May 13, 2010
BASIL C. OKPARA, PLAINTIFF-APPELLANT,
SUNOCO, INC., D/B/A MASCOT PETROLEUM, DENNIS GREEN, JOSEPH LORENZO, ROBERT HOWARD AND ROGER BENTON, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-0559-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2010
Before Judges Carchman and Lihotz.
Plaintiff Basil Okpara, a self-represented litigant, appeals from a March 6, 2009 Law Division order denying his motion to vacate an arbitration award. As a sanction for misconduct, the arbitrator had dismissed plaintiff's racial and national origin discrimination complaint filed against defendants Sunoco, Inc., d/b/a Mascot Petroleum (Sunoco), and Sunoco employees Dennis Green, Joseph Lorenzo, Robert Howard and Roger Benton, finding plaintiff submitted forged documents and testified falsely during his deposition to create "delay, obfuscation, fabrication, and contradiction, all with the apparent purpose of misleading th[e] tribunal's search for the truth."
We have considered the arguments in the briefs in light of the record and applicable legal standards. We affirm.
On August 9, 1995, plaintiff, an African-American, was hired by Sunoco as an attendant assigned to the Stockton Service Plaza location on the New Jersey Turnpike. During the years after he was hired, plaintiff received an award for "superior customer service" and was recognized for his participation in Sunoco's charitable efforts during this time.
On April 9, 2003, plaintiff was promoted to Shift Manager. From that date, plaintiff alleges he was subjected to various forms of racial discrimination by General Manager Green, Assistant General Manager Lorenzo and Shift Managers Howard and Benton, all Caucasians, who "waged a campaign of terror" against him because he "was going to begrime the all white management makeup in all of Sunoco's gas stations on the New Jersey Turnpike."
In July 2004, plaintiff retained legal counsel, who wrote to Sunoco in an effort to address the "hostile work environment" to which plaintiff was subjected. On November 6, 2004, plaintiff's employment was terminated as a result of excessive discipline.
On July 30, 2003, shortly after being promoted, plaintiff executed an agreement to participate in Sunoco's Mascot Dispute Resolution Program (DRP). The DRP covered "any and all employment-related legal disputes . . . or claims arising out of, or relating to an employee's employment or cessation of employment[.]" The DRP provided these disputes "shall be settled exclusively by final and binding arbitration before a neutral, third party arbitrator . . ." and that the dispute "must be submitted to mediation before it is submitted to arbitration[.]" Under the DRP, the arbitrator was afforded "plenary power to conduct all aspects of the arbitration proceeding, including . . . to decide all evidentiary disputes and . . . to process an appropriate sanction . . . ." Any award rendered, pursuant to the DRP, "shall be enforceable and subject to the Federal Arbitration Act [(FAA) 9 U.S.C.A. § 1 to -16], and the Uniform Arbitration Act of Pennsylvania [(UAAP), 42 Pa. Cons. Stat. § 7301 -7320 (2010)], regardless of the state in which arbitration is held or the substantive law applied in the arbitration." Finally, "[e]ither party may appeal the Arbitrator's decision to a court in accordance with the appeal procedures of the [FAA] . . . or the [UAAP][.]"
Plaintiff contends he did not voluntarily sign the DRP. He explains Green gave him a form and told him to sign it. When plaintiff attempted to read the form, Green became impatient and told him its terms were a condition of his continued employment -- he would be terminated if he refused to sign. Plaintiff states he signed the DRP without being allowed to read its terms.
On January 18, 2005, plaintiff filed a Law Division complaint against defendants, seeking $25,000,000, for alleged discrimination, retaliatory termination, and intentional and negligent infliction of emotional distress. In his complaint, plaintiff suggests: he was denied a promotion in 2000 in favor of a white male; Lorenzo was promoted to Shift Manager rather than plaintiff in 2003; Green frequently used racial slurs to address plaintiff; and on one occasion belittled his intelligence; and generally alleged white employees were accorded prudential treatment. Plaintiff also contended he was: unfairly or erroneously cited for disciplinary infractions while a white shift manager, who was equally responsible, was not disciplined;*fn1 required to attend a managers meeting while on vacation without remuneration; and terminated after he complained of Green's discriminatory conduct.
Defendants moved for dismissal of plaintiff's complaint and entry of an order mandating that the matter be resolved through mediation and arbitration, as required by the DRP. Defendants' request was granted on May 19, 2005.
