United States District Court, S.D. Mississippi, Southern Division
RICHARD K. ROGERS PLAINTIFF
MEDLINE INDUSTRIES, INC., AND JOHN DOES 1-5 DEFENDANTS
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S
MOTION  FOR DEFAULT JUDGMENT, [OR] ALTERNATIVELY, FOR
SANCTIONS, AND DENYING PLAINTIFF'S MOTION  TO STRIKE
SECOND DECLARATION OF KATIE HALBERG
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
THE COURT are Plaintiff's Motion  for Default
Judgment, [or] Alternatively, for Sanctions, and
Plaintiff's Motion  to Strike Second Declaration of
Katie Halberg. For the reasons that follow, the Court finds
that both Motions should be denied.
an employment discrimination case arising out of Plaintiff
Richard K. Rogers' (“Rogers” or
“Plaintiff”) employment with Medline Industries,
Inc. (“Medline” or “Defendant”).
Medline employed Rogers as a salesperson from 2002 until he
was terminated in 2016. Compl.  at 2. On or about January
28, 2017, Plaintiff filed a Charge of Discrimination [1-1]
with the Equal Employment Opportunity Commission
(“EEOC”) alleging that Medline discriminated
against him on the basis of his age when it terminated him.
On January 30, 2018, the EEOC provided Rogers with a Notice
of Right to Sue [1-2], and Rogers timely filed suit against
Medline and John Does 1-10. Compl.  at 1. The Complaint
 alleges that Medline unlawfully terminated Plaintiff
because of his age in violation of the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 623.
Id. at 4.
discovery, Plaintiff deposed Mark Gallarelli, Medline's
Senior Vice President for Sales for the Southeast Region, and
on July 15, 2018, Plaintiff filed the present Motion  for
Default Judgment, [or] Alternatively, for Sanctions.
Pl.'s Mot. . Plaintiff claims that Gallarelli
committed perjury during his deposition, and that Plaintiff
is entitled to sanctions as a result. Pl.'s Mem.  at
Plaintiff claims that Gallarelli “denied that he had
ever been involved in” an incident which Plaintiff
contends occurred in 2015. Id. Gallarelli was asked
at his deposition whether he had used a Medline product, a
saline syringe, “in an inappropriate and sexually
suggestive manner towards a female sales
representative” at a meeting in 2015, in violation of
Medline's code of conduct. Id. at 3-4.
Gallarelli denied being involved in such an incident because
he could not recall it occurring. Ex. “B” [53-2]
at 30 (“I would say no. I don't recall
that.”). Rogers asserts that the deposition testimony
of J. Hunter Russum, a current Medline employee who works
under Gallarelli's supervision, directly contradicts
Gallarelli's denials, id. at 5, as Russum stated
during his deposition that he did recall the alleged
incident, Ex. “D” [53-4] at 15-16. Plaintiff
argues that because Gallarelli's testimony during his
deposition was perjurious, the Court should sanction Medline
under Federal Rule of Civil Procedure 37 or under its
inherent authority by entering a default judgment against
Medline. Pl.'s Mem.  at 6-7.
30, 2018, Medline filed a Response  in Opposition to
Plaintiff's Motion. Defendant contends that
Gallarelli's statements were not perjurious because
Gallarelli stated that he could not recall the incident,
Def.'s Resp.  at 3-4, and that the deposition during
which Rogers claims Gallarelli perjured himself was taken in
his individual capacity as a fact witness,  id. at
also claims that even if the 2015 incident occurred, it is
not relevant or material to the issues in Plaintiff's
case, and that Plaintiff's Motion  is untimely under
the Local Rules. Id. at 6. Further, Medline contends
that because Rule 37(b) only applies when a party
“fails to obey an order to provide or permit discovery,
” and no order was violated, Rule 37 is inapplicable.
Id. at 8-9. Finally, Medline asserts that the Court
should not exercise its inherent power to impose sanctions
because the requisite bad faith, judged by necessarily
stringent standards, is not present. Id. at 10-12.
Reply  ,  Rogers maintains that he has established
the falsity of Gallarelli's testimony through the
deposition testimony of another Medline employee and that
Gallarelli's testimony is relevant to Rogers' claim.
Pl.'s Reply  at 4-5.
has also filed a Motion  to Strike [the] Second
Declaration of Katie Halberg, which was attached as an
exhibit to Medline's Response . Mot.  to Strike.
Rogers argues that portions of Halberg's
“hearsay-filled Declaration should be stricken.”
Id. at 3. Medline has responded that the statements
at issue in this Declaration are not hearsay because they
reflect actions taken by Halberg in an investigation she
conducted and they are not submitted for the truth of the
matters asserted. Def.'s Resp.  at 5-7.
Plaintiff's Motion  for Default Judgment, [or]
Alternatively, for Sanctions
The Court's power to sanction a party
may impose sanctions, including dismissing claims or
rendering a default judgment, against a party who fails to
obey discovery orders. Fed.R.Civ.P. ...