motion for Sanctions
Sun 4.26.20
Enough of this Covid-19 harum-scarum, it’s time to get back to work. I add a Motion for Sanctions I filed last week below. Why did I do it? I doubt the court will apply the sanctions. I’d say the odds are 20% that sanctions would be enforced (after writing that sentence I checked and I am wrong; the odds are 15% that sanctions are applied,) especially considering that judge ignored my motion that asks the court to compel Respondent to respond to the questions asked and furnish the documents requested. I believe the court hoped to quietly shuffle me out the door. I would have to be naïve not to realize that “I’m not in the club” as pro se-yers put it. But when making moves at the district court level one has to keep in mind that the case may end up at the appellate court where actions are more circumspect. In this case, both attorney and Respondent were so far out of line that they left me no choice. And ultimately, someone needs to take the court process seriously, to respect the court rules and to respect oneself. I post these court proceedings, and please know that I’m not an attorney and you can’t just copy what I’ve done. But it gives you some idea on how to do it, and you can go and research it further. Here’s a good place to start: https://cyber.harvard.edu/~nesson/Reading--Pre-Trial_Procedures.pdf the document is for a course entitled Evidence being taught at Harvard Law School by Professor Charles Nesson. He takes you from the first step when you approach the court system with your complaint all the way through to the finish line. As a practicing attorney, he explains his tactic for actions he may take and others to avoid. I found it to be helpful. One of the things I learned about the discovery process from him was the ability to file a Request to Admit with opposing party which asks them to admit the statements you have produced or to deny it. As you can imagine it is hard to get around such statements. My first discovery request was a Request for Documents. It’s a lot easier to get around that request with all sorts of excuses, obscure reasonings and whatnot.
PETITIONER’S MOTION FOR SANCTIONS
Petitioner, Lorraine Saint Pierre pursuant to Maine Rules of Civil Procedure, Rule 37 and Rule 11 hereby moves this court to impose sanctions upon Respondent attorney and Maintenance Company for evasive, incomplete and false discovery responses, for spoliation of evidence presented at preliminary injunction hearing in not providing Petitioner with duplicates of presented evidence, and for actions that discredits the judicial system.
MEMORANDUM IN SUPPORT
Specifically, Petitioner asserts that Respondent attorney and Maintenance Company intentionally withheld, hid, altered, evidence designed to disrupt Petitioner’s case.
1. Respondent attorney withheld and continues to withhold copies of documents it presented at Preliminary Injunction hearing from Petitioner. When asked to produce them she asserts that she did, and adds the absurd notion “at least those documents that you did not decline.” One may refute a piece of evidence’s worthiness without declining its actuality. (ex. 1.)
2. Respondent attorney did not add the requested affidavit in its response to Discovery request for documents and the only file provided had been seriously tampered with. Documents were removed that would have cast Maintenance Company in the bad light of harassing tenant for her disability. Attorney also refused to furnish a list of witnesses because it reasoned, “Information responsive to this request will be produced pursuing to the scheduling order dated November 8, 2019.” The parties were given a deadline of May 8, 2019 to finish the matter. Opposing counselor was free at any time to furnish that information but chose to have witnesses appear at Preliminary Injunction without notice to opposing party. Most of Respondent answers are evasive and simple boiler plate non answer. Petitioner reminded Respondent of the rules of civil procedure for properly responding to discovery requests to no avail. When informed of inapplicable responses, attorney still did not correct them. (See attached exhibit 2, Petitioner’s request for documents, Respondent’s response and Petitioner’s reply.) Had Respondent responded sincerely to request for documents it would have shown that Respondent does not have the authority to act unitarily as it did and does.
3. Discovery admissions were similarly flummoxed by Respondent answering with the one word, deny, to all admission statements, Respondent attorney stating that she herself had responded to Affirmation request on behalf of her clients. Petitioner then served the same admission request, but seeking Respondent Vice President response. Attorney responded by email “Maintenance Company objects to this most recent request in its entirety, as Vice President is not a party to this action.” (Ex. 3) Vice President very much sees himself as a party to this action, especially since he chose to respond, as its company representative, to the Order to Show Cause filed with court. Maintenance Company rejected Vice President’s status as company spokesperson in this matter to prevent him from responding to discovery. (Ex. 4, request for admission document and attorney’s email responses.)