Following the parties' failed attempt at mediation, the matter proceeded to arbitration before a single arbitrator. During the period designated for discovery, defendants sent plaintiff a document request seeking, among other things, plaintiff's 2005 income tax returns and documents relating to his employment and income following his November 2004 termination.
On October 25, 2006, each party's counsel participated in a conference call to address compliance with discovery demands, scheduling depositions and other procedures. An October 26, 2006 letter from the arbitrator provided that plaintiff would produce the balance of documents demanded by defendants before his deposition, which was scheduled for November 6, 2006. When plaintiff's compliance was not forthcoming, his deposition was canceled, and defendants contacted the arbitrator to seek enforcement. The arbitrator held another conference call to resolve the impasse.
During this December 6, 2006 conference call, plaintiff's counsel represented that, following his termination, plaintiff could not find employment, so he formed his own exporting company, RICO International (RICO). Counsel asserted plaintiff had no income other than unemployment compensation, as RICO suffered a loss in 2005. Counsel also stated plaintiff had not yet filed his 2005 tax returns. The arbitrator directed plaintiff to file his tax returns and supply them to defendants.
On December 23, 2006, plaintiff produced federal tax Form 1040X for 2005, which included a Schedule C showing RICO had a $27,000 loss that year. Defendants had separately requested copies of plaintiff's tax filings from the Internal Revenue Service (IRS). For the 2005 calendar year, the IRS supplied a transcript showing plaintiff had submitted a Form 1040EZ on December 6, 2006. The form makes no mention of a business and reflects gross earned income of less than $6000.
Plaintiff was deposed on May 30, 2007. Issues surrounding his post-termination income and employment were explored. Plaintiff testified he had not received income from RICO prior to 2005 and, at the time of the deposition, the company was no longer operating. Defendants confronted plaintiff with his 1995 Sunoco employment application, which included a representation that plaintiff earned $425 per week while employed by RICO from 1994 to 1995. Plaintiff testified during that time he worked for "a different company named RICO" and chose to use that name when he formed his business. He could not remember who owned the other RICO or provide any information that would aid in verifying his statements.
Next, Sunoco produced an October 12, 2005 bankruptcy petition filed by "Chima B. Okpara." Plaintiff admitted he had filed bankruptcy in 2005.*fn2 The statement of financial affairs listed RICO as plaintiff's newly formed company, with earnings of approximately $2500 a month. Plaintiff suggested the statement of earnings represented "an expectation" of monies to be received from an anticipated transaction. Plaintiff also asserted RICO may have been formed in "the 90s" but it did not actually conduct business until after his termination from Sunoco. When defendants produced a copy of a lawsuit commenced prior to the bankruptcy filing to recover the monies plaintiff described as "an expectation," his retort was "he knew [he] would not be receiving any income from it" when he signed his bankruptcy petition.
In addition to the 2005 bankruptcy filing, plaintiff admitted he had filed bankruptcy in 1996 and 1997. The 1996 filing was under the name "Chima Okpara did business as RICO International." The "Statement of Financial Affairs" filed with the 1996 petition stated plaintiff "[d]id business as Rico International exporting commodities to Africa[,]" and listed his gross income from this source as "1996 - loss (service); 1995 -$40,000; 1994 - $35,000." RICO was also referenced in the list of creditors, including an obligation to Plastex International, a company that had engaged in transactions with RICO in 1994. Plaintiff's 1997 petition listed the debtor as "Chima Okpara a/k/a Rico International." Defendants later discovered a fourth bankruptcy petition filed by plaintiff in 1998.
Defendants contacted the arbitrator by an August 28, 2007 letter and outlined the false and contradictory statements made by plaintiff under oath. Defendants sought a conference call to further discuss these deficiencies. After discussing the matter, it was agreed the deposition would resume to allow plaintiff the opportunity to clarify any misunderstandings. Defendants reserved the right to file appropriate motions.
The questions resumed, starting with the plaintiff's unfiled Form 1040X and his failure to disclose or produce the initially filed Form 1040EZ. Plaintiff insisted he had filed the 1040X, offered no explanation for why the IRS had no such record and suggested he may have filed the 1040EZ. Plaintiff was then questioned about his apparent misrepresentations regarding RICO's formation and business activity prior to 2005. Plaintiff insisted the entity received no income, yet he provided no explanation for the contrary statements contained in his bankruptcy petitions.
