La Michoacana Natural, LLC v. Maestre et al
Filing
130
ORDER that Defendant's omnibus motion (Doc. No. 106), is GRANTED in part, and the pro hac admission of Stephen L. Anderson is REVOKED. The Court will address the remainder of Defendants' omnibus motion in a separate order. Signed by District Judge Robert J. Conrad, Jr on 3/6/2020. (brl)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:17-cv-00727-RJC-DCK
LA MICHOACANA NATURAL, LLC,
)
)
Plaintiff,
)
)
v.
)
)
LUIS MAESTRE, d/b/a La Michoacana
)
and/or La Linda Michoacana, ADRIANA
)
TERAN, d/b/a La Michoacana and/or La
)
Linda Michoacana, and LA MICHOACANA, )
)
Defendants.
)
ORDER
THIS MATTER comes before the Court on Defendants’ request to revoke the
pro hac vice admission of Plaintiff’s counsel Stephen L. Anderson, (Doc. No. 106),1
and on its own motion.
I.
OVERVIEW
This is a trademark infringement case between Plaintiff La Michoacana
Natural, LLC and Defendants Luis Maestre, Adriana Teran, and La Michoacana.
Maestre’s and Teran’s primary language is Spanish, and at critical junctures in this
litigation they proceeded pro se.
As discussed more fully below, Anderson took
advantage of Defendants’ pro se status. More importantly for purposes of this motion,
Anderson misled the Court to believe that Maestre never responded to Plaintiff’s
Defendants’ motion seeks other relief in addition to revocation of Anderson’s pro hac
vice admission. Due to the egregiousness of Anderson’s misconduct, the Court elects
to rule on Anderson’s pro hac vice status immediately. The Court will resolve the
remainder of Defendants’ motion in a separate order.
1
requests for admission and procured judgment in Plaintiff’s favor on that falsehood,
made misrepresentations to the Court regarding the contents of a package he
received from Defendants, and engaged in unprofessional conduct towards third
parties and Defendants. For these reasons, the Court deems Anderson’s pro hac vice
admission revoked.
II.
BACKGROUND
Plaintiff filed its Complaint on December 19, 2017. (Doc. No. 1.) That same
day, Anderson was admitted pro hac vice to represent Plaintiff in this matter. (Doc.
No. 5.)
On April 23, 2018, Plaintiff moved for a preliminary injunction. (Doc. No. 22.)
Defendants were proceeding pro se at the time and did not file a response to Plaintiff’s
motion. The Court scheduled a hearing on the motion for June 1, 2018.
On May 31, 2018—the day before the hearing on Plaintiff’s motion for a
preliminary injunction—Anderson went to Mochica, a restaurant owned and
operated by Maestre’s aunt located in the same shopping center as Maestre’s
restaurant at issue in this litigation. (Doc. No. 112, ¶ 3; Doc. No. 117, ¶¶ 1–2.)
Rebecca Garcia, a Mochica employee, was at the restaurant when Anderson arrived.
(Doc. No. 112, ¶¶ 2–3.) There is a dispute as to what was said at the restaurant.
According to Garcia’s declaration, Anderson asked for “Luis” and she responded that
she did not know which Luis he was referring to. (Doc. No. 112, ¶ 3.) Garcia states
that Anderson then called her a “fucking liar” and threatened to burn the restaurant
down with her in it. (Doc. No. 112, ¶ 6.) Conversely, Anderson states that he was
2
supposed to meet with Maestre that morning and when he tried to get information
from Garcia as to where Maestre was, Garcia started yelling at him and asked him
to leave, at which point he said “I will be back and you can tell [Maestre] that hiding
from me won’t help him.” (Doc. No. 122-2, ¶ 18.) Anderson denies threatening to
burn the restaurant down.2
Notwithstanding the dispute as to what was said, it is indisputable that
Anderson approached Garcia at the counter and gave her the middle finger, see the
date- and time-stamped image below:
(Doc. No. 112, ¶ 4.) Garcia reported the incident to the police that same day and
immediately quit her job at Mochica. (Doc. No. 112, ¶¶ 8–9; Doc. No. 109-4.)
The Court elects not to resolve this factual dispute notwithstanding the
circumstances that strongly corroborate Garcia’s claim of intimidation, including
that she immediately quit her job, the incident was reported to the police, and
Anderson’s pattern of disrespect demonstrated repeatedly in court, such as his habit
of calling people liars—“fucking liar” according to Garcia, and “blatant liar” in court.
