Rangarajan v. Johns Hopkins Health System Corp. et al
MEMORANDUM. Signed by Judge William M Nickerson on 6/16/2017. Associated Cases: 1:12-cv-01953-WMN, 1:13-cv-03630-WMN(jnls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA
ex rel. MITRA RANGARAJAN
JOHNS HOPKINS HEALTH SYSTEM
CORP. et al.
JOHNS HOPKINS UNIVERSITY
Civil Action No. WMN-12-1953
JOHNS HOPKINS HEALTH SYSTEM
CORP. et al.
Civil Action No. WMN-13-3630
Civil Action No. WMN-17-807
On October 31, 2016, Defendants1 in consolidated cases Civil
Actions WMN-12-1953 and WMN-13-3630, filed a Motion for Summary
Defendants in these actions are three institutional entities:
Johns Hopkins Health System Corporation; Johns Hopkins Hospital,
Inc.; and Johns Hopkins University and one individual, Dr.
ECF No. 112.2
After Plaintiff filed her opposition to
that motion, ECF No. 121, Defendants filed a motion to strike
that opposition, to stay further briefing of the summary
judgment motion, and to dismiss Plaintiff’s action with
prejudice as a sanction.
ECF No. 131.
Defendants based that
motion for sanctions on the contention that Plaintiff has
flagrantly violated the Federal Rules of Civil Procedure
governing both discovery and summary judgment practice.
that Defendants’ motion raised some serious issues regarding
Plaintiff’s compliance with the applicable rules, the Court
stayed further briefing of the summary judgment motion until the
motion for sanctions could be briefed and resolved.
The motion for sanctions is now fully briefed.
review of the pleadings and the applicable case law, the Court
determines that no hearing is necessary, Local Rule 105.6, and
that the motion for sanctions will be granted and that all three
of the above captioned actions will be dismissed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Mitra Rangarajan applied for a position as a
nurse practitioner in the Division of Gastroenterology and
Hepatology (the GI Division) at the Johns Hopkins University
School of Medicine in 2007.
While she had recently received a
Unless otherwise indicated, citations to ECF Nos. will be to
filings in Civil Action WMN-12-1953.
Master of Science in Nursing from the Johns Hopkins University,
she had yet to be credentialed as a nurse practitioner so she
was hired as a registered nurse and began work in November of
She was hired at an initial salary of $65,000 but she
contends that she was promised a salary of $95,000 once she
became credentialed as a nurse practitioner.
credentialed as a nurse practitioner in 2009 and was given
periodic increases in her salary but her salary never rose to
the level she alleges she was promised.
In Defendants’ view, Plaintiff’s performance did not live
up to her paper qualifications.
Plaintiff had attendance and
tardiness issues, she failed to timely check for test results
and follow up with patients, and her notes in medical histories
were often disorganized and unreliable.
In response to a round
of negative performance reviews, Plaintiff was placed on a
performance improvement plan in January of 2011.
plan could be fully implemented, Plaintiff demonstrated poor
judgment in the care of a patient that Defendants assert could
have had catastrophic results for that patient.
In response to
those concerns, Dr. Anthony Kalloo, the director of the GI
Division, suspended Plaintiff’s clinical privileges.
response to that suspension, Plaintiff resigned her position on
or about May 6, 2011.
In Plaintiff’s view, she was at all times a stellar and
exemplary health care provider, while those around her failed to
follow up with patients, lost pathology specimens, and engaged
in fraudulent billing practices.
She also complains that she
was treated unfairly by her supervisors and coworkers.
among her complaints are the following: she was denied the
$95,000 salary that she was allegedly promised; she was assigned
unmanageable workloads; she was not provided the training she
needed to advance her career while Dr. Kalloo showed favoritism
and provided those opportunities to another Nurse Practitioner,
Monica Van Dongen; Plaintiff applied for but was denied
permission to participate in a Nurse Practitioner Fellowship
Program; while she was accepted into a Doctor of Nursing
Practice (DNP) program, once in the program she was treated
unfairly by the program director, Dr. Mary Terhaar; she was
given an undeserved failing grade by the Capstone professor in
the DNP program, Dr. Julie Stanik-Hutt; and, she was denied
vacation leave and reimbursement for attending professional
Plaintiff identifies Dr. Kalloo and his assistant,
Tiffany Boldin, as leading the conspiracy to mistreat her, but,
in her view, most if not all of the other individuals in the GI
Division were also involved in the conspiracy to set her up for
In response to this alleged mistreatment, Plaintiff has now
filed four lawsuits.
In the first lawsuit, Civil Action WMN-12-
1953, Plaintiff alleges that this mistreatment was in
retaliation for her protesting fraudulent billing practices.
that suit, she brought retaliation claims under the federal
False Claims Act and the Maryland False Health Claims Act.
Plaintiff originally also brought claims in that action as a
putative relator under those same acts but, after the United
States and the State of Maryland gave notice of their decisions
not to intervene in the false claims aspects of the First
Amended Complaint, Plaintiff voluntarily dismissed those claims.
In the second suit, Civil Action WMN-13-3630, Plaintiff
attributes the same conduct, not to retaliation, but to
discrimination on the basis of her race, national origin, sex,
and age and asserted claims under Title VII of the Civil Rights
Act of 1964.
The Court consolidated these first two cases on
September 16, 2016.
ECF No. 107.
Before those two cases were consolidated, Plaintiff’s
counsel moved to amend the complaint in Civil Action WMN-12-1953
to restore the substantive false claims act claims.
denied that motion on April 14, 2015, on the grounds of both
undue delay and undue prejudice.
ECF No. 66.
counsel then proceeded to assert those same claims in a third
action filed on May 14, 2015, Civil Action WMN-15-1394.
action was filed as a relator action and under seal, despite the
fact that the United States and the State of Maryland had
already declined to intervene on these same claims.
counsel allowed this case to remain under seal and unserved for
over a year and a half.
On January 18, 2017, the Court issued
an order requesting Plaintiff’s counsel to show cause why that
case should not be dismissed.
In response to the Court’s show
cause order, Plaintiff’s counsel acknowledged that the action
should never have been filed as a qui tam action and requested
fifteen days to file an amended complaint only in the name of
Civ. No. WMN-15-1394, ECF No. 5 at 2.
On February 2, 2017, this Court issued a memorandum and
order dismissing Civil Action WMN-15-1394.
In dismissing that
case, the Court noted that,
Plaintiff’s counsel’s failure to properly file this
case so that Defendants would have notice of the
filing, and then letting it languish for over a year
and a half, has resulted in claims that, if permitted
to go forward, would relate to transactions that took
place as long as nine years ago. Plaintiff’s counsel
provides no explanation for his delay and the Court
concludes that he has not shown good cause as to why
this case should not be dismissed for want of
Civ. No. WMN-15-1394, ECF No. 6 at 3.3
The Court is particularly troubled that Plaintiff’s counsel
participated in a settlement conference in the first two
consolidated cases on November 18, 2015, before Magistrate Judge
Stephanie Gallagher. While engaging in this settlement
discussion, supposedly in good faith, Plaintiff’s counsel was
Plaintiff’s counsel did not file a motion to reconsider the
dismissal of Civil Action WMN-15-1394, nor did he file an appeal
of that decision.