At the close of plaintiff's deposition, defendants moved to dismiss the complaint with prejudice, arguing plaintiff's lack of honesty was designed to perpetrate a fraud on the tribunal. Plaintiff refuted defendants' contentions, using some of the same statements offered at the deposition.
In a written decision, the arbitrator detailed the instances of misconduct, whereby plaintiff "flouted discovery orders[,] . . . produced false documents[,] testified falsely in ways that contradict clear and unambiguous assertions of documents that he submitted to other tribunals . . . [and] acted with utter contempt for the fact-finding function of this tribunal[,]" which prejudiced both defendants and the arbitrator. The arbitrator concluded that "under these circumstances," dismissal of plaintiff's claims was the appropriate sanction. Plaintiff moved before the Law Division to vacate the award.*fn3 The motion was denied and this appeal ensued.
Plaintiff's fifteen points presented on appeal can be distilled into these five arguments: the arbitrator evinced partiality and bias favoring Sunoco, while trivializing his contentions; defendants were culpable, as evidenced by their $5000 settlement offer; plaintiff's claims were not arbitrable, as the DRP was invalid; "the arbitrator and the trial court made several prejudic[ial] errors in their adjudication of the case," depriving him of his day in court; and any error he may have made during depositions was not intentional, making the issued sanction excessive and inappropriate.
Clearly, under the FAA or state law, "[t]he purpose of arbitration is to permit a relatively quick and inexpensive resolution of contractual disputes by avoiding the expense and delay of extended court proceedings." Diapulse Corp. v. Carba, Ltd., 626 F.2d 1108, 1110 (2d. Cir. 1980) (citing Wilko v. Swan, 346 U.S. 427, 431-32, 74 S.Ct. 182, 184-85, 98 L.Ed. 168 (1953)); Barcon Assocs., Inc. v. Tri-County Asphalt Corp., 86 N.J. 179, 187 (1981). Accordingly, the scope of judicial review of an arbitration award is a limited one. Policeman's Benev. Ass'n, Local 292 v. Borough of N. Haledon, 158 N.J. 392, 398 (1999); Barcon, supra, 86 N.J. at 187; Block v. Plosia, 390 N.J. Super. 543, 552 (App. Div. 2007).
In reviewing an arbitration award, the Law Division does "'not sit to hear claims of factual or legal error by an arbitrator as an appellate court does in reviewing decisions of lower courts.'" Tanoma Mining Co. v. Local Union No. 1269, United Mine Workers of Am., 896 F.2d 745, 747 (3d Cir. 1990) (quoting United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 370, 98 L.Ed. 2d 286, 299 (1987)). Rather, arbitration awards enjoy a strong presumption of correctness that may be overcome only in certain limited circumstances discussed below. Major League Umpires Ass'n v. Am. League of Prof'l Baseball Clubs, 357 F.3d 272, 280 (3d Cir. 2004), cert. denied sub nom, Office of the Comm'r of Baseball v. Major League Umpires Ass'n, 543 U.S. 1049, 125 S.Ct. 861, 160 L.Ed. 2d 769 (2005). We review the trial court's denial of a motion to vacate an arbitration award de novo. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003) (citations omitted).
Under the FAA, an arbitration award, regardless of the state in which the arbitration was held or the substantive law, which was applied, may be vacated only "under exceedingly narrow circumstances." Id. at 370; Eichleay Corp. v. Int'l Ass'n of Bridge, Structural & Ornamental Iron Workers, 944 F.2d 1047, 1055-56 (3d Cir. 1991), cert. denied, 503 U.S. 915, 112 S.Ct. 1285, 117 L.Ed. 2d 510 (1992); News Am. Publ'ns, Inc. v. Newark Typo. Union, Local 103, 918 F.2d 21, 24 (3d Cir. 1990). The highly circumscribed scope of judicial review of FAA arbitration awards only allows modification within three months of an award's entry, when one of the grounds specified in 9 U.S.C.A. §§ 10 - 11 is shown to exist. Pursuant to § 10, a court may vacate an award when, by application of an aggrieved party, one of the following circumstances are shown:
(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators . . .;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
[9 U.S.C.A. § 10(a).]*fn4
At § 11, the FAA permits any party to request an award's correction
(a) Where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award.
