Ndoye v. Major Performance LLC et al

Filing 81

ORDER granting defendants' 48 Motion for Sanctions and plaintiff's claims are Dismissed with prejudice. The Court's prior order 37 granting partial summary judgment on plaintiff's claim under ORC 1345.02(a) is Vacated. Defe ndants' request for reasonable costs and attorney fees is Granted. The parties will brief the reasonable amount of costs and attorney fees to be assess against plaintiff pursuant to a briefing schedule to be entered by separate order. Signed by Magistrate Judge Karen L. Litkovitz on 3/1/2017. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

NDEYE NDOYE,
Plaintiff,

Case No. 1: 15-cv-380
Litkovitz, M.J.

vs.
MAJOR PERFORMANCE LLC, et al. ,
Defendants.

ORDER

Plaintiff Ndeye Ndoye brings this action against defendants Major Performance LLC,
Julie Majors, and three John Does under 42 U.S.C. § 1985(3); the Ohio Consumer Sales
Practices Act ("OCSPA"), Ohio Rev. Code§§ 1345.02 and 1345.03; and Ohio common law.
Plaintiff claims that defendants unlawfully repossessed the vehicle she purchased from Major
Performance, which resulted in the loss of her employment and severe economic hardship. This
matter is before the Court on defendants ' motion for sanctions (Doc. 48), plaintiff's response in
opposition (Doc. 53), defendants' reply memorandum (Doc. 56), and defendants' supplemental
reply memorandum (Doc. 62). The Court held an evidentiary hearing in this matter on
December 12, 2016. (Doc. 78). After the hearing, defendants (Doc. 79) and plaintiff (Doc. 80)
submitted closing argument briefs.
Defendants' motion for sanctions seeks dismissal of plaintiff's complaint with prejudice
based on plaintiff's alleged misconduct during the course of these proceedings. Defendants
assert that only after discovery was closed, dispositive motions were ruled on, and courtfacilitated mediation resulted in an impasse, did they uncover evidence establishing that plaintiff
had made materially false statements in her deposition, answers to interrogatories, and pleadings
filed with the Court in an effort to artificially inflate the amount of her damages claim at trial.
Defendants contend that plaintiff's intentional misrepresentations have irreparably harmed their

ability to defend this action and no sanction less than dismissal would adequately address
plaintiffs misconduct.
Plaintiff asserts that defendants, through their motion for sanctions, ask this Court to
invade the fact-finding province of the jury whose role is to weigh evidence, evaluate credibility,
and draw inferences from testimony and written exhibits. Plaintiff contends the evidence before
the Court amounts to nothing more than a garden-variety dispute of material fact- with one
party accusing the other of lying- which is not uncommon in the great majority of civil disputes.
Plaintiff asserts that her actions in this case have done nothing to impair or inhibit the operation
of the judicial process and that this case should be decided by the jury at trial, and not by the
Court.
For the reasons that follow, the Court concludes that defendants' motion is well-taken
and it is therefore granted.
I. Summary of Evidence and Background

A. Course of Proceedings
Plaintiff is a native of Senegal, West Africa, who immigrated to the United States in
2003. (Deposition ofNdeye Ndoye, Doc. 26 at 7). In June 2015, plaintiff filed her complaint in
this action raising numerous claims related to defendants' allegedly unlawful seizure on April I 0,
2015 of a 2006 Cadillac STS that plaintiff purchased from defendant Major Performance in
February 2015. (See generally Doc. 1). Plaintiff alleges that " [a]fter Defendants seized her
vehicle, [she] was left without transportation, was unable to meet [her] work schedule
requirements, and had to leave her job." (Id. at ii 24). Plaintiff alleges damages in excess of
$25,000 related to defendants' actions. (See id. at ml 27, 30, 39).

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In July 2016, the Court granted plaintiffs motion for partial summary judgment as to her
claim that defendants violated Ohio Rev. Code§ l 345.02(A) by committing unfair or deceptive
acts in not applying for and providing plaintiff with a certificate of title for the Cadillac as
required by the OCSPA. (See Doc. 37 at 10-14). The Court denied defendants' cross-motion for
summary judgment in all respects. (See id. at 15-22). Thus, the parties proceeded with trial
preparations as to plaintiffs remaining claims.
On October 7, 2016, the parties participated in judicial-based mediation, but were unable
to settle the case. (See dkt. entry dated Oct. 7, 2016). On October 18, 2016, defendants moved
to continue the trial set for November 7, 2016 due to unexpected complications from defense
counsel's major surgery. (See Doc. 42). In opposing the motion for continuance, plaintiff
argued that a delay was unfair to her because defendants "continue to hold her money,
preventing her from acquiring transportation for a job needed to provide for herself." (Doc. 43 at
2). The Court granted the motion for continuance and reset the trial for December 12, 2016. On
October 25, 2016, defendants filed the instant motion for sanctions, asserting that they had
recently discovered information to show that plaintiff misrepresented her employment status and
access to transportation in her answers to interrogatories, deposition testimony, and pleadings to
inflate her damages. (See Doc. 48 at 1-2).

B. Plaintiff's December 2015 Answers to Interrogatories
Specifically, defendants point to the following answers to interrogatories that plaintiff
provided in December 2015 as containing false statements:
10. Please list each job or employment you have had for the previous ten
years, including date hired, last date worked and reason for leaving said
employment.

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ANSWER: 11/2014-04/2015: MUBEA (through CM Services). Last day
worked: 04/l 0/2015. Left because lacked transportation. 2005-2012 Champion
Windows. Left due to pregnancy.

18. If you have lost any income from employment as a result of the acts
alleged in the Complaint, list the inclusive dates of each period of employment
which you have lost income and the total amount of income lost. Please produce
copies of any documentary evidence you will rely upon at trial to support a claim
of lost income.
ANSWER: April 13, 2015 to the present at a loss rate reflected in pay
stubs from MUBEA less any income derived from occasionally babysitting.

22. Have you ever purchased any other vehicles? If so, please state:
a. Location of the vehicle purchase;
b. Entity or individual the vehicle was purchased from ;
c. Description of the vehicle purchased;
d. Date on which the vehicle was purchased; and,
e. Whether or not the vehicle was financed.
ANSWER: My husband and 1 purchased a 2010 Dodge Charger financed
through GM Financial in 2011 from Jake Sweeney, and I co-signed the loan.
(Plaintiffs Response to Defendants' Discovery Requests, Doc. 48-1, Exh. A at 4-6). Plaintiff
signed and swore before a notary public that her answers to the interrogatories "are true and
correct to the best of my knowledge, information, and belief." (Id. at 7).