(Mar. 3, 2020 Hearing Transcript [“Tr.”] 39:14–15.) The insulting gesture by an
attorney to a potential witness is enough.
2
3
The Court held a hearing on Plaintiff’s motion for a preliminary injunction the
next day. Either before or after the hearing,3 Anderson stopped Maestre and Teran
in the hallway, demanded that they provide him with identification, and used his
phone to take photographs of their driver’s licenses. (Doc. No. 116, ¶ 31; Tr. 53:9–
54:3.)
On June 15, 2018, Anderson served Plaintiff’s first requests for admission on
Maestre by mail. (Doc. No. 64-9, at 1–13.) Maestre’s responses to the RFAs were due
on July 18, 2018. Maestre was still proceeding pro se at the time; however, an
attorney named Andrea Johnson assisted Maestre in responding to the RFAs. (Doc.
No. 113, ¶ 2.) On July 23, 2018, five days after the deadline, Johnson faxed Maestre’s
RFA responses to Anderson. (Doc. No. 113, ¶¶ 2–3; Doc. No. 116, ¶¶ 32–34; Doc. No.
122-5.) Anderson received the fax that same day. (Doc. No. 31-1, ¶ 10; Doc. No. 113,
¶¶ 2–3; Doc. No. 122-5.)
On September 27, 2018, Sonny Tran filed a notice of appearance on behalf of
Defendants. (Doc. No. 39.) On October 17, 2018, Anderson served Plaintiff’s first
RFAs on Tran—even though Anderson had received Maestre’s responses to the RFAs
approximately three months earlier. (Doc. No. 64-3, ¶ 7.)
On February 1, 2019, Anderson filed a “Stipulation RE: Discovery Matters and
Scheduling” signed by him and Tran. (Doc. No. 50.) The Stipulation omits that
Maestre sent his RFA responses to Anderson on July 23, 2018.
Instead, the
Maestre states that this incident occurred before the hearing, and Anderson states
that it occurred after the hearing. (Doc. No. 116, ¶ 31; Tr. 25:24–26:10, 53:9–54:3,
54:22–55:3.) The Court makes no finding on the timing of the interaction.
3
4
Stipulation states that “Defendants have requested Plaintiff to agree that Defendant
Luis Maestre be relieved from his deemed Admissions, resulting from his failure to
file any timely response to Plaintiff’s [first RFAs] despite that Responses were due
since July 18, 2018.” (Doc. No. 50, at 5.) The Stipulation further states that on or
before February 21, 2019, Defendants shall serve Plaintiff’s attorneys with full and
complete responses to Plaintiff’s first set of discovery requests, including Plaintiff’s
RFAs, “as previously compelled by this Court.” (Doc. No. 50, at 6.) Contrary to this
statement, the Court had not compelled Defendants to respond to Plaintiff’s first
RFAs. In fact, Plaintiff did not even move to compel responses to its RFAs. Instead,
Plaintiff moved to compel initial disclosures and responses to its requests for
production and interrogatories, (Doc. No. 31), and the Magistrate Judge entered an
order compelling only initial disclosures and responses to Plaintiff’s first requests for
production and interrogatories,4 (Doc. No. 33).
The Stipulation provides that if
“Defendants strictly comply with the aforementioned terms, Defendant Luis Maestre
shall be relieved from his deemed Admissions.” (Doc. No. 50, at 6.) Tran moved to
withdraw as counsel for Defendants shortly thereafter on February 15, 2019. (Doc.
No. 53.)
On February 22, 2019, Anderson filed a motion for sanctions grounded in part
on “Defendants’ repeated and continued failure to serve any complete or adequate
responses to” Plaintiff’s RFAs. (Doc. No. 58.) Anderson also filed a supporting
During the hearing on Defendants’ omnibus motion, Anderson again falsely stated
to the Court that the Magistrate Judge ordered Defendants to respond to Plaintiff’s
first RFAs. (Tr. 18:2–15, 28:7–8.)
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5
declaration that falsely states “as of the present date, Defendants have failed to
provide any responses to” Plaintiff’s RFAs. (Doc. No. 58-1, ¶ 5.) As stated above,
Maestre sent his responses to Plaintiff’s RFAs on July 23, 2018. (Doc. No. 31-1, ¶ 10;
Doc. No. 113, ¶¶ 2–3; Doc. No. 116, ¶¶ 32–34; Doc. No. 122-5.)
