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Icon-UpArrow Sanctions #2 (Makere v Allstate)

I | PLAINTIFF’S RENEWED MOTION FOR SANCTIONS AGAINST ALLSTATE INSURANCE COMPANY

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA, JACKSONVILLE DIVISION
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 RENEWED MOTION FOR SANCTIONS

Plaintiff, ELIAS MAKERE, on this 6th day of May 2024, respectfully asks this Court to levy sanctions – pursuant to Rule 11 Fed. R. Civ. P. – against Defendant, ALLSTATE INSURACE COMPANY.



Key Points:
• Points: demonstrable lies of material fact; prejudice to Plaintiff; • Grounds: extrinsic fraud upon the court; bad faith;
Table of Contents:
Context3rd Page
Motion3rd Page
Certificates18th Page
Exhibits19th Page
Transcripts68nd Page
Affidavits74th Page
Background:Court judicially noticed material facts
Problem:Defendant injured Plaintiff with material lies
Request:Court punishes Defendant for defiling the judiciary
Rule 11(c)(1) | Fed. R. Civ. P. | Sanctions | (highlights added)
"If... the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any... party that violated [it]”
Rule 37(b)(2)(A) | Fed. R. Civ. P. | Sanctions | (highlights added)
“the court where the action is pending may issue further just orders [which may include]:
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses...;

(iii) striking pleadings in whole or in part;

(vi) rendering a default judgment against the disobedient party;”
Local Rule 2.01(e) | USFLMD | Conduct | (highlights added)
“(e) CONDUCT. A lawyer appearing in the Middle District must remain familiar with, and is bound by, the rules governing the professional conduct of a member of The Florida Bar.”
Rule 3-4.3 | Rules Regulating the Florida Bar | Misconduct
“The commission by a lawyer of any act that is unlawful or contrary to honesty and justice may constitute a cause for discipline”
Precedence
• 3:22-cv-00731-TJC-LLL- USFLMD (2/5/24)
• 6:23-cv-01115-RBD-LHP- USFLMD (1/24/24)
• 3:20-cv-00857-MMH-LLL- USFLMD (6/13/23)
• 6:18-cv-01499-WWB-LHP- USFLMD (3/8/22)
• 5:20-cv-00095-JSM-PRL- USFLMD (2/9/22)
• 5:20-cv-00227-JSM-PRL- USFLMD (4/21/21)
• 2:19-cv-00248-JLB-MRM- USFLMD (1/19/21)

This Court has recently granted similar motions for sanctions
Abbreviations
{#NN}Docket Entry NN [of this case]
FCHRFlorida Commission on Human Relations
FSFlorida Statute
USFLMDUS District Court, Florida, Middle District

MOTION

I. Relevant History

1. On June 30, 2017, Plaintiff filed an employment discrimination charge with the FCHR (“First Charge”). Pursuant to §760.11(1) FS, he alleged that Defendant had violated his civil rights on the bases of race and sex. [Exhibit A]

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”. [Exhibit B]

3. On December 15, 2017 the FCHR concluded its investigation. Notably affirming that race and sex were the bases of Plaintiff’s First Charge. [Exhibit C]

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). [Exhibit D/E] Despite more state-sponsored treachery (eg, phantom notices, refusal/reluctance to relinquish jurisdiction), though, 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).
a) Roughly three years later – and due to Defendant’s repeated lies (¶10-12 infra) – Plaintiff supplemented his request. Doing so on November 17, 2023 {#103}.

b) Importantly – on March 26, 2024 (ie, 3+ years after Plaintiff initially filed it) – this Court granted judicial notice.
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 First Response”) {#53}.
a) That First Response said that Plaintiff’s First Charge was on the basis of race only. In other words, Defendant thereby [falsely] claimed that Plaintiff’s First Charge did not include a sex discrimination basis (highlights/underlines added):
“On June 30, 2017, Plaintiff filed a Charge of Discrimination (“First Charge”) with the FCHR, which alleged racial discrimination, as well as retaliation, in violation of the FCRA. See Exhibit A...

