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Ndoye v. Major Performance LLC

United States District Court, S.D. Ohio, Western Division

March 1, 2017

NDEYE NDOYE, Plaintiff,
MAJOR PERFORMANCE LLC, et al., Defendants.


          Karen L. Litkovitz United States Magistrate Judge.

         Plaintiff 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.

         Defendants" 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.

         Plaintiff 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.

         For the reasons that follow, the Court concludes that defendants' motion is well-taken and it is therefore granted.

         I. Summary of Evidence and Background

         A. Course of Proceedings

         Plaintiff 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).

         In July 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 claims.

         On 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).

         B. Plaintiffs December 2015 Answers to Interrogatories

         Specifically, defendants point to the following answers to interrogatories that plaintiff provided in December 2015 as containing false statements:

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 state:
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.

         (Plaintiff's 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).

         C. Plaintiffs March 2016 Deposition Testimony

         Further, 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?
A. Yes.
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?

A. Yes.
. . .
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 Major Performance?
A. No.
Q. So you and your husband don't have a car right now?
A. No.
Q. And haven't had a car ...

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