United States District Court, S.D. Mississippi, Northern Division
MEMORANDUM OPINION AND ORDER
T. WINGATE, UNITED STATES DISTRICT COURT JUDGE.
this Court is a Motion for Reconsideration [Docket No. 94]
filed on October 3, 2016, by Plaintiff Michael Chase
(“Plaintiff”). Plaintiff filed this Motion
following this Court's Order to Dismiss with Prejudice
[Docket No. 89] and Final Judgment [Docket No. 90] in favor
of Defendants Ivan Dietrich and Norco Corporation filed on
September 22, 2016. The motion requests that this Court
reconsider its dismissal of Plaintiff's case, and asserts
that the Court abused its discretion by dismissing this case
AND PROCEDURAL HISTORY
matter arises out of a motor vehicle accident that occurred
on Sunday, January 19, 2014, on Interstate 20 near Meridian,
Mississippi. Chase was driving a 1999 Mercury Villager, and
Dietrich was driving a tractor-trailer owned by Norco
Corporation. The accident involved Dietrich colliding with
Chase, causing damage to both vehicles. Medical records
indicated that Chase's whole blood alcohol content tested
after the collision was 0.325 grams of alcohol per 100
milliliters of blood, which is more than four times the legal
limit of 0.08 grams per milliliter. Chase allegedly was also
driving at a speed of seven to ten miles per hour when the
collision occurred, and was driving with a deflated right
rear tire, causing him to move along the highway in an
erratic and unsafe manner, determinations he disputes.
filed their Motion to Dismiss [Docket No. 51] on May 1, 2015
based on Chase's failure to comply with the Federal Rules
by providing false testimony under oath. Such testimony
• False statements under oath concerning how much
alcohol Plaintiff had to drink in the twenty-four hours
preceding the collision;
• False statements under oath concerning how fast Chase
was driving at the time of the collision;
• Repeated false statements under oath concerning
Chase's history of driving under the influence of
• False statements under oath regarding the status of
Chase's driver's license and his history of other
traffic citations; and,
• False statements under oath concerning his verified
Court, after reviewing these instances of false testimony by
Chase, determined that dismissal with prejudice was
warranted, as explained to the parties during a telephonic
hearing conducted by this court on September 20, 2016. The
Court's Order granting the motion to dismiss [Docket No.
89] was entered on September 22, 2016. Plaintiff now asks
this Court to reconsider its ruling.
Court is not persuaded by Plaintiff's assertions. A
federal district court is authorized by Rule 41(b) to
“dismiss an action or claim of a party that fails to
prosecute, to comply with the Federal Rules, or to obey an
order of the court, Fed.Rule Civ.Proc. 41(b)[.]”
Chambers v. NASCO, Inc., 501 U.S. 32, 62, 111 S.Ct.
2123, 2142, 115 L.Ed.2d 27 (1991) (emphasis added).
Fifth Circuit has stated that it “ordinarily will
affirm a dismissal with prejudice only if: (1) there is a
clear record of delay or contumacious conduct by the
plaintiff, and (2) lesser sanctions would not serve the best
interests of justice.” Brown v. Oil States Skagit
Smatco, 664 F.3d 71, 77 (5th Cir. 2011.) The Fifth
Circuit will only reverse this Court's decision if it
finds an abuse of discretion. Brown, 664 F.3d at 76.
In affirming these cases, the Fifth Circuit has dismissed
many cases with prejudice that have involved the presence of
one or more of three “aggravating factors”: (1)
the delay or failure to comply is attributable directly to
the plaintiff, rather than his attorney; (2) actual prejudice
to the defendant; and (3) the delay or failure to comply is
caused by intentional conduct. Callip v. Harris Cnty.
Child Welfare Dep't., 757 F.2d 1513, 1519 (5th Cir.
1985). The Fifth Circuit also considers dismissal with
prejudice a more appropriate sanction when the conduct in
question is that of the plaintiff, not the attorney.
Brown, 664 F.3d at 77 (citing Brinkmann v.
Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 749
conduct, as explained by the Court, is shown by a lack of
respect for the Court or the Rules governing the judicial
process and procedure. McNeal v. Papasan, 842 F.2d
787 (5th Cir. 1988) (“[I]t is not a
party's negligence-regardless of how careless,
inconsiderate, or understandably exasperating-that makes
conduct contumacious; instead, it is “the stubborn
resistance to authority” which justifies a dismissal
with prejudice.”). Intentionally lying under oath, as
Plaintiff did in our present case, constitutes contumacious
conduct necessary for district courts to appropriately
dismiss a plaintiff's entire case as a sanction.
Brown, 664 F.3d at 77-78 (affirming district
court's dismissal with prejudice and agreeing that
“This [oath] is not trivial. The proper administration
of justice depends on people testifying truthfully under
15, 2017, this Court heard oral arguments on this Motion for
Reconsideration of this Court's previous Order Granting
Dismissal with Prejudice [Docket No. 89] The Court previously
dismissed Plaintiff's case with prejudice due to
Plaintiff's lying under oath during his deposition and
intentionally providing false testimony in his interrogatory
responses. Plaintiff, in arguing for a reconsideration,
provided no evidence of anything other than willful and
contumacious conduct warranting dismissal, as the Court
previously held. Plaintiff offered no evidence of any abuse
of discretion by the Court, and as such the Court follows the
jurisprudence by the Fifth Circuit and is persuaded to deny
reconsideration of its previous ruling.
most pertinent instances of Plaintiff's conduct follow
False Testimony Regarding Plaintiff's Other Traffic
testimony in response to questions about his prior traffic
citations leads this court to agree that Plaintiff has
intentionally lied under oath in the discovery process.
During his deposition, Plaintiff was asked if he had ever
received any other traffic citations other than the DUIs
previously discussed, to which he firmly replied that he had
Q. Other than the -- your past DUIs, have you ever received
any traffic tickets?
MR. EVANS: Be absolute certain. If you have, you better tell
THE WITNESS: No.
[Pl.'s Dep. at 196:19-197:1.]
later discovered by Defense counsel that Plaintiff had at
least fourteen (14) traffic citations other than DUIs, a
partial listing is as follows:
• On October 19, 2007, he was ticketed for No
Driver's License and Careless Driving in Newton County
(the charges were ultimately dismissed).
• On August 29, 2009, he was ticketed for No/Expired
Driver's License in Scott County. He was found guilty and
• On January 25, 2011, he was ticketed in Newton County
for No or Expired Inspection Sticker, Speeding, No
Driver's License, and Possession of Liquor. The
Inspection Sticker charge was dismissed. Plaintiff was found
guilty of the remaining charges and fined. He never paid the
fines and there is an active warrant for his arrest.
• On April 2, 2011, he was ticketed in Newton County for
No Driver's License. He was found guilty and fined, but
never paid the fine. There is an active warrant for his
arrest in connection with this charge.
• On February 5, 2013, he was ticketed in Scott County
for Possession of Liquor/Whiskey, Careless Driving, No Motor
Vehicle Liability Insurance, No/Expired Driver's License,
Switched Tag and Seatbelt Violation. He was found guilty of
each charge and fined.
[Docket No. 51, Exhibit 5].
counsel argues that because many of these traffic citations
were issued in conjunction with the DUIs, Plaintiff simply
couldn't remember them as separate instances. Due to his
history of alcoholism and the head injury Plaintiff sustained
during the accident, his counsel argues, Plaintiff's
failure to remember these citations separate from his DUIs
cannot be proof of intentional fabrication, and such failure
is not material to the issues in this case. In his response
to Defendant's motion to dismiss, Plaintiff includes an
affidavit of his girlfriend stating that he has displayed
problems with his memory following the incident. [Docket No.
64, Exhibit 2]. Plaintiff, however, does not include any
medical report from a licensed physician stating that the
injury sustained in the incident caused him to suffer memory
loss preventing him from being able to fully answer his
the Defendant points out that while Plaintiff asserts that
his inconsistent answers are due to a loss of memory and not
intentional fabrication, he does not have any problem
remembering other specific details about the incident,
• He was driving “45, maybe 50” miles per
hour at the time of the accident, and specifically remembers
looking at his speedometer because he didn't want to get
pulled over for speeding. (Pl.'s Dep. at 151:22-152:13;
• He knew he wasn't driving on a rim with no tire at
the time of the accident, “to his knowledge” and
denied driving his vehicle on a rim the night of the accident
(even though his own expert witness says he was).