On January 19, 2018, Plaintiff filed a 231-page Petition for Relief (“First Petition”) with the FCHR. See Exhibit C. The First Petition included allegations of race discrimination not previously presented to the FCHR and therefore not part of the FCHR investigation. Plaintiff also, for the first time, alleged sex discrimination and/or sexual harassment”
9. 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} (hereinafter “That Motion”).
a) On October 13, 2021, this Court denied That Motion. However, it instructed Plaintiff to attach the position statement to his amended complaint. Plaintiff obliged (see {#73} at Exh. D).
10. On October 31, 2023, Defendant filed a motion for summary judgment (“That Request”) {#99}.
a) Therein, the former employer claimed that Plaintiff’s filing date [for his Second Charge] was April 26, 2019.
i. A false claim that Defendant based its arguments on.

11. Fourteen days later – on November 14, 2023 – Plaintiff responded in opposition {#101}.
a) Thereby pointing out the fatal flaw in That Request.
12. 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]...”

Recent Transgressions

13. On April 11, 2024, Defendant filed “Defendant’s Amended Motion for Determination of... Attorneys’ Fees” (“That New Motion”).1/ Whereby Defendant continued with its demonstrable lies of material fact.
a) On Page 4 of That New Motion, 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 (¶8 supra) (highlights added):
“Thereafter, on June 30, 2017, Plaintiff filed a Charge of Discrimination (“2017 Charge”) with the FCHR alleging claims of race discrimination and retaliation in violation of the FCRA. See Dkt. 99-1. The First Charge did not allege any claim of sex or color discrimination or sexual harassment.”
b) On Page 7 of That New Motion, Defendant [falsely] claimed that Plaintiff filed his Second Charge on April 26, 2019. Thereby repeating the same lie that Defendant has told numerous times (¶10, ¶12 supra) (highlights added):
“on April 26, 2019, Plaintiff filed a second Charge of Discrimination (“2019 Charge”) with the FCHR.”
14. In summary, Defendant has:
a) repeated its lie about [not] being sued for sex discrimination;

b) repeated its lie about [not] being sued on April 10, 2019; and

c) used both lies as the basis for its latest molestation of Plaintiff’s substantial rights.

Defendant’s Contempt for Recognizing Facts (and/or Conferral)

15. On April 11, 2024, Plaintiff told Defendant that Plaintiff was going to file a motion for sanctions [Exhibit F]. After receiving a copy of Plaintiff’s prospective motion, Defendant responded by saying that it would oppose Plaintiff’s request.

16. On April 12, 2024, Plaintiff asked Defendant to pick a time to discuss Defendant’s violative conduct. Thereby citing:
a) Local Rule 3.01(g) (ie, duty to confer);

b) Davis v. Apfel, 6:98-cv-0651, 2000 WL 1658575 (USFLMD 8/14/00)

c) Desai v. Tire Kingdom, 944 F.Supp. 876 (USFLMD 1996); and

d) Donaldson v. Clark, 819 F.2d 1551 (11th Cir. 1987).
17. Yet, Defendant refused to confer (in further violation of this Court’s local rules)2/.

18. Thus, Plaintiff spent the next three weeks asking Defendant to recognize the facts which prove Defendant’s fraud upon the court. He did so via twenty-plus (20+) communications (50-50 on calls/emails). [Exhibit F]

19. However, Defendant failed to:
a) answer direct questions; and/or

b) supply specific admissions/refutations.
20. Instead, Defendant opted to lob repeated [bad faith] gripes of a moot point. Thereby cementing its refusal-to-confer (and its waste-of-time).

