Farris v. Ben E. Keith Company
ORDER ADOPTING 127 REPORT AND RECOMMENDATIONS. Defendant's Motion for Order to Show Cause for Forgeries and Perjury (Docket No. 60) is GRANTED and the complaint is DISMISSED WITH PREJUDICE. Additionally, Defendant shall recover from Plaintiff its attorney's fees and costs incurred in bringing the motion for sanctions. Within 10 business days, Plaintiff shall submit an accounting showing the amount of those fees and costs. Any motion not previously ruled on is DENIED. Signed by District Judge Robert W. Schroeder, III on 1/10/2018. (rlf)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEN E. KEITH COMPANY
CASE NO. 6:17-CV-301
ORDER ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The Report and Recommendation of the Magistrate Judge, which contains her findings,
conclusions and recommendation for the disposition of this matter has been presented for
consideration. Docket No. 127. The Report and Recommendation recommends that Defendant’s
Motion for Order to Show Cause for Forgeries and Perjury (Docket No. 60) be granted and that
the complaint be dismissed with prejudice. Docket No. 127 at 10. The Report further recommends
that Defendant should recover its attorney’s fees and costs incurred in filing the motion. Id.
Plaintiff filed written objections (Docket No. 129), and Defendant filed a response (Docket No.
In the Report and Recommendation, the Magistrate Judge concludes that Plaintiff
committed perjury in his deposition testimony and that he submitted forged documents to the Court
and to opposing counsel in an attempt to further his claims in this case. Docket No. 127 at 8–10.
One of the forged documents submitted by Plaintiff to opposing counsel was used in an attempt to
obtain confidential personnel records. Id. at 10. As a result of this conduct, the magistrate judge
determined that dismissal of the case with prejudice is the only effective and appropriate sanction
for Plaintiff’s conduct. Id.
In his written objections, Plaintiff does not dispute that he committed perjury or that he
submitted forged documents in the furtherance of his claims. Docket No. 129. Instead, Plaintiff
argues that Defendant has not produced all relevant documents in this case and has refused to
produce certain requested personnel records. Id. at 3. In response, Defendant asserts that
Plaintiff’s discovery argument is irrelevant to the matter at issue—Plaintiff’s perjury and forged
documents. Docket No. 130.
Although dismissal is an extreme sanction that should be imposed with restraint, perjured
testimony by a plaintiff is egregious conduct that warrants a dismissal with prejudice. Brown v.
Oil States Skagit Smatco, 664 F.3d 71, 77–78 (5th Cir. 2011). When a plaintiff offers perjured
testimony, he commits a “fraud upon the court” and “this blatant misconduct constitutes
contumacious conduct.” Id. at 78. Here, the Magistrate Judge found that the Plaintiff willfully
abused the judicial process by offering both perjured testimony and forged documents in an attempt
to advance his claims, a finding, as noted, Plaintiff did not object to in his written objections.
Accordingly, dismissal of the complaint is appropriate. See Woodson v. Surgitek, Inc., 57 F.3d
1406, 1417 (5th Cir. 1995); see also Johnese v. Jani-King, 2008 WL 631237, at *2 (N.D.Tex. Mar.
3, 2008) (finding dismissal particularly appropriate where a plaintiff manufactures evidence
purporting to corroborate its substantive claims). A dismissal with prejudice is the only effective
and appropriate sanction under these circumstances.
Having made a de novo review of the written objections filed by Plaintiff in response to the
Report and Recommendation, the Court concludes that the findings and conclusions of the
Magistrate Judge are correct and the objections are without merit. It is therefore
ORDERED that the Report and Recommendation (Docket No. 127) is ADOPTED.
Defendant’s Motion for Order to Show Cause for Forgeries and Perjury (Docket No. 60) is
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GRANTED and the complaint is DISMISSED WITH PREJUDICE. Additionally, Defendant
shall recover from Plaintiff its attorney’s fees and costs incurred in bringing the motion for
sanctions. Within 10 business days, Plaintiff shall submit an accounting showing the amount of
those fees and costs.
Any motion not previously ruled on is DENIED.
SIGNED this 10th day of January, 2018.
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE
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