Webasto Thermo & Comfort North America, Inc. et al v. BesTop, Inc.

Filing 103

OPINION AND ORDER GRANTING PLAINTIFFS' 37 MOTION for Sanctions AGAINST BESTOP, INC. FOR MAKING MATERIAL MISREPRESENTATIONS OF FACT TO THE COURT - Signed by Magistrate Judge R. Steven Whalen. (CCie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WEBASTRO THERMO & COMFORT
NORTH AMERICA, INC., ET AL.,
Plaintiffs,

No.16-13456

v.

District Judge Paul D. Borman
Magistrate Judge R. Steven Whalen

BESTOP, INC.,
Defendant.
/
OPINION AND ORDER
Before the Court is Plaintiffs’ Motion for an Order Sanctioning Defendant for
Making Material Misrepresentations of Fact to the Court [Doc. #37], which has been
referred for hearing and determination under 28 U.S.C. § 636(b)(1)(A). I held a status
conference regarding this motion of December 5, 2017, and conducted an evidentiary
hearing on January 23, 2017, following which the parties filed supplemental briefs. For
the reasons and under the terms set forth below, the Plaintiffs’ motion will be
GRANTED.
I.

FACTS

This is a patent case. Plaintiffs allege that Defendant Bestop, Inc. (“Bestop”)
infringed its U.S. Patent No. 9,346,342 (the “342 patent”) by presenting a device it called
the “Sunrider for Hardtop.” Bestop filed a motion to dismiss [Doc. #11] alleging that the
342 patent was invalid because the device at issue was prior art, due to its public
disclosure during Bestop’s presentation to Fiat Chrysler Automotive Group (“FCA”) prior
to the Plaintiffs’ patent application. Appended to Bestop’s motion as Exhibit C was the
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Declaration of David A. Smith, Bestop’s Director of Engineering. Mr. Smith stated that
after producing and designing prototypes of the device, he prepared a Power Point
presentation for FCA and presented it, along with a prototype, at the FCA facility on
February 5, 2015. Specifically, Mr. Smith stated in his declaration that on that date he
gave a printed copy of the presentation to Tony Carvello at FCA. Smith Declaration, ¶ 7.
Attached to Mr. Smith’s Declaration in support of the motion to dismiss as Exhibit 1was a
copy of the Power Point presentation. Id., Doc. #11, Pg. ID 105-110. That document did
not contain a footer stating that “[d]isclosure or duplication without consent is prohibited”
or any other notation indicating that the presentation was to be treated as confidential, not
public.
Appended to Plaintiffs’ motion for sanctions is the declaration of Eric P.
Carnevale, and attorney for Webasto. Mr. Carnevale states that in response to a document
subpoena, FCA produced copies of the Power Point presentation that it had received from
Bestop. Carnevale Declaration, Doc. #37, Pg. ID 596-597. The Power Point presentation
that FCA produced is appended as Exhibit A to the Carnevale Declaration, and filed
under seal [Doc. #40]. Every page of that Power Point presentation, with the exception of
the cover page, has a footer stating, “Disclosure or duplication without consent is
prohibited,” unlike the copy that Bestop submitted with its motion to dismiss, which did
not contain the footer.1

