The opinion of the court was delivered by: Buchwald, District Judge.
Plaintiff Holly McMunn brings this action against defendant
Memorial Sloan-Kettering Cancer Center ("Memorial") alleging
disability discrimination in violation of, inter alia, the
Americans with Disabilities Act ("ADA"). We have previously
denied a motion by Memorial for summary judgment. See McMunn v.
Memorial Sloan-Kettering Cancer Ctr., 2000 WL 1341398, at *4
(S.D.N.Y. Sept. 15, 2000) (whether Ms. McMunn is perceived to be
disabled within meaning of ADA must be determined by a jury).
Memorial now moves to dismiss the Complaint and for an award of
monetary sanctions for alleged misconduct by Ms. McMunn. For the
reasons that follow, we dismiss this action with prejudice and
award a $20,000 monetary sanction against Ms. McMunn.
Ms. McMunn brought this employment discrimination suit in
August of 1997 alleging that she was terminated by her superior,
Dr. Thomas Fahey, Senior Vice President for Clinical Program
Development, and a breast cancer specialist. She claims that,
during the six months that she worked for Dr. Fahey, she was an
"exemplary" employee and that Dr. Fahey had "frequently praised
[her] work performance," but that, when Dr. Fahey read her
medical chart on September 9, 1994, thereby learning that she
had breast cancer, he abruptly fired her. Compl. ¶¶ 1516. Ms.
McMunn alleges that Dr. Fahey
fired her "because she had breast cancer, had a record of breast
cancer, and because of [his] presumptions and fears about her
disability and perceived disability." Id. ¶ 28. Memorial
defends her termination on the ground that she was fired for a
legitimate, non-discriminatory reason, namely, that she had been
absent from work an unreasonable number of days in the few
months during which she worked for Dr. Fahey.
Memorial moves for dismissal of Ms. McMunn's lawsuit and
monetary sanctions pursuant to Federal Rule of Civil Procedure
37 and the inherent power of this Court to "fashion an
appropriate sanction for conduct which abuses the judicial
process." Chambers v. NASCO, Inc., 501 U.S. 32, 44-45, 111
S.Ct. 2123, 115 L.Ed.2d 27 (1991). Rule 37, however, only
applies to instances where a party (or certain other actors)
"fails to obey an order to provide or permit discovery."
Fed.R.Civ.P. 37(b)(2). While some of Ms. McMunn's misconduct
would clearly qualify for sanctions under this Rule, much of it
would not, as her behavior goes well beyond distinct violations
of our discovery orders.*fn2 Accordingly, we consider
Memorial's motion in the context of our broader inherent power,
because such power "extends to a full range of litigation
abuses," including fraud upon the court. Chambers, 501 U.S. at
46, 111 S.Ct. 2123; see also Skywark v. Isaacson, 1999 WL
1489038, at *14 n. 27 (S.D.N.Y. Oct. 14, 1999), aff'd 2000 WL
145465 (S.D.N.Y. Feb. 9, 2000).
We proceed herein as follows: We will discuss the concept of
"fraud upon the court," then our conclusion that the behavior at
issue here rises to that level. Next, after setting forth the
various sanctions available, we will explain our determination
that both dismissal and a monetary sanction are appropriate in
this case. Initially, however, we set out the due process
safeguards we afforded Ms. McMunn.*fn3
Dismissal with prejudice is "a particularly severe sanction,"
Chambers, 501 U.S. at 45, 111 S.Ct. 2123, even for a fraud
upon the court, and a decision to impose such a sanction must be
"made with restraint and discretion." Schlaifer Nance & Co.,
Inc. v. Estate of Warhol 194 F.3d 323, 334 (2d Cir. 1999).
Accordingly, once Memorial requested permission to make the
instant motion, see Letter from Edward A. Brill dated July 10,
2001 ("7/10/01 Ltr."),*fn4 we made every effort to ensure
that Ms. McMunn would receive the process she was due. See
Chambers, 501 U.S.
at 50, 111 S.Ct. 2123 (in exercising its inherent powers, a
court must "comply with the mandates of due process"). Due
process, in the context of sanctioning an attorney or a party,
required that Ms. McMunn be granted notice and an opportunity to
be heard. Schlaifer Nance, 194 F.3d at 335.
At a conference held on July 12, 2001, counsel for Memorial
sought "leave to move to dismiss this case based on the improper
conduct of the plaintiff." Transcript of Conference held July
12, 2001, at 2. This request was granted. Id. at 14. Memorial
served its motion to dismiss and for monetary sanctions on
August 3 and, on August 7, Gary Ireland, then counsel for Ms.
McMunn,*fn5 requested the opportunity to hire an expert to
assist in responding to Memorial's motion, as well as an
extension of time in which to submit opposition papers. See
8/7/01 Ltr. A phone conference was subsequently held on August 9
during which Mr. Ireland was granted permission to hire an
expert as well as an extension to submit an opposition brief
until September 21, 2001. In a letter dated August 14, 2001, Mr.