C. Plaintiff's March 2016 Deposition Testimony
Further, the following testimony from plaintiffs March 2016 deposition is relevant to
defendants' contention that plaintiff has misrepresented her unemployment:
Q. So the only information that you received from Mubea was that you missed
work and that you were terminated?
A. Yes.
Q. When was that?
A. It should be on my records. I think it's Monday the 15th of April.
Q. Monday, April 15th, that would have been in 2015?

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A. Yes.

Q. And why did you miss work?
A. Because my car was repossessed and I had to work, go to work the next
mornmg.
Q. And have you had any employment since?
A. I was looking for a lot of employment and everything, but right now I'm still
unemployed.
Q. So you've been unemployed since April 15, 2015 ?
A. Yes, sir.
(Doc. 26 at 23-25). As to defendants ' contention that plaintiff misrepresented her lack of access
to a vehicle after defendants seized the Cadillac, the following deposition testimony is relevant:

Q. Okay. Have you and your husband purchased a car since Major Performance?
A. No.
Q. So you and your husband don't have a car right now?
A. No.
Q. And haven't had a car since?
A. No.
Q. Why haven ' t you purchased a car?
A. Because we don' t have the money to purchase a car.
Q. How is your husband getting to work?
A. Take the bus.
Q. Okay. And he ' s been taking the bus since he' s been working at Mubea?
A. Yeah.

(Id. at 115-16).

D. Post-April 2015 Traffic Citations and Title Records
The record shows that on March 10 and April 26, 2016, plaintiff received traffic citations
while driving a 1997 Pontiac Bonneville. (See March 10, 2016 Uniform Citation, Doc. 48-2,
Exh. Bat 2; April 26, 2016 Uniform Citation, Doc. 48-3 , Exh. Cat 3). Records from the
Hamilton County, Ohio Clerk of Court establish that a 1997 Pontiac Bonneville was titled in
plaintiffs name with a purchase date of June 27, 2015. (Pontiac Bonneville Title Record, Doc.
48-4, Exh. D at 3-4). A replacement title on this vehicle was issued on January 25, 2016 after a

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lien was placed on the vehicle by Ohio Auto Loan Services. (Id. at 1-2). Further, title records
show that a 2000 Volkswagen Jetta was titled in plaintiffs name with a purchase date of July 6,
2015. (Volkswagen Jetta Title Record, Doc. 48-5, Exh. Eat 1-2).

E. January 2016 Title Loan
On January 23, 2016, plaintiff applied for a title loan on the Pontiac Bonneville from
Ohio Auto Loan Services. (See Customer Application dated Jan. 23, 2016, Doc. 48-6, Exh. Fat
1-2; Doc. 78 at 73-80). In her application, plaintiff represented that she had been employed by
Mubea Precision Spring for two years as a visual inspector. (Doc. 48-6, Exh. F at 1). Plaintiff
indicated that her supervisor's name was Alex. (Id.). Plaintiff represented that she was paid
$900 every two weeks. (Id.). To obtain the title loan, plaintiff provided a copy of her pay
history from Mubea for calendar year 2015, which showed that she had gross earnings of
$27 ,876. 77 for that year. (See Mubea Pay History for 2015, Doc. 48-7, Exh. G; Doc. 78 at 76).

F. Plaintiff's October 2016 Opposition to Defendants' Continuance Motion
On October 18, 2016, defendants moved to continue the trial set for November 7, 2016
due to unexpected complications from defense counsel's major surgery. (See Doc. 42). In
opposing the motion, plaintiff asserted that " [a] delay has real, day-to-day financial
consequences on her: defendants continue to hold her money, preventing her from acquiring
transportation for a job needed to provide for herself." (Doc. 43 at 2).

G. Plaintiff's November 2016 Declaration
In opposing the motion for sanctions and responding to the evidence described above,
plaintiff filed a declaration dated November 14, 2016. (Declaration of Nd eye Ndoye dated Nov.
14, 2016, Doc. 53-1, Exh. A). Plaintiff attests in this declaration that she has not worked at
Mubea or anywhere else since April 2015 . (Id.

at~

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2). Plaintiff attests that after defendants

seized the Cadillac on April 10, 2015, she allowed an undocumented Senegalese immigrant
named Binta to work under plaintiffs name at Mubea. (Id. at ml 3-6).

H. The December 2016 Evidentiary Hearing
I. Plaintiff's Testimony

At the evidentiary hearing, plaintiff testified that she was not employed in December
2015 when she completed her answers to interrogatories. (Doc. 78 at 12). As to the Pontiac
Bonneville and Volkswagen Jetta titled in her name, plaintiff testified that her husband
purchased those vehicles by himself but titled them in her name "(b]ecause of his tax problem."
(Id. at 13). Plaintiff stated she had occasional use of the vehicle for "[j]ust going to th[e] store.

That's about it." (Id. at 17). Plaintiff testified that she "was not employed at Mubea after ...
April of2015. I didn't work at Mubea again." (Id. at 20). Plaintiff testified that while she later
worked for four days at L'Oreal after being placed there by staffing agency CM Personnel, she
did not consider that a job because "(i]t was just a tryout job, and it didn't work out." (Id. at 22).
Plaintiff testified that she accompanied her husband to secure a title loan on the Pontiac
Bonneville. (Id. at 26-27). She stated that she did not assist in filling out the loan application
and did not provide any information for the loan application. (Id. at 27-28). She testified that
her husband provided all the information to complete the loan application and she merely signed
it after the loan officer completed the form. (Id. at 28).
Plaintiff testified that when she became a direct employee ofMubea in March 2015, she
signed a form directing her compensation be paid to Skylight, which was a Visa card associated
with her bank account. (id. at 40-41 ). When she completed this form, she asked for the Skylight
account to be associated with a bank routing number ending in " 1241 " and an account number

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ending in "6358." (Id. at 41; Skylight Financial Form, Plaintiff's Exh. A from Evidentiary
Hearing, Doc. 74 at 1-2).
Plaintiff testified that records of phone calls made from her cell phone were consistent
with calls that she made to the Legal Aid Society of Cincinnati on April 13, 2015 at 3:17 p.m.,
April 14, 2015 at 1:41 p.m. and 3:19 p.m., and April 17, 2015 at 9:40 a.m. (Doc. 78 at 42-43;
Boost Account Activity, Plaintiff's Exh. B from Evidentiary Hearing, Doc. 74-1 at 45-46).
Plaintiff testified that she also made calls from her cell phone to her attorney on April 26, 2015 at
7:25 p.m. and April 28, 2015 at 12:08 p.m. and 1:06 p.m. (Doc. 78 at 43-44; Doc. 74-1 at 52).
Plaintiff was also asked whether she had signed numerous employment related forms at
Mubea after April 10, 2015. Plaintiff declined to answer these questions and asserted her Fifth
Amendment right against self-incrimination. (Doc. 78 at 45-48).
Plaintiff testified she did not receive any income in the form of wages or benefits from
Mubea after April 10, 2015. (Id. at 48).