1

Attached to Plaintiffs’ Reply Brief [Doc. #44] is the affidavit of Jeremy J.
Klobucar, senior staff counsel at FCA, offered to authenticate as a business record the
Power Point presentation it received from Bestop and that it produced in response to
Webasto’s Rule 45 subpoena.
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Appended to Bestop’s response to the motion for sanctions [Doc. #43] is the
declaration of Bestop’s attorney, Jeffrey A. Sadowski. Mr. Sadowski stated in his
Declaration that in the course of finalizing Mr. Smith’s declaration for the motion to
dismiss, he worked from a native (electronic) Power Point, and that to file it with the
Court, he converted this native version to a .pdf version. Sadowski Declaration, Doc.
#43, Exhibit A, ¶¶ 2-5, Pg. ID 917. He stated that the conversion process caused the
deletion of “some fine print at the bottom of some of the pages.” Id. ¶ 6, Pg. ID 917-918.
He expressed uncertainty as to how the deletion occurred, but that since that time, dozens
of changes have been made to the software, and “[t]he error cannot be currently
duplicated after the bug fixes and other changes that are now in place.” Id. ¶ 7, Pg. ID
918. Mr. Sadowski stated that neither he nor Mr. Smith noticed the deletion, and that the
deletion “was performed unintentionally during the processing of the documents for filing
or submission by email.” Id. ¶ 9, Pg. ID 918. Finally, Mr. Sadowski’ Declaration states
that the Smith Declaration that was submitted with Bestop’s motion to dismiss
“specifically declared that consent was given to FCA to use the PowerPoint disclosure, as
well as the prototype of the product that was publically disclosed to FCA, in a further
public showing at Moab, Utah on Jeep vehicles. The Smith Declaration indicates that
FCA took the Powerpoint presentation and viewed the prototype publically without any
confidentiality or nondisclosure agreement whatsoever.” Id. ¶ 11, Pg. ID 918-919.2
On January 13, 2018, 10 days before the scheduled evidentiary hearing, Mr.
Sadowski filed a second Declaration [Doc. #58]. He states that after he received
Webasto’s Reply Brief [Doc. #44], he undertook further investigation, and found that the

2

While Mr. Sadowski offered his interpretation of the Declaration, it did not in
fact contain the explicit statements attributed to Mr. Smith.
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Power Point presentation had been scanned to him, and that 47 minutes later, he
transmitted the scanned document to Richard Hoffman (an attorney for Plaintiff). Second
Sadowski Declaration, Doc. #58, ¶¶ 3-4. He also states that someone handed him a hard
copy of the Power Point presentation, and that this copy did not have the non-disclosure
footer. Id., ¶ 5. He states that when he filed Bestop’s motion to dismiss, he was not
aware that his office had more than one copy of the presentation. Id., ¶ 6. Mr. Sadowski
indicates that when he and Mr. Smith were working on Mr. Smith’s declaration, they
worked from the native version of the Power Point, and that they believed that was the
version that was used as Exhibit 1 the Declaration, when in fact they used the version that
had been emailed to Richard Hoffman (i.e., the scanned version). Id., ¶¶ 8-9. He states
that neither he nor Mr. Smith noticed the “missing fine print” on the document that was
submitted with the motion to dismiss, and that the creation of the version that was used
“is believed to have occurred by Bestop or Warn Partners in the context of preparation of
patent applications or the drafting of other versions of the Power Point presentation in
2014 or 2015, and was unrelated to this lawsuit.” Id., ¶ 11.
Evidentiary Hearing Testimony
David Smith
David Smith, Bestop’s Director of Engineering, testified at the January 23, 2018
evidentiary hearing.3 He testified that he signed the Declaration that Bestop submitted
with its motion to dismiss; he supplied the facts to Mr. Sadowski, who prepared the
Declaration. (Tr. 6-8). He briefly reviewed a hard copy of the Power Point presentation
that was submitted with his Declaration. (Tr. 10). Mr. Smith testified that the Power

