Sanchez v. Litzgenberger et al

Filing 29

MEMORANDUM OPINION AND ORDER re: 20 MOTION to Dismiss. For reasons further set forth in said Order, Defendants' motion to dismiss is denied. Defendants' motion for sanctions is denied insofar as it seeks dismissal and is granted to the extent that Plaintiff will be required to reimburse Defendants for the expenses and fees incurred in rooting out Plaintiff's true identity. (Signed by Magistrate Judge Theodore H. Katz on 2/24/11) (db)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

----x
JUAN C. SANCHEZ, Plaintiff, against09 Civ. 7207 {THK}
MEMORANDUM OPINION AND ORDER

ROBERT LITZENBERGER, et al.,

Defendants. -- -- -- ------- X THEODORE H. KATZ, UNITED STATES MAGISTRATE JUDGE. Plaintiff Litzenberger, ( "Defendants" ) , Juan Amy Sanchez brings this and action against Robert

'j
1

Litzenberger, monetary

Christopher for

Palmisano injuries

seeking

compensation

sustained in an automobile accident allegedly caused by Defendants. The Court's jurisdiction is based on the parties'
§

diversi ty of

citizenship, pursuant to 28 U.S.C.

1332(a) (1).

Defendants, who

learned during the course of discovery that Plaintiff brought this action using a false name, now move for the dismissal of the

action, arguing that Plaintiff's use of a false name constitutes a fraud on the Court and abuse of the discovery process. reasons that follow, Defendants' motion is denied. For the

1 The parties consented to proceed before this Court for all purposes, pursuant to 28 U.S.C. § 636(c).

-1

BACKGROUND

This action arises out of an automobile accident that occurred on August 21, 2008, on the New Jersey side of the upper level of Plaintiff alleges that he was in the

the George Washington Bridge.

right lane, three or four feet behind another automobile, when his vehicle was struck from behind by an automobile driven by Defendant Palmisano. ("Sanchez (See Deposition of Juan Sanchez, dated Jan. 13, 2009, Dep.") attached as Ex. B to Affirmation of Michael On

Braverman, dated Aug. 10, 2010 ("Braverman Aff."), at 37, 41.) June 24, Court, 2009,

Plaintiff brought suit in New York State Supreme

under the name "Juan C. Sanchez." Defendants served their

Answer on August 14, 2009, and simultaneously removed the action to this Court pursuant to 28 U.S.C. On or about September 8, Bill of Particulars,
§

1441. Plaintiff served a Verified

2009,

in which he listed his name as "Juan Carlos

Sanchez," provided a birth date of November 27, 1977, and offered what he claimed was his Social Security number. of Particulars, dated Sept. 8, 2009, at 1.) Verified Bill

Plaintiff attested to

the truthfulness of the document by signing and swearing to its accuracy before a notary public. (See id. at 8,) 2009, Plaintiff testified Deposition 13 Dep."),

At his deposition on January 13,

under oath that his true name was "Juan Sanchez." of Juan Sanchez, dated Jan. 13,
2

2009

("Sanchez Jan.

attached as Ex. C to Bender Aff., at 4.)

When specifically asked

if he was known by any other name, Plaintiff replied that the only other name he was known by was "Juan Carlos," middle name. (See at 5.) Carlos being his

Defendants' subsequent investigation revealed that a resident of Puerto Rico, named Juan Carlos Sanchez Vargas ("Sanchez

Vargas"), shared Plaintiff's birth date and Social Security number. A representative sent by Defendants to Puerto Rico met with Sanchez Vargas, and was provided with copies of Sanchez Vargas's Puerto Sanchez Vargas

Rico drivers license and his Social Security card.

also signed an affidavit indicating that approximately two-and-a half years ago, he learned that he had been the victim of identity theft. 2010, (See Affidavit of Juan C. Sanchez Vargas, attached as part of Ex. D to Bender Aff.) dated July 8, Sanchez Vargas ty of New

stated that he had neither lived in nor visited the York, nor, for that matter, (See id.) this knowledge, Defendants requested

had he visited any State outside of

Puerto Rico. Armed

with

a

second

deposition of Plaintiff for the limited purpose of exploring the issue of Plaintiff's true identity. At this second deposition,