(Id. . at 178:6-11; 179:14-16.)
• He saw the 18-wheeler driven by Dietrich when the
18-wheeler was about 100 yards behind him, specifically
remembers looking out the mirror on his left side; remembers
that there was no vehicle next to Chase; no vehicle next to
Dietrich; looked up again and there was a vehicle 50 yards
behind him; then the next thing he heard was the sound of the
collision. (Id. at 179:17 - 180:14.)
• Remembers that he was not driving his vehicle
partially in the emergency lane (even though his own expert
witness says he was). (Id. at 180:15
• Remembers that he was in his lane just before impact.
(Id. at 180:22-25.)
• Remembers how quickly the 18-wheeler approached him
from the rear and even specifically which mirror he looked in
to see the truck approaching. (Id. . at 181:10-20.)
• Remembers the specific sequence of which mirrors he
looked at and when just before the accident: first the rear
view, then the door mirror to check the left lane, and
finally looked in the rearview mirror again just before
impact. (Id. . at 181:17 - 182:5.)
• Remembers that that tractor trailer's lights were
on low beam. (Id. at 185:5-13.)
• Remembers hearing the truck blow his horn before
impact. (Id. at 185:18-24.)
• Remembered feeding dogs before he left to go to York,
Alabama, to the “hole in the wall” lounge where
he was drinking. (Id. at 109:7:12.)
• Remembered that, before he left to go to York, one of
his fiancée's daughters was not home from school
yet, but that his fiancée's other child was home.
(Id. at 109:14-16.)
• Remembered that he gave an acquaintance $23,
“with taxes and all” to buy a half of a gallon of
gin. (Id. at 112:17-20; 115:19-20.)
• Remembers that he ate a chicken and a biscuit for
breakfast the morning before the accident, but that he had no
lunch or dinner. (Id. at 125:10-24; 129:4-11.)
[Docket No. 99, pp. 20-21].
selective memory, as exhibited in his deposition, is not
favorable to his asserted defense of memory loss, and the
Court is not persuaded by this assertion that Plaintiff was
not intentionally lying under oath.
Plaintiffs False Testimony Regarding the Status of
Plaintiff s Driver's License
testimony regarding the status of his driver's license is
particularly important to the Court's determination that
Plaintiff intentionally lied under oath. Throughout his
deposition, Plaintiff gave different accounts as to the
status of his driver's license, before finally admitting
that he had never obtained a driver's license from any
state, much less a valid license from Mississippi:
Q. Do you have an old driver's license?
A. No. I have an ID.
Q. All right. Can I-can I see your ID?
Q. Thank you.
Mr. Robinson: Can I get a photocopy of this in a little bit,
Mr. Evans: Yeah. I - let me - let me hand it to somebody and
tell them to go get it.
Mr. Robinson: All right. Thank you.
By Mr. Robinson:
Q. Mr. Chase, why don't you have a driver's license?
A. It's been suspended, taken from me.
Q. Why was your driver's license suspended?
A. Due to a DUI.
Q. Okay. When was your driver's license suspended for the
DUI you're mentioning?
A. Last year or a year and a half, two years ago- -
Q. All right.
A. -- if not more.
Q. Was that in connection with this accident or - or another
A. No. With this accident.
Q. Have you made an application to - to get a new
A. No I just re-had to go to a class, and you have to pay a
$100 reinstatement fee, which I didn't have to pay.
Q. So you're saying that this driver's
license-you're saying that you had a valid driver's
license at the time of this automobile accident?
Q. Why did you not have a valid driver's license at the
time of this automobile accident?
A. It'd been taken.
Q. So it had been taken away before this accident?
Q. All right. And that was in connection with another DUI,
A. Correct. Pl.'s Dep. pp. 12, 13.
Plaintiff would change his story again regarding his
driver's license as a result of a DUI he received in
Forest, Mississippi, in 2012:
Q. Okay. Were you convicted of DUI?
Q. Well, why did they take your license then?
A. Well, when they give me a DUI, I had to go to court and
pay a fine.
Q. Uh-huh. (affirmative response).
A. So that's as far as I ...