3

The transcript of the evidentiary hearing is found at Doc. #60. References to
page numbers of the transcript in this Opinion will be designated by “Tr.”
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Point that he reviewed included the non-disclosure footer, and that the footer was part of
the template for the Power Point software supplied by Magna, Bestop’s parent company.
(Tr. 11, 20). He did not put the footer on the document himself. (Tr. 35). He
acknowledged that over the years, Bestop has shared confidential information with FCA,
and that Bestop expects FCA to honor confidential information. (Tr. 10).
Mr. Smith testified that the Power Point presentation attached to his Declaration is
not the one that he sent to FCA, and that the presentation attached to his Declaration is
missing the footer. (Tr. 12-13). The presentation that he created and that he provided to
FCA (admitted at the hearing as Plaintiff’s Exhibit 2) did have the footer on every page.
(Tr. 19). He did not know whether the copy of the Power Point he gave to Mr. Sadowski
had the footer or not. (Tr. 21). However, he sent a native version of the Power Point,
containing the footer, to FCA. He was not aware of any software bug that would have
deleted the footer (Tr. 22).
Mr. Smith testified that he did not consider the disclosure to FCA to be
confidential, and that Bestop did not request a confidentiality agreement. (Tr. 36). Over
the years, however, he has disclosed confidential information to FCA without a nondisclosure agreement. (Tr. 42-43) He described the presentation at the FCA facility as
being held in an open space that would have been accessible to FCA employees or
“anyone that can access the Chrysler Tech Center.” (Tr. 36-39). However, he could not
identify anyone that was present who was not a Bestop of an FCA employee. He
acknowledged that the public cannot walk into the Chrysler facility whenever they want,
but must sign in and pass through a security protocol. (Tr. 43). Mr. Smith testified that
“in his mind” he gave FCA consent to disclose the information in the presentation. (Tr.
42).
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In response to questioning by the Court, Mr. Smith acknowledged that the email
sent to FCA, containing the Power Point with the footer, bears his email address. (Tr. 51).
Jeffrey Sadowski
Mr. Sadowski testified that he worked with the electronic version of the Power
Point when he was talking to Mr. Smith about his declaration, but that he did not
remember if the version he sent to FCA had the non-disclosure footer. (Tr. 57). He
acknowledged, however, that the Power Point that Webasto obtained from FCA had the
footer, but the version he filed with the Court with his motion to dismiss did not (Tr. 6061). He opined that it would not have been helpful to the Court to have had the version
with the footer. (Tr. 62).
Mr. Sadowski testified that he and Plaintiff’s counsel met after Webasto obtained
the Power Point from FCA, but he denied that Webasto’s counsel offered him the ability
to raise the discrepancy with the Court. (Tr. 76). Mr. Sadowski did not in fact raise the
issue with the Court. (Tr. 77).
Mr. Sadowski reiterated that he had a copy of the native Power Point presentation
when he worked on the Smith Declaration, and that the native copy had the nondisclosure footer. (Tr. 79). In Mr. Sadowski’s first Declaration (submitted with his
response to the motion for sanctions), he stated that he used a software application to
convert the native version to .pdf. That was what he thought at the time, but after “further
investigation” he discovered that was not true. (Tr. 80). Nor was it true, as he said in his
first Declaration, that he used the same software to convert the presentation to .pdf before
sending it to Webasto’s counsel or that the footer was deleted in the conversion process.
(Tr. 80-81). He testified that at the time, he had evidence in his possession that could
have shown that the Power Point was scanned, not converted, and that this evidence “was
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ultimately discovered and produced.” (Tr. 82). He said that when he filed his original
Declaration in response to the motion for sanctions, he in fact had information that could
have shown that he never converted the native Power Point to a .pdf file, but he “didn’t
know it at the time.” (Tr. 95). He stated that the email he sent to Webasto’s counsel,
containing the presentation, had file properties indicating that the Power Point had been
scanned, not converted, but he did not do any “follow up” investigation until Plaintiff’s
counsel brought it up in Webasto’s Reply Brief in the motion for sanctions. It was only at
that point, he testified, that he realized that he had used a scanned Power Point document.
(Tr. 82-85, 95).
Mr. Sadowski testified that before the pre-hearing status conference with the
Court, he had investigated and learned that the Power Point was a scanned document, not
a .pdf conversion that was affected by a software bug, but he did not inform the Court at
that time. (Tr. 96).4 He did not submit his second, amended Declaration until January 13,
2018, 10 days before the evidentiary hearing. (Tr. 99).
Mr. Sadowski stated affirmatively that he did not fabricate evidence by removing
the footer, and does not know anyone who did. (Tr. 121). He opined that it was irrelevant
whether the version of the Power Point he filed with the Court did or did not have the
non-disclosure footer because the FCA meeting was in a public place. (Tr. 123-124).

