Commercial Litigation and Arbitration

Inherent Power Sanctions for Witness Tampering — Factors — Range of Available Sanctions

Michael v Boutwell, 2015 U.S. Dist. LEXIS 136838 (N.D. Miss. Oct. 7, 2015):

As stated above, there are three motions currently pending in this action: (1) Defendants' motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, or for summary judgment, Doc. #59; (2) Plaintiffs' motion for sanctions, Doc. #65; and Defendants motion to dismiss for lack of jurisdiction under Rule 12(b)(1), Doc. #72.

Where "a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, [*24]  the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). This rule also applies when a 12(b)(1) motion is filed in conjunction with a motion for summary judgment. Cupit v. U.S., 964 F.Supp. 1104, 1106 (W.D. La. 1997) ("[W]e must determine if subject matter jurisdiction is present before considering the substantive arguments of the summary judgment motion.") (citing Stanley v. Ctr. Intelligence Agency, 639 F.2d 1146, 1156-57 (5th Cir. 1981)).

Likewise, while a Court acting under its inherent powers may issue sanctions collateral to the merits, "[w]here jurisdiction is found to be lacking, there can be no adjudication of the merits of the case. This prohibition must bar the imposition of a sanction which will terminate the case on the merits." In re Orthopedic "Bone Screw" Prods. Liab. Litig., 132 F.3d 152, 157 (3d Cir. 1997). "A default judgment is a judgment on the merits that conclusively establishes the defendant's liability." U.S. for the use of M--CO Constr., Inc. v. Shipco Gen., Inc., 814 F.2d 1011, 1014 (5th Cir. 1987).

Accordingly, before considering the 12(b)(6), summary judgment, and sanctions motions, the Court must first determine whether it has jurisdiction over the action. If jurisdiction is found, a potentially dispositive sanctions motion should next be addressed before resolving the case on the merits. See Smith v. Bank of America, N.A., No. 2:11-cv-676, 2014 WL 897032, at *3 (M.D. Fla. Mar. 6, 2014) ("The Court will first address defendants' [*25]  motion for final dismissal or spoliation sanctions followed by the cross-motions for summary judgment."). Thus, if the Court has jurisdiction, it will address Plaintiffs' motion for sanctions before turning to Defendants' motion to dismiss for failure to state a claim, or in the alternative, for summary judgment.




For the reasons discussed above, Defendants' motion to dismiss for lack of jurisdiction must be denied.



As stated above, because Plaintiffs have moved for the sanction of a default judgment, the request for such sanction should be addressed next, before Defendants' motion to dismiss or for summary judgment, as the outcome of the sanctions motion will determine if the motion to dismiss or for summary judgment will be reached. Plaintiffs seek the default judgment through their "Motion to Strike Defendants' Answer and for Sanctions Because of Defendant Boutwell's Threat to a Key Witness," alleging that on April 9, 2015, Boutwell attempted to provoke a fight with Mote and when the attempt failed, threatened Mote. Doc. #65 at ¶¶ 3-6. As support for the relief sought, Plaintiffs submitted affidavits from Mote and David Sage, a witness to the encounter, detailing Boutwell's actions towards Mote. Doc. #65-3; Doc. #65-4. In support of their response opposing sanctions, Defendants submitted an affidavit from Boutwell which, in essence, states that his actions on the night in question were caused by stress and alcohol. Doc. #69-2. At the hearing on the motion on June 24, 2015, Mote, [*47]  Sage, Boutwell, and Boutwell's treating physician all testified. See Doc. #81.

A. Facts Related to Motion for Sanctions

Testimony from the hearing, along with the affidavits submitted in support of and opposition to the motion for sanctions, show that early on the morning of April 9, 2015, Boutwell entered The Corner Bar in Oxford, Mississippi, after the establishment had closed. Doc. #65-4. At the time, Mote, Boutwell's former manager, was sitting to the left of David Sage, the bartender at the bar. Id. Boutwell approached Sage's right, patted him on the back, and asked for alcohol. Id. After Sage refused, Boutwell asked again, and Sage refused again. Id. Boutwell and Sage proceeded to have "a normal conversation about his restaurants and other stuff." Id. During this conversation, Sage, who has run bars for more than fifteen years, "could tell Clint had been drinking, but he did not appear to be drunk. He walked and spoke normally, and never raised his voice." Id.

As Boutwell prepared to leave, he turned to Mote and said, "You and your buddy Scott thought you could get me. It'll take more than what you have to get me." Id; Doc. #65-3. Boutwell also referenced "having deep pockets" and [*48]  "plenty of money ... to do what he wanted." Doc. #65-3. Mote responded, "I don't want anything to do with it; that's y'all's deal," and then turned away. Doc. #65-3. Mote felt that Boutwell intended to provoke a fight with him. Id.