4. Respondent lied when denying section 2 of the Request for Admission. Vice President did grant another written permission two weeks after Petitioner received hers. Tenant in unit 6 received from Vice President, unbidden, written permission “To be allowed to keep the patio located outside of your unit.” See attached exhibit 5.
5. Respondent lied in section 4 of same document. Petitioner clearly wrote in plain language that she was erecting a gazebo, adding that said gazebo had been up at another Maintenance Company site for the previous two years in an email she sent to RS Coordinator, and it did give permission for it. There is evidence with the court of Petitioner’s email statement to that effect and that the gazebo was whole save for its canopy top at the time.
6. Respondent lies in section 6 of the admission request when a) denying that it sent repeated memos, b) that it did not seek to implement them. The photos and documents presented at preliminary hearing disprove Respondent’s denial that it threatened and did not follow through on its memos for 5 ½ months, c) it threatened that personal belongings “ be taken down and permanently removed”, or they “will be removed by maintenance, d) and that they “will be disposed of by maintenance;” e) and it acted on a partiality basis per photos submitted. Attorney was at that hearing, and received copies of evidence provided. She is responsible for her declarations.
7. Respondent lied in section 8 of said document; RS Coordinator did state at hearing when asked to name the tenants who reported on the gazebo to her, “That’s confidential, I can’t go into that.” They do keep secret files pitting tenants against each other by encouraging them to report on their neighbors, and it will be kept secret. Attached is a Maintenance Company document inserted in Petitioner’s file in which a tenant tells RS Coordinator that it will poison Petitioner’s cat. Petitioner was never told, and her cat, a companion of thirteen years, unable to digest or eliminate food properly, suffered for 5 months with vomiting and diarrhea every day until it died. Petitioner learned of it through the discovery process. It had been placed in the tampered Tenant File. (ex. 6.)
8. Opposing attorney did not share with Petitioner documents and other evidence presented at preliminary injunction. And attorney still has not fulfilled her obligation after repeated requests thereafter. Nor did attorney, after previously sought discovery request, share a list of witnesses presented at said venue. The court at preliminary injunction hearing was unequivocal in ascertaining whether Petitioner had duplicates of the evidence she sought to admit. Such evidence would not otherwise be admitted. Since the evidence presented at hearing has been deliberately kept from Petitioner, it therefore may not be admitted as evidence by the court.
REQUESTED RELIEF
Courts have interpreted Rule11 to warrant sanctions when attorney conduct viewed objectively manifests either intentional or reckless behavior with disregard of attorney’s duties to the court. Attorney, as an officer of the court, behaved unethically by presenting evidence at court that she withheld from opposing party.
Petitioner seeks an order from this court striking Respondent evidence presented at preliminary injunction, for violating the precept of evidence disclosure to opposing party.
Attorney refused to respond to discovery requests for documents, and requests for admissions were returned with a one word “deny” response. Most of the denials were falsehoods easily refuted by evidence already in the court record. Per Rule 37 (3) Evasive or Incomplete Answer. For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer. Neither party, Maintenance Company or its attorney were honest; they intentionally deceived.
In Chambers v. Nasco, Inc., the United States Supreme Court made clear that the existence of statutes and rules designed to empower courts with the ability to sanction parties and counsel for inappropriate action does not displace the Court’s inherent power to impose sanctions for bad faith conduct. Abuse of the discovery process is also deterred by the ethical obligations placed upon legal counsel, per Professional Conduct Rule 3.3 and 3.4, and attorney-disciplinary sanctions. As a pro se litigant, Petitioner may not seek attorney fees as sanction. But in this matter Respondent and its counsel deceived the judicial system and it is only appropriate that they ameliorate the damage they have created. Petitioner seeks monetary sanctions to be imposed on Respondent attorney and Maintenance Company, to proportionately reimburse the court funding agencies that support indigent pro se litigants, such as has been dispensed for petitioner’s case.
CONCLUSION
The court is ill-served by the tactics described, especially attorney’s withholding of evidence from Petitioner. What’s meant to be a conversation between adversaries through the discovery process to find areas of agreement or possible resolution becomes a farce. For the foregoing reasons, Petitioner requests that the court enter an order specifically finding that Attorney and Maintenance Company knowingly and in bad faith made false and misleading statements of material fact and imposing such other sanctions as this court deems appropriate.
The favorite essay this month has again been, A Live Moment