4

Although the testimony refers to an initial “hearing,” in fact the proceeding was
an in-chambers status conference held on December 5, 2017. Thus, by that date Mr.
Sadowski knew that his first Declaration, attributing the deletion to a software bug
introduced during the conversion to .pdf, was erroneous. He filed his second Declaration
39 days later, on January 13, 2018.
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II.

ANALYSIS

It has long been held that federal courts possess the inherent authority to sanction
bad faith conduct, including conduct that is “tantamount to bad faith.” Metz v. Unizan
Bank, 655 F.3d 485, 489 (6th Cir. 2011)(citing Chambers v. NASCO, Inc., 501 U.S. 32,
45-46 (1991); see also Roadway Express, Inc. v. Piper, 447 U.S. 752, 756 (1980), citing
Link v. Wabash RR Co., 370 U.S. 626, 632 (1962)(recognizing “the ‘well acknowledged’
inherent power of a court to levy sanctions in response to abusive litigation practices.”).
The concept of “bad faith” conduct does not refer to conduct that is merely negligent, but
includes conduct that is either intentional or reckless. In United States v. Wheeler, 154 F.
Supp. 2d 1075, 1078–79 (E.D. Mich. 2001), the Court, citing cases from the Supreme
Court, the Sixth Circuit, and this Court, described “recklessness” as follows:
“‘Recklessness is defined as more than mere negligence but less than
intent.’” In re Champion Enterprises, Inc., Securities Litigation, 144
F.Supp.2d 848, 858 (E.D.Mich.2001) (citing Mansbach v. Prescott, Ball &
Turben, 598 F.2d 1017, 1024 n. 36 (6th Cir.1979)); see Black's Law
Dictionary (7th ed.1999) (defining ‘recklessness’ as involving ‘a greater
degree of fault than negligence but a lesser degree of fault than intentional
wrongdoing’); see also Smith v. Wade, 461 U.S. 30, 45, 103 S.Ct. 1625, 75
L.Ed.2d 632 (1983) (describing recklessness as short of actual malicious
intent). The Sixth Circuit has defined ‘recklessness’ as ‘highly unreasonable
conduct which is an extreme departure from the standards of ordinary care.’
Ohio Drill & Tool Co. v. Johnson, 625 F.2d 738, 741 (6th Cir.1980); see
Black's Law Dictionary (7th ed.1999) (defining ‘recklessness’ as ‘[c]onduct
whereby the actor does not desire harmful consequence but nonetheless
foresees the possibility and consciously takes the risk’).”
As an initial matter, after reviewing the pleadings and exhibits and hearing the
testimony at the evidentiary hearing, I do not find that Mr. Sadowski intentionally
doctored the Power Point presentation or intentionally proffered false or misleading
evidence to the Court when he filed Bestop’s motion to dismiss. Had that been the case, I
would be inclined to recommend a dismissal of Bestop’s counterclaim and possibly a
default judgment in favor of Webasto. See Plastech Holding Corp. v. WM Greetech
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Automotive Corp., 257 F.Supp.3d 867 (E.D. Mich. 2017). However, I do find that his
conduct was reckless as defined the above cases, both as to the initial filing of the Power
Point presentation from which the non-disclosure footer was removed, and as to his
failure to undertake a serious investigation as to why the error occurred and to timely
bring the matter to the Court’s attention.
The gist of Bestop’s motion to dismiss was that the presentation to FCA was a
public disclosure that invalidated Plaintiff’s claim as prior art. The basis of the motion
would therefore be open to question in the light of evidence that the presentation was not
public, but subject to confidentiality and non-disclosure. I will address Mr. Sadowski’s
“lack of relevance” argument at greater length later, but at this point suffice it to say that a
footer on every page of the Power Point stating that “[d]isclosure or duplication without
consent is prohibited” is on its face relevant information. First, before an attorney files an
exhibit, it should be carefully scrutinized for completeness and accuracy. And a
reasonable attorney who became aware that he or she had inadvertently filed an exhibit
that had deleted this information would be horrified. The first thing that attorney would
do would be to immediately notify the Court. The attorney would then undertake an
exhaustive investigation of how the error occurred. Last, but not least, the attorney would
offer a sincere apology to the Court and to opposing counsel.