2. Holly Holte 's Testimony
Holly Holte, employee relations manager at Mubea, testified that plaintiff worked at
Mubea from March 2015 until May 6, 2016 when she was terminated for attendance problems.
(Id. at 49-50, 52-53). Ms. Holte authenticated plaintiff's personnel records, which included a

safety glasses order form that plaintiff signed on April 24, 2015, a code of conduct policy
certification that plaintiff signed on October 15, 2015, a flexible spending account enrollment
form that plaintiff signed on April 24, 2015, and a "no changes" to insurance benefits form that
plaintiff signed on November 21 , 2015. (Id. at 50-51 , 55-58; Defendants' Exhibit 5 from
Evidentiary Hearing, Doc. 75-4 at 14, 20, 31, 43). Each of these forms was signed after the date
plaintiff alleges she stopped working at Mubea.

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Plaintiffs counsel asked Ms. Holte whether Mubea was able to produce records that
would show the days that plaintiff worked and the hours she worked on each of those days.
(Doc. 78 at 60). Ms. Holte testified that such a report could be produced. (Id.). More
specifically, plaintiffs counsel asked: "[I]f I wanted to find out whether on the days that
[plaintiff] met with me at my office or met with Legal Aid Society, whether ... your records
show her to be working ... on those days, I would need to get Mubea's listing of the hours
worked per day on a given date, right?" (Id. at 67). Ms. Holte testified that records showing the
days and hours an employee worked could be produced, but she did not know if such records
would go back to 2015. (Id.). Upon plaintiffs motion, and without objection, the Court directed
Ms. Holte to produce on behalf of Mubea the record of hours that plaintiff worked in April 2015
and March 2016 for the purpose of comparison to plaintiffs phone records. (Id. at 69-70).
Plaintiffs counsel also asked Ms. Holte to examine copies of plaintiffs official pay
records. (Id. at 62; Paycor Records, Plaintiff's Exh. C from Evidentiary Hearing, Doc. 74-2).
Based on these records, Ms. Holte testified that for days worked between March 8 through May
2, 2015, plaintiff's earnings were deposited to a bank with a routing number ending in " 1241"
and an account number ending in "6358." (Doc. 78 at 62-63; Doc. 74-2 at 21 -24). Ms. Holte
testified that for days worked from May 3, 2015 throughout the rest of 2015 and into 2016,
plaintiff's earnings were deposited to a different account number ending in "3202" at a different
bank with a routing number ending in "6656." (Doc. 78 at 63-64; Doc. 74-2 at 3-20, 25-34).
3. Alexander Hensley 's Testimony
Alexander Hensley, a production supervisor at Mubea, identified plaintiff as an employee
he supervised from May 2015, when he transferred to plaintiff's shift, until her termination in

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May 2016. (Doc. 78 at 71 ). Mr. Hensley testified that plaintiff was the only Senegalese
immigrant with whom he has ever interacted at Mubea. (Id. at 72-73).
4. Samantha Banks' Testimony

Samantha Banks, an employee of Ohio Auto Loan Services, processed the title loan on
the Pontiac Bonneville. (Id. at 73-75). Ms. Banks identified plaintiff and testified that plaintiff
provided the title to the Pontiac Bonneville and filled out a loan application. (Id. at 75). Ms.
Banks further testified that plaintiff provided a copy of her income history from Mubea for
calendar year 2015 and a Mubea pay stub from January 9, 2016. (Id. at 75-76). Ms. Banks
testified that she asked plaintiff for proof of income to determine how plaintiff "would be able to
pay the loan back." (Id. at 76). Plaintiff represented to Ms. Banks that the Pontiac Bonneville
was her vehicle. (Id. at 77). Ms. Banks testified that plaintiffs husband never indicated that the
car was his. (Id. at 80).
5. Jeneen Stewart Grant 's Testimony

J eneen Stewart Grant, assistant chief deputy of the Hamilton County Clerk of Courts
Auto Title Division, authenticated the title records for the Pontiac Bonneville and Volkswagen
Jetta. (Id. at 81-82, 84-85). Ms. Grant testified that these documents established that plaintiff
purchased the Pontiac Bonneville on June 27, 2015 and the Volkswagen Jetta on July 6, 2015.
(Id. at 86-87). Ms. Grant testified that in order to receive title for these vehicles, plaintiff had to

swear before a notary public that she had purchased the vehicles. (See id. at 87-88).
6. Amy Eversole 's Testimon y

Amy Eversole, a branch manager for staffing agency CM Personnel, authenticated the
records in plaintiffs file with CM Personnel. (Id. at 90-92). Ms. Eversole testified that those
records showed that plaintiff was placed in ajob with L' Oreal in May 2016. (Id. at 92). Ms.

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Eversole testified that plaintiff was terminated by L' Oreal on June I, 2016 for attendance
problems. (Id. at 98). Ms. Eversole testified that plaintiffs pay records for the L'Oreal position
were consistent with plaintiff's contention that she only worked there for four days before being
terminated. (Id. at 101-02).

7. Clifford Johnson 's Testimony
Clifford Johnson testified that he has been married to plaintiff for nine years. (Id. at 104).
Mr. Johnson testified that when he gets a car, he "usually put[s] it in [plaintiff's] name because
[he has] tax issues." (Id. at 108). Mr. Johnson testified that during 2015, plaintiff was not
working at Mubea and was not working at all. (Id. at 113). When asked what plaintiff was
doing with her time, Mr. Johnson testified: "Really, I have no idea really. I don 't know. I don' t.
I don't know." (Id.).
Mr. Johnson testified that he used his money to buy the Volkswagen Jetta and Pontiac
Bonneville and that plaintiff had no involvement in those purchases. (See id. at 113-14). He had
primary use of the Bonneville. (Id. at 115). When asked whether plaintiff drove the Bonneville,
Mr. Johnson responded: "I mean, very small, little, very small, never really-very little." (Id.).
Mr. Johnson testified that in early 2016, he received the money from the title loan, but he
"talked plaintiff into going, in her name." (Id.). Mr. Johnson testified that he provided the
information for the loan application form and interacted with the loan officer. (Id.). Mr. Johnson
denied giving the loan officer any information about plaintiff's employment to secure the loan.
(Id. at 117). Mr. Johnson put the Bonneville in plaintiffs name because of his tax issues. (See
id.). Plaintiff did "not really" have day-to-day use of the Hyundai that Mr. Johnson now drives.

(Id.).

