Opinion
Case No. 6:20-cv-1184-GAP-EJK
2021-12-01
IN RE: $39,422 IN U.S. CURRENCY United States of America, Plaintiff, v. Javonte Richardson, Claimant.
Nicole M. Andrejko, US Attorney's Office, Orlando, FL, James A. Muench, Julie A. Simonsen, United States Attorney's Office, Tampa, FL, for Plaintiff.
Nicole M. Andrejko, US Attorney's Office, Orlando, FL, James A. Muench, Julie A. Simonsen, United States Attorney's Office, Tampa, FL, for Plaintiff.
ORDER
GREGORY A. PRESNELL, UNITED STATES DISTRICT JUDGE
This matter is before the Court sua sponte.
This case is a civil in rem action that seeks to forfeit $39,422 that was seized from Claimant Javonte Richardson ("Richardson") at the Orlando International Airport. The case is currently set for trial on December 13, 2021.
Early in the case, the Court issued a Case Management and Scheduling Order. That order required the parties to meet in person to prepare the required final pretrial statement. Doc. 19 at 5. It also required the parties to attend the final pretrial conference "in person unless previously excused by the Court." Id. at 9.
However, Richardson did not comply with this requirement. The Government moved to compel Richardson to comply with the requirement that he meet in-person to prepare the pretrial statement. See Doc. 28. The Court granted that motion. Doc. 38. The pretrial statement was filed, but the Government informed the Court that Richardson did not meet in person to prepare the statement. Doc. 40. Instead, the parties discussed the pretrial statement over the phone. Id. at 1. The Court ordered Richardson to show cause why he did not meet in person to prepare this statement. See Doc. 45. He did not respond.
Then, on the eve of the November 4, 2021 pretrial conference, Richardson contacted the Court, informed the Court that he had received a positive Covid test, and asked the Court to continue the conference until he recovered. The Court asked Richardson to submit his test results and allowed him to appear telephonically. Richardson submitted the result via email, which reflected that he took an antigen test on November 3, 2021. That test appeared to be from the Florida Department of Health.
But at the pretrial hearing, the Government advised the Court that it believed that Richardson's Covid test was fabricated. An independent review of the test by the Court confirmed that it looked suspicious. The Government also advised the Court that Richardson had produced a false tax return during discovery. When asked if he tested positive for Covid by the Court, Richardson refused to answer.
After the hearing, the Government moved to compel the Florida Department of Health to produce any Covid tests taken by Richardson. See Doc. 52. The Court granted that request. Doc. 53. The Florida Department of Health then confirmed that it had "no results" for Mr. Richardson. Doc. 57-1.
This concerning response led the Court to issue another order to show cause, this time directing Richardson to explain why sanctions should not be imposed for (a) his submission of a fake COVID-19 test; (b) his production of a fake U.S. tax return during discovery; and (c) his failure to respond to the Court's previous order to show cause. Doc. 59 at 1. Richardson, once again, did not respond.
The Court "may impose sanctions for litigation misconduct under its inherent powers." Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc. , 561 F.3d 1298, 1306 (11th Cir. 2009). This power is appropriately used to sanction "[a]cts which degrade the judicial system, including ... lying to the Court." Chambers v. NASCO, Inc. , 501 U.S. 32, 41, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). The key to unlocking these powers is a finding of bad faith. Byrne v. Nezhat , 261 F.3d 1075, 1106 (11th Cir. 2001), abrogated on other grounds as recognized by Jackson v. Bank of Am., N.A. , 898 F.3d 1348, 1357 n.10 (11th Cir. 2018).
The Court finds that Richardson acted in bad faith in at least two instances. First, Richardson submitted fabricated evidence to the Court to receive an excuse from attending the final pretrial conference in person. Clear and convincing evidence shows that the COVID-19 test was fabricated. This fabrication was confirmed by a subpoena to the Florida Department of Health, which confirmed that Richardson had taken no COVID-19 tests. That means that the test submitted to the Court was necessarily fabricated. Richardson's refusal to answer the Court's question as to whether he actually took a COVID-19 test is further evidence of its falsity.
Second, Richardson submitted false documents to the Government during discovery. He admitted as much during his deposition: when asked if he made $65,000 a year, he admitted that he did not. See Doc. 55-1 at 129:4-5. However, he did produce a tax return during this case's discovery process that represented that he made $65,000 per year. Id. at 129:1-3. Richardson has not explained this discrepancy. This false statement provides an independent basis for sanctions. Cf. Steed v. EverHome Morg. Co. , 308 F. App'x 364, 371 (11th Cir. 2009) (upholding sanctions when discovery responses were incorrect); see also Bernal v. All Am. Investment Realty, Inc. , 479 F. Supp. 2d 1291 (S.D. Fla. 2007) (imposing sanctions where a party had obtained false documents "in a fraudulent bid to have [a] lawsuit dismissed").
Sanctions are warranted under either of these theories. The next question is what form those sanctions should take. The "selection of the type of sanction to be imposed lies within the district court's sound exercise of discretion." Massengale v. Ray , 267 F.3d 1298, 1302 (11th Cir. 2001). Here, only the striking of Richardson's pleadings and entry of default judgment against him will sufficiently punish his conduct. This is a typical sanction where a party fabricates evidence. VIP Auto Glass, Inc. v. GEICO Gen. Ins. Co. , 2018 WL 3649638, at *5 (M.D. Fla. Jan. 3, 2018) ; Art Remedy, LLC v. Lana Moes, LLC , 2019 WL 13063496, at *4 (S.D. Fla. Sept. 26, 2019). And while the "[d]ismissal of a party's complaint or answer, or striking its defenses, as a sanction ... is a heavy punishment" appropriate "only as a last resort," that sanction is appropriate here because no other sanction would ensure his compliance with the Court's order. In this case, "monetary sanction[s] would be ineffectual because the plaintiff lacks the resources to pay it." Parcher v. Gee , 2016 WL 7446630, at *11 (M.D. Fla. Oct. 19, 2016). A monetary sanction—whether in the form of a fine or attorney's fees—would have no teeth because Richardson has no income. And the multiple instances of fraud here "transcend[ ] the interests of the parties in the underlying action" and "violate[ ] the judicial process" such "that imposition of a harsh penalty is appropriate not only to reprimand the offender, but also to deter future parties from trampling upon the integrity of the court." Zocaras v. Castro , 465 F.3d 479, 484 (11th Cir. 2006).
The conduct observed in this case is troubling. It represents disrespect for the legal system and a fraud upon this Court. The seriousness of this conduct means that only the striking of Richardson's pleadings and entry of default against him would appropriately punish his conduct.
It is therefore ORDERED that:
1. Richardson's Answer (Doc. 10) is STRICKEN .
2. Default judgment will be entered against Richardson and in favor of the United States of America.
3. The trial in this case, currently set to begin on December 13, 2021, is cancelled.
4. Plaintiff shall submit a proposed form of a default judgment against Richardson within 14 days of this Order.
5. The Clerk of the Court is directed to mail a copy of this order to Richardson at his address on record.
DONE and ORDERED in Chambers, Orlando, Florida on December 1, 2021.