Sage told Boutwell to leave and Boutwell told Mote, "pussies will be pussies." Doc. #65-4. Boutwell then said, "[d]id you hear me Mote? Pussies will be pussies." Id. Boutwell then left. Id.

Approximately five minutes later, Mote received a text message from Boutwell stating, "And I'll find you when it's over." Doc. #65-3. Following his receipt of the text, Mote believed that Boutwell would try to harm him, "physically or some other way," if he continued to participate in the case as a witness. Id. Mote explained at the hearing that part of his fear was driven by the fact that he knew Boutwell carried a gun, although he acknowledged that Michael had said he would only use the gun in self-defense.

Sage observed at the hearing that, upon receiving the text, Mote acted "kind of shocked ... he was a little shaken up by it." Approximately forty-five minutes after receiving the text message, Mote spoke with Bob Kelly of the Oxford Police Department, but elected not to [*49]  pursue charges against Boutwell.

The following afternoon, Boutwell sent Mote a second text stating, "I want to apologize for my comments last night. I had too much to drink and the stress of this entire case and everything surrounding it has taken an emotional and mental toll on me. I had no right to say anything to you and I am sorry." Doc. #69-1. According to Boutwell, he went out drinking that night because, following "a long day at work and a meeting with my attorney regarding this lawsuit, I felt very stressed." Doc. #69-2. Boutwell claims that he drank for approximately three hours before entering the Corner Bar and that, at the time of the incident, he was "intoxicated and was not thinking clearly." Id.

Hearing testimony established that, at the time of the incident, Boutwell was on a stimulant called Adipex, although Boutwell testified at the hearing that he could not remember when he took the drug on the day in question. According to Boutwell's treating physician, who testified at the hearing, mixing alcohol with Adipex, which stays in the system for approximately 12-14 hours, causes "[c]entral nervous system over stimulation" and a corresponding loss in inhibition.

Boutwell claimed at [*50]  hearing that his interaction with Mote was:

   just trash talk to a former friend as a result of the alcohol I had consumed. I was not trying to provoke Mr. Mote into hitting me .... I was not trying to threaten Mr. Mote with physical harm as a result of his testimony that he gave at his deposition nor was I trying to threaten him to not testify at the trial of this matter. I have never had any intent to physically harm Mr. Mote whatsoever.

Following the incident, Boutwell was diagnosed with depression and anxiety and has been prescribed medication to deal with these problems. He represented to this Court at the hearing that he has "no intention of carrying out any perceived threat against Mr. Mote."

B. Sanctions Analysis

Although the title of Plaintiffs' sanction motion states that it seeks to strike Defendants' answer, the body of the motion seeks a default judgment. Doc. #65 at ¶ 6. Because Defendants have not filed an answer in this litigation, the Court is left to interpret the sanctions motion as seeking a default judgment.

"Federal courts have undisputed, inherent power to regulate practice in cases pending before them." Carroll v. Jacques, 926 F. Supp. 1282, 1288 (E.D. Tex. 1996) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)). "The court is vested with broad discretion to fashion [*51]  an appropriate inherent power sanction to redress abusive litigation practices." Carroll, 926 F. Supp. at 1291 (quoting Gregory P. Joseph, Sanctions: The Federal Law of Litigation Abuse 440-41 (2d ed. 1994)).

   Inherent power sanctions are essentially punitive, designed to penalize bad faith abuses of the litigation process. While they may be used to compensate the opposing party for fees that should never have been incurred, their compensatory aspect is only incidental. It is within the discretion of the court to determine the appropriate sanction.

Among the types of inherent power sanctions that the court, in its discretion, may choose to impose are: 1. A fine. 2. An award of reasonable attorneys' fees and expenses. 3. Disqualification of counsel. 4. Preclusion of claims or defenses or evidence. 5. Dismissal of the action. 6. Entry of a default judgment. 7. Suspension of counsel from practice before the court or disbarment. 8. Vacatur of a judgment for fraud. 9. Injunctive relief limiting a person's future access to the courts. 10. A contempt citation. 11. Permitting adverse inference from document destruction.

Id. "The inherent power is not a broad reservoir of power, ready at an imperial hand, but a limited source; [*52]  an implied power squeezed from the need to make the court function." Crowe v. Smith, 151 F.3d 217, 226 (5th Cir. 1998) (internal quotation marks omitted). When invoked, the moving party bears the burden to justify the exercise of the Court's inherent power to sanction. In re Actos (Pioglitazone) Prods. Liab. Litig, No. 6:12-cv-64, 2014 WL 2624943, at *4, 8 (W.D. La. June 11, 2014); see also Lofton v. Verizon Wireless (VAW) LLC, 308 F.R.D. 276, 285 (N.D. Cal. 2015) ("It is the moving party's burden to demonstrate that the party against whom it seeks sanctions acted with the requisite bad faith or improper purpose.").