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Mr. Johnson was asked whether he had fraudulently placed into plaintiffs name two
vehicles that were really his. (Id. at 119). Mr. Johnson declined to answer these questions and
asserted his Fifth Amendment right against self-incrimination. (See id.).
Mr. Johnson was asked whether he had heard Ms. Banks' testimony that plaintiff had
provided the information for the title loan application. (Id. at 120). Mr. Johnson responded:
" I' m not sure." (Id.). Mr. Johnson was reminded of Ms. Banks' testimony that plaintiff
produced a license to secure the title loan. (Id.). Mr. Johnson was asked whether he or plaintiff
gave a license to Ms. Banks for the title loan application. (Id. at 120-21 ). Mr. Johnson
responded: "Um, I can't remember." (Id. at 121). Mr. Johnson was reminded of Ms. Banks'
testimony that plaintiff presented Mubea pay stubs for the loan application and he was asked
whether he provided pay stubs to Ms. Banks. He responded: " I can' t remember. I never seen
it." (Id.). Mr. Johnson testified that he never got pay stubs from Mubea indi cating that plaintiff
was working there to present for purposes of securing a title loan. When asked if he knew where
the pay stubs came from, Mr. Johnson responded: " I can' t remember. I never seen them. I can ' t
remember that. It was two years ago." (Id.). Mr. Johnson was asked whether he made any
misrepresentations to Ms. Banks about who owned the Bonneville. (Id. at 122). Mr. Johnson
declined to answer this question and asserted his Fifth Amendment right against selfincrimination. (Id. at 122-23). Mr. Johnson was asked to give a rough estimate of how many
times he let plaintiff drive the Bonneville. (Id. at 123). He responded: "I can 't remember. It
was years ago. I really can't." (Id.). When asked ifhe let plaintiff drive the Bonneville more
than the two times when she received traffic citations, Mr. Johnson responded: "Um, I can' t
really remember." (Id. at 123-24).

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8. Meloney Johnson's Testimony
Plaintiffs mother-in-law, Meloney Johnson testified that after defendants seized
plaintiff's car, she had contact with plaintiff that she variously characterized as " frequent," "off
and on," "all the time," and "a lot." (Id. at 133). Ms. Johnson testified that plaintiff would
sometimes stay with her for two weeks at a time. When asked how many times plaintiff stayed
with her for a two-week period, Ms. Johnson responded: "Mostly all the time. She was there."

(Id.). Ms. Johnson gave the following testimony concerning whether plaintiff was working after
defendants seized her car:
Q. Now, during this period of time, from the time she lost her car until the
present, has she worked at a job?
A. I don't know. I'm not sure.
Q. During the time she was staying with you, was she going to work?
A. Was she going to work during the time she stayed with me? She would leave
and catch the bus, you know.
Q. Do you know where she was going?
A. No, not all the time.

(Id. at 134).

II. Findings of Fact
Based on the foregoing discussion of the relevant evidence of record, the findings of fact
enumerated below have been established by clear and convincing evidence. 1
1. Plaintiff lied in her answer to Interrogatory 10 when she stated that the last day she
worked at Mubea was April 10, 20 15.
2. Plaintiff lied in her answer to Interrogatory 18 when she stated that she had lost
income from April 13, 2015 to present due to losing her job at Mubea.
1

The parties have not presented arguments concerning the evidentiary standard that applies in ruling on a motion for
sanctions. In an earlier decision that dismissed a plaintiffs case for misconduct that included lying during a
deposition, this Court noted a disagreement as to whether findings of fact must be established by a preponderance of
the evidence or by clear and convincing evidence. See Holmes v. U.S. Bank, No. I :07-cv-695, 2009 WL 1542786, at
*5 n.4 (S.D. Ohio May 28, 2009). In that case, the Court assumed without deciding that the clear and convincing
evidence standard applied. See id. The Court makes the same assumption in the instant case.

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3. Plaintiff lied in her deposition when she stated that she was terminated by Mubea on
April 15, 2015 and that she had been unemployed since April 15, 2015.
4. Plaintiff lied in her deposition when she stated that she and her husband did not have
a car and had not had a car since the Cadillac was seized by defendants.
5. Plaintiff lied in her November 14, 2016 declaration when she stated that she has not
worked at Mubea or anywhere else since April 2015.

6. Plaintiff lied at the evidentiary hearing when she testified that she was not employed
at Mubea after April 2015 and did not work there again.
7. Plaintiff lied in her October 2016 opposition to defendants ' motion for continuance of
the trial when she represented to the Court that a delay in these proceedings has a
day-to-day financial impact on her in that defendants' actions have prevented her
from acquiring transportation for a job to provide for herself.

8. Based on findings of fact 1-7, the Court finds that plaintiff has acted in bad faith and
has engaged in deliberate misconduct in the course of these proceedings by lying in
her answers to interrogatories, deposition, declaration, and evidentiary hearing
testimony.
Based on the evidence before the Court, plaintiffs repeated contention that she stopped
working at Mubea after April l 0, 2015 is demonstrably false. Ms. Holte testified that plaintiff
worked for Mubea from March 2015 until her termination on May 6, 2016. (Doc. 78 at 52-53).
The documentary evidence also establishes that plaintiff was not terminated until May 6, 2016.

(See Termination Letter dated May 9, 2016, Defendants' Exhibit 5 from Evidentiary Hearing,
Doc. 75-4 at l 0).

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In an attempt to challenge the overwhelming evidence that she worked at Mubea until
May 6, 2016, plaintiff stated that she stopped working at Mubea after April 10, 2015 but she
allowed an undocumented Senegalese immigrant named Binta to work there under plaintiff's
name. (Ndoye Declaration, Doc. 53-1, Exh. A at ml 3-6). However, this explanation is
unbelievable. The documentary evidence establishes that plaintiff signed employee documents
2

at Mubea on April 24, October 15, and November 21 , 2015. (See Doc. 78 at 55-58; Defendants'
Exhibit 5 from Evidentiary Hearing, Doc. 75-4 at 14, 20, 31, 43). When asked to explain how
her signature continued to appear on Mubea employment documents long after the date she
claimed to have stopped working at Mubea, plaintiff invoked her Fifth Amendment right against
self-incrimination. (See Doc. 78 at 45-48). However, "the Fifth Amendment does not forbid
adverse inferences against parties to civil actions when they refuse to testify in response to
probative evidence offered against them: the Amendment 'does not preclude the inference
where the privilege is claimed by a party to a Civil cause."' Baxter v. Palmigiano, 425 U.S. 308,
318 (1976) (quoting 8 J. Wigmore, Evidence 439 (McNaughton rev. 1961)). Thus, from
plaintiff's refusal under the Fifth Amendment to explain how her signature came to be on Mubea
employment documents after April 10, 2015, the Court can infer that she continued to be
employed by Mubea when those documents were signed.
In addition, plaintiff herself relied on evidence of her continued employment at Mubea in
obtaining a title loan in January 2016. Plaintiff admitted at the evidentiary hearing that she
signed that loan application. (Doc. 78 at 28). In that application, plaintiff indicated that she had
been employed at Mubea for two years and that her supervisor's name was Alex. (Doc. 48-6,
Exh. Fat 1). To show proof of this employment, plaintiff provided a copy of her Mubea pay
history for calendar year 2015 as well as her Mubea pay stub from January 9, 2016. (See Doc.
2

The signature on these documents matches the signature on documents plaintiff has filed in this case.

