Esposito v. Suffolk County Community College et al
Filing
112
ORDER denying 101 Motion for Attorney Fees.For the reasons set forth in the attached Memorandum & Order, it is hereby ORDERED as follows:1. Plaintiff's motion to reconsider sanctions order is granted in part and denied in part, and the sanctions order is modified as follows:a. Judge Spatt's order directing payment of attorneys' fees and costs is vacated based on plaintiff's inability to pay;b. Plaintiff is directed to pay the eco nomic sanction of $5,000 previously imposed; andc. As an additional sanction for the unmitigated misconduct, plaintiff's claims are DISMISSED in their entirety.2. Defendants' application for imposition of attorneys ' fees and costs totaling $80,235.20 is consequently denied;3. Defendants' motion for summary judgment is deemed withdrawn in light of the determinations herein.The Clerk of the Court is directed to enter judgment consistent with this Order and close the case. Ordered by Judge Gary R. Brown on 2/6/2021. (Meil, Stephen)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X
FRANCES C. ESPOSITO,
MEMORANDUM OF
DECISION & ORDER
Plaintiff,
-against-
16-cv-04833(GRB)(ARL)
SUFFOLK COUNTY COMMUNITY
COLLEGE, NANCY GERLI, DIANE BOSCO,
and JEFFREY TEMPERA,
Defendants.
X
APPEARANCES:
Ellenoff Grossman & Schole LLP
Pro Bono Attorneys for the Plaintiff
1345 Avenue of the Americas, 11th Floor
New York, NY 10105
By:
Amanda M. Fugazy, Robert James
Anderson
Harfenist Kraut & Perlstein LLP
Pro Bono Attorneys for the Plaintiff
3000 Marcus Ave., 2nd Floor East
Lake Success, NY 11042
By:
Andrew C. Lang, Steven J. Harfenist
Suffolk County Attorney's Office
Attorneys for Defendants
100 Vets Memorial Hwy
Hauppauge, NY 11788
By:
John Richard Petrowski, Assistant
County Attorney, Dana Kobos,
Assistant County Attorney, Elaine M.
Barraga, Assistant County Attorney
GARY R. BROWN, United States District Judge:
Federal litigation constitutes a search for truth. The thorough, refined processes
administered by this Court are designed to provide parties with fair, efficient and highly
effective methods to discover and develop evidence and resolve disputes. From time to time,
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however, a party will attempt to tamper with or fabricate evidence. The result can be a costly
detour that threatens to undermine the protections built into the system and fundamentally
impede the process. This case, sadly, provides a painful and flagrant example.
In this action, Frances Esposito (“plaintiff”), an adjunct college professor sporting
advanced educational degrees, altered, forged and tampered with evidence, and repeatedly
perjured herself to conceal these misdeeds. The late Honorable Arthur D. Spatt, to whom this
matter was previously assigned, a judge whose commitment to fairness and law is rarely
equaled, labored mightily to correct the balance, declining to dismiss the case and instead
imposing a panoply of remedies upon plaintiff in an effort to allow her claims to proceed
notwithstanding her egregious conduct.
Unfortunately, though, now that the Court is
confronted with a fuller record in connection with various motions by the parties, it appears in
light of this record that the remedies previously imposed fall short.
Some are simply
unworkable as, for example, the plaintiff lacks the financial wherewithal to pay the awarded
attorneys’ fees, which would help defray the significant costs unfairly imposed on the
defendants and provide a deterrent to such conduct. More importantly, careful examination of
the materials submitted reveals that the plaintiff’s contumacious conduct – which remains
uncorrected by her – has infected the evidentiary record and continues to impair the search for
truth. As such, dismissal of plaintiff’s claims, it turns out, represents the only fair resolution of
this case.
Procedural History and Relevant Facts
This heavily-litigated matter bears an extensive record. Plaintiff commenced this
proceeding more than four years ago through the filing of a 55-page complaint containing
nearly 450 paragraphs of allegations and fourteen causes of action. Familiarity with the
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following court orders are assumed: (1) Judge Spatt’s order of March 4, 2019 referring the case
to Magistrate Judge Arlene Lindsay for an evidentiary hearing following the defendants’
motion to dismiss and for other sanctions, Docket Entry (“DE”) 52; (2) the evidentiary hearing
held in May 2019, DE 62, 63, 66; (3) the findings of Magistrate Lindsay, set forth in a transcript
of proceedings held in July 2019, DE 69; (4) Judge Spatt’s order of July 26, 2019, adopting the
findings by Judge Lindsay and imposing sanctions, DE 71, Esposito v. Suffolk Cty. Cmty. Coll.,
390 F. Supp. 3d 428, 431 (E.D.N.Y. 2019); and (5) Judge Spatt’s order of October 31, 2019,
appointing pro bono counsel for plaintiff, DE 87. 1
A brief review of the matter is warranted. As Judge Spatt noted, in her weighty
complaint, plaintiff
alleges that she and her doctors advised the College in 2005, 2006 and 2009 of her
purported disability and her need to be scheduled for back-to-back classes in the
same classroom, among other requests. She alleges failure to promote, failure to
provide reasonable accommodation and retaliation for bringing internal
complaints in December 2009 and a 2010 complaint to the Equal Employment
Opportunity Commission (“EEOC”).