(b) Where the arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matter submitted.
(c) Where the award is imperfect in matter of form not affecting the merits of the controversy.
The order may modify and correct the award, so as to effect the intent thereof and promote justice between the parties.
[9 U.S.C.A. § 11.]
With these principles in mind, we review plaintiff's arguments.
Plaintiff first argues the award must be vacated because the arbitrator was biased. Primarily, plaintiff maintains the arbitrator wrongly concluded he submitted a false income tax return during the proceeding and otherwise made rulings against him that favored Sunoco.
Certainly, arbitrators, like judges, "not only must be unbiased but also must avoid even the appearance of bias." Commonwealth Coatings Corp. v. Cont'l Cas. Co., 393 U.S. 145, 150, 89 S.Ct. 337, 340, 21 L.Ed. 2d 301, 305; Barcon, supra, 86 N.J. at 189. However, plaintiff's unsupported contentions are without merit and must be rejected.
Plaintiff's 1040X, which included the Schedule C for RICO, was not filed with the IRS until October 1, 2008, almost two months following issuance of the arbitrator's award. Moreover, in the course of discovery, plaintiff denied he filed a 1040EZ despite being confronted with substantial evidence to the contrary.
As to the alleged instances of arbitrator bias, such as that defendants were not sanctioned despite having "stymied" plaintiff's attempts to depose witnesses; defendants were given "all the time in the world"; and the arbitrator "concoct[ed]" evidence to aid in defendants' case. Our review of the record reveals no evidence supporting actual bias or partiality on the part of the arbitrator. In fact, there are many instances demonstrating the arbitrator allowed plaintiff leniency, rather than evincing bias against him. The arbitrator repeatedly granted plaintiff additional time to produce discovery, even though defendants' June 2006 discovery requests were not answered until December, requiring plaintiff's deposition to be postponed. Also, plaintiff was permitted to resume his deposition to address inconsistencies revealed by his initial testimony and related documents.
Plaintiff's next two claims are not subject to our review. He asserts defendants' liability for acts of discrimination is evidenced by a settlement offer and that his discrimination claims were not arbitrable as the DRP was invalid. Indeed, defendants' offer to settle for a sum representing nuisance value is not evidence of culpability and is inadmissible. N.J.R.E. 408. Also, the time to appeal the May 19, 2005 order compelling arbitration based on the DRP has long passed and cannot be reviewed in the context of this matter. See R. 2:4-1 (providing a period of forty-five days to file an appeal); Wein v. Morris, 194 N.J. 364, 378-79 (2008).
In our view, only one issue raised by plaintiff warrants consideration. The remainder of his arguments, including those not otherwise discussed in this opinion, lack sufficient merit.
We examine plaintiff's argument that the discredited discovery was irrelevant to his discrimination claims, making the ultimate sanction of dismissal "too extreme" because it "did not fit the purported contraventions." Plaintiff maintains that even if he engaged in discovery misconduct, the arbitrator wrongly failed to consider other "evidence" and otherwise did not address the substance of his complaint.*fn5 In support of his alleged causes of action, plaintiff supplied photographs of other shift managers and Green sleeping while at work, and offered letters from two doctors describing his treatment for depression resulting from problems at work, although neither letter mentions plaintiff's racial victimization.*fn6
In denying plaintiff's motion to vacate the arbitrator's award, the trial court apparently relied upon the arbitrator's written decision.*fn7 In support of his authority to dismiss plaintiff's action, the arbitrator cited Rule 4:23-2b(3) and Fed. R. Civ. P. 37(b)(2)(A)(v), stating his authority was as broad as a court's under similar circumstances. Therefore, we must examine whether dismissal is a permitted sanction for the discovery violations recited.
The Federal Rules of Civil Procedure address the type of sanctions available to a federal court for a party's failure to comply with a discovery order, which include the entry of orders:
(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. [Fed. R. Civ. P. 37(b)(2)(A).]
Subdivision (b)(2) was amplified to also provide for payment of reasonable expenses caused by the failure to obey the order.