Ireland stated the following:
After discussions with Plaintiff, it is mutually
agreed that we can longer proceed in this action
working together. Both Plaintiff and I respectfully
request an order relieving me as counsel. In
addition, Plaintiff requests an order suspending all
discovery and motion practice for a reasonable amount
of time to afford her the opportunity to retain
8/14/01 Ltr. Memorial consented to this request on the condition
that Ms. McMunn timely meet certain outstanding discovery
obligations. 8/15/01 Ltr.
At a conference held on August 22, we granted Mr. Ireland and
Ms. McMunn's joint request. Approximately one month later, Ms.
McMunn wrote to the Court, "I am writing to propose that a fair
settlement of this case could include reasonable remuneration
with both parties dropping all actual and alleged charges. If
this is not acceptable, I would have no choice but to represent
myself pro se." 9/17/01 Ltr. (emphasis in original).*fn6 We
commenced yet another conference on October 4, 2001, in order to
At this conference, Ms. McMunn acknowledged that she was not
sure what settlement terms she was willing to offer Memorial.
Thus, we ordered her to send Memorial and the Court a letter
with a concrete settlement proposal within a week or so. In a
letter dated October 10, 2002,*fn7 Ms. McMunn made a
settlement offer, but Memorial declined to settle on Ms.
McMunn's proposed terms.*fn8
Ms. McMunn served her opposition memorandum, containing
forty-six pages and forty-four exhibits, on October 31, 2001.
Following the submission of Memorial's reply memorandum on
Ms. McMunn telephoned the Court on November 27, requesting the
opportunity to file a sur-reply. Ms. McMunn was granted
permission to file a sur-reply of no more than ten pages of
argument, to be served by December 17. On December 13, Ms.
McMunn telephoned the Court to request an additional two days in
which to serve her sur-reply, which request was granted. On
December 19, Ms. McMunn served her sur-reply, consisting of
sixteen pages of argument and sixty exhibits.*fn9
In a letter dated January 4, 2002, Ms. McMunn wrote to the
I am writing to request a hearing or a conference so
that I can show you that Memorial Sloan-Kettering
submitted a falsified document to you in its Reply. I
would like to present this to you and show that
Memorial's Motion to Dismiss my case should be
dismissed on this basis. I would like to request that
you place sanctions on Memorial. I would like to
request that Memorial be punished to the fullest
extent in this matter.
Then, in a letter dated January 5, 2002, Ms. McMunn requested an
oral argument on Memorial's motion to dismiss, and in a letter
dated January 7, 2002, she requested permission to "submit a
Cross Motion to Dismiss Memorial's Motion to Dismiss my case."
We sent a letter to the parties on January 9, denying Ms.
McMunn's request for leave to file a cross-motion on the ground
that she had already submitted a significant amount of briefing
on the issues she indicated would be the subject of her motion.
However, in a letter dated January 11, 2002, the Court granted
Ms. McMunn's request for oral argument, which was scheduled for
February 4, 2002.*fn10
Ms. McMunn apparently believed that the deposition transcript
of Trisha Hodges, an employee of Memorial, would support her
contention that Memorial had provided the Court with a forged
document. As Ms. McMunn represented to the Court that she did
not have a copy of Ms. Hodges's deposition transcript in her
possession, at a phone conference on January 29, we facilitated
her review thereof at the offices of Memorial's counsel.*fn11
Finally, the Court held a two-hour oral argument on the present
motion on February 4, 2002.
Finally, also in an effort to protect Ms. McMunn's procedural
rights, we have applied a "clear and convincing" standard to any
findings of fact we have made. See Shepherd v. American
Broadcasting Cos., Inc., 62 F.3d 1469, 1477 (D.C.Cir. 1995) (to
dismiss a suit for abusive behavior under inherent power,
district court must find by "clear and convincing evidence" that
abusive behavior occurred); cf. Weinberger v. Kendrick,
698 F.2d 61, 80 (2d Cir. 1982), cert. denied, 464 U.S. 818, 104
S.Ct. 77, 78 L.Ed.2d 89 (1983) (requiring "clear evidence" to
support attorneys' fees awarded on the basis of bad faith);
Rybner v. Cannon Design, Inc., 1996 WL 470668, at *4 (S.D.N.Y.
Aug. 20, 1996) (sanctioning plaintiff where "defendants have
proven by clear and convincing evidence that [he] acted
intentionally, wilfully and in bad faith") (emphasis supplied).
Fraud upon the court is "fraud which seriously affects the
integrity of the normal process of adjudication." Gleason v.
Jandrucko, 860 F.2d 556, 559 (2d Cir. 1988). It is
well-settled, however, that an isolated instance of perjury,
standing alone, will not constitute a fraud upon the court.
