 20 F.3d 1376, 1381 (5th Cir. 1994); Equal
Emp’t Opportunity Comm’n v. Gen. Dynamics Corp., 999 F.2d 113, 119 (5th Cir. 1993);
Batson v. Neal Spelce Assocs., Inc., 765 F.2d 511, 515 (5th Cir. 1985)). “[I]t is not a
party’s negligence – regardless of how careless, inconsiderate, or understandably
exasperating – that makes conduct contumacious; instead, it is ‘the stubborn resistance
to authority’ which justifies a dismissal with prejudice.” McNeal v. Papasan, 842 F.2d
787, 792 (5th Cir. 1988)(quoted in Brown v. Oil States Skagit Smatco, 664 F.3d 71, 77
(5th Cir. 2011). Because “dismissal with prejudice ‘is a severe sanction that deprives a
litigant of the opportunity to pursue his claim,’” it is appropriate only where the

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misconduct meets the egregiousness standard noted above, where “‘lesser sanctions
would not serve the best interests of justice’” and “when the objectionable conduct is that
of the client, and not the attorney.” Brown, 664 F.3d at 77 (quoting Woodson v. Surgitek,
Inc., 57 F.3d 14086, 1418 (5th Cir. 1995) and Sturgeon v. Airborne Freight Corp., 778
F.2d 1154, 1159 (5th Cir. 1985)). A party’s perjury, with no attempt to offer the truth
after contradictory testimony is revealed, is one example of contumacious conduct
sufficient to support dismissal as a sanction. Brown, 664 F.3d at 75, 78. However, the
court must always consider lesser sanctions before imposing the ultimate penalty of
dismissal. Id. at 77.
In this case, I cannot make the clear and certain finding of intentional perjury of
the type made by the court in Brown. Certainly, there is ample fodder in the lengthy
deposition testimony, its errata sheet and sworn declarations of Realin for the fact-finder
ultimately to conclude that his internally inconsistent, sometimes self-contradictory, often
confusing and sometimes evasive testimony is not credible and should be given no
weight, particularly when the materials include clear falsities. Other factors, however,
lead me to stop short of concluding that his overall testimony was so willfully and
intentionally false as to material matters in the way required to support a perjury finding,
United States v. Dunnigan, 507 U.S. 87, 93, 113 S. Ct. 1111, 1116 (1993); 18 U.S.C.

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1621, that significant portions could not be characterized as merely mistaken or
misapprehended by Realin or misguided under the influence of some of his lawyers.
For example, although Realin, a Filipino, speaks, reads and understands some
English, it is not his first or native language. It was necessary for the parties to have a
Tagalog-to-English interpreter sworn in to translate the deposition questions and his
answers. Record Doc. No. 441-3 at p. 4 (Realin deposition transcript at p. 8). Language
problems resulting in possible misunderstanding of both questions and answers occurred
throughout the deposition. See, e.g., id. at pp. 5-6, 8 and 33, deposition transcript at
pp.12-13, 22-23, 121-23 (colloquy of counsel and related examination concerning
Realin’s misunderstanding of “maybe a poorly-asked question” and other inquiries, the
need to clarify translator’s job “simply to repeat word for word everything” without
“trying to explain things to the witness,” and the participants’ “frustration” concerning
“understanding” and “normal conversation . . . shortcuts”); p. 34, deposition transcript
at p. 125 lines 13-19 (examiner’s misunderstanding of answer explained by translator);
p. 57, deposition transcript p. 217 (translator pointing out Realin’s mistaken
understanding of the meaning of a declaration provision); pp. 6, 76, deposition transcript
pp. 14, 294, 296 (translator’s need to have questions repeated); p. 71, deposition
transcript p. 276 (dispute over completeness of answer translation); p. 79, deposition
transcript pp. 307 (difficulty with examiner’s use of the English word “substandard,”

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about which translator explains “[t]here isn’t really a word, a specific word that would
describe substandard” in Tagalog).
In addition, the Fifth Circuit precedent outlined briefly above requires that the
court consider the role of Realin’s lawyers, some of whom have already demonstrated
to the court that they have significant, and sometimes misguided, influence over the
conduct and activities of plaintiffs in this case. Record Doc. Nos. 351 at pp. 6, 8 and 381.
Realin’s sworn written declarations or affidavits, when compared to his deposition
testimony, form a significant basis for defendants’ perjury accusations. Realin testified
that he is a person who sometimes signs documents without fully reading or
understanding them, id. at p. 84, deposition transcript pp. 219-20, or at least without any
recollection of whether he did or did not. Id. at p. 59, deposition transcript p. 228. My
impression from his deposition testimony is that Realin is a person of limited
sophistication in matters of business contracts and law. He can reasonably be expected
to be fully susceptible to direction by his counsel. As to one of his sworn written
declarations, he testified that two of his lawyers, who are identified in the testimony as
Peter Schneider and Ellaine Carr, gave it to him to sign and that he did not remember if
any of them read it to him or translated it into Tagalog for him. Id. at p. 74, deposition
transcript pp. 286-87. Under these circumstances, I cannot conclude that the differences
between what Realin swore to in his written declarations and what he testified about in