DE 52 at 2. Esposito brings these claims against Suffolk County Community College (“SCCC”)
at which she is employed, the Academic Chair and Assistant Academic Chair of SCCC’s Reading
and College Seminar Department and its Assistant Vice President for Employee Relations
(collectively, “defendants”).
After an extensive discovery process, defendants moved for
sanctions – including but not limited to dismissal – based on conduct which, defendants asserted,
amounted to a fraud on the Court. Id.
Specifically, defendants contended that there was evidence that plaintiff forged treatment
notes by her treating physicians, Drs. Campo and DiCanio. Those records were critical to certain
For avoidance of doubt, the misdeeds described in this decision are in no way attributable to pro bono counsel,
who labored admirably – if, at times, a bit aggressively – to represent the plaintiff, having inherited a terribly
difficult record.
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of plaintiff’s claims because, in sum and substance, the records from Drs. Campo and DiCanio
helped define her claimed disability, and, because she alleged that she contemporaneously
provided these records to the defendant college, they represented the basis for her claims of
discrimination and failure to accommodate. These documents, identifying her purported need for
accommodations, are ubiquitous among plaintiffs allegations: Defendants’ counsel has
contended, without contradiction, that “the plaintiff references the purported need for her
accommodation and the failure to give those accommodations 110 times in her federal complaint,
and she references it in 11 of the 14 causes of action that she brought against the college.” DE 63
at 5-6.
After a searching review of the written submissions, Judge Spatt found that “the Court is
confident that it possesses sufficient evidence to find that the Plaintiff forged Dr. Campo’s notes.”
DE 52 at 7. As to Dr. DiCanio’s notes, Judge Spatt found that, based solely on the written
submissions, “the record does not sufficiently establish by clear and convincing evidence that she
forged these notes.” Id. at 9. Out of abundance of caution, though, Judge Spatt referred the
matter to Magistrate Judge Lindsay “for an evidentiary hearing regarding the authenticity of Dr.
Campo’s August 8, 2005 and August 9, 2005 letters and Dr. DiCanio’s September 2006 letter,
September 2009 note and December 30, 2014 forms.” Id. at 16.
Over a series of days, Magistrate Judge Lindsay held a hearing, which included testimony
from plaintiff, the subject physicians, office staff and several college officials. DE 62, 63, 66.
Following the hearing, Magistrate Judge Lindsay made findings on the record, in which she
determined that defendants established by clear and convincing evidence that plaintiff had forged
Dr. Campo’s records. Specifically, one of Dr. Campo’s medical notes, identified as J-3, was an
unauthorized, altered version of an earlier legitimate document prepared by the doctor. DE 69 at
4
3-5. Judge Lindsay noted that the document “was central to the claim of disability discrimination
and the failure to accommodate,” as it included a list of accommodations required by the plaintiff.
Id. at 3-4. She found plaintiff’s explanation for this alteration “simply not believable.” Id. at 57. A second document, J-2, dated in 2005, was actually created in 2010. Id. at 8. Therefore,
Judge Lindsay concluded:
I find by clear and convincing evidence that with respect to J-2 and J-3, those
documents were created by plaintiff or at plaintiff's behest. They were not authentic
documents of Dr. Campo's office. And she submitted J-2 and J-3 or caused J-2 and
J-3 to be submitted knowing that they were not true chiropractic notes of Dr.
Campo.
Id. at 14. Review of these forged, altered records reveals that plaintiff used these documents to
manufacture a list of required accommodations purportedly imposed by Dr. Campo which, in truth
and fact, he did not find necessary for plaintiff (and, based on the testimony of the doctor, would
not have found necessary). DE 66 at 35-36, 72; DE 69 at 3-4, 8. Moreover, the alterations included
fraudulent, manufactured “proof” that Dr. Campo’s medical documentation supporting
accommodations had been provided to SCCC, when, in fact, this was untrue. DE 66 at 27-28; DE
69 at 4.
As to Dr. DiCanio’s records, Magistrate Judge Lindsay decided – as was her charge – that
defendants failed to establish that his records constituted a forgery. DE 69 at 14-15. De novo
review of the transcript and documents confirms that the magistrate judge was correct in her
determination. That same review, however, sheds light on another question that was not referred
to the magistrate judge: whether the records and related evidence are unreliable and/or the product
of other improper behavior by the plaintiff.
