RESPONSE TO MOTION TO DISMISS

26 Jun 2015

RESPONSE TO MOTION TO DISMISS

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RESPONSE TO MOTION TO DISMISS FOR FRAUD AND FOR SANCTIONS

Plaintiffs, Elizabeth Mitchell and B.W., respond to Pizza Buffet Gainesville, LLC’s (Cici’s) Motion for Fraud and for Sanctions Dated June 4, 2014 (referenced herein as the “Motion”) as follows:

I. The Record is Completely Devoid of any Evidence of Fraud
For the trial court to properly exercise its discretion regarding dismissal of a case for fraud on the court, “it must have an evidentiary basis to make that decision.” See Howard v. Risch, 959 So.2d 308, 313 (Fla. 2d DCA 2007). “Assertions in a motion to dismiss the complaint do not provide an evidentiary basis for finding fraud upon the court.” Wells Fargo Bank, N.A. v. Reeves, 92 So. 3d 249, 252 (Fla. 1st DCA 2012).

Because dismissal sounds the “death knell of a lawsuit,” courts must reserve this remedy for instances where a party’s conduct is “egregious.” Id. The dismissal of a lawsuit for fraud on the court is an extraordinary remedy to be utilized only when a deliberate scheme to subvert the judicial process has been clearly and convincingly proved. Bologna v. Schlanger, 995 So.2d 526, 528 (Fla. 5th DCA 2008). Moreover, “poor recollection, dissemblance, even, lying, can be well managed through cross-examination.” Id.

Notwithstanding this heightened standard, Defendant’s Motion is only supported by the following exhibits: the Declaration of Ms. Adair (Exhibit A), Plaintiff’s Interrogatory Answers (Exhibit B), and Supplemental Witness List (Exhibit C). None of those documents come anywhere close to proving fraud.1 Notably, Ms. Adair’s deposition was not attached to the Motion – nor was Plaintiff’s deposition. This record does not demonstrate “clearly and convincingly a knowing and unreasonable scheme to interfere with the judicial system’s ability to impartially adjudicate the claim” of either Plaintiff. Amato v. Intindola, 854 So.2d 812 (Fla. 4th DCA 2003).2 Thus, the Motion must be denied.

Moreover, in order to dismiss a case for fraud on the Court, both proper notice and a proper record must be accomplished by the moving party. See Garno v. Bank of America, NA, Case No. 1D14-1994. (Fla. 1st DCA 2015) (holding that Appellant “was denied her right to due process, because she was not provided with notice of the hearing” and “that the record does not support the trial court’s finding that Garno perpetrated a fraud on the court.”); Dep’t of Children & Families v. W.H., 109 So. 3d 1269, 1270 (Fla. 1st DCA 2013) (holding that the lack of notice and lack of an evidentiary hearing violated the Department’s right to due process).3 Plaintiffs objects to any attempt by Defendant to “ambush” them with additional evidence or misleading deposition excerpts immediately before or at the hearing.4 Moreover, Plaintiff had only 2 business days to prepare this response with the benefit of the transcript and submit it prior to the hearing.5

II. Defendant’s Motion is Moot
“The public policy of Florida favors liberality in permitting amendments to pleadings so that the resolution of disputes will be on their merits.” Wells Fargo Bank, N.A. v. Reeves, 92 So. 3d 249, 252 (Fla. 1st DCA 2012); Fla. R. Civ. P. 1.190(a). After Ms. Adair’s deposition, but before Defendant filed its Motion, Plaintiff moved to amend her Complaint to eliminate reference to the declaration of Ms. Adair. Notably, however, Defendant objected to Plaintiffs motion to amend although this case has not even been set for trial and the factual allegations remain virtually unchanged.

The sole reason Defendant objects to Plaintiff’s motion to amend her complaint is because it knows it both moots its Motion and demonstrates that Plaintiffs are not perpetuating a fraud. When the undersigned asked Defendant’s counsel why it opposed the amendment, no reason was given.

Moving forward with this matter, Plaintiff will not rely on Ms. Adair’s declaration but instead her deposition testimony and/or trial testimony, if at all. Thus, Defendant’s issues with Ms. Adair’s declaration are not an issue because Plaintiff will not be using it to support her case. The only party to this lawsuit currently keeping it before this Court is Defendant.
III. There is Ample Factual Support for
The Key Issues Alleged in the Complaint (Both New and Old)

At paragraph 5 of its Motion, Defendant states the following “key issues” were stated in Ms. Adair’s declaration:

a) That Mr. Scoates had permission from Cici’s to take the chemical from the premises,

b) That Plaintiff did not know the chemical was in her home, and

c) That Plaintiff did not ask Mr. Scoates to bring that particular chemical to her home.