Plaintiff again testified under oath that his true name was "Juan Sanchez." (See Deposition of Juan Sanchez, dated July 22, 2010

("Sanchez July 22 Dep."), attached as Ex. E to Bender Aff., at 3.)
-3

Plaintiff was also asked about the circumstances surrounding the receipt of his Social Security card, and about the individual in Puerto Rico who shared his name, date of birth, and Social Security number, at which point Plaintiff's attorney directed Plaintiff not to answer the question, and the deposition ended.
26. )

(See

at 24

On October 18, 2010, Plaintiff was arrested by New York City police officers and charged, under the name of "Adalberto Cruz," with Identity Theft
190.80(1)),

in the First Degree

(New York Penal Law (New York Penal Law

§ §

Forgery in the Second Degree

170.10{3)), Grand Larceny in the Third Degree
§

(New York Penal Law

155.35), Welfare Fraud in the Third Degree (New York Penal Law §

158.15), and Offering a False Instrument in the Second Degree (New

York Penal Law
2010
I

§

175.30).

Criminal Complaint, dated Oct. 18, The charges against

attached as

Ex.

G to Bender Aff.)

Plaintiff are based upon the use for medical benefits.

a false name on an application iff made a

At the time of his arrest, Pla

recorded statement to the police in which he initially stated that his name was Juan Sanchez, but corrected himself to say that "real name" was "Jose Manuel that Torres." Plaintiff had a prior s

Further criminal

investigation

revealed

conviction in New York under the name Jose Torres, and that three outstanding warrants for Plaintiff's
-4

arrest

existed

in

Massachusetts. Bender Af f . } On November

{See NYPD Case Overview,

attached as Ex.

H to

1,

2010,

Plaintiff

replied

to

a

Request

for

Admission served by Defendants, admitting that his true and legal name is neither Juan C. Sanchez nor Jose M. Torres, but is

Ada1berto Cruz. Bender Aff.}

Request for Admission, attached as EX. J to

Plaintiff has, however, used the name "Juan Sanchez" (See Affirmation of Michael Braverman, According

for more than ten years.

dated Jan. 18, 2010 ("Braverman Jan. 18 AfL"), at 10.} to his attorney,

Plaintiff feared that a felony conviction would future, and thus adopted the name "Juan

negati vely impact his

Sanchez" in 1999, following a guilty plea to a charge of Attempted Criminal Sale of Narcot s. at 11.) Following the

assumption of this false identity, Plaintiff went to school, became a union carpenter, and started a family, in each case maintaining the name "Juan Sanchez." Defendants now move to dismiss Plaintiff / s complaint / pursuant to Federal Rule of Civil Procedure 37(b} and the Court's inherent equitable powers, as a sanction for Plaintiff's use of a false name in bringing and prosecuting this action.
DISCUSSION

Defendants maintain that dismissal is warranted here because Plaintiff has committed fraud on
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the

Court

by engaging

in

"a

deliberate scheme to defraud both the defense and the Court" and because Plaintiff "filed false sworn pleadings, perjuriously

verified their accuracy, perjured himself in his depositions, and disclosed his identity only after his scheme was exposed." (See

Memorandum of Law in Support of Motion for Dismissal of Complaint, dated Nov.
17, 2010

("Defs.'

Mem."),

at 2-3.)

Defendants also

argue that Plaintiff never freely volunteered his name, and that it was only after he was arrested for identity theft that he was forced to reveal the truth. dismissal is not warranted (See id.) here Plaintiff responds that (1) Plaintiff s
I

because

name

qualified as a true alias,

(2)

the alias was not used to deceive Plaintiff ultimately admitted to

this Court or Defendants, and his deception. Jan. 18, 2010 that ("PIs.
I

(3)

Plaintiff's Affirmation in opposition, dated Mem."), at 2.) suffered no Plaintiff further contends prejudice from Plaintiff's

Defendants

have

misrepresentations.

(See

I.