On March 13, 2019, Anderson filed a motion for summary judgment grounded
entirely on Maestre’s purported failure to serve any responses to Plaintiff’s RFAs.
(Doc. No. 64.) Anderson also filed a supporting declaration that falsely states an
order compelling responses to the RFAs had been entered. (Doc. No. 64-3, ¶ 7.)
Further, Anderson’s declaration misleadingly states that “Plaintiff has never
received any timely responses to the RFAs.” (Doc. No. 64-3, ¶ 7.) This misleading
statement is reiterated in Plaintiff’s brief in support of its summary judgment motion.
(Doc. No. 64, at 2–3.)
Although Tran was still listed as counsel of record for
Defendants at the time of Plaintiff’s summary judgment motion, Tran filed motions
to withdraw on February 15, 2019, February 20, 2019, and February 26, 2019, and
Defendants did not file a response to Plaintiff’s summary judgment motion. (Doc.
Nos. 53, 56, & 59.)
The Court held a hearing on Plaintiff’s motion for summary judgment and
Tran’s third motion to withdraw on May 31, 2019. During the hearing, the Court
inquired of Anderson as to the discovery responses he had received from Defendants.
In response, Anderson stated:
I understand that sometime in April of this year a FedEx package came
in from Mr. Maestre. However, frankly, I did not even open it or look at
it because we already had motions for summary judgment pending,
several orders that they respond to the motion to withdraw and, frankly,
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we couldn’t take a deposition at that point so there really wasn’t any
point in reading it.
(Doc. No. 109-3, at 14:13–20.) After the Court questioned Anderson regarding his
failure to look at information and documents sent to him by a defendant in this case,
Anderson changed his story: “I did go through it. . . . I didn’t say that I didn’t read
it.” (Doc. No. 109-3, at 15:16, 16:13–14.) This comment is patently false. Anderson’s
exact words that he denies saying are “I did not even open it or look at it . . . .” (Doc.
No. 109-3, at 14:15–16.) Anderson went on:
It’s just – it didn’t make sense. They weren’t responsive. They were a
group of documents, some were papers, some were pictures, but they did
not correspond to any discovery requests. There was [sic] no titles or
covers or Bates stamps. It was just a stack of paper that frankly I
couldn’t make heads or tails of what it was supposed to be. . . . All I
know is I got a package of paper in a FedEx envelope that was not
complying with the court order that we’ve been waiting for. . . . When
Pro Person sends me a stack of paper, half of it was like phone book ads
and things. It was just no value in this case. . . . I think we even had
trouble identifying what file it went to. . . . There really wasn’t anything
in there that was pertaining to this – it wasn’t a response to any motion.
It wasn’t a response to discovery, and it certainly wasn’t a response to
[RFAs] that had been outstanding since June of 2017 [sic].
(Doc. No. 109-3, at 16:13–18:1.) The Court directed Anderson to file the contents of
the package with the Court. The Court reviewed the documents, (Doc. No. 77-1), and
found that, contrary to Anderson’s representations, the documents included
Maestre’s responses to Plaintiff’s second requests for production and interrogatories
and certainly were responsive to discovery requests.
During the summary judgment hearing, Anderson also falsely stated to the
Court that he never received responses to Plaintiff’s first RFAs. (Doc. No. 109-3, at
11:4–5.) The Court then asked Tran where there was an indication on the docket
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that the RFAs had been responded to “in any way.” (Doc. No. 109-3, at 12:3–5.) Tran
responded:
Your Honor, I don’t see it on the docket. But I do see, I guess, in our file
that there was a response to the [RFAs]. I’m just not certain – I can’t
confirm right now how and when it was submitted. But there were some
responses to their [RFAs], and I have a couple of copies here to see
maybe before I got involved if Mr. Anderson’s team has received these
responses to their RFAs.
(Doc. No. 109-3, at 12:3–13.) The Court then turned to Anderson and asked: “Mr.
Anderson, have you received any responses to your [RFAs]?” (Doc. No. 109-3, at
12:14–15.) Anderson replied: “Not that I’m aware of, Your Honor. I don’t have any
in my file.” (Doc. No. 109-3, at 12:16–17.) Based on Defendants’ purported failure to
respond to Plaintiff’s first RFAs—as represented by Anderson—the Court struck
Defendants’ amended answer and counterclaim and deemed Plaintiff’s RFAs as
admitted. The Court issued an order on Plaintiff’s summary judgment motion on
June 6, 2019. The order states that “Defendants still have not responded to Plaintiff’s
[RFAs]” and grants summary judgment in favor of Plaintiff based solely on the
“unanswered” RFAs that the Court had deemed admitted. (Doc. No. 78, at 1–3.)