However, despite Defendant’s misleading Motion, the evidence in this case actually supports each of those critical facts. As discussed below, Ms. Adair’s deposition changed nothing with regard to these essential facts.

a. Mr. Scoates Had Permission To Take The Chemical

Mr. Adair’s testimony mirrored those stated in her declaration regarding the fact that Mr. Scoates had permission from Cici’s to take home the chemical cleaner. Importantly, she reconfirmed paragraph 7 of her declaration which states that “Soon thereafter, Mr. Scoates stated that the incident was not his fault because he was told by his supervisor at Cici’s that he was allowed to bring the chemical cleaner home with him in the Cici’s cup.” This is the essence of her testimony and its relevance to this case, and Ms. Adair stood by this statement even against cross exemption by Cici’s attorney.

Notably, Mr. Scoates also confirmed that he had permission to remove the chemical. The answer filed by Donald Scoates in response to Plaintiff’s Complaint on August 26, 2014 provides the following:

I went to work at Cici’s Pizza and worked through the day. When it came closing time I asked the manager on duty if I could take some pink degreaser, they said I could. So I grabbed a paper Cici’s cup filled it about half way and put a lid on it.”

(e.s.). Mr. Scoates – whom is being sued by Plaintiffs – obviously is not providing false statements on their behalf.

Thus, there is more than ample proof that Mr. Scoates had authority to take the chemical to his home and Defendant would not even win this issue on a motion to dismiss or summary judgment. As a result, the Defendant cannot possibly win the issue on a motion for fraud. Jacob v. Henderson, 840 So.2d 1167 (Fla. 2d DCA 2003) (“The same facts for which this case was dismissed would not withstand a motion for summary judgment nor a motion for directed verdict, for there are questions of material fact.”)6
b. Plaintiff Did Not Know The Chemical Was In Her Home, And Did Not Ask Mr. Scoates To Bring It There
Despite Defendant’s representations otherwise, Ms. Adiar did not testify that Plaintiff knew the chemical had been put in her home. Ms. Adair also did not testify that Plaintiff asked Mr. Scoates to bring it to her home knowing it was a hazardous commercial cleaner. Moreover, these facts are at most collateral issues in this case.

IV. Ms. Adair’s Declaration
Defendant’s argument improperly suggests that Ms. Adair disavowed her declaration. To the contrary, she again confirmed the facts upon which Plaintiff’s case (at least in part) is based.7 To this end, at page 12 of her deposition, she states as follows: “I don’t even know that much about this case, except for the little bit that I put in the declaration.”

Except in the most extreme cases where it appears that the process of the trial has itself been subverted, simple factual inconsistencies and “even false statements” are well managed through the use of impeachment and traditional discovery sanctions. Granados v. Zehr, 979 So.2d 1155, 1158 (Fla. 5th DCA 2008); Ruiz v. City of Orlando, 859 So.2d 574, 576 (Fla. 5th DCA 2003). To support a dismissal, the court must find the “false testimony was directly related to the central issue in the case.” Morgan v. Campbell, 816 So.2d 251, 253 (Fla. 2d DCA 2002).
a. Ms. Adair’s Declaration Largely
Matches her Deposition Testimony

As noted by Ms. Adair herself, the only main difference between her deposition testimony and her declaration is that she did not live with Plaintiff at the time of the incident in question. However, Ms. Adair confirmed again that she had lived with the Plaintiffs – just not on that exact date. See Page 25 of her deposition. As to the central issues in this case, there is no difference between her deposition testimony and declaration.

b. Ms. Adair’s Misrepresentation is not on
a “Critical Issue” in this case
To support a dismissal the court must find the “false testimony was directly related to the central issue in the case.” Morgan v. Campbell,816 So.2d 251, 253 (Fla. 2d DCA 2002); see also Ramey v. Haverty Furniture Cos., 993 So.2d 1014, 1019 (Fla. 2d DCA 2008). It is the moving party’s burden to establish by clear and convincing evidence that the non-moving party has engaged in fraudulent conduct warranting dismissal. Cross v. Pumpco, Inc., 910 So.2d 324, 327 (Fla. 4th DCA 2005).