Tellingly, the answer to that question is
overwhelmingly affirmative. As has been conceded, the subject records of Dr. DiCanio were not
part of the certified medical record produced by his office, there were multiple versions (signed
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and unsigned) of at least one of these records, these varying versions had substantive differences,
portions of the records were not written by the doctor, and there is indication that the Bates
numbers may have been altered in connection with the submission of these records. See, e.g., DE
63 at 86, 93-100; DE 69 at 14. The doctor testified that it was “possible” that plaintiff created
some of the subject notes which he then signed, including those pertaining to the reasonable
accommodations allegedly requested from SCCC. DE 63 at 69, 85-86. Plaintiff admits that her
handwriting appears on DiCanio’s records, describing an unorthodox “collaboration” between her
and the doctor that is inconsistent with typical methods of producing medical records. Id. at 181.
DiCanio described himself as being “friends” with the plaintiff and, contrary to his usual practice,
provided her with his personal cell phone number. Id. at 27-29. While DiCanio denied that the
plaintiff had ever threatened him, the record includes text messages from the plaintiff to Dr.
DiCanio – sent via that personal cell phone – threatening him with malpractice and disciplinary
action, including one message sent on the eve of his deposition in this case. Id. at 56-66. In one
such message, the plaintiff advised DiCanio that “My evidence will destroy your career.” Id. All
of this evidence led Magistrate Judge Lindsay to conclude that “every one of those doctor’s notes
or treatment notes were written by the plaintiff.” DE 69 at 14. At the same time, Judge Lindsay
found that:
But Dr. Dicanio said notwithstanding the fact that not one of these
documents was written by him and not one of these documents was maintained in
his patient file, he testified under oath that he signed off on them. The practice that
he described was he would simply ask the plaintiff what she wanted included and
he just let her write it out. And so those treatment notes even though he testified
that she was the only patient he allowed to do this, it's clear that these treatment
notes were authorized by him.
Id. at 14-15. Thus, while not forgeries per se, evidence demonstrates that these records were
produced under circumstances that render them questionable, if not entirely unreliable, as the
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Magistrate Judge suggested. Id. at 15 (“there may be some question as to the reliability of these
notes”).
But the de novo review of the record also reveals evidence about additional actions by the
plaintiff that are highly problematic.
The documentary evidence reveals that the plaintiff
submitted purported records from the doctors – several of which were pure forgeries – to the EEOC
to obtain the right to sue letter, a required antecedent to this case. DE 63 at 129-30, 155. In 2016,
the defendant reviewed the complaint filed in this case and verified its accuracy, even though it
expressly relies on the forged records from Dr. Campo. Id. at 132-34. Notwithstanding the
incontrovertible falsity of the allegations relating to Dr. Campo’s note, plaintiff continued – in
sworn testimony at the evidentiary hearing before Judge Lindsay – to maintain that such
allegations were true. Id. at 134. She falsely testified that she had received Dr. Campo’s August
9, 2005 report – which the evidence establishes she created years later – on that date from his
office. Id. at 149. In an attempt to explain away the numerous physical and chronological
inconsistencies in the documentary evidence, plaintiff spun tangled and unconvincing tales which,
unsurprisingly, Magistrate Judge Lindsay rejected. See generally id. Such conduct by plaintiff,
who maintained her fabricated claims even under direct questioning by the Court, simply cannot
be condoned. ABF Freight Sys., Inc. v. N.L.R.B., 510 U.S. 317, 323 (1994) (“False testimony in a
formal proceeding is intolerable. We must neither reward nor condone such a ‘flagrant affront’ to
the truth-seeking function of adversary proceedings. . . . Perjury should be severely sanctioned in
appropriate cases.”). Plaintiff brazenly claimed that she and Dr. Campo had “collaborated” to
prepare the forged documents. DE 63 at 190. And plaintiff’s efforts to continue and cover up her
artifice seemingly included documents created to falsely explain the inconsistencies in the forged
documents she had created and submitted; even under questioning by the Court, she quixotically
7
clung to her story. Id. at 160-162. And yet she continued to vehemently deny, under oath, that
she had forged or tampered with any documents in this case. Id. at 208.
