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Rogers v. Medline Industries, Inc.

United States District Court, S.D. Mississippi, Southern Division

December 19, 2018

RICHARD K. ROGERS PLAINTIFF
v.
MEDLINE INDUSTRIES, INC., AND JOHN DOES 1-5 DEFENDANTS

          MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION [53] FOR DEFAULT JUDGMENT, [OR] ALTERNATIVELY, FOR SANCTIONS, AND DENYING PLAINTIFF'S MOTION [62] TO STRIKE SECOND DECLARATION OF KATIE HALBERG

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT are Plaintiff's Motion [53] for Default Judgment, [or] Alternatively, for Sanctions, and Plaintiff's Motion [62] to Strike Second Declaration of Katie Halberg. For the reasons that follow, the Court finds that both Motions should be denied.

         I. BACKGROUND

         This is 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. [1] 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. [1] at 1. The Complaint [1] 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.

         During 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 [52] for Default Judgment, [or] Alternatively, for Sanctions. Pl.'s Mot. [52]. Plaintiff claims that Gallarelli committed perjury during his deposition, and that Plaintiff is entitled to sanctions as a result. Pl.'s Mem. [54] at 2-3.

         Specifically, 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.[1] Pl.'s Mem. [54] at 6-7.

         On July 30, 2018, Medline filed a Response [60] 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. [60] at 3-4, and that the deposition during which Rogers claims Gallarelli perjured himself was taken in his individual capacity as a fact witness, [2] id. at 5.

         Defendant 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 [53] 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.

         In his Reply [63] [64], [3] 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 [64] at 4-5.

         Plaintiff has also filed a Motion [62] to Strike [the] Second Declaration of Katie Halberg, which was attached as an exhibit to Medline's Response [60]. Mot. [62] 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. [71] at 5-7.

         II. DISCUSSION

         A. Plaintiff's Motion [53] for Default Judgment, [or] Alternatively, for Sanctions

         1. The Court's power to sanction a party

         A court may impose sanctions, including dismissing claims or rendering a default judgment, against a party who fails to obey discovery orders. Fed.R.Civ.P. ...


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