Legal Standard Defendants rely on Rule 37 (b) (2)
(C)

of the Federal Rules of fails to the court in

Civil Procedure, which provides that' [i]f a party obey an order to provide or permit discovery .

which the action is pending may make such orders in regard to the failure as are just, order . and among others the following:
I II

[an] Civ. P.

dismissing the action
-6

Fed. R.

37(b) (2) (C).

Rule 37 vests a district court with wide discretion

in imposing sanctions on a party for its failure to comply fully with its discovery obligations. 427 U.S. See 639, Nat/I 643, Hockey 96 S. Ct. League 2778, v. 81 916

Metropolitan Hockey Club/ (1976) (per curiam)
i

Bobal~

Rensselaer Polytechnic Inst.,

F.2d 759, 764 (2d Cir. 1990) 587, 590 (2d Cir. 1988).

i

Outley v. City of New York, 837 F.2d

Dismissal with prejudice under Rule 37(b)

is appropriate only where a court finds "wilfulness, bad faith, or any fault on the part of However/ [a party] ." Bobal, 916 F.2d at 764.

since there is no court order here that was allegedly

violated, Rule 37(b) does not provide a basis for the imposition of sanctions on Plaintiff. 1131 (2d Cir. 1986) 194 (S.D.N.Y.
i

See Salahuddin v. Harris, 782 F.2d 1127/
f

In re WRT Energy Sec. Litig. Nevertheless court may
f

246 F.R.D. 185,

2007) a

[e] ven in the absence of a sanctions on a party for

discovery order,

impose

misconduct in discovery under its inherent power to manage is own affairs.
II

306

F.3d 99, 106 07 (2d Cir. 2002). In addition to those powers expressly conferred by rule or statute, courts enjoy the inherent equitable power "to levy

sanctions in response to abusive litigation practices." Express,

Roadway

Inc. v. Piper, 447 U.S. 752, 765/ 100 S. Ct. 2455, 2463

-7

(1980) ;

Chambers v. NASCa, Inc., 501 U.S. 32, 46, 111 S.

Ct. 2123, 2133 (1991) . [Courts have] the inherent power to do whatever is reasonably necessary to deter abuse of the judicial process and assure a level playing field for all litigants. Indeed, °tampering with the administration of justice invol ves far more than an inj ury 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 consistent with the good order of society. Shangold v. The Walt 71672, at *4
Disney~,

No. 2006)

03 Civ.

9522

(WHP) , 2006 WL

(S.D.N.Y. Jan. 12, 322

(quoting Hazel-Atlas Glass. 238, 246, 64 S. Ct. 997

U.S.

(1944)).

As opposed to a fraud against an adverse party, a fraud

upon the court will only be found where the misconduct at issue "seriously affects the integrity of the normal process of

adjudication." 1988).

Gleason v. Jandrucko,

860 F.2d 556, 559

(2d Cir.

"perjury alone does not constitute fraud upon the court."

Skywark v. Isaacson, No. 96 Civ. 2815 (JFK) (NRB) , 1999 WL 1489038, at *14 (S.D.N.Y. Oct. 14, 1999) (Report and Recommendation), Rather, "[i]n

adopted at, 2000 WL 145465 (S.D.N.Y. Feb. 9, 2000). order to grant sanctions based upon fraud,

it must be established

by clear and convincing evidence that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by . . unfairly hampering the presentation of the opposing party's
-8

claim or defense.

n

Hargove v.

Riley,

No.

CV-04-4587

(DGT),

2007 WL 389003/ at *11 (E.D.N.Y. Jan. 31, 2007) The imposition of sanctions implicates due process concerns, which are particular strong when the sanction sought is an

outright dismissal. S. Ct. at 2464 n.14. be imposed sparingly.

See Roadway Express, 447 U.S. at 767 n.14, 100 Dismissal is a drastic sanction, which should Nat'l Hockey League, 427 U.S. at 642 43, 29 F.3d

96 S. Ct. at 2780 81; Valentine v. Museum of Modern Art, 47/ 49-50 (2d Cir. 1994) (per curiam)
~

(in considering dismissal

pursuant to Rule 37, stating that

[d]ismissal with prejudice is a situations
· 1/ )

harsh remedy to be used only in extreme (internal citations omitted);
====~,

Civil v.