Here, the point of Ms. Adair’s testimony is whether Donald Scoates was authorized by Defendant Cici’s to bring home the Auto-Chlor detergent used by Cici’s. Consistent with her declaration, Ms. Adair testified that Donald Scoates said he had authority to remove the chemical from Defendant’s premises.8 Moreover, Ms. Adair was clear that the reason her declaration varied from her testimony was that she was confused. She stated as follows: “So I don’t know if that got switched up, or if I accidentally said that, or – anything” and “But I may have accidentally – I mean, I don’t know. If I’m just like busy and not paying attention – I don’t know, this was a year ago, and most of the time I was working a lot and stuff. If I did say that, that was incorrect.” See Pages 54 and 67 of her deposition.
c. Whether Ms. Adair Lied is
Only Impeachment Material

Even assuming Ms. Adair somehow made an intentional lie in her declaration, such cannot support a motion to dismiss Plaintiff’s case for fraud. As stated by the First District in Wells Fargo Bank, N.A. v. Reeves, 92 So. 3d 249, 252 (Fla. 1st DCA 2012):

To support dismissal for fraud on the court, “[t]he party alleging fraudulent behavior must prove such by clear and convincing evidence.” Inartful pleadings, inconsistent testimony, and even lying to the court by a witness are generally insufficient to support a dismissal for fraud upon the court.

citing Distefano v. State Farm Mut. Auto. Ins. Co., 846 So.2 d 572 (Fla. 1st DCA 2003) and Granados v. Zehr, 979 So. 2d 1155, 1157 (Fla. 5th DCA 2008), (e.s.). Moreover, she might not even ultimately be a witness relied upon in this case by either Plaintiff.

d. Personal Knowledge v. First-Hand Knowledge

Defendant falsely claims in Paragraph 4 of its Motion that Ms. Adair’s declaration stated “direct knowledge” of the facts stated therein. The declaration states that she has “personal knowledge” of those facts. Some of that knowledge, as she testified in her deposition, came from her conversation with Donald Scoates shortly after B.W. ingested the chemical. Moreover, Paragraph 7 of her declaration clearly states that the source of her information was what Mr. Scoates told her.9

In Gorham v. State, 494 So.2d 211 (Fla. 1986), a defendant disavowed personal knowledge of the facts he was asserting because they were uncovered through an attorney and investigator. The supreme court distinguished “personal” knowledge from “firsthand” knowledge.” In so ruling, the Court rejected the Appellant’s argument that “Personal knowledge is a higher standard of knowledge, one consisting of testimony concerning matters that the deponent personally observed.”10 To the contrary, the Court agreed with the Appellee’s argument that “personal knowledge” “includes hearsay and similar second, third and fourth hand exchanges of information.” Id. at page 3.

In this case, Defendant’s counsel mislead Ms. Adiar as to the fact that “personal knowledge” can include what people are told – as opposed to “first hand knowledge”. His statements to Ms. Adair are as follows:

Q. Now, do you know what personal knowledge means?

A. Like I know, myself knows. I don’t know.

Q. Right. Meaning it’s something you’ve seen, touched, tasted —

A. Have knowledge of it.

Q. Firsthand knowledge. Right?

A. Yes.

Q. Okay. That would mean that this is not something that somebody told you. Right?

A. Right.

Q. Because that —

MR. MASSEY: Object to form.

BY MR. HAWES:

Q. Because that would be secondhand knowledge?

A. Yes.

See Pages 66-67 of her deposition. By misleading the witnesses into thinking first hand knowledge and personal knowledge are the same, Defendant’s counsel’s entire deposition questioning about whether she “knew” something was improper.

V. There Was No Improper Witness Contact
Finally, Defendant’s claim without any supporting facts or citations to any evidentiary submissions that Ms. Adair’s testimony was somehow improperly influenced by the undersigned because her pre-suit statement was taken. However, contrary to Defendant’s unsupported allegations of fraudulent collusion, Ms. Adair’s deposition included many statements that were against the interests of Plaintiff. Moreover, Ms. Adair expressed her grave displeasure with the undersigned’s refusal to discuss this case with her prior to her deposition.