The Court granted Tran’s third motion to withdraw during the summary
judgment hearing, and in November 2019, Defendants retained new counsel who filed
an omnibus motion for relief.
(Doc. No. 106.)
Plaintiff filed a response and
evidentiary materials in opposition to the motion. (Doc. Nos. 122 to 122-7 & 123.)
The Court held a hearing on Defendants’ omnibus motion on March 3, 2020. This
order is limited to the motion’s request to revoke Anderson’s pro hac vice admission.
The Court will address the remainder of the motion by separate order.
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III.
DISCUSSION
Pro hac vice admission is a privilege, not a right. Ramirez v. England, 320 F.
Supp. 2d 368, 374 (D. Md. 2004) (citing Thomas v. Cassidy, 249 F.2d 91 (4th Cir.
1957)). It comes with duties, duties of candor and professionalism. The admission of
an attorney pro hac vice is within the Court’s discretion, A1 Procurement, LLC v.
Thermcor, Inc., No. 2:15-cv-15, 2015 U.S. Dist. LEXIS 174898, at *12 (E.D. Va. Nov.
18, 2015); Local Civil Rule 83.1(c)(1), and the Court may revoke an attorney’s pro hac
vice admission at any time, Estate of Williams v. Kelly, No. 1:18-cv-00182, 2018 U.S.
Dist. LEXIS 197756, at *4 (W.D.N.C. Nov. 20, 2018); Local Civil Rule 83.2(c).
“Grounds for revocation include violations of the North Carolina Rules of Professional
Conduct or any law or regulation, fraud, misrepresentation, lack of candor with the
Court or other misconduct.” Estate of Williams, 2018 U.S. Dist. LEXIS 197756, at
*4; see also A1 Procurement, 2015 U.S. Dist. LEXIS 174898, at *14 (“Specific grounds
for revocation can include unprofessional conduct, violation of the local rules, and a
wide variety of ethics violations.”). Moreover, “even if there is not one bold ground to
revoke an attorney’s pro hac vice admission, the Court has the discretion to revoke
an attorney’s pro hac vice status based on the combined effect of an attorney’s
misconduct and disregard for the Local Rules.” A1 Procurement, 2015 U.S. Dist.
LEXIS 174898, at *16.
Here, Anderson’s pattern and practice of deception—misrepresentations
regarding the RFAs, misrepresentations regarding the FedEx package, and
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unprofessional conduct surrounding the preliminary injunction hearing warrant
revocation of his pro hac vice admission. The Fourth Circuit’s discussion of a lawyer’s
general
duty
of
candor
is
particularly
helpful
in
assessing
Anderson’s
misrepresentations to this Court:
Our adversary system for the resolution of disputes rests on the
unshakable foundation that truth is the object of the system’s process
which is designed for the purpose of dispensing justice. . . . Even the
slightest accommodation of deceit or a lack of candor in any material
respect quickly erodes the validity of the process. As soon as the process
falters in that respect, the people are then justified in abandoning
support for the system in favor of one where honesty is preeminent.
While no one would want to disagree with these generalities about the
obvious, it is important to reaffirm, on a general basis, the principle that
lawyers, who serve as officers of the court, have the first line task of
assuring the integrity of the process. . . . The system can provide no
harbor for clever devices to divert the search, mislead opposing counsel
or the court, or cover up that which is necessary for justice in the end.
United States v. Shaffer Equip. Co., 11 F.3d 450, 457–58 (4th Cir. 1993).
The evidence is indisputable that Maestre faxed his responses to Plaintiff’s
RFAs to Anderson on July 23, 2018—a mere five days late—and Anderson received
them that same day. Anderson admitted in a declaration dated July 27, 2018 that he
received Maestre’s RFA responses on July 23, 2018.
(Doc. No. 31-1, ¶ 10.)
Notwithstanding this fact, Anderson thereafter misrepresented to the Court—orally
and in sworn declarations—that Maestre never responded to the RFAs. (Doc. No. 581, ¶ 5; Doc. No. 109-3, at 11:4–5, 12:14–17.) Although at other times Anderson stated
that Maestre failed to serve any “timely” responses to the RFAs, “[t]he fact that he
did not blatantly lie to the Court” in such instances does not mean that his statements
were not misleading. Dillon v. BMO Harris Bank, N.A., No. 1:13-cv-897, 2016 U.S.