Within two months of the hearing, on July 26, 2019, Judge Spatt issued his determinations
based on those findings. Esposito, 390 F. Supp. 3d at 430. Judge Spatt granted the defendants’
motion for sanctions as to the forged notes of Dr. Campo, finding, after a de novo review, that
Judge Lindsay’s findings were not only correct, but also confirmed the Court’s view of the
documentary evidence submitted with the motion papers. Id. Judge Spatt ruled that:
[T]he Court finds that, without question, the forged notes occurred as a product of
intentional bad faith; they were an attempt to prejudice the Defendants; and they
were not corrected by the Plaintiff. The Plaintiff fabricated documents that were
central to her disability discrimination claims. She carried out an act of deceit which
raises fundamental questions regarding whether she deserves a determination on
the merits. Her refusal to acknowledge her untruthfulness, notwithstanding the
overwhelming evidence to the contrary, similarly casts doubt on her candor with
the Court and her good-faith participation in the truth-finding process.
Accompanying these deplorable acts, she gave deposition testimony that,
intentional or not, undermines the Court’s view of her capacity to be truthful.
Id. at 431. Judge Spatt noted that he had discretion to dismiss the case based upon these findings.
Id. at 430. Ultimately, however, he determined that plaintiff’s behavior was not “prolonged or
ongoing” and declined to “categorize it as a pattern of misbehavior.” Id. at 431. Therefore, rather
than dismiss the claims outright, Judge Spatt imposed an array of lesser sanctions, including
preclusion of the Campo documents, a negative inference instruction to the jury, a $5,000 monetary
sanction and an award of attorney’s fees and costs. Id.
The Scope and Continued Effects of Plaintiff’s Misconduct
In awarding sanctions short of dismissal – which, of course, does represent an extreme
penalty – Judge Spatt noted that “the forgery of the Campo notes is the only duplicitous behavior
that the Defendants established by clear and convincing evidence[.]” Id. at 432. Particularly in
light of the record now before the Court, a different conclusion is warranted. Plaintiff engaged in
8
dishonest, manipulative behavior that ranged far beyond the forgery of Dr. Campo’s notes. As
discussed above, these efforts by plaintiff – many of which are incontestable – included: (1)
submitting false and fraudulent documents to the EEOC well before the filing of this action; 2 (2)
attesting to her counsel in 2016 the accuracy of the complaint herein, which is replete with
references to fictitious events and the fraudulently created forgeries; (3) offering false testimony
at her deposition in 2018; 3 (4) obtaining, or attempting to obtain, additional documents to support
her perjurious testimony at or around the time of her deposition; and (5) offering unequivocally
false testimony before the Magistrate Judge at an evidentiary hearing in 2019. 4 Standing alone,
these events clearly constitute an extended pattern of duplicitous behavior.
Equally important is the subsequent history of this matter. At this writing, nearly 18
months have elapsed since this Court – through independent decisions by Judges Spatt and Lindsay
– condemned plaintiff’s “egregious” behavior, specifically noting that the misdeeds “occurred as
a product of intentional bad faith” and decrying that they “were not corrected by the Plaintiff.”
Esposito, 390 F. Supp. 3d. at 431. Notwithstanding this disconcerting history, litigation has
continued unabated, while plaintiff has taken no steps to correct the record or otherwise
compensate for her contumacious conduct. No amendment has been made to the complaint, which
is still laden with references to fictitious evidence. A review of the massive record reveals nothing
filed by plaintiff to correct the perjurious testimony offered either at her deposition or at the
evidentiary hearing in this Court. Countless days and significant costs have been expended by
defense counsel and the Court in endeavoring to ferret out the falsehoods unreservedly fabricated
DE 63 at 205-6.
See, e.g., DE 63 at 161-2 (plaintiff insisting that she did not create one of the forged documents).
4
See, e.g., DE 63 at 155-63, 193-200 (creating elaborate false explanations to account for inconsistencies in forged
documents), 191 (falsely denying that she altered one document); 202 (claiming that forged documents were
received in 2005), 208 (responding “absolutely not” to question of whether she tampered with or forged documents).
.
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by the plaintiff, yet the record remains bereft of any effort by plaintiff to correct or otherwise
remedy the numerous false, sworn statements made, the fabricated evidence created or the
attendant harm inflicted by these acts.
Though born of fabrication, the consequences of plaintiff’s deceit are all too real. The most
easily quantifiable of those effects are the economic costs unjustly borne by defendants. At
present, defendants have been able to document unnecessary fees and costs totaling over $80,000.
See, e.g., DE 101-1. While counsel can reasonably quarrel with some of the details of the
application, it is beyond peradventure that plaintiff’s mischief has caused damages of significant
economic magnitude.
