United States District Court, M.D. Pennsylvania
Matthew W. Brann United States District Judge.
not an ordinary case with ordinary parties. But don't
take the Court's word for it-simply ask the Plaintiffs
themselves. Harisadhan Patra and Petula Vaz, former audiology
professors at Bloomsburg University in Columbia County,
Pennsylvania, have fired two sets of attorneys since
commencing this “unique” employment
discrimination case in late 2014. During a subsequent
telephonic status conference, Doctors Patra and Vaz informed
the Court that, contrary to its recommendation, they would
not seek new counsel, as they are “uniquely
positioned” to prosecute their own case.
thereafter and in the midst of discovery, the pair filed this
motion, which alleges that the Defendants, through their
counsel at the Pennsylvania Office of Attorney General,
committed “fraud on the Court.” Since then, Dr.
Vaz has contacted my Chambers on approximately five different
occasions to inquire as to the motion's status.
thoroughly reviewed Plaintiffs' allegations of
impropriety and concluded that the complained-of occurrences
are either wholly innocuous or best left for
cross-examination. Quite certainly, however, Keli M. Neary,
Esquire, and her colleagues at the Attorney General's
Office have not attempted to defraud this Court. For the
following reasons, Plaintiffs' motion to impose sanctions
presented with a pro se litigant, we ‘have a
special obligation to construe his complaint
liberally.'” However, “a litigant is not absolved
from complying with . . . federal pleading requirements
merely because s/he proceeds pro
se.” For example, in the parallel context of
initial pleadings, courts must search pro se
pleadings for “factual allegations sufficient to meet
the plausibility requirement.” Federal courts apply this
liberal, yet measured approach to pro se motions
submitted at the discovery stage as well.
liberally, Plaintiffs' motion essentially requests that
this Court impose sanctions on the Defendants for what they
term “fraud upon the Court.”The allegations
spring from a purported discovery dispute that has festered
between the parties throughout the pendency of this action.
Thus, I will evaluate Plaintiffs' accusations through the
lens of Federal Rules of Civil Procedure 11 and 37, as well
as the common law fraud upon the Court doctrine.
Rule of Civil Procedure 11(b)(1) states as follows:
By representing to the court a pleading, written motion, or
other paper . . . an attorney or unrepresented party
certifies that to the best of the person's knowledge,
information, and belief, formed after an inquiry reasonable
under the circumstances it is not being presented for any
improper purpose, such as to harass, cause unnecessary delay,
or needlessly increase the cost of litigation.
Rule 11 “was designed to prevent abuse, ” courts
have fashioned an objective test to implement
The test asks whether “after reasonable inquiry, the
pleading, motion or other paper is well grounded in fact and
is warranted by existing law or a good faith argument for the
extension, modification, or reversal of existing
the “standard for testing conduct is reasonableness
under the circumstances.” “The rule imposes on
counsel a duty to look before leaping and may be seen as a
litigation version of the familiar railroad crossing
admonition to ‘stop, look, and listen.'
” “It may be rephrased, ‘Stop,
Think, Investigate and Research' before filing papers
either to initiate a suit or to conduct the
litigation.” “These obligations conform to
those practices which responsible lawyers have always
employed in vigorously representing their clients while
recognizing the court's duty to serve the public
efficiently.” Importantly, then, “Rule 11
sanctions must be based on [a party's] objective
knowledge or belief at the time of the filing of a challenged
37(a), which outlines the requisite procedures that must be
followed before seeking a motion to compel, provides, in
pertinent part, as follows:
Motion for an Order Compelling Disclosure or
General. On notice to other parties and all affected persons,
a party may move for an order compelling disclosure or
discovery. The motion must include a certification that the
movant has in good faith conferred or attempted to confer
with the person or party failing to make disclosure or
discovery in an effort to obtain it without court action.
counterpart, Rule 37(b), provides for penalties in the event
of noncompliance with an order compelling discovery. In
pertinent part, it reads:
(b) Failure to Comply with a Court Order.
. . .
(2) Sanctions Sought in the District Where the Action Is
(A) For Not Obeying a Discovery Order. If a party or a
party's officer, director, or managing agent-or a witness
designated under Rule 30(b)(6) or 31(a)(4)-fails to obey an
order to provide or permit discovery, including an order
under Rule 26(f), 35, or 37(a), the court where the action is
pending may issue further just orders. They may include the
(i) directing that the matters embraced in the order or other
designated facts be taken as established for purposes of the
action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or
opposing designated claims or defenses, or from introducing
designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient
(vii) treating as contempt of court the failure to obey any
order except an order to submit to a physical or mental
the court enters an order compelling discovery under Rule
37(a) and the order is disobeyed, the second step of the
two-step process may be invoked under Rule
37(b).” “Dismissal is a harsh sanction
which should be resorted to only in extreme
cases.” “The power of the court to prevent
undue delays and to control its calendars must be weighed
against the policy of law which favors disposition of
litigation on its merits.” “Thus, we must give
full regard for the severity of the sanction, granting
dismissal sparingly and only when less drastic alternatives
have been explored.”