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48-7, Exh. G; Doc. 78 at 75-76). Plaintiff cannot have it both ways. That is, she cannot rely on
her continued employment with Mubea when it benefits her (e.g., to obtain a loan) while
concurrently claiming she was unemployed to increase her damages claim in this lawsuit.
The most decisive evidence of plaintiffs continued employment beyond April 10, 2015
is the testimony of her supervisor, Alex Hensley. During the evidentiary hearing, Mr. Hensley
identified plaintiff- who was seated directly in front of him when he was on the witness standas an employee he supervised from May 2015 until May 2016. (Doc. 78 at 71). Mr. Hensley
further testified that plaintiff was the only Senegalese immigrant with whom he has ever
interacted at Mubea. (See id. at 72-73). In other words, plaintiffs direct supervisor for over a
year did not confuse her with the enigmatic "Binta." The Court finds Mr. Hensley' s testimony to
be credible. There is no discemable reason for Mr. Hensley, a disinterested non-party to this
lawsuit, to misrepresent plaintiffs employment status at Mubea.
In a further effort to minimize the overwhelming evidence of her continued employment
at Mubea through May 2016, plaintiff at the evidentiary hearing emphasized alleged
discrepancies in her phone records and payroll records. However, the Court gives no evidentiary
weight to these purported discrepancies. First, although the Court directed Ms. Holte to produce
to plaintiff on Mubea's behalf the record of days and hours that plaintiff worked in April 2015
and March 2016, plaintiff has not supplemented the record to include those documents. (See
Doc. 78 at 69-70). Plaintiff contended at the evidentiary hearing that these records in
conjunction with her phone records would show that she made numerous phone calls to her
attorney and the Legal Aid Society of Cincinnati at times when she was supposed to be working
at Mubea. (See id. at 67). Presumably, the import of such evidence would be to support her
claim that "Binta" was working under plaintiffs name at Mubea while plaintiff was elsewhere

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making phone calls. However, plaintiff has not produced any evidence from Mubea to show that
she was working at the times those calls were made. Further, even if she had produced such
evidence, the phone records that plaintiff has submitted show only the times that she placed calls
to her attorney and Legal Aid, not the duration of those calls. (See Doc. 74-1 at 45-46, 52).
Thus, even if there were evidence that plaintiff was working at Mubea when the calls were made,
it does not follow that Binta must have been working in her place. An equally if not more
plausible explanation would be that plaintiff herself made the calls at Mubea during her breaks or
at lunch.
Second, plaintiff contends that the change in her bank routing and account numbers in
May 2015 is evidence that she was no longer the person receiving paychecks under her name
from Mubea. (See Doc. 80 at 17-18). However, the evidence regarding the two bank accounts
has little probative value. Plaintiff appears to suggest the documents showing a change in the
bank accounts for the direct deposit of her wages is circumstantial evidence that "Binta" was
now receiving "plaintiffs" paycheck or wages from Mubea. However, there is no evidence
before the Court identifying who owned this second bank account. Plaintiff was never asked
whether she owned this second bank account and she never disavowed ownership of the account
to which her paycheck was deposited. For the Court to conclude that this second bank account
was owned by "Binta" and not plaintiff would be sheer speculation. In addition, plaintiff
continued receiving the direct deposit of her paycheck into the first bank account she admitted to
owning for two pay periods after she alleges she stopped working (Doc. 74-2, PAGEID#: 1271 ,
1272) despite testifying that she never received any income in the form of wages or benefits from
Mubea after April 10, 2015. (Doc. 78 at 48). In short, any conclusion to be drawn from the

17

change in plaintiffs bank information is wholly speculative. Therefore, the Court gives no
weight to the change in plaintiffs bank account information in May 2015.
Based on the overwhelming weight of the evidence, the Court is left with the firm belief
and conviction that the only possible conclusion is that plaintiff worked at Mubea until May 6,
2016. See Holmes, 2009 WL 1542786, at *5 n.4 (explaining that evidence is clear and
convincing when it "produces in the mind a firm belief or conviction as to the matter at issue")
(quoting 3 O'Malley, et al., Federal Jury Practice & Instructions§ 104.02 (5th ed. 2000)). Thus,
the Court finds by clear and convincing evidence that plaintiff lied about her continued
employment with Mubea in her answers to interrogatories, deposition, declaration, and
evidentiary hearing testimony (i.e., Findings of Fact 1-3 and 5-6).
In addition to plaintiffs continued employment at Mubea until May 6, 2016, the record
also contains clear and convincing evidence that plaintiff worked at L'Oreal in May 2016. Ms.
Eversole testified that plaintiffs file with staffing agency CM Personnel showed that plaintiff
was placed in ajob with L'Oreal in May 2016 and was terminated on June 1, 2016 for
attendance problems. (Doc. 78 at 92, 98). Plaintiff herself admitted at the evidentiary hearing
that she worked at L'Oreal for four days. (Id. at 22). While plaintiff characterized this
employment as ' just a tryout job" and therefore not a job, this position and the earnings she
made from it were clearly relevant to the issue of damages. (See id.). Thus, plaintiffs brief
employment at L' Oreal in May 2016 constitutes additional evidence for the Court's finding that
plaintiff lied in her November 2016 declaration when she stated that she has not worked at
Mubea or anywhere else since April 2015 (i.e., Finding of Fact 5).
As to whether plaintiff misrepresented whether she purchased, owned, or had access to a
car after defendants seized the Cadillac on April 10, 2015, the record shows by clear and

18

convincing evidence that she lied in her March 2016 deposition when she stated that she and her
husband did not have a car and had not had a car since the Cadillac was seized (i.e., Finding of
Fact 4). First, title records show that a Pontiac Bonneville was titled in plaintiffs name with a
purchase date of June 27, 2015 and a Volkswagen Jetta was titled in her name with a purchase
date of July 6, 2015. (See Doc. 48-4, Exh. D at 3-4; Doc. 48-5, Exh. Eat 1-2). Second, plaintiff
received traffic citations while driving the Pontiac Bonneville on March l 0 and April 26, 2016.
(See Doc. 48-2, Exh. Bat 2; Doc. 48-3, Exh. Cat 3). Third, in applying for a title loan on the

