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Walters v. Tenant Background Search

United States District Court, W.D. Texas, Austin Division

September 30, 2019

MARK WALTERS
v.
TENANT BACKGROUND SEARCH

          ORDER

          ANDREW W. AUSTIN UNITED STATES MAGISTRATE JUDGE.

         Before the Court is Defendant's Motion to Compel and Request for Sanctions (Dkt. No. 22); Plaintiff's Opposed Motion for Discovery Sanctions and/or Striking Defendant's Motion for Summary Judgment (Dkt. No. 30); Plaintiff's Motion for Sanctions under Federal Rule of Civil Procedure 11(c)(2) (Dkt. No. 35); Defendant's Motion for Sanctions under Fed.R.Civ.P. 11(c)(2) (Dkt. No. 36); Defendant's Motion to Strike (Dkt. No. 39); and all associated responses and replies. The motions were referred to the undersigned for resolution, pursuant to 28 U.S.C. § 636(b)(1)(A) and Fed.R.Civ.P. 72.

         I. Background

         In the first of the sanctions motions listed above, Tenant Background Search (“TBS”) sought to have the Court compel Walters to respond to written discovery, and to impose sanctions for his refusal to participate in meaningful discovery. Dkt. No. 22. Before the Court was able to act on that motion, Walters and TBS filed the other sanctions motions listed above, and TBS filed its summary judgment motion. Noting that while “there may well be a good basis for imposing sanctions against Walters, ” because of the filing of the additional motions, the Court stated it would “take up all of these issues at one time, after the motion for summary judgment is ruled upon.” Dkt. No. 41 at 2. On August 1, 2019, the district judge granted summary judgment in this case in favor of Tenant Background Search. Accordingly, the various sanctions motions are now ripe for decision.

         Walters, who in this and all of the prior cases has been pro se, has filed two sanctions motions. Both of those motions complain about a single issue related to the signing of his deposition. TBS has also filed two motions. The first was already mentioned, and related to Walters' failure to respond properly to TBS's written discovery requests. The second seeks sanctions for a “harassing and baseless comment not supported by any fact or evidence about Defendant's counsel's wife” in Walter's response to the motion for summary judgment. Dkt. No. 36 at 1. The final motion asks the Court to strike from various pleadings Walters' inappropriate comments about TBS's counsel's spouse.

         As the Court has noted previously, Walters is a “frequent litigant” in this court, having filed nine lawsuits here in the past seven years, five of which (including this case) were filed under the Fair Credit Reporting Act. Walters also has a habit of making inappropriate statements in pleadings, and using foul and threatening language in depositions. For example, in his reply related to his first sanctions motion, Walters stated:

The Court was notified of [Plaintiff's claim that opposing counsel made a false statement in the prior FCRA case] in Plaintiff's motion to vacate, but rather than administer justice, the Court buried its head in the sand, failed to review emails and a taped recording of the call between counsel, Mr. Hensley, and Plaintiff. The conduct of the Court is a disgrace.

Dkt. No. 34 at 2. And in his deposition in this case, Walters made the following statement to TBS's counsel:

I don't trust you, okay. And let's make sure that we have an understanding why I don't trust you. All right. When Mr. Hensley wants to perjure himself in a declaration, file it in court, okay. If I fuck up, that's on me, but I don't need that motherfucker, okay, making accusations that are untrue, okay. So don't expect me to come in here and get on my knees and suck your cock, all right, because I'm not going to do that. All right.

Dkt. No. 28-2 at 17 (deposition page 65). The deposition is replete with similar statements. E.g., id. at 24 (deposition page 93) (telling counsel “fuck you, ” and stating that he would “be happy to call you an asshole in front of the jury”). Indeed, at the completion of the deposition he admitted he had been “tr[ying] to irritate” opposing counsel, because

I wanted to try and throw you off. Absolutely. The same way you're in that seat trying to throw me off. Isn't that part of the whole legal javelining that we have going on here? Producing documents at the end of business on the last day. You know the routine.

Id. at 25 (deposition page 98).

         While this behavior is more than enough to warrant sanctions, there is at least probable cause to believe Walters has done something much more problematic-fabricated the entire factual basis of this and his prior lawsuit. In the prior case, filed about six months before this one, Walters sued Sentry Link LLC, based on the assertion that he was negotiating a “consulting agreement” with “Kava Kava Austin, an Austin based startup company.” Walters v. Sentry Link LLC, No. 1:16-cv-383-LY; Dkt. No. 1 at 8. Walters alleged that Kava Kava Austin required that he submit to a criminal background check before it would enter into the contract, and that it used Sentry Link for that purpose. Id. Just like this case, he contended that the criminal history report that was generated contained inaccuracies, those were not cured, and that he was “denied the consulting contract” as a result. Id. When pressed in discovery for information regarding who he dealt with at Kava Kava, Walters identified the person as “Fred Lewis.” In the Report & Recommendation on Sentry Link's motion for summary judgment, the undersigned noted the questionable nature of many of Walter's claims:

Sentry Link questions-justifiably, in the Court's view-whether “Fred Lewis, ” Walters' alleged prospective employer, actually exists or requested the report at all. See Dkt. No. 20 at 2 n.1 (“Defendant's counsel has serious doubts that Kava Kava Austin or its owner, ‘Fred Lewis,' do or ever did exist.”). Sentry Link states that it has been unable to reach Fred Lewis. One number Walters gave went to a Geico representative, the other went to voicemail, and there has been no response. As of the time of the motions for summary judgment, Walters had not yet been deposed, having failed to appear for the deposition scheduled in December 2017. Thus, the only evidence that “Fred Lewis” offered Walters a consulting contract, and later rescinded the offer based on the background check, comes from Walters' declarations and a copy of what Walters claims was the alleged consulting contract-a contract the Court finds hard to believe is what it purports to be. The Court's review of the records leaves a serious question regarding whether Walters has fabricated the entire factual basis for this lawsuit.

Walters v. Sentry Link LLC, No. 1:16-cv-383- LY; Report & Recommendation (Dkt. No. 36) at 7 n.3 (May 9, ...


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