10
Dist. LEXIS 135219, at *42 (M.D.N.C. Sept. 30, 2016), aff’d, 891 F.3d 508 (4th Cir.
2018). “Factual statements by counsel that are so carefully worded as to be both
technically accurate and misleading by omission are of particular concern, as they
reflect an intent to lead the Court down the garden path. Courts rely on the candor
of counsel and should not have to parse an attorney’s language and representations
for loopholes, half-stated exceptions, or ‘truthiness.’” Id. at *43.
To put it another way, that the duty is referred to as one of candor rather than
truthfulness is not for naught—one can be truthful without being candid. Anderson
had multiple opportunities to inform the Court of Maestre’s late responses to the
RFAs and should have done so. At an absolute bare minimum, Anderson should have
informed the Court of the late RFA responses when the Court issued the summary
judgment order that clearly demonstrated the Court mistakenly believed that
Maestre had not responded to the RFAs at all. Anderson did not inform the Court of
Maestre’s late RFA responses in his February 22, 2019 motion for sanctions that was
grounded in part on Defendants’ purported failure to serve any RFA responses, in his
February 22, 2019 supporting declaration (which instead falsely states that
Defendants had not responded to the RFAs), in his motion for summary judgment
that was grounded entirely on Plaintiff’s RFAs, in his declaration in support of his
summary judgment motion, during the summary judgment hearing—despite being
directly asked by the Court whether he received any responses to the RFAs—or after
the Court issued its summary judgment order that was obviously based on the
incorrect fact that Maestre never responded to the RFAs.
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Anderson’s false
representations that Maestre never responded to the RFAs, as well as his misleading
representations that Maestre failed to serve any timely responses to the RFAs,
violated Anderson’s duty of candor as an officer of the Court and Rule 3.3 of the North
Carolina Rules of Professional Conduct.5
Despite having the opportunity to respond to Defendants’ motion both in
writing and orally at a hearing, Anderson has completely failed to provide any
meaningful response or explanation. In fact, the hearing transcript is replete with
statements by Anderson denying any wrongdoing and maintaining that he never
received responses to the RFAs because the responses he received on July 23, 2018
did not comply with the Federal Rules of Civil Procedure. (Tr. 17:21–18:1, 18:16–
19:4, 21:3–5, 23:12–21, 27:22–24, 33:5–6, 33:7–13, 34:20–21, 35:5–7.) In essence,
Anderson contends that he was justified in failing to tell the Court that Maestre in
fact sent responses to the RFAs because the responses did not comply with the rules
and, thus, were effectively nonexistent. This argument is meritless.
As an initial matter, Anderson told the Court multiple times at the hearing on
Defendants’ omnibus motion that Maestre’s RFA responses contained objections,
suggesting that this somehow rendered the responses deficient. (Tr. 24:9–11, 27:22–
24, 33:20.) This is yet another falsity—Maestre’s RFA responses did not contain a
single objection. (Doc. No. 122-5.)
Anderson also argues that Maestre’s RFA responses were not signed or
Rule 3.3(a) states: “A lawyer shall not knowingly: (1) make a false statement of
material fact or law to a tribunal or fail to correct a false statement of material fact
or law previously made to the tribunal by the lawyer.”
5
12
verified. (Doc. No. 122, at 9; Tr. 17:24–25, 18:23–19:1, 23:12–20, 27:22–24, 33:13–
15.) Responses to RFAs are not required to be verified, and Defendants have cured
any signature deficiency. Rule 26(g)(2) states that “[o]ther parties have no duty to
act on an unsigned disclosure, request, response, or objection until it is signed, and
the court must strike it unless a signature is promptly supplied after the omission is
called to the attorney’s or party’s attention.”
Anderson first raised the lack of
signature on the RFA responses in his response to Defendants’ omnibus motion.
Thereafter, Defendants re-served the RFA responses bearing a handwritten
signature, thus curing any signature deficiency. (Doc. No. 125, ¶ 4; Doc. No. 125-1.)
Moreover, that Anderson “had no duty to act” on the RFA responses because they
lacked a signature does not explain or justify Anderson failing to inform the Court of
the responses and misleading the Court to believe that Maestre never responded to
the RFAs.
Anderson further argues that Maestre’s responses are deficient under Rule 36.