New York City Dep't of

No. 91 Civ. 2946 (SS), 1993 WL 51156, at *2 (S.D.N.Y. Feb. (same). However, where lesser sanctions would not be
~willfulness,

23/

1993)

meaningful and the plaintiff's misconduct is due to

bad faith, or any fault,'/ dismissal of an action is appropriate. National Hockey League, 427 U.S. at 640, 643, 96 S. Ct. at 2779,

2781; accord Simmons v. Abruzzo, 49 F.3d 83, 88 (2d Cir. 1995). Courts in this Circuit consider five factors in determining whether to impose the sanction of dismissal: (1) whether the misconduct was the product of intentional bad faith; (2) whether and to what extent the misconduct prej udiced 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
-9

(5) whether further misconduct is likely to continue in the future. Shangold, 2006 WL 72672, at *4 (quoting McMunn, 191 F. Supp. 2d at 446) (internal quotation marks omitted); see also Dodson v. Rule 41

Runyon,

86 F.3d 37, 40

(2d Cir. 1996)

(citing factors

context for entry of a default judgment); New Pac. Overseas Grp. (USA) Inc. v. Exca1 Int'l Dev. Corp., Nos. 99 Civ. 2436
&

3581

(DLC) , 2000 WL 377513, at *7 (S.D.N.Y. Apr. 12, 2000) factors Rule 37 context). However,

(citing same

"dismissal is permissible

only when the deception relates to matters in controversy in the action, and even then is so harsh a remedy that
II

it

should be

imposed only in the most extreme circumstances.

Bower v. Weisman,

674 F. Supp. 109, 112 (S.D.N.Y. 1987) (citing Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d585 (9 th Cir. 1983)). II. Application Defendants rely heavi (N.D. Ill. 2001), on Dotson v. Bravo, 202 F.R.D. 559

asserting that the Dotson case is directly on (See Defs.' Mem. at

point and should be followed by this Court. 18.)

In Dotson, the plaintiff sued various police officers and the

ty of Chicago for malicious prosecution arising out of his arrest and prosecution following an altercation with police. 202 F.R.D. at 561. During the course of the sui t, Dotson, defendants

discovered that Dotson had filed the case under a false name, which

-10

was the same name he had given police at the time of the original arrest upon which his malicious prosecution case was predicated. at 562. The Dotson court noted that the name was not a arrest and

"true alias" because, other than the plaintiff's initi subsequent civil lawsuit,

there was no evidence that he had ever See Plaintiff's use

used or been known by the name "Dotson.//

of an alias in that case, which he adopted solely to conceal his criminal history, direct impacted on the merits of his
claims.~

Doston only revealed his true identity when the court granted the defendants' motion to compel, and even then, only grudgingly.

at 568. Confronted with this record, inherent power to the Dotson court exercised its finding that the plaintiff

smiss the action,

"deliberately planned and carefully executed a scheme to deceive state law enforcement and the state judicial machinery, and that he continued the deceit through lies, misrepresentation, and non

sclosure in federal court.//

at 570.

The court further found 1

that the plaintiff "interfered with and obstructed the jUdic

2 The court noted, for example, that "[t]he use of a false name after the commission of a crime is commonly accepted as relevant on the issue of consciousness of guilt." 202 F.R.D. at 563. Any evidence tending to support a plaintiff's guilt of an underlying crime would obviously be relevant to a plaintiff's subsequent claim of malicious prosecution stemming from his initial arrest for that underlying crime.

-11

process, a process which clearly includes a party's right to full, complete and truthful discovery." Here, Id. at 573.

Plaintiff did not invent a fictitious name solely for

the purpose of obstructing the judicial process or interfering with Defendants' right to full, complete, and truthful discovery.