Rule 4:23-2(b) authorizes the imposition of similar sanctions for failing to comply with a State court order. Ibid. "'As with all rules it is necessary that there be adequate provisions for the enforcement of the rules [regarding] discovery against those who fail or refuse to comply. Sanctions are peculiarly necessary in matters of discovery[,] and the power to invoke them is inherent in our courts.'" Abtrax Pharms. v. Elkins-Sinn, Inc., 139 N.J. 499, 513 (1995) (quoting Lang v. Morgan's Home Equip. Corp., 6 N.J. 333, 338 (1951)).
The Rule states in pertinent part:
If a party . . . fails to obey an order to provide or permit discovery . . . the court . . . may make such orders in regard to the failure as are just, and among others the following:
(1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the introduction of designated matters in evidence;
(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, with or without prejudice or rendering a judgment by default against the disobedient party;
(4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders.
In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
Generally, the decision to impose sanctions for discovery violations, as well as the nature of the sanctions themselves, are matters entrusted to the discretion of the tribunal. See Bowers v. Nat'l Collegiate Athletic Ass'n, 475 F.3d 524, 538 (3d Cir. 2007). If the sanctions imposed are based on an erroneous view of the law or on a clearly erroneous assessment of the evidence, they should be reversed.
Under each of the rules discussed above, plaintiff's repeated disregard of discovery orders authorizes the arbitrator to dismiss his complaint. Longstanding legal preference, however, favors "meritorious dispositions unobstructed by procedural snares," so that procedure is made "'subsidiary . . . to the substantial rights of the litigants[.]'" Olds v. Donnelly, 150 N.J. 424, 469 (1997) (Stein, J. concurring in part and dissenting in part) (quoting Winberry v. Salisbury, 5 N.J. 240, 254, cert. denied, 340 U.S. 877, 71 S.Ct. 123, 95 L.Ed. 638 (1950)). Clearly, "'[d]ismissal is a harsh remedy and should be resorted to only in extreme cases.'" Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992) (quoting Marshall v. Sielaff, 492 F. 2d 917, 918 (3d. Cir. 1974)); Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 115 (2005); Kosmowski v. Atl. City Med. Ctr., 175 N.J. 568, 575 (2003); Zaccardi v. Becker, 88 N.J. 245, 253 (1982). However, all litigants must comply with validly issued orders, and "a party invites this extreme sanction by deliberately pursuing a course that thwarts persistent efforts to obtain the necessary facts." Abtrax Pharms., supra, 139 N.J. at 515.
Understanding that imposition of the ultimate sanction as a consequence for disregarding the integrity of the discovery process "'conflicts with  plaintiff's right to an adjudication of the controversy on the merits,'" Id. at 513 (quoting Zaccardi, supra, 88 N.J. at 252), the question becomes whether dismissal was the appropriate sanction under all the facts and circumstances.
In respect of dismissal for discovery violations, New Jersey state courts have reserved the remedy "in those cases in which the order for discovery goes to the very foundation of the cause of action, or where the refusal to comply is deliberate and contumacious." Id. at 514 (internal quotations omitted). Yet, when the tribunal is "confronted with litigants who flagrantly violate or ignore court orders, often [it has] no appropriate or efficacious recourse other than dismissal of the complaint with prejudice." Mindek, supra, 964 F.2d at 1373. "The imposition of the severe sanction of dismissal is imposed not only to penalize those whose conduct warrant it, but to deter others who [might] be tempted to violate the rules absent such a deterrent." Zaccardi v. Becker, 162 N.J. Super. 329, 332 (App. Div.), certif. denied, 79 N.J. 464 (1978).
In Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863 (3d Cir. 1984), the Third Circuit set forth a six-factor balancing test to evaluate the exercised discretion granted by Rule 37. Under Poulis, a court must consider: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal; and (6) the meritoriousness of the claim or defense. Id. at 868-70.
Here, because this matter is governed by the FAA, we consider it appropriate to examine the determination to dismiss against the six-factor Poulis test. Accordingly, we review the arbitrator's determination with the understanding that he has had direct contact with the parties and is intimately familiar with the disruptions and difficulties caused by the behavior that led to the punitive dismissal.
As to the first factor, there is no question that the failure to produce requested documents and the presentation of fraudulent documents rested on plaintiff alone. Even in his appellate brief, plaintiff sees no problem with his failure to produce the Form 1040EZ, believing the after-created Form 1040X alone was sufficient. Similarly, plaintiff remains unpersuaded that he holds culpability for the many divergent explanations offered for the commencement, business operations and income of RICO. In reading the record, it is clear that as each misstatement was uncovered, plaintiff simply created one explanation after another, indifferent to the marked inconsistencies of his testimony.