"A decision to invoke the inherent power to sanction requires a finding of bad faith or willful abuse of the judicial process ...." In re Moore, 739 F.3d 724, 729 (5th Cir. 2014) (internal quotation marks omitted). "[T]he finding of bad faith must be supported by clear and convincing proof." Id. at 730. If a particular act justifies the use of the Court's inherent power, "the sanction chosen must employ the least possible power adequate to the end proposed." Nat. Gas Pipeline Co. of. Am. v. Energy Gathering, Inc., 86 F.3d 464, 467 (5th Cir. 1996) (internal quotation marks omitted). Additionally, the court may consider whether the requested dispositive sanction would "deter those who might be tempted to such conduct in the absence of such a deterrent." Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976).

Here, the record shows that Boutwell engaged in a verbal confrontation with Mote, an identified witness in this case, during which Boutwell [*53]  referred to his deep pockets and said that he could "do what he wanted." Shortly after that confrontation, Boutwell sent Mote a text message stating that he would "find [him] when it's over."

1. Bad Faith Analysis and Issue of Dispositive Relief

As an initial matter, the Court has no trouble concluding that Boutwell's conduct amounts to bad faith or willful abuse of the judicial process. See Riley v. City of New York, No. 10-cv-2513, 2015 WL 541346, at *7 (E.D.N.Y. Feb. 10, 2015) ("[C]ourts in this district and others have sanctioned witness tampering pursuant to a court's inherent power.") (collecting cases). Accordingly, the Court must determine whether Boutwell's conduct is sufficiently serious to justify a dispositive sanction. See Scherer v. Wiles, No. 2:12-cv-1101, 2015 WL 4512393, at *19 (S.D. Ohio July 24, 2015) ("This Court concludes that although Wiles' [witness tampering] conduct was improper, and thus some sanction is warranted, his conduct fell below the level of egregiousness warranting a default judgment or an extreme monetary sanction."). When considering whether dispositive relief is an appropriate sanction for witness intimidation, other courts have considered: (1) the nature of the threat;29 (2) whether the threat is likely to have a chilling effect on testimony;30 (3) [*54]  whether the threats "are the result not of malice but of mental illness;"31 and (4) whether the threats are the only instance of improper litigation conduct.32 Additionally, albeit in other circumstances, courts have observed that evidentiary misconduct is particularly egregious when it relates to a "central issue" in the case. See Vargas v. Peltz, 901 F. Supp. 1572, 1581 (S.D. Fla. 1995) (citing Pope v. Fed. Express Corp., 138 F.R.D. 675, 679, 683 (W.D. Mo. 1990)).

29   Kalwasinski v. Ryan, No. 96-cv-6475, 2007 WL 2743434, at *2 (W.D.N.Y. Sep. 17, 2007) ("Death threats directed at an opposing party and a witness are sufficiently serious to warrant the sanction of dismissal."); Intercounty Nat. Title Ins. Co., 2002 WL 1433717, at *12 (noting statements in anonymous letter that "[i]f someone wanted to get you it would be easy" and "[d]id you have a good time at Cavanaughs? I saw you there" "implicitly threatened ... physical harm")

30   Scherer; 2015 WL 4512393, at *19 ("Plaintiff has not put forth evidence that Boles' testimony was chilled in any way.")

31   Nelson v. Eaves, 140 F.Supp.2d 319, 322 (S.D.N.Y. 2001).

32   Battista v. Dennehy, No. 05-11456, 2006 WL 1581528, at *8 n.15 (D. Mass. Mar. 22, 2006) (declining to dismiss pro se action based on intimidation of a witness where the intimidation was "the only instance of improper behavior").

Regarding the nature of the threat, the first factor to consider, the Court finds that, while implicitly threatening physical harm initially, Boutwell's interactions with Mote were mitigated after such threat by Boutwell's apology to Mote the following day (before the filing [*55]  of Plaintiffs' motion for sanctions). See Logan v. Burge, No. 09-c-5471, 2010 WL 3940802, at *2 (N.D. Ill. Oct. 6, 2010) (finding threat mitigated by subsequent conduct).

Turning to the potential effect of Boutwell's actions, the Court notes that Mote testified at the evidentiary hearing on the sanctions motion and by affidavit that he felt threatened by Boutwell's conduct. However, there is no indication that Boutwell's conduct had a chilling effect on Mote's future testimony. To the contrary, that Mote testified unfavorably to Boutwell at the sanctions hearing, along with the substance of Mote's testimony against Boutwell at the hearing, strongly suggests that any effect would be minimal. Although Plaintiffs have expressed a fear that Mote may change his testimony at trial or avoid being served by a trial subpoena, Doc. #71 at 6, there is simply no evidence that such a scenario is likely. Thus, the second factor weighs against a dispositive sanction.33 Scherer, 2015 WL 4512393, at *19.