Instead, on March 23, 2017, he filed a fourth
action on Plaintiff’s behalf, Civil Action WMN-17-807.
action is essentially identical to the just-dismissed action
and, remarkably, was brought as a qui tam action on behalf of
the United States and the State of Maryland, again ignoring the
fact that the United States and the State of Maryland4 had
already declined to intervene on these same claims.
On May 11,
2017, Defendants filed a motion to stay their obligation to
respond to the Complaint in Civil Action WMN-17-807 until the
Court rules on the pending motions in the first two consolidated
The Court granted that motion to stay on May 18, 2017.
As explained more fully below, Defendants premise their
motion for sanctions on four particular aspects of Plaintiff’s
conduct in discovery and in opposing the summary judgment
maintaining this third action improperly undisclosed and under
seal against the same defendants.
In response to a letter sent to the Court by Defendants in
which Defendants noted the duplicitous nature of Civil Action
No. WMN-17-807, Plaintiff’s counsel challenged Defendants’
representation that the State of Maryland had declined to
intervene, asserting that “[t]here is no information on the
docket which confirms that the State of Maryland declined to
intervene in Civil Action No. 12-cv-1953.” ECF No. 139 at 4.
To the contrary, on January 13, 2014, the State of Maryland
filed a “Notice of Election to Decline Intervention and Request
for Dismissal of Maryland’s Claim.” ECF No. 11.
First, Plaintiff has advanced an unsupported and
unsupportable claim that the video-recording and transcript of
her deposition were edited both to change the substance of her
testimony and to make her appear less articulate.
Plaintiff submitted with her opposition a 54-page declaration
which includes factual contentions that were never disclosed in
Third, Plaintiff submitted with her opposition
exhibits containing highly relevant documents that were
requested in discovery but never produced.
Fourth, a review of
documents produced by Plaintiff indicates that Plaintiff may
have withheld thousands of additional responsive documents from
A. Plaintiff’s Counsel’s Reluctance to File the Opposition
Before addressing the concerns raised by Defendants, the
Court notes that it appears that Plaintiff’s counsel had his own
concerns and misgivings about the content of the opposition to
Defendants’ summary judgment motion, at least as to what
Plaintiff wanted him to include in that opposition.
filed their motion for summary judgment on October 31, 2016.
November 10, 2016, Plaintiff’s counsel filed a motion for a twoweek extension of time to file his opposition based in part on
the length of the motion - it was 42 pages long with 99
ECF No. 113.
Defendants consented to the extension,
ECF No. 114, and the Court granted the motion.
ECF No. 115.
December 1, 2016, Plaintiff’s counsel filed a second motion for
an extension of time to file the opposition, to which Defendants
also gave their consent, this time asking for just a two day
extension and reporting that “Plaintiff prepared notes containing
information she wished to be included in the opposition, but her
computer crashed on November 29, 2016, and she lost all of her
ECF No. 116 at 2.
The Court granted that motion.
Plaintiff’s counsel filed a third motion for an extension on
December 5, 2016, this time for a one day extension, explaining
that other commitments rendered him “unable to complete the
opposition and get it approved by the client.”
ECF No. 118 at 2.
The motion was granted and the time in which the opposition was to
be filed was extended through December 6, 2016.
On December 7, 2016, Plaintiff’s counsel filed a Notice in
which he stated that he “wishe[d] to advise the court why the
opposition has not been filed.”
ECF No. 120 at 1.
that, after having spending a few hundred hours working on the
opposition, he had completed it and the exhibits, including a
declaration from Plaintiff, on December 6, 2016.
stated that “Plaintiff had additions and revisions to her
declaration which will result in changes to the opposition, and
Plaintiff and her counsel are not in agreement with the final
content of the opposition.”
Id. at 1-2.
Counsel indicated that if
his differences with Plaintiff could not be resolved, he would file
a motion to withdraw and allow Plaintiff to file her opposition pro
Even before receiving that explanation from Plaintiff’s
counsel regarding the reasons for the delay in filing the
opposition, the Court received an ex parte communication from
Plaintiff herself indicating that there was some disagreement
between her and her counsel.
On December 2, 2016, the undersigned
received a letter from Plaintiff in an envelope addressed “Strictly
Confidential Documents for Honorable Judge Nickerson’s Eyes Only.”
That letter focused on her belief, detailed more fully below, that
her deposition had been improperly edited.
She also stated in that
letter that her counsel had told her that he would like to withdraw
and that she “should have retained different counsel.”
Significantly, the letter also indicated that it was copied to
Plaintiff’s counsel and, if indeed it was, counsel was aware that
his client was sending ex parte communications to the Court but
took no action.
Whatever disagreements existed between Plaintiff and her
counsel must have been sufficiently resolved to permit Plaintiff’s
counsel to file an opposition to the summary judgment motion later
in the day of December 7, 2016.
104 pages in length.
The opposition that was filed was
The “Facts” portion of the opposition
extended from page 2 through 68, and was taken virtually word for
word from Plaintiff’s 54-page Declaration that was submitted with
ECF No. 121-2.
B. Plaintiff’s Efforts to Change Her Deposition Testimony
Plaintiff’s deposition was taken on August 9, 2016.
November 28, 2016, more than three months later and almost a
month after Defendants filed their summary judgment motion,
Plaintiff’s counsel forwarded to the court reporting service a
51-page “Errata Sheet” that he states was “provided by Ms.
ECF No. 131-3 (email forwarding Errata Sheet).
the beginning of this Errata Sheet, Plaintiff states,
The court reporters’ office has informed me that they
edited my video, audio and typed deposition
transcripts. It is clear that key testimony is
deleted, altered, cloned from various sound bites
etc., to accomplish two things. 1. Change the
testimony 2. To induce grammar mistakes thus making me
sound as if I am speaking broken English.
I was unaware that court reporters were allowed to
edit the deposition transcripts prior to the deponent
reviewing the transcript.
Id. at 2.5
Plaintiff then proceeds to set out in her Errata
Sheet almost 500 corrections, comments, and proposed additions
to the transcript.
A few of Plaintiff’s notations do reflect actual
transcription errors, but those errors are inconsequential and
none seriously altered the content of Plaintiff’s testimony.
For example, in response to a question as to why she believes
she was discriminated against on the basis of her race,
When citing this Errata Sheet, the Court will cite to the
bracketed numbers on the bottom of the page.