(Doc. No. 122, at 6–8.) Rule 36(a)(4) states that “[i]f a matter is not admitted, the
answer must specifically deny it or state in detail why the answering party cannot
truthfully admit or deny it. A denial must fairly respond to the substance of the
matter; and when good faith requires that a party qualify an answer or deny only a
part of a matter, the answer must specify the part admitted and qualify or deny the
rest.” Maestre’s responses to RFAs 6 and 28 state “[t]his matter cannot be admitted
or denied” but do not state in detail why Maestre cannot truthfully admit or deny the
requests. (Doc. No. 122-5.) Of the fifty-eight RFAs, however, Maestre admits twenty-
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four requests, denies thirty requests, and admits in part and denies in part two
requests. (Doc. No. 122-5.) As these fifty-six responses are absolutely sufficient and
proper, Maestre substantially complied with Rule 36.
Moreover, Rule 36(a)(6)
provides the mechanism for addressing any deficiency in Maestre’s responses—a
deficiency in two RFA responses does not explain or justify Anderson failing to inform
the Court of the responses and misleading the Court to believe that Maestre never
responded to the RFAs.6
In addition, Anderson contends that the RFA responses were not properly
served under Rule 5. (Doc. No. 122, at 8–9; Tr. 23:15.) It is true that Maestre did not
properly serve the responses under Rule 5; however, Maestre was proceeding pro se
at the time, and “[a]lthough the rules of civil procedure apply equally to pro se
litigants as well as litigants with representation, this court does not expect a pro se
litigant to perfectly comply with all procedural rules.” Fireman’s Ins. Co. v. Herbert,
No. 4:04cv139, 2005 U.S. Dist. LEXIS 38218, at *7 (E.D. Va. Dec. 20, 2005); see also
Mandizha v. Bank of Am. Corp., 3:17-cv-00258, 2018 U.S. Dist. LEXIS 140757, at *3
(W.D.N.C. Aug. 20, 2018) (stating that “[t]he greater latitude awarded to pro se
litigants entitles them to more lenient enforcement of the Federal Rules of Civil
Procedure”). The Fourth Circuit has stated that “trial courts are encouraged to
liberally treat procedural errors made by pro se litigants, especially when a technical
Rule 36(a)(6) states: “The requesting party may move to determine the sufficiency
of an answer or objection. . . . On finding that an answer does not comply with this
rule, the court may order either that the matter is admitted or that an amended
answer be served.”
6
14
or arcane procedural rule is involved.” Bauer v. Comm’r of the IRS, 97 F.3d 45, 49
(4th Cir. 1996). Anderson did not raise any objection to service until his response to
Defendants’ omnibus motion, and the Court likely would have excused Maestre’s
noncompliance with Rule 5, especially because Anderson in fact received the
responses. And again, that Maestre improperly served the responses does not justify
or explain Anderson failing to inform the Court of the responses and misleading the
Court to believe that Maestre never responded to the RFAs.
Moreover, that Maestre responded to the RFAs late did not obviate the need
for Anderson to inform the Court that Maestre in fact responded, albeit late.
Although Rule 36(a)(3) provides that a request is admitted if a party fails to timely
respond to the request, a district court has broad discretion to find such a request not
admitted. Nguyen v. CAN Corp., 44 F.3d 234, 242–43 (4th Cir. 1995). Even in cases
with represented litigants, courts draw a distinction between late responses and a
complete failure to respond: “[C]ourts are particularly responsive to allowing late
answers to requests for admission when summary judgment is involved. . . . It does
not further the interests of justice to automatically determine the issues of a lawsuit
and enter summary judgment against a party because a deadline is missed.”
Lonewolf v. Garrett, No. 5:18cv00004, 2019 U.S. Dist. LEXIS 77290, at *16 (W.D. Va.
May 7, 2019) (omission in original); see also Daimler Tr. v. Prestige Anapolis, LLC,
No. 16-00544, 2017 U.S. Dist. LEXIS 112846, at *12 (D. Md. July 18, 2017) (stating
that unanswered RFAs can serve as the basis for summary judgment but recognizing
that, “in the posture of summary judgment, late responses should not be summarily
15
rejected”). Courts are especially inclined to accept late responses to RFAs when pro
se litigants are involved. Aramark Unif. & Career Apparel, LLC v. Hernandez, No.
7:16-cv-336, 2018 U.S. Dist. LEXIS 15189, at *7–8 (E.D.N.C. Jan. 31, 2018)
(recognizing that a court’s discretion to find RFAs not to be admitted “may be
especially warranted in cases involving pro se litigants” and declining to deem the
RFAs admitted where pro se defendant served late responses).
