Opinion
Civil No. 01-1280-KI.
February 4, 2002
Michael B. Mendelson Portland, Oregon, Attorney for Plaintiff.
Thomas Sponsler, Patrick W. Henry, Jenny Morf, Portland, Oregon, Attorneys for Defendant.
O P I N I O N
Plaintiff Claudia Vargas alleges constitutional claims against defendant Multnomah County, claiming that it harassed her and improperly charged her with violations in the operation of her adult care home. Before the court is the County's motion for sanctions (#6). The County contends that Vargas deliberately engaged in deceptive practices that undermine the integrity of the judicial process and the ability of the County to defend itself in this action. As a sanction, it asks the court to dismiss Vargas' claims. After reviewing affidavit and deposition testimony filed by the parties, I held an evidentiary hearing. For the reasons below, I grant the motion and dismiss this action with prejudice.
FACTS
Vargas is licensed by the County's Adult Care Home Program ("ACHP") to operate an adult care home. Several ACHP employees testified at the hearing. Bethany O'Driscoll went to Vargas' care home on July 23, 2001, for a follow-up visit concerning Vargas' license to operate the home. O'Driscoll was met at the door by Ana Nickell, a caregiver from Romania working for Vargas, who did not understand English sufficiently to communicate with O'Driscoll. Because Nickell was the only caregiver at home, this was a violation of administrative rules. The County fined Vargas $250 and told her that Nickell could not be left alone with the residents until she passed a test demonstrating her ability to effectively communicate in English. After some rescheduling, Nickell was to take the test at the ACHP office at S.E. 46th and Belmont in Portland on September 10, 2001.
The timed thirty minute test was held from 9:05 AM to 9:35 AM on September 10. Test takers had to register and present identification prior to taking the test. A woman presented a Department of Motor Vehicles identification card in the name of Ana Nickell and completed the registration. Five ACHP employees testified that the woman who took the test under the name of Ana Nickell was actually Vargas wearing a dark wig. All of these employees had known Vargas, some for several years, through her other interactions with ACHP, including trainings, conferences, and administrative hearings from previous sanctions. Vargas' appearance at the test caused quite a stir at the ACHP office, causing several of these employees to make a special trip to the testing room in order to confirm the person's identity. At least one of these employees, O'Driscoll, also knew Nickell from the home visit and was positive that Vargas, and not Nickell, was taking the test.
Ovidiu Muntean, Vargas' boyfriend, testified that he drove Nickell to the English test on September 10, waited inside with her briefly, and then waited in his car for her to take the test so he could drive her home. I find Muntean to lack credibility based on his demeanor in the courtroom, the fact that he did not disclose his story to Vargas or her attorney until a few days prior to the hearing in spite of the County's motion being filed nearly two months earlier, and the fact that multiple ACHP employees saw Muntean and Vargas leaving the office together at the end of the test in a very hurried fashion.
Maria Blaga, an employee of Vargas on September 10, testified in an affidavit that Nickell returned to the care home on the afternoon of September 10 and stated that she had taken and passed the English test that morning. Blaga refused to confirm this during her testimony in court. Thus, Blaga's testimony does not help Vargas but instead hurts Vargas' credibility.
Vargas testified that she did not take the English test and was not at the ACHP office on September 10. Vargas testified that she was at a gym located near S.E. 102 and Washington in Portland, arriving at approximately 9:00 AM and staying throughout the time the English test was administered.
Vargas subpoenaed one employee of the gym and two of its members to bolster her testimony. I find the testimony of Thembi Reeves to lack all credibility due to inconsistencies within his own testimony and impeaching testimony provided by Linda Yoder and Chelsea Davis, the human resources director and customer service supervisor for the gym. One of the gym members, Leon Begleries, did not have a specific enough memory of when he had seen Vargas in the gym to be of any help. Another member, Ramon Benedetti, gave detailed testimony of how far into his workout session he was when he saw Vargas that morning. Based on the gym's computer clocking his arrival time at 9:38 AM, Benedetti was able to testify that he saw Vargas around 10:00 AM. The gym's computer shows Vargas arriving and checking in at 10:10 AM that morning. That would be sufficient time for her to leave the ACHP office after taking the test, changing quickly, and being driven to the gym by Muntean.
Because Nickell left the United States, the parties submitted her videotaped deposition along with a transcript. Nickell testified that she did not take the English test at the ACHP office because she knew she would not pass it.
Nickell also testified about a separate event. After she was subpoenaed to a deposition in this action, when she was no longer working for Vargas but was working in a care home for Mariana Mardare, Vargas came to Mardare's home to speak to Nickell. Vargas told Nickell that people from the Immigration and Naturalization Service ("INS") came to Vargas' home looking for Nickell so they could deport her. Vargas told Nickell that she should not come to her deposition because the County attorneys were working with the INS and she would be deported. Vargas also told Nickell that it would be better to leave through Canada or Mexico because if she tries to fly from the United States, she will be searched, all of her belongings will be taken, and she will be deported. Nickell's husband called the INS and learned that they were not looking for Nickell and did not go to Vargas' house.