Id. at 560; Doe v. Federal Grievance Comm. (In re Grievance
Comm. of the United States Dist. Ct., Dist. of Conn.),
847 F.2d 57, 64 (2d Cir. 1988) (Graafeiland, J., concurring). Rather,
fraud upon the court "occurs where a party has acted knowingly
in an attempt to hinder the fact finder's fair adjudication of
the case and his adversary's defense of the action." Skywark,
1999 WL 1489038, at *14. In other words, a fraud upon the court
occurs where it can be demonstrated, clearly and
convincingly, that a party has sentiently set in
motion some unconscionable scheme calculated to
interfere with the judicial system's ability
impartially to adjudicate a matter by improperly
influencing the trier or unfairly hampering the
presentation of the opposing party's claim or
Our judicial system generally relies on litigants to tell the
truth and participate in discovery in good faith. Cf. United
States v. Turns, 198 F.3d 584, 587-88 (6th Cir. 2000) ("Our
system of justice relies, in large part, on the theory that when
a person takes the witness stand and swears to tell the truth,
that he or she will in fact do so."); United States v.
Leon-Reyes, 177 F.3d 816, 823 (9th Cir. 1999) ("our [criminal]
justice system relies on witnesses telling the truth"); Doe,
847 F.2d at 63 (attorney has an ethical duty to disclose a fraud
upon the court of which he knows); Solar Turbines, Inc. v.
United States, 14 Cl.Ct. 551, 553 (1988) ("our system of
justice generally relies upon the basic honesty of most
individuals, harsh sanctions for perjury, and a panoply of
rights concerning discovery and cross-examination"). Thus, when
a party lies to the court and his adversary intentionally,
repeatedly, and about issues that are central to the
truth-finding process, it can fairly be said that he has
forfeited his right to have his claim decided on the merits.
This is the essence of a fraud upon the court.
As the following discussion will demonstrate, Ms. McMunn has
perpetrated a fraud upon this Court. In analyzing Ms. McMunn's
various abuses, we follow other courts in our Circuit by
considering the following factors: (1) whether the misconduct
was the product of intentional bad faith; (2) whether and to
what extent the misconduct prejudiced the other party; (3)
whether there is a pattern of misbehavior, rather than an
isolated instance; (4) whether and when the misconduct was
corrected; and (5) whether further misconduct is likely to
continue in the future. See Skywark, 1999 WL 1489038, at *15
(collecting cases). As the objects of Ms. McMunn's various
misconduct can be organized into categories, we examine each
with these enumerated factors in mind.
As we noted above, Memorial's primary defense to Ms. McMunn's
lawsuit is that she was terminated due to repeated unexcused
absences from work in the summer of 1994. See Transcript of
Deposition of Thomas Fahey ("Fahey Dep.") at 94-95, 101-103.
Memorial suspected that Ms. McMunn spent some or all of her
absences at her house in West Virginia. See, e.g., Transcript
of Deposition of Holly McMunn ("McMunn Dep.") at 185:17-18;
5/21/01 Ltr. Accordingly, Memorial sought to discover Ms.
McMunn's credit card statements from the summer of 1994 with the
expectation that they would show billing activity in West
Virginia. Thus, on January 16, 1998, during its first deposition
of Ms. McMunn, Memorial questioned her as follows:
Q. Do you have any credit cards that you use for your
A. I have an American Express card.
Subsequently, on January 28, 1998, Memorial served a discovery
request asking Ms. McMunn to "[i]dentify any other credit or
charge cards [other than American Express] held and/or used by
plaintiff for the period March 1, 1994 to October 1, 1994 and
for each, identify the corresponding account number(s)." See
Def.'s Reply at 9; 5/15/01 Ltr. Ms. McMunn objected to this
request "as not reasonably calculated to lead to the discovery
of admissible evidence; interposed for the improper purposes of
harassing and invading the privacy of plaintiff; and
unreasonable." Id. On May 14, 2001, however, McMunn served an
interrogatory requesting the same type of credit card
information from Dr. Fahey. Memorial objected on the ground that
there was no factual dispute as to Dr. Fahey's whereabouts on
the dates he alleged Ms. McMunn was absent from work. See
5/21/01 Ltr. (Memorial admitting that Dr. Fahey was out of the
office on the relevant dates). A phone conference was held on
May 30, 2001, in order to resolve these discovery disputes, at
which time we ordered Ms. McMunn to respond to Memorial's
interrogatory request and disclose any and all credit cards she
held or used in the summer of 1994. We also granted Memorial's
motion to quash Ms. McMunn's interrogatory request for Dr.
Fahey's credit card records because they had no bearing on Ms.
McMunn's whereabouts that summer. See Order dated May 31, 2001
(granting motion to quash).
Memorial nevertheless believed that she may have used another
credit card at the time she worked for Dr. Fahey and,
accordingly, issued subpoenas to, inter alia, First USA Bank,
N.A., who produced records for a Visa Gold Credit card (the
"Visa Card") issued to Ms. McMunn. These business records
clearly establish the following: Ms. McMunn had applied for the
Visa Card in October of 1989; statements were mailed to her
apartment at 100 West 89th Street in New York*fn14 from at
least May 1996 to October 1998; Ms. McMunn's monthly statements,
which showed frequent usage, were paid for by personal checks
written and signed by her throughout 1997 and 1998; and the
account was "charged off" (closed) in December 1999. See Brill
Aff. Ex. 19; Brill Supp. Aff. Ex. 19. In fact, these records
indicate that the Visa Card had been used (in West Virginia) on
January 6, 1998, ...