Yet the impact of plaintiff’s misconduct goes beyond economic costs inflicted on
defendants and the waste of judicial resources. Plaintiff opted to bring this suit not only against a
public educational institution, but several individuals. Being the subject of a federal civil action
charging invidious discrimination is no small thing, bearing emotional and personal costs that
cannot be remedied by an award of litigation expense. See Anaba v. Cty. of Suffolk, 2014 WL
1411770, at *12 (E.D.N.Y. Apr. 11, 2014) (“[T]he disruption, inconvenience and scrutiny that
accompany civil litigation can have serious impact on individual defendants, including in such
matters as career advancement, applying for a new position or obtaining loans.”). Imposing such
consequences on the individual defendants poses particular concerns given that at least some
allegations are rooted in firmly established falsehoods. See, e.g., DE 1 ¶¶ 56-57 (falsely accusing
defendant Gerli of denying requests made “[i]n accordance with [plaintiff’s] physician’s
indications”).
Indeed, plaintiff shows no indication of regret concerning her sanctionable conduct.
Remarkably, her cross-motion to vacate the imposition of attorney’s fees and the $5,000 sanction
10
suggests that whether Judge Spatt “was correct in awarding such sanctions will have to await the
conclusion of proceedings in the District Court.” DE 101-21 at 4. Furthermore, plaintiff argues
that “the alleged forged note was immaterial to the merits of her disability claim.” Id. That
plaintiff makes this suggestion after findings by two judicial officers that the forged documents
were central to plaintiff’s claims, is at best inexplicable and at worst deliberately misleading. See
Esposito, 390 F. Supp. 3d at 431 (“The Plaintiff fabricated documents that were central to her
disability discrimination claims.”); DE 69 at 4 (finding that one of the forged documents “was
central to the claim of disability discrimination and the failure to accommodate”).
Similarly, in opposing summary judgment, counsel for plaintiff argues:
Esposito’s accommodation requests were made through the submission of doctors’
notes.
and
There is proof going back to 2005 that Esposito’s doctors detailed the need for
Esposito to have reasonable accommodations . . . .
DE 110-11 at 4, 23-24 (emphasis added). Read literally, these arguments – suggesting that there
was evidence by multiple doctors in 2005 that plaintiff required accommodations – rest upon the
fictitious documents created by plaintiff. Indeed, the argument expressly rests, at least in part,
upon plaintiff’s false deposition testimony regarding the forged notes. See DE 110-11 at 4 (citing
to plaintiff’s deposition at 126:13-22, in which she discusses the Campo notes). Even if poorly
phrased by pro bono counsel – who seemed to have struggled to avoid references to plaintiff’s
perjurious testimony and fabricated evidence – these arguments demonstrate the inextricable
impact of plaintiff’s deceitful conduct on this proceeding.
Finally, as part of the summary judgment motion, with respect to the suspect records of Dr.
DiCanio, plaintiff attempts to raise issues of material fact based on assertions that serve to resurrect
11
her improper conduct and further demonstrate the unreliability of those records. For example,
plaintiff attempts to dispute testimony by the doctor that her handwriting appears on one of his
medical records, claiming that such testimony constitutes an “inadmissible opinion” by Dr.
DiCanio. DE 110-1 ¶ 103. Worse yet, confronted with a medical record from Dr. DiCanio listing
necessary accommodations in her handwriting, plaintiff objects, contending, based on her own
testimony, that “Plaintiff and Dr. DiCanio collaborated” on the note. Id. ¶ 104. This response is
problematic for two reasons: First, patients and medical professionals do not normally act as joint
scriveners in the creation of written medical reports.
Second, this fantastic notion of
“collaborating” to create a list of medically-prescribed accommodations mirrors her perjurious
testimony before Magistrate Judge Lindsay to explain away her handwriting on one forged note
from Dr. Campo. Compare DE 110-1 ¶ 104 with DE 63 at 190. This echo of her uncorrected false
testimony emerging in response to summary judgment further undermines any hope that plaintiff
has seen the error of her ways.
Enough is enough.
DISCUSSION
The motions currently pending include: (1) defendants’ submission seeking to recover
attorneys’ fees and costs incurred as a result of plaintiff’s misconduct, and documenting
expenditures of approximately $80,000 (DE 101-9); (2) plaintiff’s cross-motion to reconsider the
award of this sanction and the separate $5,000 sanction imposed, predicated upon, inter alia, her
alleged inability to pay (DE 101-21); and (3) defendants’ motion for summary judgment (DE
109). 5 The submissions are weighty – assembled into a stack, the filings measure approximately
Because, as set forth herein, plaintiff’s conduct warrants dismissal of all claims, the Court does not reach the merits
of the summary judgment motion. The Court has considered certain materials submitted with the summary
judgment motion only for the purpose of evaluating the appropriate remedy for plaintiff’s misconduct.
5
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fifteen inches high.