Plaintiff responded, “[t]here is a general perception that
Indian woman (sic) are subservient and will serve as an inferior
Plaintiff correctly points out that the transcript
incorrectly transcribed “general perception” as “gender
ECF No. 131-3 at 6 (referencing Pl.’s Dep. Tr. at
In a portion of the deposition where Plaintiff is
questioning a document that was presented to her, she queries
why the author of the document used a “stamped signature.”
Plaintiff complains that in two of Plaintiff’s answers, the
court reporter mis-transcribed her as saying “stamp signature.”
ECF No. 131-3 at 14 (citing Pl.’s Dep. Tr. at 206, lines 9 and
The Court notes that the court reporter also made the same
transcription error when transcribing counsel’s question, Pl.’s
Dep. Tr. at 206, line 8, but again, there is no consequence to
these minor transcription errors.
There is one transcription error that was potentially
Plaintiff was presented in her deposition with a
letter written by one of the physicians with whom Plaintiff
worked, a Dr. Marcia Canto, in which Dr. Canto stated that she
was not satisfied with Plaintiff’s performance and that she was
no longer interested in working with Plaintiff.
was asked if she remembered Dr. Canto expressing her
dissatisfaction with her, Plaintiff responded “[s]he was never
dissatisfied with me.”
Plaintiff correctly notes that the court
reporter inaccurately transcribed her response as “[s]he was
never satisfied with me.”
Dep. Tr. at 204, line 21).
ECF No. 131-3 at 14 (citing Pl.’s
Counsel’s follow-up question,
however, which was accurately transcribed, removed any potential
So why do you think she wrote this letter
saying that she was dissatisfied with you?”
Pl.’s Dep. Tr. at
205, line 1.
Plaintiff repeats throughout her Errata Sheet that the
court reporter somehow edited out parts of her testimony or the
questions asked of her and then proceeds to instruct the court
reporter to “put back” the omitted material into the videotape
In some instances, Plaintiff appears to
simply misunderstand the court reporter’s use of ellipses and
The court reporter would use these punctuation marks
when Plaintiff or counsel would pause, restart a sentence, or
fail to complete a sentence.
See, e.g., Pl.’s Dep. Tr. at 19,
lines 17 (“But this was a — there was a — she neglected to
mention the negotiated salary”).
Reviewing the videotape of the
deposition clearly shows that this was an accurate transcription
of what was said.
Plaintiff, however, suggests that the dashes
somehow replaced significant portions of her testimony:
I need to know what I said. I believe I may have
raised the discrepancy between the letter I received
and the letter I was reading at the deposition. I
remember mentioning that the letter I received stated
Research Nurse and not Clinical Nurse. I want to know
what is it that I said. That response is totally
missing No one should edit out what I stated, it is
ECF No. 131-3 at 3.
you edited out.”
She then instructs, “[p]lease put back what
The court reporter, however, used the same conventions when
transcribing the questions of counsel.
For example, when
Defendants’ counsel stopped and restarted a question or was
interrupted by Plaintiff, the reporter signaled the restart or
interruption with dashes.
lines 9-13 (“Q.
you called IT?
See, e.g., Pl.’s Dep. Tr. at 32,
Did — and each time that you solved this alert
I called IT.
I called IT.
resolved the problem and gave you —
They resolved the
Any sensible review of the transcript would reveal
that there was no nefarious plot on the part of the court
reporter to make Plaintiff appear inarticulate.
insists, however, that the court reporter “[p]ut back whatever
it is that you edited out.
I need to know what she said in that
It is incomplete.”
ECF No. 131-3 at 4.
Plaintiff also repeatedly asserts that the court reporter
somehow moved her answers to questions to entirely different
places in her deposition.
For example, in the context of a
series of questions where Defendants’ counsel was trying to ask
Plaintiff where she had looked for responsive documents during
discovery, this exchange occurred as reflected in the
Where did you look?
Where did I look?
What did you ask me for, if you can recollect
what you asked me for then I'll tell you where I
I don't remember --
You don't remember.
I want to help you.
Pl.’s Dep. Tr. at 26, lines 1-9.
Please tell me.
In her Errata Sheet, Plaintiff
instructs the court reporter to remove that last answer: “Remove
the response,” “I recall I gave this response for a different
question on page 43, line 16.”
ECF No. 131-3 at 3.
finds it astonishing that Plaintiff, months after the deposition
took place, insists that she remembers with such certainty the
exact question to which she gave this relatively innocuous
Towards the end of her “Errata Sheet,” Plaintiff not so
much challenges the accuracy of the transcription, but begins to
simply add “clarifying information” to her deposition testimony.
When asked about the relationship between what occurred in the
context of a Doctorate of Nursing Program (DNP) in which
Plaintiff had enrolled and what was happening in the GI Division
in which she was employed, Plaintiff responded:
Right. There is an interrelationship,
interconnection. I reported to Allison Boyle in, you
know, in August I made a phone call to Allison Boyle.
I think I made two phone calls. I met with her in
September. I, you know, gave her the written.
But before that, even before that, look at the
sequence of events. In May I get accepted 26th or so.
And first week of June my schedule is changed. It's
an unprecedented schedule that anybody would have.
Pl.’s Dep. Tr. at 337.
In her Errata Sheet, Plaintiff instructs
the court reporter to replace that answer with the following:
What happened to me in the DNP Clarifying program and
what was happening in my work in the GI division are
interlocked, intertwined and interconnected. I
reported to Allison Boyle in August. I made at least
two phone calls to Allison in August, I met her in
person in September and gave the written complaint as
well. Dr. Kalloo planted the seed in May 2010, to
destroy me in the DNP program. In May 2010, I got
accepted to the program. In June my schedule changed.
It was the most brutal schedule unprecedented in the
history of Hopkins or any healthcare entity.
Plaintiff not only attempts to embellish her testimony
regarding the mistreatment she allegedly suffered, but also
seeks to elaborate on the deficiencies that she perceives in her
co-workers and supervisors.
When explaining in her deposition
why she was given a bad grade on her Capstone project by her
Capstone professor, Julie Stanik-Hutt, Plaintiff testified: “...
I tried to explain it all and this was complete.
I don't know,
this is, this has definitely, it's not a grade I deserve.
not a grade I should have gotten.”
Pl.’s Dep. Tr. at 341, lines
In her Errata Sheet, she instructs the court reporter to
replace that testimony with the following:
I tried to explain the project in simple terms and
Julie just did not get it. She simply lacked the
intellect to comprehend the concept. She is from the
old school and does not understand technology. I did
not deserve the grade she gave. She gave me full
marks for the organization, scholarly etc., of the
project and then gave a failing grade for the overall
paper. Her grading did not make sense.
ECF No. 131-3 at 38.
Remarkably, well after the motion for sanctions was fully
briefed, Plaintiff’s counsel submitted on Plaintiff’s behalf a
“Notice of Plaintiff’s Analysis,” in which “Plaintiff
respectfully requests the Court review her analysis of the video
of her deposition.”