Defendant cannot claim that witnesses cannot be contacted pre-suit and their statements be taken. In fact, this is exactly the conduct Defendant Cici’s took with Donald Scoates. See Answer to Interrogatory #7. (e.s.). These interviews occurred despite the fact that Defendant Cici’s and Donald Scoates’ interests are diametrically opposed (unlike the interests of Plaintiff and Ms. Adair).11 Thus, Defendant’s assertions that Plaintiffs and their counsel cannot also take pre-litigation witness statements are without merit.12

Moreover, there is absolutely no evidence that Ms. Adair that anyone told Ms. Adair to provide false testimony at any stage of these proceedings. Even leading questioning by Defendant revealed proof of the exact opposite:

Q. And they – someone in the lawyer’s office told you that Tiffany was who you should say was the supervisor who allowed Mr. Scoates to bring this chemical cleaner home?

A. No, she didn’t say tell me I should say —

Mr. Massey: Object to form.

The WITNESS: She didn’t tell me I should say that.

. . . .

See Page 94.13 In fact, Ms. Adair was specifically told to tell the truth when she called the undersigned’s office immediately prior to her deposition because Ms. Adair discovered part of her declaration was incorrect. Ms. Adair testified as follows: “And then she told me in my [deposition] – Ms. Johanna told me in my — to state that in my deposition, that [the declaration] was incorrect.” See page 74.14
VI. Conclusion

It is no coincidence that, on the same day Plaintiff moves for Sanctions against Defendant Cici’s for Defendant’s repeated violation of this Court’s Order, Defendant Cici’s sets a frivolous Motion for Sanctions for hearing. Such litigation tactics should not be condoned. As such, under the Courts inherent authority (the same authority invoked by Defendant’s Motion), Plaintiffs respectfully request that this Honorable Court enter an order granting Plaintiff’s entitlement to, and awarding him, reasonable attorney’s fees and costs incurred in the course of defending against the Motion.

Dated: June 22, 2015

By /s/ Michael Massey

Michael Massey

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been provided via electronic means to counsel for the Defendant by filing the same with the Court’s electronic filing system on this June 22, 2015.

/s/ Michael Massey

Michael Massey

Fla. Bar. No. 153680

Designated email: Massey@352law.com
855 E. Univ. Avenue

Gainesville, Florida 32601

FBN 153680

1Trial court rulings are given less deference when” there is no evidentiary hearing and the trial court’s decision is “based on the same cold document record that is before the reviewing court.” Jacob v. Henderson, 840 So.2d 1167, 1170 (Fla. 2d DCA 2003). See also W. Shore Rest. Corp. v. Turk, 101 So.2d 123, 126 (Fla.1958) (where trial court acted on the same pleadings, affidavits, and depositions which make up the record before the reviewing court, the presumption of correctness is not as strong because the trial court did not hear any testimony or make credibility determinations); Villasenor v. Martinez, 991 So.2d 433, 436 (Fla. 5th DCA 2008) (meeting burden of establishing fraudulent conduct warranting dismissal by clear and convincing evidence “will almost always require an evidentiary hearing”).

2Defendant forgets that there are two Plaintiffs in this case, one being a young child. The allegation that the child Plaintiff is somehow engaged in a fraud on the Court is without merit.

3See also See Art. I, § 9, Fla. Const.; “`[t]he denial of due process rights, including the opportunity to be heard, to testify, and to present evidence, is fundamental error.'” Kilnapp v. Kilnapp, 140 So. 3d 1051, 1053 (Fla. 4th DCA 2014) (quoting Weiser v. Weiser, 132 So. 3d 309, 311 (Fla. 4th DCA 2014)); Julia v. Julia, 146 So. 3d 516, 520 (Fla. 4th DCA 2014) (stating that “`[d]ue process requires that a party be given the opportunity to be heard and to testify and call witnesses on the party’s behalf . . . and the denial of this right is fundamental error'” (quoting Minakan v. Husted, 27 So. 3d 695, 698 (Fla. 4th DCA 2010)).

4The timing of Defendant’s Motion would not even support summary judgment and therefore should not also support dismissal. See F.R.C.P. 1.510(c) (“The movant shall serve the motion at least 20 days before the time fixed for the hearing, and shall also serve at that time a copy of any summary judgment evidence on which the movant relies that has not already been filed with the court.”). Defendant failed to timely file its Motion 20 days prior to the hearing on this matter and thus the motion must be denied.

5The transcript had not even been prepared until Thursday June 18, 2015. See Exhibit B. Thus, Plaintiff had only 2 business days to prepare this response with the benefit of the transcript.

6Even if Defendant were to somehow prove Donald Scoates did not have the authority to take home the cleaner, this would not relieve it of its affirmative duties to train him and take precautions to make sure she careful with the cleaner as alleged in Plaintiff’s Count Complaint.