II. Analysis

21. Defendant’s pattern of deceit has perpetrated a fraud upon this Court. One which it exercised with its two demonstrable lies of material fact.
a) First, Defendant demonstrated its deceit when it told its [repeated] lie regarding the sex discrimination basis [found within Plaintiff’s First Charge] (¶8, ¶13a supra).

b) Second, Defendant multiplied its deceit when it told its [repeated] lie regarding the filing date of Plaintiff’s Second Charge (¶10, ¶12, ¶13b supra).
22. Defendant has also exercised bad faith throughout this proceeding. Thereby illustrating its dishonest conduct at two distinct points.
a) One such distinct point was in May/June 2021. Whereby Defendant refused to:
i. correct its misconduct;

ii. answer direct questions regarding its misconduct; and

iii. confer in good faith (pursuant to Rule 11 Fed. R. Civ. P.).
b) Another distinct point was in April/May 2024. Whereby Defendant – once again – refused to:
i. correct its misconduct;

ii. answer direct questions regarding its misconduct; and

iii. confer in good faith (pursuant to Rule 11 Fed. R. Civ. P.).
23. Then, fully exercised & hydrated, Defendant arced a frivolous motion into this Court (¶13 supra). It did so when it used its two lies (¶21) – individually and in total – to seek attorney fees. Thereby aiming to [further] molest Plaintiff’s time & money.
a) But-for Defendant’s frivolous motion {#110}/{#114}, Plaintiff would not have had to respond with five filings of his own (see {#112}, {#115}, {#116}, {#120}, and {#122}). Nor would Plaintiff have had to exhaust dozens of responsive communications (¶18). All of these activities, pertinently, took Plaintiff more-than twenty (20) hours to complete.

b) Also, but-for Defendant’s frivolous motion, this Court would not have cause to entertain the thought of reaching into Plaintiff’s wallet.
24. Plaintiff immediately notified Defendant of its sanctionable misconduct (¶15-20 supra). Importantly, Plaintiff sent Defendant a copy of Plaintiff’s prospective Motion for Sanctions (¶15).

25. Defendant, of course, responded in bad faith. An act that has multiplied this proceeding – in an unreasonable and vexatious way. An act, notably, that has defiled the integrity of this Court. An attack on the judiciary, importantly, that this Court can punish (and deter).

III. Standard for Review

26. Rule 11 Fed. R. Civ. P. gives this Court the power to sanction violative litigants (highlights added):
“If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation... A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion.”
27. The US Supreme Court, importantly, has reinforced this “inherent power” (highlights added):
“It has long been understood that “[c]ertain implied powers must necessarily result to our Courts of justice from the nature of their institution”...Prior cases have outlined the scope of the inherent power of the federal courts. For example, the Court has held that a federal court has the power to control admission to its bar and to discipline attorneys who appear before it...In addition, it is firmly established that “[t]he power to punish for contempts is inherent in all courts.””
28. The Nasco Court further explained that fraud and/or bad faith are prime reasons for receiving sanctions (highlights added):
“In this regard, if a court finds “that fraud has been practiced upon it, or that the very temple of justice has been defiled,” it may assess [sanctions] against the responsible party... as it may when a party “shows bad faith by delaying or disrupting the litigation...”
29. Thus, in short, this Court has the authority to sanction litigants who:
a) perpetrate frauds upon the court; and/or

b) exercise bad faith while disrupting the proceeding.