Last, during the hearing on Defendants’ omnibus motion, Anderson repeatedly
referred to the February 1, 2019 Stipulation.7 (Tr. 19:5–12, 23:7–11, 25:5–7, 34:9–
19.) As discussed above, the Stipulation was signed by Anderson and Defendants’
former counsel, Tran, who got involved in this case after Maestre sent his RFA
responses to Anderson. It is unclear whether Anderson informed Tran of Maestre’s
late RFA responses once Tran got involved, but the evidence suggests Anderson did
not so inform Tran for at least three reasons. First, after Tran made an appearance
in this action, Anderson inexplicably served Plaintiff’s RFAs on Tran even though
Anderson had received Maestre’s RFA responses three months earlier. (Doc. No. 643, ¶ 7.) Second, the February 1, 2019 Stipulation states Defendants have asked that
Maestre be relieved of his deemed admissions, omits Maestre responded to the RFAs
in July 2018, and states Maestre will be relieved of his admissions if he responds to
the RFAs by February 21, 2019. (Doc. No. 50, at 5–6.) The Stipulation is thus
During the hearing, Anderson twice told the Court that the Stipulation was
approved by the Court and resulted in a court order. (Tr. 25:5–7, 35:11–13.) This is
false—the Stipulation was not approved by the Court and did not result in a court
order.
7
16
misleading in that it implies Maestre never responded to the RFAs. Moreover, if Tran
had known that Maestre responded to the RFAs a mere five days late in July 2018,
he likely would not have agreed that Maestre would be relieved of his “admissions”
only if Maestre served RFA responses, again, by February 21, 2019—over eight
months after the RFAs were first served in June 2018 and over four months after
they were inexplicably served again on Tran. Third and last, when the Court asked
Tran during the summary judgment hearing if Defendants had responded to the
RFAs, Tran was unable to inform the Court that Maestre had in fact responded.
(Doc. No. 109-3, at 12:3–13.) The combination of Anderson re-serving the RFAs on
Tran after receiving responses thereto, the Stipulation seemingly founded on
Maestre’s purported total failure to respond to the RFAs, and Tran’s unawareness at
the summary judgment hearing of Maestre’s July 2018 responses tends to suggest
Anderson did not inform Tran of Maestre’s RFA responses.
More importantly, however, even if Tran was aware of Maestre’s responses to
the RFAs at the time of the February 1, 2019 Stipulation, the Stipulation in no way
justifies or excuses Anderson’s repeated failure to inform the Court that Maestre
responded to the RFAs in July 2018.
At bottom, Anderson repeatedly misled the Court to believe that Maestre never
responded to the RFAs, and Anderson has not provided any explanation or
justification for his violation of his duty of candor, despite having the opportunity to
do so. Revocation of Anderson’s pro hac vice admission would be appropriate on this
misconduct alone.
Nevertheless, other misconduct also supports revocation of
17
Anderson’s pro hac vice admission. In addition to his misrepresentations regarding
the RFAs, Anderson made misrepresentations to the Court regarding the FedEx
package he received from Maestre. Anderson first told the Court during the summary
judgment hearing that he “did not even open it or look at it.” (Doc. No. 109-3, at
14:15–16.) Then Anderson stated that he “did go through it” and he “didn’t say that
[he] didn’t read it”—directly contradicting his earlier statement. (Doc. No. 109-3, at
15:16, 16:13–14.) Anderson represented to the Court that the documents in the
package “didn’t make sense,” “weren’t responsive,” “did not correspond to any
discovery requests,” were “like phone book ads and things,” and were “just no value
in this case.” (Doc. No. 109-3, at 16:14–17:2.) This was patently false—there was not
a single “phone book ad” or anything of the sort. Instead, the package contained
Maestre’s responses to Plaintiff’s second requests for production and interrogatories,
and this fact would have been obvious from even the most cursory review of the
documents. (Doc. No. 77-1.) As with his misrepresentations regarding the RFAs,
Anderson has not offered any explanation for his misrepresentations regarding these
documents.
Further, revocation of Anderson’s pro hac vice admission is warranted not only
because of his violations of his duty of candor, but also because of his unprofessional
conduct surrounding the preliminary injunction hearing. See A1 Procurement, 2015
U.S. Dist. LEXIS 174898, at *14 (identifying unprofessional conduct as a ground for
revocation of pro hac vice admission).