Mardare testified by telephone. She was home when Vargas came to speak with Nickell. Mardare confirmed Nickell's testimony that Vargas said the INS was looking for Nickell to deport her and that she should leave through Canada or Mexico but not from an airport. Mardare did not hear any statements from Vargas concerning Nickell's deposition.
I find both Nickell and Mardare's testimony to be credible. I find that all of the ACHP employees testified credibly based on their demeanor and their candor at their surprise to find Vargas in the test. No evidence was presented which causes me to doubt their testimony in any way. There is no credible evidence that Nickell took the test on September 10. Vargas was the only person with a motivation to impersonate her. There is no credible evidence to support her alibi of being at the gym that early in the day. Given her demeanor while testifying and the other evidence in the record, I find Vargas' testimony to be not credible.
Accordingly, I make the following factual findings. First, that Vargas impersonated Nickell and took the English test in Nickell's name at the ACHP office on September 10, 2001. Second, that Vargas tried to dissuade Nickell from attending her deposition in this action by lying to her about the threat of an imminent deportation, particularly if she attended the deposition.
LEGAL STANDARDS
Federal courts are vested with inherent powers enabling them to manage their cases and courtrooms effectively and to ensure obedience to their orders. Through this power, courts have the ability to punish conduct both within their confines and beyond, regardless of whether that conduct interfered with trial. As a function of this power, courts can dismiss cases in their entirety, bar witnesses, award attorney's fees and assess fines.J.F. Hanshaw Enterprises v. Emerald River Development, 244 F.3d 1128, 1136 (9th Cir. 2001) (internal citations omitted).
Before dismissing an action under a court's inherent powers, the court must determine:
(1) the existence of certain extraordinary circumstances, (2) the presence of willfulness, bad faith, or fault by the offending party, (3) the efficacy of lesser sanctions, (4) the relationship or nexus between the misconduct drawing the dismissal sanction and the matters in controversy in the case, and finally, as optional considerations where appropriate, (5) the prejudice to the party victim of the misconduct, and (6) the government interests at stake.Halaco Engineering Co. v. Costle, 843 F.2d 376, 380 (9th Cir. 1988). Ninth Circuit decisions are mixed on the importance of the prejudice factor, ranging from describing it as purely optional to essential.Anheuser-Busch, 69 F.3d at 353 (collecting the various descriptions). The bad faith finding is a requirement but the Ninth Circuit has not determined whether to apply a preponderance or a clear and convincing standard of proof. J.F. Hanshaw, 244 F.3d at 1143 n. 11.
Due process requires a relationship between the misconduct and the matters in controversy such that the transgression "threaten[s] to interfere with the rightful decision of the case." Anheuser-Busch v. Natural Beverage Distributors, 69 F.3d 337, 348 (9th Cir. 1995).
DISCUSSION
The extraordinary circumstance present is the great effort by Vargas to not only perpetrate the deception at the English test but to cover it up later. This includes her attempt to keep Nickell from being deposed and the number of witnesses who testified on her behalf that I find to lack credibility. At least one of these witnesses, Blaga, appeared to be extremely shaken during her testimony. Moreover, at the end of the first day of the hearing, I explained to the parties my general view of the testimony presented thus far and suggested to Vargas that she carefully consider whether to continue with the case. In spite of that warning, Vargas testified, without credibility, when the hearing continued a few days later.
Based on my factual findings, and the discussion in the last paragraph, I find under a clear and convincing standard that Vargas' misconduct was willful and in bad faith. I also conclude that no sanction other than dismissal, including a monetary sanction, is sufficient punishment for her actions.
I also conclude that there is a sufficient relationship between Vargas' misconduct and the matters in controversy in the case. In her complaint, Vargas alleges that the County harassed her while administering her license. Vargas attempted to defraud the County while it was performing its administrative duties and then attempted to prevent it from obtaining evidence needed for the defense of this action. Either of those has a sufficient nexus to warrant a sanction.
The County concedes that it was not prejudiced. This is only because Vargas' attempts failed. Nickell has returned to Romania and is unavailable for deposition if she had taken Vargas' warning and failed to appear. The lack of actual prejudice does not persuade me that a sanction is unwarranted.
Consequently, I conclude that Vargas must be sanctioned for her misconduct and that the only adequate sanction is dismissal of her claims with prejudice.
CONCLUSION
The County's motion for sanctions (#6) is granted. This action is dismissed with prejudice.