United States of America et al v. Compassionate Home Care Services, Inc. et al

Filing 152

ORDER denying 114 Motion for Sanctions; granting 146 Motion for Leave to File. If the court denies plaintiffs' pending motion for partial summaryjudgment, the court will allow defendants to depose Patricia Meyer before trial. Signed by Chief Judge James C. Dever III on 9/2/2016. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OFNORTH CAROLINA
SOUTHERN DMSION
No. 7:14-CV-113-D

UNITED STATES OF AMERICA,
and STATE OF NORTH CAROLINA,

Plaintiffs,

v.

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COMPASSIONATE HOME CARE
SERVICES, INC., et. al.,
Defendants.

ORDER

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On February 24, 2016, plaintiffs moved for sanctions against defendant Carol Anders for
perjured deposition testimony and asked the court to prohibit Carol Anders from providing additional
evidence regarding any matter that she did not recall at her deposition [D.E. 114]. Plaintiffs also
filed a memorandum in support with attachments and specific citations to Carol Anders's deposition
testimony and recorded jail telephone calls that took place before her deposition where she stated
she planned to testify that she was on psychiatric medication and could not remember anything and
thereby get "pity" from the government and get on the government attorney's nerves. See [D .E. 115]
4-13. On March 15, 2016, Carol Anders responded in opposition, disclaimed any plan to falsely
feign memory loss, and argued that plaintiffs could use cross-examination to explore any future
testimony that contradicts her stated lack of memory during her deposition. See [D.E. 129] 2, 4-7;
see also [D.E. 134]. On March 13, 2016, plaintiffs replied and filed Carol Anders's entire deposition
transcript [D.E. 131].
The court has reviewed the entire record. The recorded jail calls provide ample fodder for
cross-examination if there is a trial and Carol Anders testifies. See [D.E. 115] 4-13. Moreover, if

Carol Anders had submitted an affidavit in opposition to any motion for summary judgment from
plaintiffs, and the affidavit contradicted her deposition testimony, the court would not have
considered such contradictory testimony. See,~' Cleveland v. Policy Mgm.t. Sys. Corp., 526 U.S.
795,806 (1999); Jnre FamilyDollarFLSALitig., 637 F.3d 508,512 (4th Cir. 2011); Rohrbough v.
Wyeth Labs .. Inc., 916 F.2d 970,975 (4th Cir. 1990); Barwick v. Celotex Corp., 736 F.2d 946,960
(4th Cir. 1984). Nonetheless, at this stage of the case, the court declines to impose the requested
sanction. Considering sanctions under Rule 37 of the Federal Rules of Civil Procedure, the court
looks to "(1) whether the noncomplying party acted in bad faith, (2) the amount of prejudice the
noncompliance caused the adversary, (3) the need for deterrence of the particular sort of nocompliance, and (4) whether less drastic sanctions would [be] effective." Anderson v. Found. for
Advancement. Educ. & Emp't of Am. Indians, 155 F.3d 500, 504 (4th Cir. 1998) (describing fourpart test to apply in considering sanctions under Rule 37 of the Federal Rules of Civil Procedure).
Assuming without deciding that Carol Anders acted in bad faith during portions of her deposition,
the court finds that plaintiffs suffered no prejudice because Carol Anders did not submit a
contradictory affidavit after her deposition in order to oppose plaintiffs' pending motion for partial
summary judgment. If there is a trial, Carol Anders will be subject to vigorous cross-examination,
and the court will give instructions on credibility and inconsistent statements. Furthermore, the court
retains the inherent power to strike her testimony at trial if it fmds she has committed perjury. See,
~'Chambers

v. NASCO. Inc., 501 U.S. 32,44-45 (1991); In re Weiss, 111 F.3d 1159, 1171-72

(4th Cir. 1997); Anheuser-Busch. Inc. v. Nat. Beverage Distribs., 69 F.3d 337,348 (9th Cir. 1995);
United States v. Shaffer Equip. Co., 11 F.3d 450, 458-63 (4th Cir. 1993).
In sum, plaintiffs' motion for sanctions against defendant Carol Anders [D.E. 114] is
DENIED. Additionally, plaintiffs' motion to file supplemental authority and supplemental materials

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[D.E. 146] is GRANTED. If the court denies plaintiffs' pending motion for partial summary
judgment, the court will allow defendants to depose Patricia Meyer before trial.
SO ORDERED. This _z._ day of September 2016.

Chief United States District Judge

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