ECF No. 141 at 1.6
Attached to that notice
was a 22-page document that begins with a list of 24 “Key
Points” that Plaintiff asserts support her belief that the video
files provided to the Court and to Plaintiff “are not the copies
of the video files from the original recording.”
ECF No. 141-1
As initially presented to the Court, the document was unsworn.
On May 25, 2017, Plaintiff submitted a sworn copy of her
“Analysis” about which she declares that “this is my independent
analysis of my deposition and I did not seek the assistance of
anyone in preparing the document.” ECF No. 144-1.
The document then notes several hundred places in the
video that Plaintiff believes were somehow edited, enhanced, or
The intended significance and import of most of Plaintiff’s
notations are not immediately clear to the Court.
numerous times that “the film moves”8 and that she hears the
sound of a tape winding.
See, e.g., ECF No. 141-1 at 5, 7, 8,
She comments that the video shows her smiling at times when
she did not remember smiling like that.
Id. at 7.
complains that you can hear counsel clearing her throat when
“[s]he never cleared her throat during the deposition.”
She opines that “her recollection of the deposition was
that the attorney, Ms. Rodriguez did not speak so fast and
curt,” id. at 14, and that Plaintiff’s voice is “clearly
Id. at 4.
She is particularly concerned that the
audio of the deposition was altered to include the whispering of
As submitted, this document has no page numbering. When citing
this document, the Court will reference the page number in the
header generated when the document was docketed in the CMECF
In her “Key Points,” Plaintiff states that “[t]here are several
places in the Video where the frame is moving. The Video camera
was on a tripod and I did not see the Videographer moving the
camera around.” Id. at 4. The video does show a very slight
movement in those instances but it also shows that Plaintiff is
not looking at the camera at those times. It is also likely
that the tripod was simply motorized to permit the camera to pan
left and right.
one of Defendants’ attorneys, Robert Smith, to establish that he
was in the deposition at a time after Plaintiff believes he had
left the room.
Id. at 8.9
Plaintiff complains that the videotape was also altered to
eliminate the eloquence of her answers.
Of one portion of her
testimony, she avers,
[m]y testimony was quite strong that there was a stoic
silence. They have edited out the sentence, because
my emotions and expressions would portray the high
level of ethics and integrity on my end. The male
attorney was standing across at an acute angle facing
me and there was stoic silence and his expression
revealed emotions as if to say, “how or why did they
do this to her. Or you poor thing.” The female
attorney needed time to compose herself and she could
not make any eye contact with me.
Id. at 20.
See also, id. at 21 (“I gave a very beautiful answer
that has been edited out.”).
In their motion for sanctions, Defendants complain that
Plaintiff is attempting to fundamentally change the substance of
her deposition testimony.
This, they maintain, runs counter to
the provisions of Rule 30(e) of the Federal Rules of Civil
Rule 30(e) permits, as Defendants acknowledge, a
deponent “to review the transcript” and, “if there are changes in
Defendants explain that Mr. Smith had to leave Plaintiff’s
deposition to travel to Johns Hopkins Hospital to prepare Dr.
Kalloo for his deposition.
Defendants submitted time stamped
receipts from Uber that demonstrate conclusively that Mr. Smith
left the deposition and returned to the deposition at the times
indicated on the video and in the transcript of Plaintiff’s
deposition. ECF Nos. 145-2 and 145-3.
form or substance, to sign a statement listing the changes and the
reasons for making them.”
Fed. R. Civ. P. 30(e)(1).
number of courts, including this one, have imposed limits on the
extent to which a deponent can substantively change his or her
These courts have interpreted the rule as “foreclosing
changes that materially alter the testimony or contradict the
Green v. Wing Enterprises, Inc., Civ. No. 14-1913,
2015 WL 506194, at *2 (D. Md. Feb. 5, 2015) (citing Wyeth v. Lupin
Ltd., 252 F.R.D. 295, 296 (D. Md. 2008)).
“[W]here the proposed
changes do not correct misstatements or clarify existing answers
but instead materially change the answers or fully supplant them,
such changes will be stricken and the deponent will be barred from
utilizing the revised testimony at trial.
F.R.D. at 297).
Id. (citing Wyeth, 252
Plaintiff’s counsel acknowledged this limitation
when he instructed a third party witness during his deposition that
he had a right to review the transcript of his deposition before it
became final but he “would only be able to make minor corrections,
maybe spellings, but no substantive changes.”
ECF No. 131-17,
Sergey Kantsevoy Dep. at 38.
The Court finds that many of Plaintiff’s proposed changes do
not fundamentally change the substance of her testimony, in fact,
many of the proposed changes have no substantive import at all.
Whether or not a camera moved, someone is heard whispering,
Plaintiff smiled in a particular way, or counsel cleared her
throat, does not affect the content of Plaintiff’s testimony.
While Plaintiff’s proposed “corrections” to the videorecording or
transcript might be an attempt to polish her testimony and perhaps
render it more compelling, they would not fundamentally change the
substance of that testimony.
Thus, the actual substance of her
proposed changes does not seriously trouble the Court.
What does trouble the Court, however, is that Plaintiff has
made frivolous and unsupportable allegations of serious malfeasance
on the part of the court reporting service and that her counsel has
supported her in advancing those allegations.
A representative of
the court reporting service has submitted a sworn declaration that
she reviewed a portion of both the transcript and videotape “to
determine conclusively that they both accurately captured the
deposition and that neither had been altered” and that she
repeatedly explained to Plaintiff that the transcript of her
deposition had been “‘edited’ only in the sense that the court
reporter had turned her raw notes into a transcript” and that
“absolutely nothing had been done to add to, delete or otherwise
edit the videotape of her deposition.”
ECF No. 131-4.
own review of the time-stamped videotape of the deposition
conclusively shows that videotape was unaltered and that the
deposition was accurately transcribed with just a few insignificant
There is no hint of editing of the videotape
and for one to perfectly execute the hundreds of edits to the
videotape that Plaintiff suggests were made would require an
incredible amount of time and sophistication.
Plaintiff offers no
explanation as to why a neutral third party would engage in such
It is particularly disturbing that Plaintiff’s counsel
attended the deposition and thus would know if there was any
validity to Plaintiff’s accusations.
In opposing the motion for
sanctions, he ignores what he must know to be true, deflects
responsibility, and simply avers that “Ms. Rangarajan believes that
her deposition transcript was changed” and “she also believes that
the exhibits provided by the court reporter were different than
those shown to her during the deposition,” and “she believes that
she did not receive her original deposition video.”
7 (emphasis added).
ECF No. 136 at
Plaintiff’s counsel also suggests that the
statement of an “expert” that he submitted with the opposition
somehow confirms Plaintiff’s position.
The expert, however, simply
states that what Plaintiff submitted to him were not original
digital video files but were copies in a compressed format.
He makes no suggestion, whatsoever, that the video or
audio was edited or altered.
