| ELIAS MAKERE, FSA, MAAA Appellant/Plaintiff vs. ALLSTATE INSURANCE COMPANY, Appellee/Defendant |
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) |
CASE NUMBER 24-11336-JJ Case No (LT): 3:20-cv-00905-MMH-LLL US District Court, Florida, Middle District |
PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF
'PLAINTIFF’S RENEWED 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 the judiciary.
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 February 9, 2021, Plaintiff asked this Court to take judicial notice of Plaintiff’s [officially] time-stamped charge of discrimination (¶5 supra) {#41}.1/
8. 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}.
10. On May 27, 2021, Plaintiff moved this Court to take judicial notice of the facts underlying Defendant’s unlawful change-of-tune. The paper was titled “Plaintiff’s Motion for Judicial Notice of Defendant’s Official Position Statement...” {#54}. Soon thereafter, Plaintiff followed up with That Motion.
11. Then, fourteen days later – on June 11, 2021 – Plaintiff moved this Court to punish Defendant (via Rule 11 Sanctions) for Defendant’s material lie.
B | Defendant’s Repeated Perjurous Misconduct – The Trial Court
15. On November 28, 2023, Defendant replied {#103}. Therein, it acknowledged that April 10, 2019 was [indeed] the date that Plaintiff filed his Second Charge. Defendant even attached the document (which featured the April 10, 2019 timestamp); referencing it as follows:
“...as evidenced by Ex. 1 attached hereto, the April 10, 2019, Complaint reveals the [Second Charge]...”16. At last – on March 26, 2024 (ie, 2+ years later) – this Court finally ruled on Plaintiff’s [first] Motion for Sanctions (¶11 supra). Thereby denying it on account of a procedural technicality (highlights added):
“[Plaintiff] asserts that he satisfied the [procedural requirement] via emails and phone calls he exchanged with opposing counsel...However, [the procedural rule] specifically requires service of the motion...Accordingly [Appellant’s First] Motion for Sanctions is due to be denied.”Within that same order, importantly, this Court granted judicial notice of the 4/10/19 filing date [of Plaintiff’s Second Charge] (¶7 supra).
17. On April 11, 2024 – and imbued with this Court’s rescue – Defendant repeated its perjury. Thereby telling this Court [once again] that Plaintiff’s First Charge did [not] include a basis of sex discrimination. Defendant did so, notably, while [once again] aiming to molest Plaintiff’s time & money.
18. So, on May 6, 2024, Plaintiff [once again] moved this Court to punish Defendant (via Rule 11) for Defendant’s [repeated] lie of material fact.
19. On August 9, 2024, this Court deferred ruling on Plaintiff’s Renewed Motion for Sanctions (¶18 supra); thereby ripening the ongoing appeal.2/
B | Defendant’s Repeated Perjurous Misconduct – The Trial Court
21. On Page 4 of That Brief, Defendant [falsely] claimed that Plaintiff’s First Charge (¶1 supra) was on the basis of race only. Thereby repeating the same lie that Defendant told in 2021 + 2024 (¶8 + ¶17, respectively):
“On June 30, 2017, [Plaintiff] filed his first Charge of Discrimination (“2017 Charge”) with the Florida Commission on Human Relations (“FCHR”) alleging claims of race discrimination and retaliation in violation of the FCRA. [Doc. 99-1]. The 2017 Charge did not allege any claim of sex or color discrimination or sexual harassment. [Id.].”22. On Page 7 of That Brief, Defendant [falsely] claimed that Plaintiff filed his Second Charge on April 26, 2019. Thereby repeating the same lie that Defendant has told numerous times (¶13, ¶15, supra):
“on April 26, 2019, [Plaintiff] filed a second Charge of Discrimination (“2019 Charge”) with the FCHR. [Doc. 99-8].”23. On Page 8 of That Brief, Defendant [falsely] claimed that: (i) Plaintiff had an attorney for his Second Charge; and (ii) the Second Charge was ‘the only pending charge’ [at the May 3, 2019 juncture]:
“On May 3, 2019, [Plaintiff]’s attorney requested the FCHR “enter [his] appearance as attorney of record for the above-named client.” [Doc. 99-10]. At the time, only [Plaintiff]’s 2019 Charge remained pending with the FCHR.”This lie was particularly/Allstatedly absurd, because just moments earlier – in that same document – Defendant admitted that Plaintiff’s First Charge was still pending [on May 3, 2019]:
“On June 27, 2019, the FCHR entered its Final Order [on Plaintiff’s First Charge]…”
While the FCHR investigated [Plaintiff’s Second Charge], on September 5, 2019, [Plaintiff] filed an appeal with the First District Court of Appeals (“DCA”). contesting the FCHR’s Final Order on [Plaintiff’s First Charge].”24. In summary, Defendant – just yesterday – repeated its two lies of material fact. Plus, Defendant added a third [known & material] falsehood.
ii. An amended notice, importantly, that Defendant read/examined.
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.”
“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.”26. 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...”27. Put together, Defendant presented a material contradiction in a document that [Defendant even acknowledged] could not have any contradictions.
28. Moreover, Defendant repeated its [repeated] lies at the 11th Circuit Court of Appeal. Doing so in its Answer Brief (ie, “That Brief”) (¶20). Thereby showing a disregard for: (a) the truth; (b) facts; (c) logic; and/or (d) the law.
29. Plus – by trying to capitalize on its lies (and self-contradictions) – Defendant has [once again] prejudiced 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
31. That Brief was [also] frivolous.
32. They were frivolous because they contradicted themselves in material ways; thereby making them meritless. The 11th Circuit deems meritless, self-contradicting claims to be frivolous:
“A claim is frivolous if it is without arguable merit either in law or fact.”33. That Request was also dilatory; ditto for That Brief.
“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.”35. 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...36. 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; and
c. lied about Plaintiff [never] having an attorney for the Second Charge.
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)).
39. In concert with That Motion, Plaintiff hereby reiterates his request for this Court to prohibit Defendant from arguing res judicata/collateral estoppel (authorized by Rule 37(b)(2)(A) Fed. R. Civ. P.). Defendant’s own submitted documentation has proven the argument(s) to be based on a series of dogged lies. Evidencing the former employer’s dogmatic indifference to obvious fact:
“sanctions are warranted when the [transgressor] exhibits a deliberate indifference to obvious facts”