Indeed, Plaintiff had used the name Juan Sanchez for at least ten years prior to this suit. Plaintiff's use of an alias is

unrelated, or, at worst, only tangentially related to the issues in dispute. For example, there is no question that it was

Plaintiff who was actually in the car which was rear-ended by Defendants' car. that Plaintiff's Defendants have produced no evidence indicating admitted deception was designed to frustrate

Defendants'

discovery of evidence relevant to the merits of the

underlying action. In all material respects, the present case more closely

resembles another case arising in the Seventh Circuit, Rodriguez v. City of Highland Park, which distinguished Dotson on the basis that the plaintiff's name in Rodriguez was a true alias, that the

plaintiff disclosed his true name during the course of discovery,

The Court recognizes, however, that even if Plaintiff's deception was not designed to frustrate Defendants' discovery of relevant evidence, it may nonetheless have had that effect. Accordingly, Defendants are entitled to a remedy for the harm flowing from Plaintiff's deception, the details of which will be discussed infra.
-12

and that the prejudice resulting from the plaintiff's deception was minimal. See
2002 WL 31557628, at *3 4 (N.D. Ill. Nov. 15, 2002).
The plaintiff in was a Mexican citizen who 1 , whose true name was Abel Reyes, and worked in the United States for

several years through the use of counterfeit Social Security and Resident Alien cards bearing the false name "Lorenzo Rodriguez." At some point during that time, and warned by a further arrests. s was arrested for speeding, in

judge that continued speeding would result Following s ident, Reyes was

again

arrested, this time for drunk driving.

Fearful that the judge who

had cautioned him earlier would now send him to jail, Reyes gave pol a false name. Upon discover s deception, police

arrested Reyes for obstruction of justice. police the alias "Lorenzo Rodriguez." Approximately two years later, Reyes aga t the arresting officers and the

This time, Reyes gave at 1.
t

a civil action Highland Park,
s.

City

alleging violations of his constitutional r

Reyes brought

t using the same alias he gave when he was arrested, and that he had used while living in the United States. scove Dur the course of of using false at 2.

, the defendants discovered Reyes' his

names, and moved to dismiss the case.

-13

The Rodriguez court denied the defendants' motion to dismiss, finding that, as an initial matter, the plaintiff's use of the name Rodriguez qualified as a 'true alias' and, unlike the plaintiff in Dotson, Reyes "did not invent a f titious name solely for the
II

purpose of deceiving the pol Second, Reyes disclosed his

or the courts. true name in

at 4. response to the

defendants'

discovery requests

and testified about
S~~

the various

names he had used with the police.

Finally, prejudice to

the defendants was minimal, because they were ultimately provided information concerning Reyes' background and had the opportunity to question him on the issue of his use of aliases. See at 5.

In the present case, applying the five factors courts in this Circuit consider in determining whether to impose the sanction of dismissal, the Court cannot say that Plaintiff's deception was the product of intentional bad faith. Plaintiff's use of the name "a deliberate scheme to Rather, Plaintiff's name

"Juan Sanchez" was not used as part of defraud both the defense and the Court.
II

is more akin to a "true alias,H one which he had adopted and used for a period of nearly ten years prior to the events giving rise to this suit. model of As such, Plaintiff's use of an alias, though hardly a the forthrightness from and honesty is the Court expects in
a

representations misrepresentation

litigants,

less or,

egregious indeed,

than occurred

in Dotson,

in the

14

majority a

federal cases where courts have dismis of a plaintiff's use of (11 th a false

an action as name. See iff

consequence

~,

465 F. 3d 479

r.2006)(pla

filed numerous civil rights actions under false names, and his true name was not discovered until trial)
i

Kings v. Smith, No.

09-cv

2227, 2010 WL 5353345 (C.D. Ill. Dec. IS, 2010) ( a pattern

aintiff "followed [giving] pol ty of

deception for years" by "routinely

officers false names and filing numerous cases in a var

courts); Wilson-Williams v. Freeman, No. 2:07-CV-480 (MEF) , 2010 WL 653873 (M . D . Al a . Feb. 22 , 2010) ( intiff initiated at least

twenty federal civil suits using various false identit

s, in part 28

to avoid application of the "three strikes" provision found U.S.C. 00417
§

1915(g)); Marshall v. Florida Dep't of Corr., No. 4:08-cv (MP) (WCS) , 2009 a WL 2351723 of (N.D. Fla. patently July 29,

2009) (plaintiff

with

history

bringing

frivolous

claims used false name to avoid three No. CIV. A.