Nothing that Plaintiff has submitted lends any credence to her
claims that the videotape or transcript of her deposition was
purposely altered in any way.
What Plaintiff’s Errata Sheet and
Analysis does establish is that Plaintiff is completely unable to
acknowledge any flaws or inadequacies in her own performance or
Where flaws or inadequacies appear, Plaintiff seems
willing to attribute them onto anyone else, even a disinterested
The Court suspects that Plaintiff’s inexorable need
to deflect responsibility and to project it on others perhaps sheds
more light on Plaintiff’s difficulties in the GI Division than any
of the actual testimony in her deposition.
C. Plaintiff’s Declaration
Plaintiff clearly was not pleased with her deposition
In addition to her efforts to re-write that testimony,
as discussed above, she ignores it for the most part in her
opposition to the motion for summary judgment.
attempts to replace that testimony with the more favorable
narrative of events that she set out in her 54-page Declaration.
While she cites her deposition three times in the opposition to the
motion for summary judgment, she cites her Declaration over 750
Rule 56(c)(4) of the Federal Rules of Civil Procedure does
permit a party to provide a declaration in opposing a summary
Plaintiff acknowledges that a party cannot
contradict their deposition testimony by simply submitting a
declaration: “‘If a party who has been examined at length on
deposition could raise an issue of fact simply by submitting an
affidavit contradicting his own prior testimony, this would
greatly diminish the utility of summary judgment as a procedure
for screening out sham issues of fact.’”
ECF No. 136 at 4
(quoting In re Family Dollar FLSA Litig., 637 F.3d 508, 513 (4th
Cir. 2011), emphasis added by Plaintiff).
contends that Plaintiff’s Declaration simply supplements
Plaintiff’s deposition testimony, but does not contradict that
Defendants respond that Plaintiff’s Declaration does, in
fact, contradict some significant aspects of Plaintiff’s
Defendants detail two specific examples
of contradictions: one involving a negative performance
evaluation of her prepared by Dr. Vikesh Singh and the other
concerning an email which raised concerns about Plaintiff’s lack
of follow up with patients of Dr. Sergey Kantsevoy.
also note numerous examples where Plaintiff’s Declaration
supplements Plaintiff’s interactions with supervisors and
administrators beyond what was disclosed in her deposition or in
See ECF No. 131-1 at 13 n.4.
As for Dr. Singh’s negative evaluation, Plaintiff states in
her Declaration that “Dr. Singh gave me a bad evaluation and I
confronted him about its contents.
Dr. Singh admitted that Dr.
Kalloo had invited him to a meeting and coached him on how to do
the evaluation and even provided some information about me.
admitted that he only wrote part of the evaluation . . . .”
Pl.’s Decl. ¶ 122.
When asked about this evaluation in her
deposition, Plaintiff mentions nothing about Dr. Kalloo coaching
Dr. Singh to give a negative evaluation.
Instead, she simply
questioned whether Dr. Singh really filled out the evaluation
given Dr. Singh’s high opinion of her - “I believe he referred
to me as excellent,” Pl.’s Dep at 269, 266.
In opposing the
motion for sanctions, Plaintiff does note that in her answer to
an interrogatory seeking “all facts in detail that support your
contention that Dr. Kalloo solicited doctors to complain about
you” she stated that “Dr. Vik Singh told me that Dr. Kalloo
invited him to his office and solicited an evaluation of me.”
ECF No. 131-14 at 21-22.
Soliciting an evaluation is certainly
a different thing than coaching the evaluator on how to do the
evaluation and alleging that parts of the evaluation were
completed by a different person.
Significantly, Dr. Singh testified in his own deposition
that he prepared the evaluation and that no one, including Dr.
Kalloo, gave him any input in his evaluation or communicated any
concerns about Plaintiff.
Singh Dep. at 13-15, 19.
testified that his “Below Expectation” ratings accurately
reflect his opinions concerning Plaintiff’s work.
that her clinic notes “were not of a quality that was
commensurate with a practitioner at Johns Hopkins Hospital.”
Id. at 21.
He testified that “her notes were never done on
time,” and that “there was always an excuse” for that
Id. at 23-24.
He also indicated that he
communicated those concerns to her.
Id. at 23.
The email raising concerns about Plaintiff’s follow up with
Dr. Kantsevoy’s patients was written by Tanya Engler and copied
to Dr. Kantsevoy.
When questioned in her deposition about the
email and whether she remembered there being a problem with his
patients, Plaintiff responded, “Not at all.
is a very good email that you brought.
Not at all.
Look at the date.
August 21st, 2008.
Dr. Kantsevoy left Hopkins June 30th, 2008.”
Pl.’s Dep. at 172.
Plaintiff then goes on to explain that there
was a concern raised about one of Dr. Kantsevoy’s patients and
she “directed it to Dr. Kalloo” and “Dr. Kalloo said thank you,
I’ll take care of it.”
Id. at 173.
In her Declaration, however, Plaintiff presents an entirely
different and detailed narrative of the circumstances
surrounding this email, one that includes the active involvement
of Dr. Kantsevoy.
On August 20, 2008, Ms. Engler, Dr. Kantsevoy’s MOC,
told Dr. Kantsevoy and I [sic] that patients were not
receiving timely calls from the week before. Ms.
Engler named one specific patient then listed four
others. Dr. Kantsevoy replied and asked Ms. Engler if
she was just “cutting and pasting the names” of
patients who already received a call back from Dr.
Kantsevoy or I [sic]. Dr. Kantsevoy personally spoke
with one of the patients on the list a few days prior.
Ms. Engler then changed her answer and said “half of
the patients on this list from last week had not been
contacted,” but failed to indicate which half. I
replied and told Ms. Engler that I already spoke with
the primary patient of concern earlier that day.
Indeed I sent out an email confirmation of the
conversation with Dr. Kansevoy before Ms. Engler even
sent her email. I then asked Ms. Engler if the
patient called back with additional concerns. At this
point Ms. Engler became defensive because I did not
directly let her know this same-day update. Of the
other patients, Ms. Engler gave the wrong number of
one patient. Another patient said that he never left
a message. Dr. Kansevoy was aware of all updates and
responded confirming his receipt of the emails within
a few hours of when the original message was sent.
Half an hour after I asked Ms. Engler for the correct
patient number, Ms. Engler emailed Ms. Boldin and Ms.
Bach to complain about my delayed answers to patient
Pl.’s Decl. ¶ 29.
The Court finds that, while Plaintiff’s testimony in her
deposition and statements in her Declaration are not
diametrically opposed, reliance on the Declaration would render
the taking of Plaintiff’s deposition essentially useless.
Declaration goes far beyond the “supplementation” of deposition
testimony permitted under Rule 56(c)(4).