IV. Application

30. Defendant – in the instant case – has committed both offenses.

31. For starters, Defendant [repeatedly] perpetrated a fraud upon this Court (¶21 supra). The textbook definition of Extrinsic Fraud is as follows:
“fraud that prevents a party... from having a fair opportunity to present or litigate [his rights] at trial. It is a ground for equitable relief from a judgment.”
32. The 11th Circuit Court of Appeals has long-established that fraud upon the court is sanctionable (highlights added):
“Courts have the inherent authority to control the proceedings before them, which includes the authority to impose "reasonable and appropriate" sanctions. See Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1545 (11th Cir. 1993). A court also has the power to conduct an independent investigation to determine whether it has been the victim of fraud.”
33. As the record shows, Defendant’s lie about [not] being charged with sex discrimination was aimed at preventing Plaintiff from ever having a full & fair opportunity to litigate his case (¶8 supra).
a) Then, Defendant repeated that lie in its attempt to take Plaintiff’s money (¶13).
34. In McDonnell-Douglas v. Green, 411 US 792 (1973) (“The Seminal Case”), the US Supreme Court held that excluding a charged basis of discrimination equates to a violation of due process:
“We cannot agree that the dismissal of [employee’s race] claim was harmless error... [Employee] should have been accorded the right to prepare his case and plan the strategy of trial with the knowledge that the [race] cause of action was properly before the [Lower Tribunal]. Accordingly, we remand the case for trial of [employee]’s claim of racial discrimination consistent with the views set forth below.”
35. In Taser v. Phazzer (6:16-cv-00366-PGB-LHP), this Court held that repeated lies will justify sanctions (highlights added):
“Simply put, like Ms. Robinson, [nonmovant] will lie and misdirect until confronted with irrefutable evidence. [Nonmovant] perpetrated the same deception when he claimed that Leonidas LLC was created for Mr. Chang due to his limited fluency in English. (Doc. 719, pp. 13–14). And again when he lied by saying his cousin Jason Abboud formed Phazzer IP. (Id. at p. 15). This has been a pattern throughout the underlying litigation and these proceedings... 1. Taser’s Motion for Default and Sanctions against [Nonmovant] (Doc. 719) is GRANTED.”
36. Thus, this Court is well-positioned to enter sanctions against Defendant in the instant case. And Plaintiff hereby asks this Court to do just that, because – as in the Taser case – Defendant is a nonmovant who has [repeatedly] “perpetrated the same deception” in this Court.

37. Similarly, Plaintiff also asks this Court to sanction Defendant for Defendant’s commitment to acts of bad faith.

38. The 11th Circuit has detailed that a determination of bad faith is founded on dishonesty (highlights added):
“The text of Rule 11 permits sanctions only if the objectionable court paper is "signed in violation of this rule." Id. at 1507. Accordingly, the court's inquiry focuses only on the merits of the pleading gleaned from facts and law known or available to the attorney at the time of filing.”
The 11th Circuit further directs district courts to focus sanction reviews on the transgressor’s dishonest conscience:
“The court is expected to avoid using the wisdom of hindsight and should test the signer's conduct by inquiring what was reasonable to believe at the time the pleading, motion, or other paper was submitted.”
Plus, the textbook definition of bad faith continues to harp on dishonesty (highlights added):
“breach of faith; willful failure to respond to plain, well-understood statutory or contractual obligations; dishonesty in fact in the conduct or transaction concerned.”
39. Defendant was dishonest. It was dishonest from the get-go (¶21-22).
a) It is indisputable that the underlying ‘fact known/available’ to Defendant at the time it submitted That First Response was the first exhibit that Defendant attached to it (¶8 supra).

b) It is indisputable that the underlying ‘fact known/available’ to Defendant at the time it submitted That Request (and That New Motion) was the exhibit that Defendant attached to it (¶12 supra).
40. Thus, Defendant’s own submissions have contradicted its “factual contentions”.

41. Defendant lied. The Courts say so. The textbooks say so. And – given Defendant’s continued lack of self-correction (¶22 supra) – this tribunal should say so, too.

42. Plaintiff, of course, hereby asks this Court to ‘say so’ with appropriate sanctions.
a) Especially considering how Plaintiff satisfied the 21-day safe harbor provision – found in Rule 11 Fed. R. Civ. P. (¶24 supra).
i. Please accord Rule 5(b)(2)(E) Fed. R. Civ. P.

V. Nature of Relief Sought

43. Rule 37(b)(2)(A) Fed. R. Civ. P. prescribes several types of sanctions that a district court can impose on a transgressor. Plaintiff proffers (vi) as the appropriate punishment.

44. Explicitly stated, Plaintiff asks this Court to enter final judgment against Defendant. Because – in addition to defrauding this Court – Defendant is actually guilty of the underlying offenses {#73}.