Reconsideration of the Sanctions Order
On her motion, plaintiff moves for reconsideration of Judge Spatt’s sanctions order,
specifically vacatur of the $5,000 economic sanction, reduction of the fees and costs order to 10%
of the amount sought (a reduction of approximately $72,000), and “other and further relief as may
be deemed just, proper and equitable.” DE 101-21 at 13. Plaintiff’s application therefore invites
reconsideration of the propriety of the entire sanctions award, as Judge Spatt’s remedy was
designed to address the harms caused by plaintiff in a comprehensive way. Even assuming,
however, that plaintiff had not moved for reconsideration, the Court retains the discretion to
reconsider Judge Spatt’s order sua sponte. As one court observed:
Under Federal Rule of Civil Procedure 54, “any order or other decision, however
designated, that adjudicates fewer than all the claims or the rights and liabilities of
fewer than all the parties does not end the action as to any of the claims or parties
and may be revised at any time before the entry of a judgment adjudicating all the
claims and all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b). “A district
court ... possesses the inherent authority to sua sponte reconsider its own
interlocutory orders before they become final.” Chartis Seguros Mexico, S.A. de
C.V. v. HLI Rail Rigging, LLC, 2015 WL 545565, at *2, 2015 U.S. Dist. LEXIS
15909, at *7 (S.D.N.Y. Feb. 9, 2015). “Sua sponte reconsideration is appropriate
where there is a need to correct a clear error or prevent manifest injustice, there is
an intervening change in the applicable law, or new evidence is available.” Id.
(quoting Benavidez v. Piramides Mayas Inc., 2013 WL 2357527, at *3, 2013 U.S.
Dist. LEXIS, at *7–8 (S.D.N.Y. May 24, 2013)). “Whether such revision is
appropriate in any given case is within the sound discretion of the trial judge.” Acha
v. Beame, 570 F.2d 57, 63 (2d Cir. 1978).
Utica Mut. Ins. Co. v. Munich Reinsurance Am., Inc., 381 F. Supp. 3d 185, 209 n.36 (N.D.N.Y.
2019). Particularly in light of subsequent events and the additional evidence before the Court, the
undersigned finds that it is appropriate to exercise such discretion here.
For the reasons discussed, to the extent that plaintiff’s motion to reconsider sanctions is
predicated on an argument that the forgeries were immaterial or otherwise harmless, the motion is
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rejected as spurious. The gravamen of plaintiff’s motion, though, other than quarrelling with the
amounts sought by counsel, rests on her inability to pay. The materials submitted suggest that
plaintiff cannot pay the full amount of fees sought, lacking the ability to pay the costs already
incurred (let alone additional sums that could be reasonably anticipated should this matter
proceed). Therefore, the Court grants the motion to the extent that it seeks to vacate the award of
attorneys’ fees. At the same time, plaintiff’s financial situation, while difficult, does not excuse
her from the payment of the $5,000 sanction imposed by Judge Spatt, as it appears that she has the
ability to make that payment. Therefore, the motion is granted in part, and denied in part.
Defendants raise the question of deterrence, citing case law suggesting that an inability to
pay should not undermine an attorneys’ fee award. But, as the Second Circuit has held, “fee awards
are at bottom an equitable matter, [and] courts should not hesitate to take the relative wealth of the
parties into account.” Shangold v. Walt Disney Co., 275 F. App'x 72, 74 (2d Cir. 2008) (quoting
Faraci v. Hickey–Freeman Co., 607 F.2d 1025, 1028 (2d Cir.1979)). While the Court retains the
discretion to leave the award of attorney’s fees standing despite plaintiff’s seeming inability to
pay, it declines to do so, as this would represent an exercise in futility.
At the same time, granting the vacatur of the attorney’s fee award – as requested by plaintiff
– compels reconsideration of the efficacy of the remedy crafted by Judge Spatt. The need for
deterrence of such egregious conduct requires that some additional remedy be imposed. “It strikes
us as elementary that a federal district court possesses the inherent power to deny the court’s
processes to one who defiles the judicial system by committing a fraud on the court.” Aoude v.
Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989); Pope v. Fed. Exp. Corp., 974 F.2d 982, 984
(8th Cir. 1992) (finding dismissal of plaintiff’s action appropriate where plaintiff introduced
manufactured evidence and perjured testimony in an attempt to enhance the case). That concern,
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together with the continuing impact of plaintiff’s deceitful acts and the reexamination of that
conduct given the fuller record here, requires dismissal of this case.
Dismissal
It bears repeating that Judge Spatt determined in July 2019 that, given the facts uncovered
in the evidentiary hearing, the Court had the discretion at that time to dismiss plaintiff’s claims.
Esposito, 390 F. Supp. 3d at 430. In determining that he need not do so, Judge Spatt focused on
the third element of the test outlined in McMunn v. Mem'l Sloan–Kettering Cancer Ctr., 191 F.