D. Documents Used to Oppose Summary Judgment Never Disclosed in
Defendants next complain that Plaintiff submitted with her
opposition to the motion for summary judgment at least 19
documents that were never produced in discovery but that were
clearly responsive to Defendants’ discovery requests.
of those documents are emails between Plaintiff and different
employees of Defendants.10
Three are “screenshots” of the GI
While these emails and schedules are not particularly
significant, Defendants note that two other documents submitted
with her opposition but not disclosed in discovery are critical
documents relating to issues that have been at the center of
this dispute for years.
One of those documents purports to be a
September 11, 2007, letter from Plaintiff to Tiffany Boldin
memorializing the alleged agreement to automatically increase
Plaintiff’s salary to $95,000 once she became a nurse
ECF No. 121-6 (the $95,000 Offer Letter).
Defendants have consistently denied that there ever was any such
agreement and, before this letter appeared with the opposition
to the motion for summary judgment, there was no documentation
in the record of any such agreement.
Plaintiff was specifically
asked in her deposition if that agreement was ever put in
writing and she responded, at least in one part of her
deposition, that she did not know.
Pl.’s Dep. at 46-47.
The other critical document purports to be Plaintiff’s June
8, 2008, application for the GI Fellowship program.
121-9 (the Fellowship Application).
In Civil Action WMN-13-
3630, Plaintiff points to the denial of the opportunity for her
ECF Nos. 121-14, 121-17 to 121-29, and 121-34.
ECF Nos. 121-48, 121-54, and 121-57.
to participate in the GI Fellowship program as one of the
primary examples of Defendants’ discriminatory behavior.
No. WMN-13-3630, Compl. at ¶ 12.
Defendants, however, have
consistently maintained throughout the administrative process
and this litigation that they have no record that they ever
received an application from Plaintiff for the program.
report of the investigation of Plaintiff’s complaints conducted
by Defendants’ Office of Institutional Equity (OIE) in September
of 2010, the investigator, Allison Boyle, states that Plaintiff
acknowledged in her interview that she never actually applied
for the Fellowship program, ECF No. 112-53 at 7, and, based on
that testimony, the OIE concluded that Plaintiff “has not
applied to that program, and accordingly has never availed
herself of the possibility of receiving such training.”
Defendants specifically noted in their motion for summary
judgment that Plaintiff failed to produce her application to the
Fellowship program in discovery.
ECF No. 112-1 at 31.
suddenly, in opposing that motion, Plaintiff is able to produce
her 2008 application.
Rule 26(e) provides that a party “who has responded to an
interrogatory, request for production, or request for admission
. . . must supplement or correct its disclosure or response . .
. in a timely manner if the party learns that in some material
respect the disclosure or response is incomplete or incorrect,
and if the additional or corrective information has not
otherwise been made known to the other parties during the
discovery process or in writing.”
Fed. R. Civ. P. 26(e).
37(c)(1) provides that if a party fails to provide information
as required by Rule 26(e), the party is not allowed to use that
information . . . to supply evidence on a motion . . ., unless
the failure was substantially justified or is harmless.”
R. Civ. P. 37(c)(1)
Plaintiff’s counsel makes no argument that these documents
are not responsive to Defendants’ discovery requests.
Plaintiff’s counsel also makes no claim that they were produced
in discovery, nor could he in that none of these documents bear
As to the emails, counsel’s explanation as to why
they were not produced is somewhat cryptic:
that she submitted these documents to counsel during the
discovery period, but Plaintiff’s counsel produced to Defendants
all documents submitted to Plaintiff’s counsel.”
3 (emphasis added).
ECF No. 136 at
See also, id. at 10 (“Ms. Rangarajan
believes that she previously provided these emails to counsel
during discovery, but counsel produced all documents provided by
Plaintiff.”) (emphasis added); id. at 11 (“Ms. Rangarajan
believes that she provided all her emails to her counsel . . .
.”) (emphasis added).
Given counsel’s awareness of Plaintiff’s
expressed beliefs about the videotape and transcript of her
deposition, his reliance on Plaintiff’s expressed beliefs
regarding her compliance with her discovery obligation seems
questionable at best.
The bona fides of Plaintiff’s claims to have complied with
her discovery obligations is further undermined by her responses
in her deposition and in the opposition to the motion for
When asked in her deposition about the letter
clarifying the $95,000 salary, Plaintiff responded, “I have to
look, I mean, I’m sure, I’m sure I have a copy somewhere but I
Pl.’s Dep. at 19.
That would imply that she had
not previously looked for that obviously relevant document.
That response led to a series of questions and answers as to
where Plaintiff had looked for responsive documents in which
Plaintiff was less than forthcoming.
of that exchange is quoted above.
Id. at 25-30.
Supra at 14-15.
Whatever you’ve asked for, I’ve given. I believe.
You’re asking me for something I don’t have your
questions in front of me, your requests. So I have to
tell you right now that I have honored your request
and I’ve produced whichever I thought you should have.
I gave it to my counsel. And I believe that has been
given to you.
If there’s something you still need then you can ask
me and if I have it I’ll be happy to share it with
Pl.’s Dep. at 28 (emphasis added).
The opposition also relates
that only “[a]fter Plaintiff saw the partial production [of
emails] by Defendant in their Motion for Summary Judgment, she
searched her records and produced the associated emails.”
No. 136 at 10 (emphasis added).
At least as to the emails and screenshots of the GI
Division schedules, Plaintiff makes the argument that her
failure to produce them in discovery is harmless.12
that because the emails were between Plaintiff and other of
Defendants’ employees, “Defendants should have been aware of the
substance of these emails.”
As for the schedules of the GI
Division, Plaintiff proffers that “Defendants should have
records of their own divisional schedule and should not have
been surprised by this information.”
While Plaintiff made some effort to justify her failure to
produce the emails and schedules in discovery, her opposition to
the motion for sanctions offers no response, whatsoever, as to
Plaintiff appears to suggest that her failure to produce the
emails in discovery is justified based upon Defendants’ failure
to produce these same emails in discovery. Defendants
acknowledged, during the discovery period, that Plaintiff’s
email account had been inadvertently deleted by the IT
Department in December 2013 and Defendants informed Plaintiff of
that deletion and the efforts they were taking to reconstruct
Plaintiff’s email account through the accounts of other
employees. See May 5, 2016, email from Defendants’ counsel to
Plaintiff’s counsel, ECF No. 131-8. Defendants then went to
considerable expense to reconstruct Plaintiff’s email account
from other accounts and ultimately produced tens of thousands of
pages of emails. During discovery, Plaintiff’s counsel never
questioned that the deletion of Plaintiff’s email account was
inadvertent, never questioned Defendants’ efforts to recreate
that account, and never filed a motion to compel any further
the two most critical documents, the $95,000 Offer Letter and
the Fellowship Application.
Plaintiff offers no explanation as
to why she could find them now when she was not able to find
them during discovery.
Significantly, in the motion for
sanctions, Defendants indicated that they “had reasons to
question the authenticity of at least some of these documents,”
and suggested ways that their authenticity might be validated.
ECF No. 131-1 at 22 n.6.