Pontiac Bonneville in January 2016, plaintiff provided a copy of a title in her name and
represented to the loan officer that she owned the car. (See Doc. 78 at 75, 77). While plaintiff
and her husband downplayed plaintiff's involvement in their evidentiary hearing testimony, their
testimony is not credible. Specifically, Mr. Johnson's testimony was evasive in that he claimed
not to remember whenever providing an answer would hurt plaintiff's case. (See id. at 120-24).
Further, the testimony of plaintiff and her husband about plaintiff's involvement in securing the
title loan was flatly contradicted by the testimony of Ms. Banks- a neutral, disinterested
witness- that plaintiff represented the Bonneville belonged to her and provided the required
information for the loan application. (See id. at 75-77, 80). Fourth, plaintiff testified at the
evidentiary hearing that she had occasional access to the vehicles. (Id. at 17). Even if the Court
were to believe plaintiff's testimony that her husband purchased the cars on his own, such that
she did not lie in her answer to Interrogatory 22 by not listing them as cars she had purchased,
she still lied about her access to the cars in her deposition. That is, even if plaintiff herself did
not purchase these cars, the foregoing evidence conclusively shows that contrary to her
deposition testimony, she and her husband had a car after the Cadillac was seized in April 2015.
Thus, clear and convincing evidence shows that plaintiff lied in her deposition when she stated

19

that she and her husband did not have a car and had not had a car since the Cadillac was seized
(i.e., Finding of Fact 4).
Finally, the Court finds by clear and convincing evidence that based on plaintiff's lies
underlying Findings of Fact 1-7, plaintiff has acted in bad faith and has engaged in deliberate
misconduct in the course of these proceedings (i.e., Finding of Fact 8). The only possible reason
that plaintiff had to repeatedly lie about her continued employment with Mubea and access to a
car was to fraudulently inflate the amount of her damages claim related to defendants' alleged
wrongdoing. With these factual findings established, the Court must now detennine whether
plaintiff's misconduct during these proceedings is sanctionable.

III. Sources for Sanctions

In their motion, defendants invoke the Court's inherent power and Federal Rules of Civil
Procedure 11, 37, 41, and 60 as sources for sanctioning plaintiff's false statements. While a case
might be made for sanctions under Rules 3 7, 41 , and 60, defendants have failed to articulate the
basis for sanctions under those rules. Thus, the Court declines to consider whether sanctions are
appropriate under those rules. Additionally, the Court will not impose sanctions under Rule 11
because defendants failed to comply with the safe harbor provision of that rule. 3 Instead, the
Court will consider the legal standard for sanctions under the Court's inherent power, which
provides a strong basis for sanctioning plaintiff's misconduct in this case.
"A district court may impose sanctions pursuant to its inherent authority 'to control the
litigants before it and to guarantee the integrity of the court and its proceedings."' Holmes, 2009

3

A party seeking sanctions under Rule 11 must follow a two-step process: "first, serve the Rule 11 motion on the
opposing party for a designated period (at least twenty-one days); and then tile the motion with the court." Ridder v.
City ofSpringfield, 109 F.3d 288, 294 (6th Cir. 1997). This process, known as the safe harbor provision, is an
"absolute requirement." Id. at 296. Because defendants discovered that plaintiff made false statements in her
answers to interrogatories and deposition and filed their motion for sanctions only four days later on October 25,
20 16, they could not have complied with the safe harbor provision of Rule 11.

20

WL 1542786, at *6 (quoting First Bank ofMarietta, 307 F.3d at 512). Courts may exercise their
inherent authority to sanction a party who has "acted in bad faith, vexatiously, wantonly, or for
oppressive reasons," or who has engaged in conduct that was "tantamount to bad faith." Laukus,
292 F.R.D. at 502-03 (quoting Metz v. Unizan Bank, 655 F.3d 485, 489 (6th Cir. 2011)).
Here, as explained in the Court's findings of fact, plaintiff acted in bad faith throughout
these proceedings in an effort to fraudulently inflate the amount of her damages claim at trial.
Plaintiff concedes that the Court has the inherent authority to sanction a party for abuse of the
judicial process, but argues that her misconduct does not rise to a level for which sanctions are
appropriate. (See Doc. 53 at 7-8; Doc. 80 at 5-12, 19-21). The Court disagrees. Plaintiff's
persistent lies throughout these proceedings, including in her answers to interrogatories,
deposition, declaration, and evidentiary hearing testimony warrant sanctions under the Court's
inherent power. See Laukus, 292 F.R.D. at 505 (finding sanctions warranted under court's
inherent power where plaintiff "provided false deposition testimony, verified misleading and
evasive discovery responses, neglected to correct inaccurate discovery responses, and failed to
correct improper arguments made on his behalf by his counsel"). See also Englebrick v.

Worthington Indus., Inc., 944 F. Supp.2d 899, 908 (C.D. Cal. 2013) (imposing inherent power
sanctions where plaintiffs lied under oath in discovery responses and at deposition); Holmes,
2009 WL 1542786, at *7-8 (finding inherent power sanctions warranted where plaintiff
attempted "to undermine the truth-seeking function of a trial" by "withholding documents and
lying during her deposition"); Knapp v. Convergys Corp., 209 F.R.D. 439, 442 (E.D. Mo. 2002)
(finding inherent power sanctions warranted where plaintiff abused the judicial process by lying
during her deposition and in her answers to interrogatories).

21

Plaintiff argues that inherent power sanctions may not be imposed for " conflicting
testimony going to the merits of the case" but only for misconduct "which has impacted the
judicial process itself." (Doc. 80 at 19). However, the Court finds that plaintiffs misconduct
has egregiously subverted the integrity of the judicial process:
Lying cannot be condoned in any formal proceeding. See ABF Freight Sys. , Inc.
v. N.L.R.B., 510 U.S. 317, 323 (1994) ("False testimony in a formal proceeding is
intolerable."). Our legal system is dependent on the willingness of the litigants to
allow an honest and true airing of the real facts. As our colleague Judge
Gettleman has stressed: "parties who wish to use the judicial system to settle
One of those
disputes have certain obligations and responsibilities.
responsibilities is to tell the truth in a deposition." Rodriguez v. M & M/Mars,
No. 96 C 1231, 1997 WL 349989, at *2 (N.D. Ill. June 23, 1997) (dismissed
plaintiffs case for lying about her prior criminal record in a deposition). This
Court, too, has a responsibility: where we find deliberate falsehoods told in
proceedings, we cannot allow such conduct to go unchecked. Turning a blind eye
to false testimony erodes the public' s confidence in the outcome of judicial
decisions, calls into question the legitimacy of courts, and threatens the entire
judicial system. See Lisa C. Harris, Perjury Defeats Justice, 42 Wayne L.Rev.
1755, 1756 (1996).
Quela v. Payco-Gen. Am. Creditas, Inc. , No. 99 C 1904, 2000 WL 656681, at *7 (N.D. Ill. May

18, 2000). Further, the Seventh Circuit has held that a plaintiff "abuse[s] the judicial process by
seeking relief based on information that the plaintiff knows is false." Secrease v. W & S. Lif
e
Ins. Co. , 800 F.3d 397, 401 (7th Cir. 2015). The Seventh Circuit explained:

[F]alsifying evidence to secure a court victory undermines the most basic
foundations of our judicial system. If successful, the effort produces an unjust
result. Even if it is not successful, the effort imposes unjust burdens on the
opposing party, the judiciary, and honest litigants who count on the courts to
decide their cases promptly and fairly.
Id. at 402 (citing Rivera v. Drake, 767 F.3d 685, 686-87 (7th Cir. 2014)). Consistent with the

reasoning of these courts, the Court finds that plaintiffs repeated false statements throughout
these proceedings, if unchecked, would profoundly threaten the integrity and vitality of our
judicial system, which rests on a foundation of laws not lies.