Supp. 2d 440 (S.D.N.Y. 2002), to wit:
“(1) whether the misconduct was the product of intentional bad faith; (2) whether
and to what extent the misconduct prejudiced the other party; (3) whether there is
a pattern of misbehavior, rather than an isolated instance; (4) whether and when the
misconduct was corrected; and (5) whether further misconduct is likely to continue
in the future.”
Esposito, 390 F. Supp. 3d at 430–31 (quoting McMunn, 191 F. Supp. 2d at 446). Notably, the
third element of the test – whether the misbehavior constitutes a pattern or an isolated instance –
was the sole basis for the decision to refrain from dismissal: Judge Spatt otherwise expressly found
that the actions here were the product of intentional bad faith that prejudiced the opposing parties
and that the misconduct had not been corrected. 6 Id. at 431.
Based on the record before him, Judge Spatt found that plaintiff’s behavior in this case was
“not comparable to cases where courts dismissed claims due to fraud on the court.” Id. at 431
(citing, inter alia, Shangold v. Walt Disney Co., 275 F. App'x 72, 73 (2d Cir. 2008)). However,
examination of the record now before the Court suggests that the pattern of misconduct here is
remarkably similar to that in Shangold. The plaintiffs in that case, just like Ms. Esposito,
While he made no findings as to the likelihood of future repetition, Judge Spatt determined that the sanctions
imposed – particularly the economic sanctions – would “sufficiently deter future misbehavior.” Esposito, 390 F.
Supp. 3d at 432.
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“submitted fraudulent evidence to the district court in order to bolster their claim,” “offered
testimony that the district court properly found to be false, at their respective depositions, in order
to bolster their claims and continue the fraud,” and made “repeated false statements [which]
show[ed] their willfulness and bad faith,” actions which “resulted in significant costs to the
defendants.” Shangold, 275 F. App'x at 73–74. Upon these facts – which are highly similar to
those of the instant case – the Second Circuit affirmed Judge Pauley’s dismissal of the action,
noting:
While dismissal is indeed a “harsh sanction,” In re Harris, 464 F.3d 263, 272 (2d
Cir.2006), a district court has the inherent power to sanction parties in order to
“manage [the court's] affairs so as to achieve the orderly and expeditious disposition
of cases,” Revson v. Cinque & Cinque, P.C., 221 F.3d 71, 78 (2d Cir.2000).
Shangold, 275 F. App'x at 73. Here, plaintiff’s broad, unmitigated wrongdoing has rendered
impossible any effort to effect an “orderly and expeditious disposition,” and dismissal is required.
In reaching this conclusion, the Court is guided by another decision – raised by the parties
– by Judge Pauley. In Lawrence v. City of New York, 2018 WL 3611963 (S.D.N.Y. July 27, 2018),
defendants moved for dismissal as a sanction under Federal Rules of Civil Procedure 11, 26 and
37, predicated upon the production of photographs during discovery in the case. In that matter, a
civil rights action based upon allegedly improper police conduct during a warrantless search, the
plaintiff provided her attorney with a series of photographs purporting to represent the condition
of her apartment just days after the search. Id. at *1. The attorney produced the photographs in
discovery, and the plaintiff testified under oath that the photographs were taken by her son or a
friend two days after the incident. Id. Later, she changed her account to suggest that she had taken
most of the photos. Id. Examination of metadata revealed that the photographs were created a full
two years after the search. Id. After further proceedings, plaintiff provided several additional
16
fabricated accounts attempting to compensate for her false testimony and fabricated evidence. Id.
at *2, 6-7.
As Judge Pauley observed:
The Federal Rules of Civil Procedure provide for sanctions based on
litigation misconduct. Courts also “possess certain inherent powers, not conferred
by rule or statute ... to fashion an appropriate sanction for conduct which abuses the
judicial process.” Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1186
(2017) (citation and marks omitted). Courts have the inherent power to correct a
fraud upon the court. Fraud upon the court exists where a litigant attempts to
“improperly influence[ ] the trier” of fact, “lies to the court and h[er] adversary
intentionally, repeatedly, and about issues that are central to the truth finding
process,” or “knowingly submit[s] fraudulent documents to the Court.” Passlogix,
Inc. v. 2FA Tech., Inc., 708 F. Supp. 2d 378, 395 (S.D.N.Y. 2010) (citation and
marks omitted). A district court has broad discretion in fashioning sanctions under
its “inherent power to manage its own affairs.” Residential Funding Corp. v.
DeGeorge Fin. Corp., 306 F.3d 99, 106–07 (2d Cir. 2002).
....
“Our judicial system generally relies on litigants to tell the truth....”