Mr. Sadowski did none of these things. Instead, after being informed that he filed
an exhibit that he should have known had relevant information removed, he dug in. This
is what he did (and did not do):
When he prepared the Smith Declaration, he worked from the native version of the
Power Point, which contained the non-disclosure footer. He attempts to minimize his
error by referring to it as the “fine print at the bottom of the page,” but it appeared on
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every page. It was obvious. Before the version of the presentation with the footer
removed was filed, he should have carefully examined the exhibit to make sure it
conformed to the native version by comparing the two. He could have filed the complete
version and argued, as he does now, that the footer did not really constitute a valid nondisclosure agreement.
In response to the motion to dismiss, Plaintiffs requested that the Court deny the
motion “and permit Webasto to conduct full and complete discovery regarding its claims
of patent infringement.” Plaintiff’s Response [Doc. #14], Pg. ID 214. In Bestop’s reply
brief, Mr. Sadowski scoffed at the idea that any discovery would refute his theory that
there was a public disclosure of the device. He stated that “[no] amount of discovery will
change the undisputed facts,” that the case should be dismissed “without further delay or
unnecessary discovery,” and that “discovery does not stand a chance of changing what
Defendant has already established....” Reply Brief [Doc. #17], Pg. ID 244. Yet the
“undisputed evidence” included an exhibit that omitted a footer from which a trier of fact
could reasonably infer that Bestop’s presentation to FCA was not public, but confidential.
Plaintiff experienced difficulty in getting discovery from Webasto, including the
request for other copies of the Power Point. When Plaintiff’s counsel obtained the copy
that Bestop had sent to FAC, he and Mr. Sadowski met to discuss the matter. Although
Mr. Sadowski denied that Webasto’s counsel “offered him the ability” to raise the
discrepancy with the Court, he conceded that he met with Plaintiff’s counsel. (Tr. 76).
This was before the motion for sanctions was filed. Again, most lawyers would be
horrified to learn that they had filed such a document with the Court, even (or especially)
if they had done so mistakenly, and would have immediately informed the Court without
being “offered the ability” to do so by opposing counsel. Mr. Sadowski did not inform
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the Court. (Tr. 77). Indeed, the Court was not aware that Bestop had filed an incomplete
exhibit until Plaintiff filed its motion for sanctions. Had Mr. Sadowski timely informed
the Court, perhaps this motion for sanctions would have been unnecessary.
Instead of being horrified, or at least contrite about filing an exhibit that did not
contain the non-disclosure footer, Mr. Sadowski’s response has been that it would not
have made any difference if he had filed the complete version. He testified as follows:
Q: So you don’t think it would have been useful for the Court to have seen the
presentation that had the nondisclosure footer on it in contemplating whether or
not to grant your motion to dismiss?
A: I don’t think so. I think our motion would have been the same motion, your
response would have been the same response, and the judge would have ruled the
same way. (Tr. 62).
*

*

*

Q: (Referring to Bestop’s reply brief) And then you go down in that same
paragraph, and you say, “no circumstances would exist that the meeting and
the disclosures were anything except public disclosures”; is that fair?
A: that’s what it says, yes.
Q: right. And in fact, you had information in your possession that
suggested that maybe the presentation wasn’t public; is that right?
A: That’s not correct.
Q: You had a presentation in your possession that the Court didn’t have that
had a nondisclosure footer in it, right?
A: But that wouldn’t change anything with respect to the public disclosure
or circumstances or inferences existing that the meeting and the disclosures
were anything except public disclosures.
Q: You’re making that decision now, but a court may have found
differently; is that fair?
A: I don’t believe so. I’ve never seen a case where that’s happened. (Tr.
66-67).