22

Accordingly, defendants ' motion for sanctions under the Court's inherent power is
GRANTED . The Court will now determine the appropriate sanction for plaintiff's misconduct.

IV. The Proper Sanction for Plaintiff's Misconduct
Defendants argue that plaintiff's misconduct warrants dismissal of her claims. The Court
agrees.
Courts consider the following factors in determining whether to dismiss a party' s lawsuit
as a sanction:
(1) whether the party's conduct is due to willfulness, bad faith or fault; (2)
whether the adversary was prejudiced by the dismissed party's conduct; (3)
whether the dismissed party was warned that failure to cooperate could lead to
dismissal ; and (4) whether less drastic sanctions were imposed or considered
before dismissal was ordered.
Laukus, 292 F.R.D. at 509 (quoting United States v. Reyes, 307 F.3d 451 , 458 (6th Cir. 2002)).

"Although ' none of the factors is outcome dispositive, ... a case is properly dismissed by the
district court where there is a clear record of delay or contumacious conduct."' Id. (quoting
Schafer v. City ofDefiance Police Dep 't , 529 F.3d 73 I, 737 (6th Cir. 2008)). The Court will

consider each factor in turn.
A. Willfulness, Bad Faith, or Fault

As the Court explained in its findings of fact, plaintiff acted in bad faith by lying in her
answers to interrogatories, deposition, declaration, and evidentiary hearing testimony. The only
motive plaintiff could have to repeatedly lie about her continued employment at Mubea, even
after her lies were exposed, was to inflate the amount of her damages claim at trial. Her
misconduct during these proceedings can only be characterized as willful and in bad faith. See
Laukus, 292 F.R.D. at 5 I 0 (finding that plaintiff's concealment of a material document, evasive

and misleading discovery responses, and motive to increase damages supported a finding of

23

willfulness and bad faith). See also Englebrick, 944 F. Supp.2d at 909 ("Providing fal se or
incomplete information during a deposition or in a response to a discovery request constitutes the
sort of willfulness, bad faith, or fault required for dismissal."). Therefore, the first factor weighs
heavily in favor of dismissal.

B. Prejudice to Defendants
Plaintiff argues that defendants have not been prejudiced because even if loss of income
damages are not available, plaintiff is still entitled to other damages. (See Doc. 80 at 20).
Plaintiff contends that defendants are not prejudiced because they are still able to make
arguments concerning the proper amount of damages at trial. (See id.). Plaintiffs argument
ignores the prejudicial effect of her material falsehoods on the discovery, motion, and mediation
proceedings in this case.
The "inability to discover highly relevant information and documents" impairs a litigant's
ability to prepare for and defend the claims in the case. Laukus, 292 F.R.D. at 511. Moreover,
the presentation of false information during the discovery process inhibits a litigant's ability to
make informed decisions on settlement, which is dependent on accurate and truthful information.

See Quela, 2000 WL 65668 1, at *7. A finding of prejudice is warranted where the plaintiffs
discovery misconduct deprives the defendants "of their right to discoverable evidence which they
could have used on summary judgment, on appeal, in mediation, and in pre-trial motions before
this Court." Laukus, 292 F.R.D. at 511.
Here, plaintiffs continued lies impaired defendants' ability to prepare their case with
respect to the issue of plaintiffs damages claim. Plaintiffs persistent lies throughout this action
call into question the validity of these proceedings in their entirety, including the parties'
dispositive motion practice and the failed mediation. As the Laukus court explained: "For all

24

intents and purposes, in light of the newly-revealed evidence, the case would need to start from
the beginning to afford defendants further opportunity to conduct discovery and, if appropriate,
file dispositive motions. " Id. In short, if this action is not dismissed as a sanction for plaintiff's
egregious misconduct, these proceedings will be prolonged and the cost to defendants will
increase. See Englebrick, 944 F. Supp.2d at 912 (finding that plaintiffs' deception prejudiced
defendant given the "enorn1ous amounts of time and money" defendant had already spent
defending the action). The Court can only find that plaintiff's conduct has prejudiced
defendants. Therefore, the second factor weighs heavily in favor of dismissal.

C. Prior Warnings
The Sixth Circuit has explained that when a plaintiff has not received notice that
dismissal is contemplated, "a district court should impose a penalty short of dismissal unless the
derelict party has engaged in bad faith or contumacious conduct." Harmon v. CSX Transp., Inc.,
110 F.3d 364, 367 (6th Cir. 1997) (quotation marks omitted) (quoting Harris v. Callwood, 844
F.2d 1254, 1256 (6th Cir. 1988)). Even if a plaintiff is not warned by the Court that dismissal is
a possibility, this factor is less relevant "where the conduct at issue is not merely contestable, but
in contravention of basic notions of fairness . . . . A party does not need formal notice to know
that ... misrepresentations may lead to dismissal." Fharmacy Records v. Nassar, 248 F.R.D.
507, 530 (E.D. Mich. 2008). In Laukus, the court found "there was no opportunity or apparent
need for the Court to provide a prior warning to plaintiff ... because the discovery misconduct
was not discovered until .. . after the close of discovery and within weeks of trial." 292 F.R.D.
at 512. The Laukus court also concluded that it was not " necessary to warn a party that the
offering of knowingly false deposition testimony or evasive discovery responses, or the
concealment of highly relevant discovery, might compromise one's ability to continue to litigate

25

in federal court." Id. See also Archibeque v. Atchison, 70 F.3d I 172, 1175 (10th Cir. 1995)
(finding dismissal appropriate even without notice that dismissal was imminent when plaintiff
offered knowingly false deposition testimony).
Here, as the Court has already explained, plaintiff's pattern of lies throughout these
proceedings can only be characterized as bad faith. Thus, the Court may impose the sanction of
dismissal even if plaintiff has not received notice of the possibility of dismissal. See Harmon,
110 F.3d at 367. However, plaintiff arguably received notice that the Court was contemplating
dismissal of her action because defendants specifically requested dismissal as the appropriate
sanction for plaintiff's lies in her answers to interrogatories and deposition. See id. at 368
(finding the plaintiff was on notice that the district court was contemplating dismissal of the
complaint when the defendant had filed a motion to dismiss). Even though plaintiff knew that
defendants were seeking the sanction of dismissal, her response was to double down on her lies
by filing a false declaration and providing false testimony at the evidentiary hearing. Given the
nature of plaintiffs misconduct, no additional warning that her repeated misrepresentations
could result in dismissal was required. See Laukus, 292 F.R.D. at 512; Fharmacy Records, 248
F.R.D. at 530; Archibeque, 70 F.3d at 1175. Therefore, the third factor weighs in favor of
dismissal.

