| ELIAS MAKERE, FSA, MAAA Plaintiff vs. ALLSTATE INSURANCE COMPANY, Defendant |
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Case No (LT): 3:20-cv-00905-MMH-LLL Division: (3) Jacksonville |
PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF
'PLAINTIFF’S MOTION FOR SANCTIONS'
In short, Plaintiff hereby asks this Court to sanction Defendant for Defendant’s latest act of deceit (Rule 11 Fed. R. Civ. P.; Rule 37(b)(2)A() Fed. R. Civ. P.; Local Rule 2.01(e) USFLMD; RRTFB 3-4.3). An act that exhibited Defendant’s: (a) bad faith; and (b) commitment to defrauding this Court.
The parameters of the matter can be summarized as follows:
Brief History
2. On September 8, 2017, Defendant responded to the First Charge by denying both allegations. Importantly, the former employer explicitly acknowledged that Plaintiff’s First Charge contained “allegations of discrimination based upon race and sex discrimination”.
3. On December 15, 2017 the FCHR concluded its investigation. Notably affirming that race and sex were the bases of Plaintiff’s First Charge.
4. On January 19, 2018, Plaintiff filed his Petition for Relief (§760.11(6)-(7) FS; §120.569(2)(a) FS). Thus, the First Charge coursed through the State of Florida’s administrative circuit; where Defendant amplified its retaliation against Plaintiff (eg, lethal attack, smear campaigns, etc.) – among other things.
5. So, on April 10, 2019, Plaintiff filed his second discrimination charge against Defendant (“Second Charge”). Emailing it to the FCHR; who blessed it with a same-day timestamp (2:25 PM on 4/10/19). Despite more state-sponsored treachery (eg, phantom notices, refusal/reluctance to relinquish jurisdiction), Plaintiff was able to enter the court system.
6. On August 12, 2020, Plaintiff initiated this lawsuit.
7. On May 21, 2021, Defendant filed a document in this court; one which contradicted its/the-state’s original [notarized] affirmation/confirmation (¶2-3 supra). Defendant’s document was titled “Defendant’s Response in Opposition...and Supporting Memorandum of Law” (“That Response”) {#53}.
9. Importantly, this Court has yet to rule on That Motion.
Recent Transgressions
“...as evidenced by Ex. 1 attached hereto, the April 10, 2019, Complaint reveals the [Second Charge]...” - Defendant | Reply to ‘That Request’ | Page 4 | {103}13. In summary, Defendant:
b. acknowledged that April 10, 2019 was the filing date of Plaintiff’s Second Charge.
Analysis
“As this court and other appellate courts have repeatedly held, the burden of proving the absence of a genuine issue of material fact is upon the moving party.” - Holl v. Talcott, 191 So.2d 40 (Fla. 1966)
“Rather, as the Court confirms, a party who moves for summary judgment on the ground that the nonmoving party has no evidence must affirmatively show the absence of evidence in the record.” - Celotex v. Catrett, 477 U.S. 317 (1986)15. In fact, Defendant even acknowledged this requirement [for an absence of rebutting evidence]:
“...a court must grant summary judgment if the movant shows that there is no genuine dispute as to any material fact...” - Defendant | ‘That Request’ | Page 10 | {99}16. In short, Defendant presented a material contradiction in a document that [Defendant even acknowledged] could not have any contradictions.
17. Thus, Defendant has – once again – tried to capitalize on a self-contradicted argument/motion (ie, That Request). One that has continued to prejudice Plaintiff’s pursuit of justice.
ii. Plaintiff’s interlocutory appeal was deemed premature; and
iii. Plaintiff has been unable to expound on additional topics, because this Court’s local rules (ie, 3.01(a)(b)) limit the size of his motions/responses.
Legal Application
“A claim is frivolous if it is without arguable merit either in law or fact.”19. That Request was also dilatory.
b. Moreover, 3.5 years have passed since Plaintiff filed this lawsuit; and he still awaits his full & fair opportunity to litigate this matter.
“The goal of Rule 11 sanctions is to ‘reduce frivolous claims, defenses, or motions, and to deter costly meritless maneuver’”
“Rule 11 sanctions are designed to discourage dilatory or abusive tactics and help to streamline the litigation process by lessening frivolous claims or defenses.”21. According to the appellate courts of Florida, sanctions are appropriate for repeated transgressions:
“It is well-settled law "that a party who has been guilty of fraud or misconduct in the prosecution or defense of a civil proceeding should not be permitted to continue to employ the very institution it has subverted to achieve her ends...22. In the instant case, Defendant has made repeated “misrepresentations and omissions” that have gone “to the heart of” its argued defenses. Namely, Defendant has:
The record reveals that plaintiff's misrepresentations and omissions about her accident and medical history in interrogatories and in deposition went to the heart of her claim and subverted the integrity of the action.”
b. lied about the [correct] April 10, 2019 filing date.
b. extrinsic frauds (fraud is sanctionable according to Martin v. Automobili, 307 F.3d 1332 (11th Cir. 2002));
c. omissions (omissions are sanctionable according to Metro Dade-County v. Martinsen, 736 So.2d 794 (3DCA 1999)); and
d. bad faith (bad faith transgressions are sanctionable according to In Re Mroz, 65 F.3d 1567 (11th Cir. 1995)).
“sanctions are warranted when the [transgressor] exhibits a deliberate indifference to obvious facts” - Baker v. Alderman, 158 F.3d 516 (11th Cir. 1998)