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Of course Mr. Sadowski’s opinion (and it is just that, an opinion) that the presence
or absence of the nondisclosure footer would not have been relevant is absurd. The footer
said on its face that disclosure without consent was prohibited. One can perhaps debate
the effect of the nondisclosure statement in the context of other evidence, but that is
ultimately an issue for the trier of fact. Take away the nondisclosure footer and you take
away a relevant fact that could affect the ultimate decision of whether the presentation
was public or private.5
Nor does it appear that Mr. Sadowski undertook an investigation until after the
motion for sanctions was filed. That investigation was woefully inadequate, and has been
followed by shifting and changing explanations as to what happened. In his first
Declaration in response to the motion for sanctions, Mr. Sadowski blamed a software bug
or malfunction that occurred when he converted the native version of the Power Point to a
.pdf version. He stated that the deletion “was performed unintentionally during the
processing of the documents for filing or submission by email.” He stuck with that story
until he received Webasto’s Reply Brief, at which point he undertook “further
investigation.” Yet he testified that when he filed his original Declaration, he was in fact
in possession of information that would have shown he never converted the native version
to a .pdf file. Indeed, he testified that the email he had earlier sent to Webasto’s counsel,
containing the Power Point presentation, had file properties showing that the presentation

5

Mr. Sadowski’s position seems to be that there was uncontraverted evidence that
the presentation was held in a place open to the public, and was therefore a public
presentation. However, Mr. Smith testified that the FCA facility was not freely open to
the general public, and that visitors had to pass through a security protocol. He was
unable to say whether anyone was present other than FCA of Bestop employees. There is
plainly a question of fact as to whether the presentation was limited to FCA employees.
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had been scanned, not converted.6 Yet, he did no serious follow-up investigation until
much later, when Webasto brought it up in its Reply Brief. And he did not submit his
second Declaration, contradicting the first, until 10 days before the evidentiary hearing.
In United States v. Wheeler, the attorney was sanctioned for, among other things,
“failing to undertake the most basic investigation of the underlying facts.” Id., 154
F.Supp.2d at 1079. Likewise here, from beginning to end Mr. Sadowski failed to
undertake any measures that would have assured that a complete document was submitted
to the Court, or to undertake a reasonable and timely investigation of the facts. He has
taken little responsibility for the erroneous submission, and says, in effect, “It’s no big
deal.” Well, when misleading evidence if filed with the Court, or there is a
misrepresentation of a material fact, it is a big deal.
Which brings us to the question of prejudice. The Court denied Bestop’s motion
to dismiss even without the complete and correct exhibit. However, the filing of this
misleading exhibit, followed by Mr. Sadowski’s decision to not inform the Court, his
untimely and inadequate investigation into the cause of the false filing, his complete lack
of contrition, and his cavalier attitude about the seriousness of this matter, is an affront to
the integrity of the judicial process, regardless of the fact that Bestop lost the motion.
Plaintiff has cited Secrease v. Western & Southern Life Insurance Co., 800 F.3d 397 (7th
Cir. 2015), in which the Seventh Circuit made the point:
“...[F]alsifying evidence to secure a court victory undermines the most basic
foundations of our judicial system. If successful, the effort produces an
6

