United States District Court, S.D. Ohio, Western Division
L. Litkovitz United States Magistrate Judge.
Ndeye Ndoye brings this action against defendants Major
Perfonnance LLC, Julie Majors, and three John Does under 42
U.S.C. § 1985(3); the Ohio Consumer Sales Practices Act
("OCSPA"), Ohio Rev. Code §§ 1345.02 and
1345.03; and Ohio common law. Plaintiff claims that
defendants unlawfully repossessed the vehicle she purchased
from Major Performance, which resulted in the loss of her
employment and severe economic hardship. This matter is
before the Court on defendants' motion for sanctions
(Doc. 48), plaintiffs response in opposition (Doc. 53),
defendants' reply memorandum (Doc. 56), and
defendants' supplemental reply memorandum (Doc. 62). The
Court held an evidentiary hearing in this matter on December
12, 2016. (Doc. 78). After the hearing, defendants (Doc. 79)
and plaintiff (Doc. 80) submitted closing argument briefs.
motion for sanctions seeks dismissal of plaintiff s complaint
with prejudice based on plaintiffs alleged misconduct during
the course of these proceedings. Defendants assert that only
after discovery was closed, dispositive motions were ruled
on, and court-facilitated mediation resulted in an impasse,
did they uncover evidence establishing that plaintiff had
made materially false statements in her deposition, answers
to interrogatories, and pleadings filed with the Court in an
effort to artificially inflate the amount of her damages
claim at trial. Defendants contend that plaintiffs
intentional misrepresentations have irreparably harmed their
ability to defend this action and no sanction less than
dismissal would adequately address plaintiffs misconduct.
asserts that defendants, through their motion for sanctions,
ask this Court to invade the fact-finding province of the
jury whose role is to weigh evidence, evaluate credibility,
and draw inferences from testimony and written exhibits.
Plaintiff contends the evidence before the Court amounts to
nothing more than a garden-variety dispute of material
fact-with one party accusing the other of lying-which is not
uncommon in the great majority of civil disputes. Plaintiff
asserts that her actions in this case have done nothing to
impair or inhibit the operation of the judicial process and
that this case should be decided by the jury at trial, and
not by the Court.
reasons that follow, the Court concludes that defendants'
motion is well-taken and it is therefore granted.
Summary of Evidence and Background
Course of Proceedings
is a native of Senegal, West Africa, who immigrated to the
United States in 2003. (Deposition of Ndeye Ndoye, Doc. 26 at
7). In June 2015, plaintiff filed her complaint in this
action raising numerous claims related to defendants'
allegedly unlawful seizure on April 10, 2015 of a 2006
Cadillac STS that plaintiff purchased from defendant Major
Performance in February 2015. (See generally Doc.
1). Plaintiff alleges that "[a]fter Defendants seized
her vehicle, [she] was left without transportation, was
unable to meet [her] work schedule requirements, and had to
leave her job." (Id. at ¶ 24). Plaintiff
alleges damages in excess of $25, 000 related to
defendants' actions. (See Id. at ¶¶
27, 30, 39).
2016. the Court granted plaintiffs motion for partial summary
judgment as to her claim that defendants violated Ohio Rev.
Code § 1345.02(A) by committing unfair or deceptive acts
in not applying for and providing plaintiff with a
certificate of title for the Cadillac as required by the
OCSPA. (See Doc. 37 at 10-14). The Court denied
defendants* cross-motion for summary judgment in all
respects. (See Id. at 15-22). Thus, the parties
proceeded with trial preparations as to plaintiffs remaining
October 7, 2016, the parties participated in judicial-based
mediation, but were unable to settle the case. (See
dkt. entry dated Oct. 7, 2016). On October 18, 2016,
defendants moved to continue the trial set for November 7,
2016 due to unexpected complications from defense
counsel's major surgery. (See Doc. 42). In
opposing the motion for continuance, plaintiff argued that a
delay was unfair to her because defendants "continue to
hold her money, preventing her from acquiring transportation
for a job needed to provide for herself.'" (Doc. 43
at 2). The Court granted the motion for continuance and reset
the trial for December 12, 2016. On October 25, 2016,
defendants filed the instant motion for sanctions, asserting
that they had recently discovered information to show that
plaintiff misrepresented her employment status and access to
transportation in her answers to interrogatories, deposition
testimony, and pleadings to inflate her damages.
(See Doc. 48 at 1-2).
Plaintiffs December 2015 Answers to Interrogatories
defendants point to the following answers to interrogatories
that plaintiff provided in December 2015 as containing false
10. Please list each job or employment you have had for the
previous ten years, including date hired, last date worked
and reason for leaving said employment.
ANSWER: 11/2014-04/2015: MUBEA (through CM Services). Last
day worked: 04/10/2015. Left because lacked transportation.
2005-2012 Champion Windows. Left due to pregnancy.
. . .
18. If you have lost any income from employment as a result
of the acts alleged in the Complaint, list the inclusive
dates of each period of employment which you have lost income
and the total amount of income lost. Please produce copies of
any documentary evidence you will rely upon at trial to
support a claim of lost income.
ANSWER: April 13, 2015 to the present at a loss rate
reflected in pay stubs from MUBEA less any income derived
from occasionally babysitting.
. . .
22. Have you ever purchased any other vehicles? If so, please
a. Location of the vehicle purchase;
b. Entity or individual the vehicle was purchased from;
c. Description of the vehicle purchased;
d. Date on which the vehicle was purchased; and,
e. Whether or not the vehicle was financed.
ANSWER: My husband and I purchased a 2010 Dodge Charger
financed through GM Financial in 2011 from Jake Sweeney, and
I co-signed the loan.
Response to Defendants' Discovery Requests, Doc. 48-1,
Exh. A at 4-6). Plaintiff signed and swore before a notary
public that her answers to the interrogatories "are true
and correct to the best of my knowledge, information, and
belief." (Id. at 7).
Plaintiffs March 2016 Deposition Testimony
the following testimony from plaintiffs March 2016 deposition
is relevant to defendants' contention that plaintiff has
misrepresented her unemployment:
Q. So the only information that you received from Mubea was
that you missed work and that you were terminated?
Q. When was that?
. . .
A. It should be on my records. I think it's Monday the
15th of April.
Q. Monday, April 15th, that would have been in 2015?
. . .
Q. And why did you miss work?
A. Because my car was repossessed and I had to work, go to
work the next morning.
. . .
Q. And have you had any employment since?
A. I was looking for a lot of employment and everything, but
right now I'm still unemployed.
Q. So you've been unemployed since April 15, 2015?
A. Yes, sir.
(Doc. 26 at 23-25). As to defendants" contention that
plaintiff misrepresented her lack of access to a vehicle
after defendants seized the Cadillac, the following
deposition testimony is relevant:
Q. Okay. Have you and your husband purchased a car since
Q. So you and your husband don't have a car right now?
Q. And haven't had a car ...