33   To the extent Mote seeks to change his deposition testimony or avoid a trial subpoena, any damage in this regard may be remedied by deeming the facts in his deposition admitted or using his deposition for impeachment purposes.

Regarding the cause of the conduct, Boutwell presented [*56]  credible testimony from his treating physician that he was on a medication that stays in the system for approximately twelve hours and, when combined with alcohol, lowers inhibition and acts as a stimulant. However, there is no indication that the medication was in Boutwell's system at the time of the confrontation. Furthermore, while Boutwell testified that he was drunk and stressed at the time of the confrontation, both Sage (an impartial witness) and Mote testified that Boutwell seemed sober. Under these circumstances, the Court concludes that the third factor weighs against Boutwell.

Fourth, beyond that alleged in the complaint, this is the only instance of misconduct raised in this litigation.34 Thus, the fourth factor weighs in Boutwell's favor.

34   Plaintiffs contend that Boutwell previously threatened Mote. Doc. #66 at 5. However, the other threat concerned Mote's comparison of Boutwell's restaurant to another steakhouse, not to Mote's role in this litigation.

Finally, Mote's proposed testimony relates to allegedly inaccurate statements made by Boutwell and thus is tied to a central issue of Plaintiffs' defamation claim. Accordingly, the fifth factor weighs in Plaintiffs' favor.

The [*57]  Court recognizes that "witness tampering is an extremely serious offense, and strikes at the heart of the litigation process." Scherer, 2015 WL 4512393, at *19. But, in light of Boutwell's apology, the isolated nature of this incident, and Mote's willingness to testify against Boutwell, the Court does not believe that, even allowing for the evidentiary value of Mote's testimony, Boutwell's conduct was so egregious as to justify an ultimate sanction of dismissal or default judgment.

2. Effectiveness of Lesser Sanctions

Even if Boutwell's conduct implicated the use of dispositive sanctions, the Court would still conclude that default judgment is inappropriate. The record shows that: (1) there is no indication Boutwell is unable to pay a monetary fine: (2) this is an isolated incident for which Boutwell immediately apologized; (3) the impact on Plaintiffs' case seems minimal, at most; and (4) Boutwell's conduct appears to have been unplanned and instead the product of circumstance and emotion. These factors distinguish this matter from the authority cited in Plaintiffs' motion for sanctions35 and convince the Court that lesser sanctions will be effective in protecting the Court's function and deterring Boutwell and others [*58]  from similar conduct. See Raborn v. Inpatient Mgmt. Partners, Inc., 278 Fed. App'x 402, 406-07 (5th Cir. 2008) ("This type of conciliatory response suggests that lesser sanctions would have been effective ...."); see generally Jones, Owen D., The Evolution of Irrationality, 41 Jurimetrics J. 289, 315 (2001) ("It seems obvious that laws prohibiting [crimes of passion] are likely to be relatively ineffective deterrents.").

35   Plaintiffs' motion cites Johnese v. Jani-King, No. 3:06-cv-0533, 2008 WL 631237, at * 2-3 (N.D. Tex. Mar. 3, 2008) (dismissing case with prejudice where plaintiff "deliberately defied ... clear directive and suborned perjury" and where plaintiff had "limited financial means"); Young v. Office of U.S. Senate Sergeant at Arms, 217 F.R.D. 61, 69-71 (D.D.C. 2003) (dismissing case where plaintiff engaged in repeated discovery violations, attempted to tamper with two witnesses, and was unable "and/or unwilling[] to pay the costs of prosecuting this lawsuit"); Vargaz, 901 F. Supp. at 1574, 1579 (dismissing case where plaintiff fabricated false physical evidence and then testified to such evidence in two depositions); and Pope, 138 F.R.D. at 679, 683 (dismissing case where plaintiff fabricated physical evidence, lied in her deposition, and made false references in discovery responses).

Accordingly, dispositive sanctions are unwarranted in this action. Rather, the Court will direct Defendants to pay Plaintiffs' reasonable attorney's fees and expenses incurred in association with the [*59]  motion for sanctions. See Republic of Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 80 (3d Cir. 1994) (The district court "could have imposed monetary sanctions to signal its disapproval of the Republic's conduct and its intolerance of any future harassment or intimidation."). Additionally, the Court imposes a $1,000 fine, to be paid to the Court.36

36   While punitive fines may be subject to additional procedural requirements, this rule does not apply to "petty" amounts. See Crowe, 151 F.3d at 228; see also Miller v. City of Los Angeles, 661 F.3d 1024, 1030 (9th Cir. 2011) (inherent power allows court to impose "non-compensatory" sanctions to deter future misconduct so long as such sanctions are not of a "magnitude ... akin to criminal contempt") (collecting cases, including Crowe).

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