Ironically, Mr. Sadowski in Bestop’s response to the sanctions motion [Doc.
#44], Pg. ID 910, asks for sanctions against Webasto’s counsel for not conducting a
proper investigation, stating, “Attorney Smith should have investigated the facts, which
could have been accomplished through simple discovery requests and an examination of
the file ‘properties’ for all of the documents in question.” This is a good example of a
pot-and-kettle discussion.
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unjust result. Even if not successful, the effort imposes unjust burdens on
the opposing party, the judiciary, and honest litigants who count on the
courts to decide their cases promptly and fairly.” Id. at 402.
I recognize that unlike Secrease and Plastech, the submission of the altered exhibit
was not intentional. But it was reckless. As the Court in United States v. Wheeler noted,
“While [the attorney’s] conduct may not have been with malicious intent, this Court finds
that it also was more than merely negligent.” Id., 154 F. Supp.2d at 1079. And the
burdens placed on the judicial system and on opposing counsel are substantial. In
Marrocco v. Gen. Motors Corp., 966 F.2d 220, 224 (7th Cir. 1992), the Court found
reckless conduct, similar in scope to what occurred in the present case, sanctionable, even
without a finding of intentionality:
“Goodyear's conduct readily falls within the classification of ‘fault.’ It
reflected extraordinarily poor judgment in the way it packaged, labeled and
handled the rim base and side ring. Equally inexcusable is the uncontested
finding that Goodyear stood idly for months before it attempted to
investigate the side ring's apparent loss; it waited even longer before
informing the plaintiffs that the side ring was missing. These omissions
cannot be characterized merely as a mistake or carelessness. Rather, they
reflect gross negligence on the part of Goodyear—a flagrant disregard of its
assumed duty, under the protective order, to preserve and monitor the
condition of evidence which could be pivotal in a lawsuit.”
Therefore, sanctions are appropriate, proportional to the facts of this case.
In Roadway Exp., Inc. v. Piper, 447 U.S. at 764–65, the Supreme Court stated,
“Because inherent powers are shielded from direct democratic controls, they must be
exercised with restraint and discretion.” Citing Gompers v. Bucks Stove & Range Co.,
221 U.S. 418, 450–451 (1911). Plaintiff has not requested a default judgment, nor do I
believe such an extreme sanction is appropriate. Nor will I impose the equally extreme
sanction of dismissing Bestop’s counterclaim.

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First, Mr. Sadowski will be required to pay attorneys fees to Webasto’s counsel for
time reasonably expended in litigating what should have been an otherwise unnecessary
motion for sanctions. Imposition of attorney fees is an available sanction under these
circumstances. See United States v. Wheeler, 154 F. Supp. 2d at 1079; Murray v. City of
Columbus, 534 Fed.App’x 479, 484 (6th Cir. 2013).
Secondly, while I decline to dismiss Bestop’s counterclaim, I will exclude
Bestop’s use of any evidence related to the Mr. Smith’s Power Point presentation to FCA.
III.

CONCLUSION

Plaintiffs’ Motion for an Order Sanctioning Defendant for Making Material
Misrepresentations of Fact to the Court [Doc. #37] is GRANTED.
Defendant Bestop is precluded from any evidentiary use of the Smith Power Point
presentation to FCA, described above.
Attorney Jeffrey Sadowski will pay Plaintiff’s reasonable attorney fees related to
the motion for sanctions.
Within 14 days of the date of this Opinion and Order, Plaintiff will file with the
Court a statement of attorney fees substantiating the number of hours expended and the
claimed hourly rate related to this motion.
Within 14 days after Plaintiff files its statement, Mr. Sadowski may file a response
addressing the reasonableness of Plaintiff’s fee request.
IT IS SO ORDERED.

s/ R. Steven Whalen
R. STEVEN WHALEN
UNITED STATES MAGISTRATE JUDGE
Dated: August 9, 2018
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was sent to parties of
record on August 9, 2018, electronically and/or by U.S. mail.
s/Carolyn M. Ciesla
Case Manager to the
Honorable R. Steven Whalen

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