Although there is a dispute as to what was
said between Garcia and Anderson at Maestre’s aunt’s restaurant the day before the
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preliminary injunction hearing, it is indisputable that Anderson approached Garcia
at the counter and gave her the middle finger. This conduct is grossly unprofessional
and unjustifiable. What is more is that Anderson downplays this misconduct and,
once again, accepts no responsibility. Anderson described the incident during the
hearing as follows:
It wasn’t nearly as heavy handed as counsel would like it to be. Quite
frankly I was a little bit amused. You can see in the picture I’m actually
laughing because I said, ‘You can leave this for [Maestre].’ And that was
when I flipped the bird at them because they wouldn’t put him in contact
with me and he was avoiding me.
(Tr. 31:7–12.) Likewise, Anderson approaching Maestre and Teran in the courthouse
hallway on the day of the preliminary injunction hearing, demanding their
identification, and taking photographs of their driver’s licenses is unprofessional—
regardless of whether it occurred before or after the hearing.8
Maestre first raised this identification incident in his declaration submitted prior to
the hearing on Defendants’ omnibus motion. (Doc. No. 116, ¶ 31.) Maestre’s
declaration also states that Anderson called him on two occasions after entry of the
summary judgment order and threatened to have Maestre and Teran arrested for
failing to comply with the order. (Doc. No. 116, ¶¶ 46–48.) Anderson submitted a
declaration in response, but he did not address either incident. (Doc. No. 122-2.)
During the hearing, the Court heard live testimony from Maestre as to both incidents.
(Tr. 51:6–52:5, 53:9–57:23.) The Court then allowed Anderson to cross examine
Maestre regarding both the identification incident and the post-summary judgment
phone calls. (Tr. 58:6–69:6.) Despite being offered this opportunity, Anderson’s
questioning primarily related to Maestre’s alleged noncompliance with the Court’s
summary judgment order—Anderson asked limited questions as to the telephone
calls but did not ask any questions regarding the identification incident at the
courthouse the day of the preliminary injunction hearing. After giving Anderson a
sufficient opportunity to cross examine Maestre as to his truthfulness and bias—and
as Anderson had the opportunity to, but did not, address the identification incident
or the post-summary judgment phone calls in his responsive materials—the Court
declined to allow Anderson to put on additional evidence. Moreover, although the
Court stated during the hearing that it would allow Anderson until March 27, 2020
8
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In sum, the Court deems that Anderson’s pro hac vice admission should be
revoked due to his violations of his duty of candor and unprofessional conduct
surrounding the preliminary injunction hearing.
Anderson misled the Court to
believe that Maestre never responded to the RFAs, failed to correct the Court’s
mistaken belief after it entered summary judgment in Plaintiff’s favor based solely
on the false notion that Maestre never responded to the RFAs, misrepresented to the
Court that the documents he received from Maestre were not relevant to this case,
gave the middle finger to Garcia when she could not or did not tell him where Maestre
was, and approached pro se defendants in the courthouse the day of the preliminary
injunction hearing, demanded their identification, and took photographs of their
driver’s licenses. Despite having notice of these grounds for potential revocation and
a meaningful opportunity to respond, Anderson has not accepted any responsibility
for his actions or otherwise provided any explanation or justification for his
misconduct. In fact, Anderson’s conduct before the Court—in attitude, lack of respect,
and gross lack of professionalism—is akin to that captured in the photograph of his
interaction with Garcia, supra.
“It is impossible, however, without reading the
testimony at some length, and thereby obtaining a knowledge of the setting in which
the objectionable matter occurred, to appreciate fully the extent of the misconduct.”
Berger v. United States, 295 U.S. 78, 85 (1935). Anderson’s conduct before this Court
to submit any telephone records as to the phone calls, the Court does not rely on or
consider the alleged calls in deciding whether to revoke Anderson’s pro hac vice
admission. Thus, any records relating to the same are not relevant to the Court’s
analysis.
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is the most contumacious the Court has experienced. He does not deserve pro hac
vice status. Therefore, the Court revokes Anderson’s pro hac vice admission.
IV.
CONCLUSION
IT IS THEREFORE ORDERED that Defendants’ omnibus motion, (Doc. No.
106), is GRANTED in part, and the pro hac vice admission of Stephen L. Anderson is
REVOKED. The Court will address the remainder of Defendants’ omnibus motion in
a separate order.
Signed: March 6, 2020
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