Next, while defendants acknowledge the prejudice caused by plaintiff's deception affects only the degree of damages allegedly suffered, plaintiff's actions were "deliberate and contumacious" and impact his credibility. Plaintiff refused to produce his original federal income tax return and provided only an amended form, which was not filed until long after the arbitration concluded; was willfully deceptive during his deposition, in not revealing the business operations of or income he received from RICO; and lied about the number and nature of his bankruptcy filings, giving testimony in direct contravention to statements made under oath on his bankruptcy pleadings. Even after plaintiff was given the opportunity to resume his deposition, clarify his statement, and correct his misrepresentations from the prior day's testimony, he remained steadfast in the clear fabrications surrounding his financial affairs.
Even though the substantive merits of defendants' defense were unaffected, they were prejudiced by plaintiff's "course of misconduct," which caused delay, impeded the progress of the matter, and created unwarranted expense. Further, the arbitrator noted plaintiff willfully "manufactured evidence" and provided "perjured testimony," which had "so sullied his credibility that proceeding to trial would be a duplicative waste of time, money and arbitral resources."
Finally, we examine whether a different remedy might act to appropriately sanction plaintiff's actions. In Familia v. Univ. Hosp., 350 N.J. Super. 563 (App. Div. 2002), we found the plaintiff's failure to produce tax records in compliance with a trial judge's order went to the "quantum of any possible damages," rather than "the fundamental issue" regarding the plaintiff's substantive action against the defendant for medical negligence. Id. at 568. In that matter, we concluded that preclusion of the plaintiff's claim for lost income, rather than dismissal, was the more appropriate sanction. Ibid.
However, unlike this matter, the plaintiff's failure to produce copies of her tax returns in Familia, supra, was not a willful attempt to thwart defendant's discovery requests. Id. at 567. Here, plaintiff actively and purposely attempted to perpetrate fraud upon the tribunal by preparing and presenting a federal Form 1040X showing a $27,000 loss to bolster his testimony that he made no money from RICO.
Plaintiff's misconduct prejudiced defendants by significantly delaying the arbitration proceeding, and caused the inordinate expenditure of both money and time, to search for the truth among plaintiff's falsehoods.
Moreover, plaintiff's conduct so destroyed his credibility that even an order excluding his damage claims would not erase the effects of his attempted fraud and perjury. Plaintiff repeatedly fabricated evidence and made false, inconsistent, and contradictory statements under oath. When his untruths were revealed, he explained further by adding a new twist to the previous story.
Plaintiff offers nothing to compel a conclusion that his testimony was truthful or that the arbitrator mischaracterized the extent or nature of his fraudulent acts. Plaintiff only asserts the arbitrator was biased since he did not assess plaintiff's testimony or photographic evidence purporting to support his charges of racial discrimination by "white" Sunoco employees.
While the lies uncovered address the quantum of damages, much of plaintiff's discrimination case was based purely on his statements of alleged events. For example, he recites in his complaint that on September 12, 2004, Benton sent him at 1:30 p.m. to drop off tires to Exit 4 North. Plaintiff allegedly did not return to his post at the Stockton Service Plaza for over three hours, was issued a written warning, and suspended. However, he claims Benton was reading a newspaper so he did not see the time he left, he lost his keys while at Exit 4 causing a slight delay, and that Benton could not have known when he returned because he had fallen asleep. Thus, plaintiff attributes the discipline to "pervasive discrimination." Plaintiff's statements are the sole support for his claim.
Plaintiff's persistent and significant deceit was unquestionably material to the issue of damages. Certainly, the arbitrator was correct to acknowledge that plaintiff's lack of credibility would pervade the entire proceeding and impact any statements made in support of his substantive claims. See Capell v. Capell, 358 N.J. Super. 107, 111 n.1 (App. Div. 2003) (stating the maxim "false in one, false in all" may be used to support credibility findings when the trier-of-fact determines the witness intentionally testifies falsely regarding a material issue). Any testimony plaintiff offers is "sullied" by his prior duplicity. Accordingly, his allegations cannot be supported, making further proceedings a "waste of time, money, and arbitral resources." Finally, dismissal under these circumstances acts to penalize plaintiff's persistent fraudulent conduct, and deter others who might follow such actions.