45. Moreover, this Court can enter this final judgment after vacating its prior judgment {#108}. The US Supreme Court has set the precedent for such an occasion (highlights added):
“Of particular relevance here, the inherent power also allows a federal court to vacate its own judgment upon proof that a fraud has been perpetrated upon the court. See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U. S. 238 (1944); Universal Oil Products Co. v. Root Refining Co., 328 U. S. 575, 328 U. S. 580 (1946). This "historic power of equity to set aside fraudulently begotten judgments," Hazel-Atlas, 322 U.S. at 322 U. S. 245, is necessary to the integrity of the courts, for”
46. Such relief – in the instant case – will instill integrity in the judiciary. The same integrity which Defendant’s fraudulence has attacked.

CONFERRAL

Given the nature of this request, Plaintiff has communicated with Defendant numerous times. The first communication was an email on April 11th; and the most recent were phone calls (+ emails) on May 2nd.

Defendant only participated in one phone call, though; whereby it:
(a) refused to acknowledge its lie;

(b) refused to answer direct questions; and

(c) refused to correct its misconduct
please see [Transcript A].

Since then, Defendant has chosen to stand in opposition to this motion.

Thus – pursuant to Local Rule 3.01(g)(3) (Duty to Confer in Good Faith) and Rule 11(c)(2) Fed. R. Civ. P. (21 days to self-correct), Plaintiff has no other option but to ask for relief from Defendant’s lawlessness. Relief, importantly, in which he has compelling reasons (ie, deter litigant perjury; protect the judiciary’s integrity; etc.) to seek.

CONCLUSION

WHEREFORE, Plaintiff respectfully asks this Court to levy sanctions against Defendant for Defendant’s violation of Rule 11(b) Fed. R. Civ. P.

Dated this 6th day of May 2024.
Respectfully submitted,

/s/ Elias Makere
Elias Makere, FSA, MAAA
Plaintiff
PO Box 324
Hobart, IN 46342
P: 904.294.0026
E: Justice.Actuarial@gmail.com
W: TextBookDiscrimination.com
   Get Booked Up on Justice!

CERTIFICATE OF COMPLIANCE

I certify that the size and style of type used in this document is Century Schoolbook 14-point font (contents); thus complying with the font requirements of Local Rule 1.08 (USFLMD).

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 6th day of May 2024, I electronically filed the foregoing with the Clerk of Courts by using its online filing page. A notice – via CM/ECF – will be sent to the attached service list.
/s/ Elias Makere (5/6/24)

Endnotes:

1/ On 4/10/24, Defendant filed a violative motion. That violative motion sparked Plaintiff’s motion for sanctions. The next day (ie, 4/11/24), Plaintiff notified this Court of his forthcoming motion for sanctions (see {#112}). Minutes later, this Court denied Defendant’s violative motion (sua sponte) {#113}. Defendant refiled it, though; in nearly identical form. Thereby naming it “Defendant’s Amended Motion for Determination of... Attorneys’ Fees”

2/ On at least two occasions, this Court has rejected Defendant’s court filings (sua sponte). Doing so, pertinently, due to Defendant’s breach of Local Rule 3.01(g).
Electronic Copy (text-searchable, hyperlinked):

    TextBookDiscrimination.com/Files/USFLMD/20000905_GMOT_20240506_075410.pdf
    TextBookDiscrimination.com/Allstate/Sanctions02
    Allstate's Penchant for Employment Discrimination (500+ Cases)
    How-To Guide: How to Write a Motion for Sanctions
    How-To Guide: How to Write a Motion to Waive the 21-Day Safe Harbor Provision
    Link Complaint (HTML, PDF, Video)

EXHIBITS

TRANSCRIPTS

AFFIDAVITS

Congratulations! You're now Booked Up on the Plaintiff's Renewed Motion for Sanctions that a Floridian filed in the discrimination case against Allstate Insurance Company.

Please get the justice you deserve.

Sincerely,



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