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