kes provision); Prince v. 92-1942, 1993 WL 141711

(E.D. Pa. May 3, 1993) (plaintiff brought multitude of civil rights ts under both his real name and an alias, sometimes suing the same defendants under both names) . Moreover, Defendants have not been materially prejudiced by Plaintiff's use of a false name. Defendants learned of Plaintiff's and

true name and his other aliases more than three months ago,
-1

have had ample opportunity since that time to request additional discovery on the identity issue as it relates to this case,

particularly as the Court has yet to even set a trial date. Rodriguez, 2002 WL 31557628, at *5 (prejudice limited where

defendants ultimately obtained information concerning plaintiff's use of various other names and aliases). without The necessity does of not

conducting

additional

depositions,

more,

constitute prejudice.

Bower, 674 F. Supp. at 112;

Morris

~~~~~~-====-==~~~~,

No. 01 C 6349, 2002 WL 1290390, at *3

(N. D.

Ill.

June 10, 2002) (increased costs occasioned by party's ient prejudice to mandate dismissal of

srepresentation insuff case) . In addition,

there is no evidence whatsoever that Plaintiff s name,

provided false testimony as to any fact other than as to

nor is there any suggestion that Plaintiff has engaged in any other misconduct this proceeding, or that he is likely to engage in

any misconduct in the future. Finally, although Plaintiff did ultimately correct his tial

misrepresentation, he was not quick to do so, and this the Court finds course troubling. of two Plaintiff maintained his depos ions. At the deception over deposition, the when

second

confronted directly with questions about his ident attorney abrupt

, Plaintiff's

ended the deposition, and Defendants then had to
2

wait rece

until

Plaintiff from PI

was iff a

arrested frank

for

identity

theft

before

admission as

to his multiple

identities. his true

As recognized in ===1 "[hlad [plaintiff] disclosed the first reasonable opportunity in the

identity at

federal proceedings, the charges of fraud now leveled against him would have 1999 less force." Dotson, at *10 202
F.R.D.

at

564;

see also

WL 415397,

(denying motion to dismiss where

plaintiff had filed suit under an alias but later testified about his true identity during his deposition) ; at *3
~====,

2002 WL 1290390, se s

(denying motion to dismiss where plaintiff supplied in part because aintiff "did come clean at

information, deposition")

Considering the relevant given that PI

factors

as a

whole,

however,

and

iff did ultimately provide information regarding

s identity in response to Defendants' Request for Admission, the Court concludes that dismissal is not an appropriate sanct Plaintiff's misconduct. Plaintiff's for

This is particularly true where, as here, related to a matter beyond the

misrepresentation

substantive issues directly before the Court. 1489038, at *15

See Skywark, 1999 WL

("in weighing the entry of judgment for fraud on

-3

the court, courts within the Second Circuit have considered whether the misconduct at issue was central to the case").4 Nevertheless, Plaintiff's misrepresentations do warrant some sanction. Plaintiff 's Defendants have expended resources made whole. in uncovering

identity { and

should be

Accordingly,

Plaintiff will be required to pay to Defendants an amount equal to the costs, expenses, and attorney's fees associated with the

investigation, additional depositions, and other actions directly taken to uncover
i

Plaintiff's

deception.

Fed.

R.

Ci v.

P.

37 (b) (2) (C) *10.

Bower, 674 F. Supp. at 112; Morris, 2002 WL 1290390 at

CONCLUSION

For the reasons set forth above, Defendants' motion to dismiss is denied. Defendants' motion for sanctions is denied insofar as

it seeks dismissal and is granted to the extent that Plaintiff will be required to reimburse Defendants for the expenses and fees

incurred in rooting out Plaintiff's true identity.

~ The Skywark court noted that, when considering the sanction of dismissal, courts in other circuits also emphasize the centrality of the misconduct to the matters in controversy. ~~~==' 1999 WL 1489038, at *15, n.28 (citing Comb~ Rockwell Int'l Corp., 927 F.2d 486, 488 (9': Cir. 1991) i Aoude v. Mobil Oil Corp., 892 F.2d 1115,1120, n.3 (1 Cir. 1989)).

-4

SO ORDERED.

THEODORE
UNITED STATES MAGISTRATE JUDGE

Dated: February 24, 2011 New York, New York

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