Fraud upon the Court
litigants to adequately demonstrate fraud upon the Court,
they must prove: “(1) an intentional fraud; (2) by an
officer of the Court; (3) which is directed at the Court
itself; and (4) in fact deceives the
Court.” Fraud upon the Court “may be
justified only by ‘the most egregious misconduct
directed to the court itself, ' [and] ‘must be
supported by clear, unequivocal and convincing
evidence.'” Moreover, fraud upon the Court
typically challenges “the very principle upon which our
judicial system is based: the finality of
judgment.” In fact, “[o]nly a small number of
those acts that can be considered fraud amount to
‘fraud upon the court.'” Thus, the
Honorable Ruggero J. Aldisert, writing for the United States
Court of Appeals for the Third Circuit, has poetically
explained that a party alleging fraud upon the Court not only
has “a high hurdle to climb, ” but also “a
steep cliff-face to scale.”
motion for sanctions failed to conform to the requirements
imposed by the Local Rules. Still, the Court liberally
discerns ten distinct claims levied against the Defendants
here. Each is meritless.
Failure to Designate Drs. Angelo and Gonzalez as
allege that Dr. Wislock falsely documented Defendants Dr.
Richard Angelo and Dr. Jorge E. Gonzalez as not having served
as “supervisors” in the Audiology and Speech
Pathology Department for certain time periods relevant to
this case. Specifically, Plaintiffs contend that
Dr. Wislock falsified documentation with the intent to
misrepresent the data, thus constituting fraud upon the
the outset, the Court considers this a somewhat peripheral
argument, given that supervisory capacity under federal law
is determined not so much by title but by actual authority.
“[A]n employee is a ‘supervisor' for purposes
of vicarious liability under Title VII if he or she is
empowered by the employer to take tangible employment actions
against the victim.”Nevertheless, Plaintiffs'
argument is without merit for several reasons.
Plaintiffs merely allege that the document that Dr. Wislock
provided was “not factually
correct.” By itself and with no comparators, that
is a hollow allegation. Plaintiffs state in their motion that
“currently no depositions could be held since
Plaintiffs cannot rely on the validity, accuracy, or
integrity of Defendants' production.” Thus, because
Plaintiffs distrust the Defendants and their productions,
they have, of their own accord, essentially deprived
themselves of the means necessary to prove their claims.
procedural reality is fatal to this and several other of
Plaintiffs' allegations. The claimed inconsistencies (to
the extent that they even are inconsistencies) are just as
compatible with mistake or inadvertence as they are with
willful falsification. The applicable mens
rea-intent-requires that the movants “demonstrate[
], clearly and convincingly, that a party has sentiently set
in motion some unconscionable scheme calculated to interfere
with the judicial system's ability impartially to
adjudicate a matter.” Without more, Plaintiffs'
empty assertions fall well short of the high standard for
fraud upon the Court.
Plaintiffs' decision to forego additional depositions
pending the outcome of this dispute, despite the Court's
admonition otherwise, is necessarily fatal to any claim under
Rule 37. Because no motion to compel was filed, no Court
Order upon which a Rule 37(b) motion for sanctions may be
grounded ever existed.
addition, the lack of discovery renders this motion largely
premature, as little evidence exists about which any
reasonable comparisons may be made. The Court understands
that the instant dispute would have hampered discovery in
some ways, but conducting depositions in as feasible a manner
as possible would have permitted the Plaintiffs to confront
these witnesses on the alleged inconsistencies and to
construct a complete factual record.
reaching the substantive law, Plaintiffs' claims fail to
establish fraud upon the Court. Fraud upon the Court
typically relates to the reopening of a final judgment. That
is why courts apply such a stringent standard. The matter
here between Plaintiffs and Defendants has not been finally
adjudicated. In fact, the Court has yet to make any finding
on the merits. Accordingly, fraud upon the Court is
inapplicable. Nonetheless, the Court will address the
remaining elements required for an adequate fraud upon the
fail the first element because they have not proven with
clear and convincing evidence that Defendants' counsel
acted intentionally to commit fraud. Plaintiffs offer only
vacant claims that Dr. Wislock intentionally falsified
documentation without offering any contrasting evidence.
Thus, because Plaintiffs have not overcome the “high
hurdle, ” their claim fails on this independent ground.
second and third elements, fraud upon the Court requires an
officer of the Court to act with intentional fraud and direct
such fraud at the Court itself. Plaintiffs' argument
again fails because Dr. Wislock, not Defendants' counsel,
purportedly acted with intentional fraud and the fraud was
not directed at the Court, but rather at Plaintiffs. In
addition, no averments are offered as to whether counsel for
the Defendant knew of or countenanced the alleged
falsifications after making a reasonable inquiry into any of
the documents' truth or falsity. Likewise,
Plaintiffs' failure to prove extreme or abusive conduct
that was unreasonable under the circumstances at the time of
the filing is also fatal to any Rule 11 claim that might
liberally be drawn from Plaintiffs' papers.
fraud upon the Court requires intentional fraud to deceive
the Court. Because elements one through three were not
established, element four cannot be met. Plaintiffs'
argument regarding incomplete designation of supervisors is
therefore without merit. I note that several of these
observations could be made about each of Plaintiffs'
allegations, but I emphasize them here.
Misdirected Phone ...