Plaintiff offered no response even to
The Court concludes that Plaintiff failed to fulfill her
discovery obligations under Rule 26(e).
E. Additional Withheld Documents
In the course of reviewing the documents produced by
Plaintiff, Defendants uncovered evidence that Plaintiff may have
withheld thousands of additional documents that would have been
responsive to their discovery requests.
Because some of the
emails submitted by Plaintiff were submitted as printouts of
screenshots, they reveal some of the documents and materials
that resided on the computer from which those screenshots were
Specifically, it appears that the computer contained
copies of Plaintiff’s jhmi.edu email in at least two inboxes,
one of which alone contained 8,612 emails.
In a Declaration
submitted by Louis Petrovia, an Information Technology Manager
at Johns Hopkins University, Petrovia opines that other content
in the screenshots indicate that the computer was Plaintiff’s
home computer and the emails were accessed no earlier than July
17, 2013, which is well after Plaintiff left her employment at
ECF No. 131-20.
Plaintiff produced just 1658
pages of documents in discovery.
After being confronted by this evidence, Plaintiff states,
without any evidentiary support, that she has “thousands of
items in her account, not emails” and that most of the items are
irrelevant to her claims.
ECF No. 136 at 3.
She also admitted,
however, that she had used a flash drive to copy her work emails
to her home computer while she was still working at the hospital
in response to network problems that periodically deleted her
Id. at 11.
In her deposition, in response to those
questions as to where she looked for responsive documents and
when asked if she looked in her personal computer she responded,
“Yeah, I mean, if there is anything there I printed it out and
gave it to you.”
Pl.’s Dep. at 29.
When asked further, “A. Did
you ever forward from your computer at the hospital to your home
computer any emails that you received?” she answered, “You know,
I did, a few emails I did.”
She then explained the problem
she was having with accessing her email account and explained:
“I became more cognizant that I need to retain some of these
So a few emails.
emails, just a few emails.”
Not, I mean, I didn’t forward all
Id. at 31.
Of course, the forwarding of “a few” emails is a far
different thing than the copying of thousands of emails via a
Thus, the Court concludes that, whether or not
Plaintiff may “believe” that she had fulfilled her discovery
obligations, she clearly did not.
failure to inform Defendants that she possessed a large portion,
if not all, of her email account caused Defendants to
unnecessarily spend the time and effort to recreate her account.
F. The Appropriate Remedy
It is abundantly clear to the Court that Plaintiff has
flagrantly and unremittingly violated the rules governing
discovery and summary judgment motions practice.
question that remains is - what is the appropriate remedy?
Under Rule 37(c)(1), the possible sanctions for the failure to
supplement discovery responses include the following:
(i) directing that the matters embraced in the order
or other designated facts be taken as established for
purposes of the action, as the prevailing party
(ii) prohibiting the disobedient party from supporting
or opposing designated claims or defenses, or from
introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is
(v) dismissing the action or proceeding in whole or in
(vi) rendering a default judgment against the
disobedient party; or
Fed. R. Civ. P. 37(c)(1)(C) (incorporating sanctions of
Moreover, the Court also has an inherent power to dismiss a
case where a party “‘abuses the process at a level that is
utterly inconsistent with the orderly administration of justice
or undermines the integrity of the process.’”
Co. v. Dyncorp Int’l. LLC, 734 F.3d 366, 373 (4th Cir. 2013)
(quoting United States v. Shaffer Equip. Co., 11 F.3d 450, 462
(4th Cir. 1993)).
Because of the strong policy that cases be
decided on their merits, the “greatest caution” must be
exercised before imposing the sanction of dismissal.
Equip., 11 F.3d at 462.
Before exercising this inherent power,
“a court must consider the following factors: (1) the
degree of the wrongdoer's culpability; (2) the extent
of the client's blameworthiness if the wrongful
conduct is committed by its attorney, recognizing that
we seldom dismiss claims against blameless clients;
(3) the prejudice to the judicial process and the
administration of justice; (4) the prejudice to the
victim; (5) the availability of other sanctions to
rectify the wrong by punishing culpable persons,
compensating harmed persons, and deterring similar
conduct in the future; and (6) the public interest.”
Project Mgmt., 743 F.3d at 373-74 (quoting Shaffer Equip., 11
F.3d at 462-63).13
The Fourth Circuit has looked to similar factors when
considering the entry of judgment by default under Rule 37: “(1)
whether the noncomplying party acted in bad faith; (2) the
Regarding the first two factors, Plaintiff is clearly
culpable and the responsibility for the lack of compliance with
the pertinent rules lies primarily with her and not with her
Plaintiff is not blameless.
It is Plaintiff who
continues the attempt to support the unsupportable contention
that the court reporting service made hundreds of alterations to
her deposition video and transcript.
It is clear that it was
Plaintiff who authored the embellished narrative contained in
It was Plaintiff who failed to turn over to
her counsel documents that were clearly responsive to discovery
requests and it is Plaintiff who misrepresented the amount of
emails from her work email account that were stored on her home
While her counsel may have employed questionable
judgment in not more thoroughly probing as to what Plaintiff
stated she “believes” about her compliance, it appears that
Plaintiff has been and continues to be the prime offender.
amount of prejudice his noncompliance caused his adversary,
which necessarily includes an inquiry into the materiality of
the evidence he failed to produce; (3) the need for deterrence
of the particular sort of noncompliance; and (4) the
effectiveness of less drastic sanctions.” Mut. Fed. Sav. & Loan
Ass’n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir.
1989) (citing Wilson v. Volkswagen of Am., Inc., 561 F.2d 494,
503-04 (4th Cir. 1977)).
It appears that Plaintiff may have also drafted at least part
of the actual opposition. On occasion, the opposition
references Plaintiff using a first person pronoun, which would
be unlikely if the opposition was drafted by counsel. See,
e.g., ECF No. 121 at 54 (“Ms. Boyle confirmed that I had the
lowest salary during the meeting.”) (emphasis added).
As to the third and fourth factors, Defendants have been
forced to expend a tremendous amount of time, effort, and
expense in the discovery process and motions practice.
Plaintiff’s conduct has rendered much of that activity
In addition, as Defendants note,
Plaintiff’s conduct has impacted the dozen witnesses who could
not care for patients while responding to her claims and has
also depleted the resources of the Equal Employment Opportunity
Commission, the Department of Education, the Department of
Health and Human Services, the Department of Justice’s Civil
Fraud Section, the U.S. Attorney’s Office, the Maryland Attorney
General’s Office, and this Court.
Short of dismissal, there is not another remedy that would
effectively address Plaintiff’s violations.
