Witherspoon v. Roadway Exp., Inc.

• Decision Date: 30 January 1992
• Docket Number: Civ. A. No. 90-2326-L.
• Citation: 782 F. Supp. 567
• Parties: Terry L. WITHERSPOON, Plaintiff, v. ROADWAY EXPRESS, INC., Defendant.
• Court: U.S. District Court — District of Kansas

782 F. Supp. 567

Terry L. WITHERSPOON, Plaintiff, v. ROADWAY EXPRESS, INC., Defendant.

Civ. A. No. 90-2326-L.

United States District Court, D. Kansas.

January 30, 1992.

Julie A.N. Sample, Payne & Jones, Chtd., Overland Park, Kan., for plaintiff.

Terri L. Bezek, Daniel B. Denk, McAnany, Van Cleave & Phillips, P.A., Kansas City, Kan., for defendant.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

This matter is before the Court on two motions filed by defendant. These motions are: (1) Defendant Roadway Express, Inc.'s Motion to Dismiss or, in the Alternative, for Summary Judgment, dated August 28, 1991 (Doc. 21); (2) Defendant Roadway Express, Inc.'s Motion to Dismiss Action With Prejudice, dated December 4, 1991 (Doc. 39). Additionally, defendant has filed Defendant's Renewed Motion to Dismiss or, in the Alternative, for Summary Judgment, dated January 21, 1992 (Doc. 51), which renews its motion to dismiss or, in the alternative, for summary judgment and directs the same to plaintiff's second amended petition filed on January 7, 1992. Plaintiff has responded and opposes all motions filed by defendant. For the reasons set forth below, defendant's motions are granted in part and denied in part.

BACKGROUND

Plaintiff was employed by defendant as a dock supervisor. Plaintiff filed a discrimination charge with the Kansas Commission on Civil Rights on September 9, 1988. In that complaint, plaintiff alleged that he had been passed over for promotions because of his race and in retaliation for voicing opposition to acts and practices committed by defendant that were in violation of the Kansas Act Against Discrimination ("KAAD"). Plaintiff's complaint made no reference to wrongful termination.

Plaintiff filed a discrimination charge with the EEOC on August 1, 1988. This complaint also alleged that plaintiff was passed over for promotions because of race. The EEOC complaint also failed to allege wrongful termination.

Plaintiff filed his original complaint in this Court on July 27, 1990. He also filed an Application to Proceed In Forma Pauperis. Because plaintiff failed to sign his application, this Court denied his Application to Proceed In Forma Pauperis. Plaintiff thereafter refiled with the correct signatures on September 14, 1990 and an order was entered allowing plaintiff to proceed in forma pauperis.

Plaintiff also filed an application for employment of counsel on September 14, 1990 which was granted. On February 11, 1991 appointed counsel for plaintiff filed a motion for an order acknowledging the timely filing of plaintiff's complaint and requesting additional time to serve the complaint. An order was entered by the Court which acknowledged the timely filing of the complaint and granted plaintiff an additional forty-five (45) days to serve defendant. On March 20, 1991 plaintiff's counsel asked for an additional extension of four (4) months to serve defendant in order to properly investigate the facts of the case. The extension was granted. On July 9, 1991 plaintiff's counsel asked for and received yet another four (4) month extension (to November 1, 1991) to serve summons and complaint. Finally, on July 31, 1991 plaintiff filed his First Amended Petition. Defendant was served with the summons and petition on August 2, 1991.

The First Amended Petition contained four counts. Count I was a race discrimination claim under Title VII. Count II was a claim for wrongful discrimination and discharge in violation of K.S.A. 44-1001 et seq., the Kansas Act Against Discrimination. Count III was a claim for breach of an implied employment contract. Count IV was a claim under 42 U.S.C. § 1981. On January 7, 1992 an order was entered by this Court which allowed plaintiff to file a Second Amended Petition. The Second Amended Petition differs from the First Amended Petition only in that the date of plaintiff's alleged wrongful termination was changed to February 6, 1989.

DISCUSSION

I. Defendant's Motion to Dismiss Action with Prejudice dated December 4, 1991.

In defendant's motion to dismiss with prejudice and at the hearing on this motion held in this Court on January 23, 1992, evidence was produced that plaintiff made several material false statements on his Application to Proceed In Forma Pauperis. Specifically, in the first question on the application, plaintiff stated that he was not presently employed. This answer was given on both the July 27, 1990 and September 14, 1990 applications. Based upon information obtained from plaintiff during discovery, it is apparent that plaintiff became employed by the Liberal, Kansas School District, U.S.D. # 480, as early as August 1989. Plaintiff's yearly salary during this period was $25,400.00. Additionally, plaintiff failed to list significant income received during the proceeding twelve months, including $5,460.00 in unemployment compensation.