D. Lesser Sanctions
"In determining whether to dismiss a case due to a discovery violation, a di strict court
should consider lesser sanctions." Laukus, 292 F.R.D. at 512 (citing Reg 'l Re.fuse Sys., Inc. v.

Inland Reclamation Co., 842 F.2d 150, 155-56 (6th Cir. 1988)). However, "while it would be
inappropriate to dismiss without considering the severity of this sanction and the availability of
lesser sanctions, it is not an abuse of discretion to dismiss, even though other sanctions might be

26

workable, if dismissal is supportable on the facts. " Id. (quoting Reg 'l Ref use Sys., Inc., 842 F .2d
at 155). In detennining the appropriate sanction, the Court must consider "that the goals of
sanctions are to punish the offender and to deter others from engaging in similar misconduct in
the future ." Holmes, 2009 WL 1542786, at *8 (citing Taylor v. Medtronics, Inc., 861F.2d980,
985-86 (6th Cir. 1988)).
Here, the Court finds that no sanction less than dismissal would adequately punish
plaintiffs egregious misconduct. Plaintiff argues that the Court should not impose sanctions at
all because this case "is not unlike the great majority of civil disputes where one or both sides
accuse the other of lying." (Doc. 80 at 21 ). This argument is wholly unpersuasive in light of the
clear and convincing evidence that plaintiff has consistently lied throughout these proceedings in
bad faith. See Holmes, 2009 WL 1542786, at *9 (rejecting plaintiffs argument "that simply
allowing the defense to probe ... all of these issues before the jury would be sufficient" because
it "is tantamount to imposing no sanction at all"). To impose no sanction at all and "let the jury
decide" as plaintiff urges (see Doc. 53 at 5; Doc. 80 at 21) would leave unredressed the havoc
that plaintiffs actions have wreaked on these proceedings and the judicial process and provide
plaintiff with yet another opportunity to subvert the integrity of the judicial process at trial. See

Lucas v. Jos. A. Bank Clothiers, Inc., No. 14-cv-1631, 2016 WL 6698935, at *6 (S.D. Cal. Nov.
15, 2016) (" Faced with the kind of litigation misconduct established here, a court is duty bound
to take action to redress it, and to try to deter future misconduct. To do nothing . .. creates a risk
that courts will be viewed by unscrupulous litigants as an organ for committing fraud. "). See

also Holmes, 2009 WL 1542786, at *9 ("At trial, Defendants would properly be entitled to
explore all of these areas of misconduct with the jury because they are probative of her

27

credibility or lack thereof. Simply allowing the Defendants to do what they would be entitled to
do lets Plaintiff off scot free for her misconduct.").
Further, the Court has considered the possibility of striking plaintiffs claim for loss of
employment damages as a lesser sanction. However, this remedy is entirely inadequate as it
would merely place plaintiff in the position in which she would have been had she not lied
throughout these proceedings. See Laukus, 292 F.R.D. at 513 ("This sanction would do nothing
more than place pl aintiff in the position in which he would have been had he properly engaged in
discovery."). That is, the evidence conclusively shows that as a matter oflaw, plaintiff is not
entitled to loss of employment damages. Thus, allowing plaintiff to proceed to trial but striking
her claim for loss of employment damages would be an empty gesture.
As another alternative, the Court could allow defendants to refile their motion for
summary judgment in light of the newly discovered evidence of plaintiff's continued
employment with Mubea. However, this remedy "would not compensate defendants for the time
and expense associated with litigating this action under false pretences" for nearl y two years.
Laukus , 292 F.R.D. at 51 3.
In sum, given the seriousness of plaintiff's misconduct, dismissal of this action is the only
adequate sanction. Plaintiff's persistent lies throughout these proceedings demonstrate an utter
disregard for the integrity of the judicial process, defendants, defense counsel, and the Court.
Therefore, the fourth factor weighs in favor of dismissal.
"[T]he importance of accurate and truthful discovery to the civil justice system cannot be
overstated." Que la, 2000 WL 65668 1, at *7. Plaintiff's deliberate falsehoods have subverted the
truth-finding process of these judicial proceedings and no sanction short of dismissal would
adequately serve the goals of punishment and deterrence. For this reason, the Court vacates its

28

grant of partial summary judgment for plaintiff, grants defendants' motion for sanctions, and
dismisses all of plaintiff's claims in this case.
V. Reasonable Costs and Attorneys' Fees
Defendants argue that they "are entitled to reasonable costs and attorney fees arising out
of and as a direct result of Plaintiff's intentional misrepresentations." (Doc. 79 at 2). The Court
agrees. As the Court explained above, defendants have been prejudiced by plaintiff's lies
throughout these proceedings, which have prolonged the resolution of this matter and increased
the costs to defendants. While dismissal of this action addresses the hann plaintiff has inflicted
on the judicial system, dismissal does not fully alleviate the harm to defendants. See Lucas,
2016 WL 6698935, at *6 (merely dismissing the action of a plaintiff who had lied under oath at
his deposition and during a sanctions hearing would insufficiently address the plaintiff's
misconduct, the effect of which "was to sabotage two years of expensive litigation to the
detriment of all involved"). The Court is duty bound to address the monetary harm to defendants
that plaintiff has inflicted through her misconduct. Accordingly, defendants' request for
reasonable costs and attorney fees is GRANTED. By separate order, the Court will enter a
briefing schedule for the parties to address the reasonable amount of costs and attorney fees that
defendants expended as a result of plaintiff's misconduct.
VI. Conclusion
Consistent with the foregoing, defendants' motion for sanctions (Doc. 48) is GRANTED
and plaintiff's claims are DISMISSED WITH PREJUDICE. The Court' s prior order granting
partial summary judgment on plaintiff's claim under Ohio Rev. Code § 1345.02(A) (Doc. 37) is
VACATED. Defendants' request for reasonable costs and attorney fees is GRANTED. The

29

parties will brief the reasonable amount of costs and attorney fees to be assessed against plaintiff
pursuant to a briefing schedule to be entered by separate order.

IT IS SO ORDERED.

/!~___
~ :::/:

Date: _ ._, / --+
=-+-1

~£~

Karen L. Litkovitz
United States Magistrate Judge

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