While the Court
could strike the exhibits not disclosed in discovery and the
portions of Plaintiff’s Declaration that contradict her previous
testimony, that would not address her failure to produce the
thousands of emails contained on her home computer.
remedy that violation, discovery would need to be reopened and
it is likely that Plaintiff would need to be re-deposed and
Defendants’ motion for summary judgment re-briefed.
would foist considerable more expense on Defendants.
history of this litigation, were discovery to be reopened, the
Court has little confidence that Plaintiff’s counsel would be
able to ensure Plaintiff’s compliance with the rules of
The Court also recognizes the futility of redoing discovery
and motions practice.
Without ultimately deciding the merits of
Plaintiff’s claims, it is apparent from the current record that
those claims would fail on the merits.
attempt to disavow her deposition testimony and replace it with
her Declaration is an implicit acknowledgement that her claims
were unsupported under the record produced through discovery.
Furthermore, Plaintiff’s Declaration is at odds with all of
the other evidence in the record.
The Court discussed, supra,
the inconsistencies between Plaintiff’s Declaration and the
testimony of Dr. Singh.
In the same paragraph of her
Declaration where Plaintiff alleges that Dr. Singh was coached
to give her a bad evaluation, she described Dr. Gerald Mullin as
the only individual in the GI Division that did not distance
himself from her.
Pl.’s Decl. ¶ 122.
Declaration, Plaintiff describes Dr. Mullin as having a positive
opinion of her and agreeing that Plaintiff was being treated
See, id. ¶¶ 55, 58, 60, 71, 115.
In her answers to
interrogatories, Plaintiff asserts that Dr. Kalloo asked Dr.
Mullin to do a review of Plaintiff but, when Dr. Mullin
indicated it would be a positive review, he never heard back
from Dr. Kalloo.
ECF No. 121-4 at 21.
While Plaintiff took Dr. Mullin’s deposition, it is never
cited in her opposition to the summary judgment motion and,
thus, it must be assumed that none of his testimony supported
In fact, the portions of his testimony
cited by Defendants indicate that Dr. Mullin shared the same
concerns about Plaintiff’s performance as the others in the GI
See Mullin Dep., ECF No. 112-44 at 28 (citing
Plaintiff’s running behind in seeing patients); 29 (citing
inaccuracies in patient histories taken by Plaintiff); and 30
(citing problems with Plaintiff’s punctuality).
Dr. Mullin also
does not appear to believe that Plaintiff was treated unfairly.
Id. at 38-39 (expressing his opinion that he did not believe
that Dr. Kalloo gave special treatment to Ms. Von Dongen).
asked how Plaintiff was treated by Ms. Boldin, Dr. Mullin’s
response was simply, “[a]s per Mitra, she was cruel to Mitra.”
Id. at 45.
Finally, the Court finds that the public interest is best
served by dismissal of this action.
As noted above, this
dispute and litigation has interrupted the provision of care of
numerous health care providers and impacted the resources of
this Court and several administrative agencies.
dismissal of a case such as this, where a plaintiff’s has
seriously undermined the truth-seeking function of the Court, is
appropriate “not merely to penalize those whose conduct may be
deemed to warrant such a sanction, but to deter those who might
be tempted to such conduct in the absence of such a deterrent.”
Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639,
643 (1976) (approving district court’s dismissal of action under
Plaintiff’s counsel’s primary argument against dismissal is
his contention that, before a court can dismiss a case for
violations of discovery rules or abuses of the litigation
process, it must give “‘an “explicit and clear” threat to a
party that failure to meet certain conditions could result in
dismissal of the party’s case with prejudice.’”
ECF No. 136 at
12 (quoting Franklin v. Tri-Cty. Council for the Lower E. Shore
of Md., Civ. No. ELH-15-786, 2016 WL 3653966, at *3 (D. Md. July
He notes that, “[i]n addition, ‘courts in the Fourth
Circuit generally impose a dispositive sanction only in cases
where the noncompliant party disregarded an earlier, lighter
sanction, such as a protective order, a motion to compel, or the
payment of attorney's fees.’”
Id. at 13 (quoting Franklin, 2016
WL 3653966, at *4).
While that general rule might apply in many cases, the
Court finds it inapplicable here.
Here, it was not until after
years of litigation, the closing of discovery, and Defendants’
filing of their summary judgment motion that Plaintiff’s failure
to comply with discovery rules became apparent.
discovery, Plaintiff represented that she had produced all
relevant materials in her possession and Defendants were given
no reason to believe that she was not being truthful.
her deposition was taken on August 9, 2016, and she received the
transcript of that deposition no later than November 3, 2016,
Plaintiff waited until November 28, 2016, to submit her “Errata
Sheet” and until May 12, 2017, to submit her “Analysis,” and
only after Defendants used that deposition in their motion for
Plaintiff’s other abuses - her creation of a
new narrative in her Declaration, her submission of undisclosed
documents and continued withholding of relevant documents – did
not occur or become apparent until Defendants filed their
summary judgment motion.15
Thus, unlike the cases relied upon by
Plaintiff, there was no occasion for the Court to issue an
The Court will also dismiss Civil Action WMN-17-807 for the
same reasons, as well as for the reasons it dismissed Civil
In his letter attempting to justify the
filing of Civil Action WMN-17-807, ECF No. 139, Plaintiff’s
counsel makes much of the fact that the previous case was
The Court also notes that Plaintiff’s abuse of the litigation
process by filing a duplicative suit and keeping it sealed for a
year and a half was only revealed to Defendants after the motion
for sanctions was filed and then, only by an action of the
“dismissed without prejudice,” but he ignores the reasons given
for that dismissal.16
Plaintiff’s still unexplained delay in
pursuing that action “has resulted in claims that, if permitted
to go forward, would relate to transactions that took place as
long as nine years ago.”
Civ. No. WMN-15-1394, ECF No. 6 at 3.
Plaintiff’s counsel could have appealed that dismissal, but did
See Domino Sugar Corp. v. Sugar Workers Local Union 392,
10 F.3d 1064, 1066–67 (4th Cir. 1993) (holding that while a
dismissal without prejudice is generally not appealable, “if the
grounds of the dismissal make clear that no amendment could cure
the defects in the plaintiff's case, the order dismissing the
complaint is final in fact and [appellate jurisdiction exists]”)
(alteration in original, internal quotation marks omitted).
For all of these reasons, Civil Action WMN-12-1953, Civil
Action WMN-13-3630, and Civil Action WMN-17-708 will be
A dismissal without prejudice is not the same as a dismissal
without consequence. For example, while a case may be dismissed
without prejudice, the prosecution of a new case bringing the
same claims might still be barred by limitations, regardless of
the “without prejudice” dismissal. See, e.g. Chico–Velez v.
Roche Prods., Inc., 139 F.3d 56, 59 (1st Cir. 1998) (holding
that “a prescriptive period is not tolled by filing a complaint
that is subsequently dismissed without prejudice” and noting
such a dismissal “may sound the death knell for the plaintiff's
underlying cause of action if the sheer passage of time
precludes the prosecution of a new case”).
A separate order will issue.
William M. Nickerson
Senior United States District Judge
DATED: June 16, 2017
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