7Mr. Scoates’ statement is admissible in these proceedings against any potential summary judgment motion. F.R.C.P. 1.510(c) (“The judgment sought shall be rendered forthwith if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”) Buzzi v. Quality Serv. Station, Inc., 921 So.2d 14, 15 (Fla. 3d DCA 2006) (the trial court can consider the parties’ initial pleadings for purposes of summary judgment).

8Whether or not Ms. Adair was actually living with Plaintiff on the date she mentioned in her declaration is not a material issue in this case. Thus, the inaccuracy in her declaration is at most impeachment material and is likely collateral impeachment material not even admissible. Strasser v. Yalamanchi, 783 So. 2d 1087, 1095 (Fla. 4th DCA 2001) (“‘Impeachment on collateral issues is clearly impermissible.'”); Foster v. State, 869 So. 2d 743, 745 (Fla. 2d DCA 2004) (quoting Lawson v. State, 651 So. 2d 713, 715 (Fla. 2d DCA 1995)) (Evidence which “neither (1) is relevant to prove an independent fact or issue nor (2) would discredit a witness by establishing bias, corruption, or lack of competency on the part of the witness, ‘ for any purpose independent of the contradictions” is collateral and cannot be used for impeachment purposes). See also e.g. Evans v. State, 603 So.2d 15, 17 n. 4 (Fla. 5th DCA 1992)(“If a witnesses’s testimony is impeached with inconsistencies on material issues, as opposed to collateral matters, and thereby the witness’s veracity and credibility are placed in question, the trier of fact is entitled to judge the witness’s credibility in its entirety and accept or reject the witness’s testimony on those and other issues as well.”); Roach v. CSX Transp., Inc., 598 So.2d 246 (Fla. 1st DCA 1992);Bellman v. Yarmark Enters., 180 So.2d 663, 664 (Fla. 3d DCA 1965)(within province of fact-finder to find witness who has been impeached “completely unworthy of belief” and reject his testimony), cert. dismissed, 188 So.2d 807 (Fla.1966). 

9Section 90.803(18)(d) allows admission of a statement offered against a party if it is “[a] statement by the party’s agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship.” § 90.803(18)(d), Fla. Stat. (2009) (emphasis added). Statements under section 90.803(18)(d) are admissible “even in those instances where the employee’s statement is not based on his personal knowledge.” Scholz v. RDV Sports, Inc., 710 So.2d 618, 628 (Fla. 5th DCA 1998). In addition, “[i]t is not necessary for a party to know the name of the person who allegedly has made a damaging statement against the interests of his employer or principal in order for the statement to be admitted as an admission.” Chaney v. Winn Dixie Stores, Inc., 605 So.2d 527, 529 (Fla. 2d DCA 1992) (citation omitted). “Instead, a party may offer circumstantial evidence that the declarant is an employee or agent.” Id.

10Available online at http://archive.law.fsu.edu/library/flsupct/68664/68664rep.pdf

11As per the attached Exhibit B, after obtaining his statement Defendant claims Mr. Scoates performed an illegal act by taking the chemical home with him.

12To the contrary, attorneys have a ethical duty to investigate both claims and defenses before bringing them before the Court. See Mitchell v. Schindler Haughton Elevator Co., 587 So.2d 636, 637 (Fla. 3rd DCA 1991) (wherein “defendants claim[ed] that attorney’s fees were rightly awarded since plaintiff’s suit was frivolous because counsel failed to perform any pre-suit investigation.”).

13Plaintiff testified that Donald Scoates told her that a supervisor named Coy Joyner gave authority to Donald Scoates to bring home the chemical – not “Tiffany”.

14The original signed declaration is in the office of the undersigned. Moreover, the draft declaration was emailed to Ms. Adair, not mailed. Finally, paragraph 2 of the declaration states that Ms. Adair has “fully reviewed the information in this Declaration, and have had full opportunity to edit, delete, modify, change or add anything I like.”

Summary
Article Name
RESPONSE TO MOTION TO DISMISS FOR FRAUD
Description
This is a sample response to a motion to dismiss for alleged fraud on the court. This motion successfully defeated a defense motion to dismiss.
Author
About the Author:

Massey & Duffy has existed since October, 2003. We focus exclusively on civil litigation, including wrongful death, overtime cases, car and trucking accidents, insurance claims, breach of contract, general employment law, and serious personal injury lawsuits.