Plaintiff admits that he did not disclose his position with the Liberal School District when he completed his Application to Proceed In Forma Pauperis and also admits that he failed to disclose his unemployment benefits. Plaintiff claims that it was not his intent to mislead the Court in any way. Plaintiff states that it was his understanding that the Court would inquire into his financial means at the time of the application to determine whether or not he qualified as indigent. Plaintiff says he thought that the Court was more interested in his financial status as of the date of the application than it was in his financial status during the previous twelve (12) months.

This Court finds that the false statements appearing on plaintiff's Application to Proceed In Forma Pauperis were both material and knowingly made by the plaintiff. The purpose of the application is to obtain information from a plaintiff to enable the Court to make a determination as to whether the plaintiff qualifies due to financial status to proceed in an action without bearing certain usual costs of litigation. It is imperative to this process that plaintiffs give complete and truthful answers to the questions contained in the application. In this instance, plaintiff totally failed to disclose that he had been employed for nearly a year and a half at a salary of approximately $25,000.00. Plaintiff also failed to disclose unemployment benefits he had received within the preceding twelve months in an amount of $5,460.00. Both of these factors are extremely material to a decision as to whether a plaintiff should be allowed to proceed in forma pauperis. It is inconceivable that the plaintiff, who is a high school graduate with at least some college according to the record, did not understand or was confused by the questions on the application. Whether the plaintiff deliberately lied on the application in an attempt to mislead the Court or was simply careless in filling out the application as he claims, such behavior cannot be condoned by this Court.

In proceedings brought in forma pauperis, a district court has the discretion to dismiss the case with prejudice where a plaintiff has in bad faith filed a false affidavit of poverty. Dawson v. Lennon, 797 F.2d 934 (11th Cir.1986); Harris v. Cuyler, 664 F.2d 388 (3d Cir.1981). However, this Court is hesitant to impose the most extreme sanction possible, that of dismissal with prejudice, in this case. Although the plaintiff's answers on his Application to Proceed In Forma Pauperis were outrageous and patently false, this Court finds that plaintiff has obtained no advantage in this case due to his falsified answers other than the fact that he did not have to pay the required court costs for bringing the action. While in no way condoning the actions of plaintiff, this Court notes that the plaintiff's claim is based on both federal and state civil rights violations. These are important issues not only to the plaintiff, but to society.

It is this Court's ruling that, due to the material misstatements on plaintiff's Application to Proceed In Forma Pauperis, plaintiff's in forma pauperis designation is revoked. Plaintiff is ordered to pay the $120.00 filing fee which was waived in this action due to plaintiff's in forma pauperis status to the Clerk of this Court on or before February 28, 1992. In the event plaintiff fails to pay the $120.00 filing fee on or before that date, then this action will be dismissed with prejudice.

In addition, this Court finds that plaintiff is guilty of a violation of Rule 11 of the Federal Rules of Civil Procedure due to plaintiff's filing of a paper with the Court that plaintiff knew was not well grounded in fact. An appropriate sanction in cases of a Rule 11 violation is for the violator to pay the other party the amount of reasonable expenses incurred due to the filing of the paper, including reasonable attorney's fees. Therefore, it is the further ruling of this Court that plaintiff should pay a reasonable amount of the costs incurred by defendant in filing its December motion to dismiss with prejudice. Defendant is ordered to furnish the Court with a breakdown of costs incurred in bringing the motion to dismiss with prejudice within 10 days. Once the Court has received the breakdown, the Court will issue its order directing the defendant to pay a reasonable amount of these costs.

II. Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment dated August 28, 1991.

Plaintiff's First Amended Petition, which was on file at the time defendant brought this motion, contained four counts. Defendant contends that on the face of plaintiff's First Amended Petition, counts I through IV, in whole or in part, fail to state a claim for which relief may be granted as a matter of law. In the alternative, defendant requests that the Court grant summary judgment in favor of the defendant on all or part of plaintiff's claims. Subsequent to the filing of defendant's motion, plaintiff filed its Second Amended Petition on January 7, 1992. Defendant subsequently filed its renewed motion...