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his oral deposition are solely attributable to Realin, as opposed to these two of his
lawyers.
Unlike the plaintiff and his lawyer in Brown, who failed to appear at a court
hearing that had been scheduled to address what ultimately became the court’s perjury
finding, I cannot conclude that Brown’s deposition testimony constituted “no attempt to
offer the ‘truth’ after [examining defense counsel] revealed his contradictory testimony.”
See Brown, 664 F.3d at 75, 80 (discussing claim of denial of evidentiary hearing). As
the motion papers point out, Realin admitted on several occasions during his deposition
that parts of his declaration statements were inaccurate, incomplete, misunderstood, even
untrue; and he attempted during his deposition testimony – albeit unconvincingly at times
– to correct or explain those problems.
Thus, on one hand, I cannot conclude on this record that the various
inconsistencies, contradictions and admitted inaccuracies chronicled in these motion
papers and their attachments were mostly intentional falsehoods about material facts
rising to the level of perjury attributable solely to Realin’s willful and intentional
disregard for the solemnity of the oath and stubborn resistance to authority, as opposed
to Realin’s mistake, misunderstanding, misapprehension or misguided willingness to sign
whatever his counsel drafted for his signature. A contempt citation and/or dismissal of

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all or some of Realin’s claims are not appropriate sanctions under these circumstances,
and the motions are denied insofar as they seek these unduly harsh penalties.
On the other hand, the defense motions identify many more than a mere few clear
falsehoods in Realin’s deposition testimony and/or sworn written statements that no
manner of explanation, language difficulty, cultural difference or lawyer influence can
excuse. As to these instances, chronicled in detail in Record Doc. Nos. 416-3 and 4193, which fall short of contemptuous perjury but which nevertheless demand consequence,
lesser sanctions are appropriate. Accordingly, the motions are granted in part as follows:
(1) IT IS ORDERED that plaintiffs – though not defendants – are
hereby prohibited from using or introducing Realin’s live oral or deposition
testimony, affidavits or written declarations, or any documentary or other
tangible evidence reflecting or relating to Realin individually (hereafter
collectively “Realin evidence”) at any hearing or trial or in any motion or
other proceeding in this case in connection with (a) the claims of any
plaintiffs other than Realin, and/or (b) any class-wide issue. Instead, Realin
evidence may be used only by Realin himself solely in connection with
Realin’s own individual claims, and no others.
(2) IT IS FURTHER ORDERED that the following Realin
evidence already submitted by plaintiffs in support of their pending motion
to certify class action, Record Doc. No. 401, is hereby STRICKEN and will
not be considered in support of the motion: Paragraphs 12 and 41 of the
Declaration of Peter B. Schneider, Record Doc. No. 401-5, and its attached
Exhibit 10, Record Doc. No. 401-9 at p. 77 (Realin paystub dated January
31, 2008, Exhibit P-22 to A. Hernandez deposition) and Exhibit 39, Record
Doc. No. 401-13 at p. 6 (Realin GIS Employee Documentation Form dated
March 14, 2008, Exhibit P-93 to L. Lumba deposition); first full sentence
of email dated June 2, 2011, Record Doc. No. 401-9 at p. 69 (“We were
saddened by the news on Mr. Realin.”); email dated June 1, 2011, Record

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Doc. No. 401-9 at p. 70 (“I have received a report last Sunday that Mr.
Erwin Realin [etc.] . . . .”).
(3) IT IS FURTHER ORDERED that the following Realin
evidence already submitted by plaintiffs in response to defendants’ motion
for partial summary judgment, Record Doc. No. 406, is hereby STRICKEN
and will not be considered in opposition to defendants’ motion: Realin’s
deposition testimony quoted at Record Doc. No. 425-1 at p. 4, fn. 9; pp. 5-6
and p. 7; fn. 16.
The motions are also granted in part and denied in part insofar as they seek monetary
sanctions. I will not impose all of the monetary sanctions of the sort requested by
defendants; specifically, an award of attorneys’ fees and costs, both for his deposition and
the fees of the Tagalog language translator, and for all expenses incurred in connection with
these motions. I have made no finding of perjury or fraud upon the court. The principal
relief sought by defendants – contempt and/or dismissal – has been denied. Given the nature
of this testimony and the importance of challenging through strenuous cross-examination the
credibility of plaintiffs, especially Realin, and their recitation of the seriously disputed facts
in this contentious case, the thoroughgoing and extensive deposition questioning conducted
by defense counsel was both necessary and effective. The deposition would have been what
it was regardless of Realin’s oral answers to particular questions. I cannot conclude that
anything Realin said during his deposition unduly lengthened it or increased unnecessarily
defendants’ attorneys’ fees or costs. Accordingly, no attorneys’ fees or costs incurred by
defendants in the deposition itself will be awarded.

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On the other hand, while the harsh sanctions principally sought by defendants in these
motions are unjustified and have been denied, the multitude of inconsistencies, inaccuracies,
contradictions and misstatements of Realin, needed to be brought to the court’s attention by
way of these motions. The motions were partially successful in that the lesser non-monetary
sanctions set out above have been imposed. For these reasons, the motion is granted in part
in that the court will award defendants one-half of their reasonable attorneys fees and costs
expended in their preparation and filing of these motions. Because of the role of some of
Realin’s counsel outlined above, these monetary sanctions will be imposed against Realin,
Schneider and Carr.
IT IS ORDERED that, no later than July 19, 2013, defendants must file and serve
a motion to fix the amount of this award, supported by affidavits and other evidentiary
materials as required by Local Rule 54.2, so that the court may set the amount of this award.
Plaintiffs may file their written opposition to defendants’ motion no later than July 30, 2013.
Thereafter, the court will set the amount of recoverable fees and costs on the record, without
oral argument.
New Orleans, Louisiana, this

5th

day of July, 2013.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE
CLERK TO NOTIFY:
HON. KURT D. ENGELHARDT

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