McMunn, 191 F. Supp. 2d at 445. Therefore, “[f]raud upon the court ... seriously
affects the integrity of the normal process of adjudication.” Hargrove v. Riley, 2007
WL 389003, at *11 (E.D.N.Y. Jan. 31, 2007) (citation and marks omitted).
“[T]ampering with the administration of justice ... involves far more than an injury
to a single litigant. It is a wrong against the institutions set up to protect and
safeguard the public, institutions in which fraud cannot complacently be tolerated
consistently with the good order of society.” Shangold v. Walt Disney Co., 2006
WL 71672, at *4 (S.D.N.Y. Jan. 12, 2006) (citing Hazel-Atlas Glass Co. v.
Hartford-Empire Co., 322 U.S. 238, 246 (1944)).
Lawrence, 2018 WL 3611963, at *2, *6.
Judge Pauley made observations about the conduct in Lawrence that equally apply to the
troubling record in this case:
The creation of staged photos was the beginning of a sustained effort by
Lawrence to mislead Defendants and this Court. . . . Lawrence's attempts to explain
the photographs and her deposition testimony continue a pattern of evasion and
untruths. . . . These shifting explanations are as troubling as the photographs
themselves. This Court does not know how it can credit any of Lawrence's
explanations . . . [and] her pattern of misbehavior appears likely to continue. See
DAG Jewish Directories, Inc. v. Y&R Media, LLC, 2010 WL 3219292, at *5
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(S.D.N.Y. Aug. 12, 2010) (intentional fraud on court and subsequent lies to cover
it up showed that “further misconduct [was] likely”); McMunn, 191 F. Supp. 2d at
462 (litigant's “lies and misconduct will almost certainly continue in the future if
this action is permitted to go forward ... nullifying any chance for a fair adjudication
of the merits”).
....
Finally, Lawrence's “misconduct did not concern a peripheral or an
incidental matter[.] ... Rather, [it] goes to the heart of the case by making it apparent
that defendants can rely only on fraudulent or defective records....” Cerruti 1881,
169 F.R.D. at 583. “[A]ll litigants, including pro ses, have an obligation to comply
with court orders. When they flout that obligation, they, like all litigants, must
suffer the consequences of their actions.” McDonald v. Head Crim. Court
Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988).
Lawrence's deceptive conduct and shifting excuses have completely
undermined her credibility. This Court has no way of knowing what story Lawrence
would offer if this case went to trial. See Hargrove, 2007 WL 389003, at *11
(severe sanctions were warranted based on plaintiff's intentional document
forgeries, which were submitted in discovery and again as exhibits to his motion).
Any sanction less than dismissal, “such as a jury instruction, would be ineffective.”
See McMunn, 191 F. Supp. 2d at 462. And “merely excluding the fabricated
evidence would not only fail to address ... [P]laintiff's other misconduct ... but
would also send the [P]laintiff, and future litigants like [her], the message that they
have everything to gain, and nothing to lose, by continuing to submit fabricated
evidence.” Slate v. Am. Broad. Cos., Inc., 941 F. Supp. 2d 27, 52 (D.D.C. 2013)
(citation and marks omitted) (“Dismissal is particularly appropriate where a
plaintiff seeks to enhance the merits of her case with fabricated evidence and
fictionalized testimony.”).
Id. at *6–7. The instant case is plagued with the very same concerns. Given this history, the Court
has no confidence that plaintiff will not continue to engage in misconduct, cannot anticipate the
testimony that plaintiff would offer before a jury, and finds that her unrelenting, outrageous
conduct thoroughly undermines her credibility.
Dismissal is required to remedy the false
testimony and fabricated evidence manufactured by this plaintiff; any lesser sanction, on this
record, would fail to meet the needs of specific and general deterrence required by plaintiff’s
conduct, or provide a just and efficient result in this case.
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CONCLUSION
Based on the foregoing, it is hereby ORDERED as follows:
1. Plaintiff’s motion to reconsider sanctions order is granted in part and denied in
part, and the sanctions order is modified as follows:
a.
Judge Spatt’s order directing payment of attorneys’ fees and costs is
vacated based on plaintiff’s inability to pay;
b. Plaintiff is directed to pay the economic sanction of $5,000 previously
imposed; and
c. As an additional sanction for the unmitigated misconduct, plaintiff’s
claims are DISMISSED in their entirety.
2. Defendants’ application for imposition of attorneys’ fees and costs totaling
$80,235.20 is consequently denied;
3. Defendants’ motion for summary judgment is deemed withdrawn in light of the
determinations herein.
The Clerk of the Court is directed to enter judgment consistent with this Order and close the case.
SO ORDERED.
Dated: Central Islip, New York
February 6, 2021
/s/ Gary R. Brown
GARY R. BROWN
United States District Judge
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