United States District Court, N.D. Illinois, Eastern Division
DEFENDANTS' ANTHONY VILLARDITA, THOMAS JOHNSON,
RICK ABREU, TERRY O'CONNOR, SEAN GLINSKI, MICHAEL BERTI,
AND CITY OF CHICAGO COMBINED MOTION FOR JUDGMENT AND OTHER
COME the Defendants, ANTHONY VILLARDITA, THOMAS JOHNSON, RICK
ABREU, TERRY O'CONNOR, SEAN GLINSKI and MICHAEL BERTI,
(collectively “Chicago Police Officers”), by and
through their attorneys, BORKAN & SCAHILL, LTD., and THE
CITY OF CHICAGO, by and through its attorneys, DYKEMA GOSSETT
PLLC, and seeking for judgment and/or other relief to be
entered in their favor pursuant Fed.R.Civ.P. 37(c),
Fed.R.Civ.P. 60(b)(3) and the inherent powers of this Court
under Chambers v. NASCO, Inc., 111 S.Ct. 2123
AND PROCEDURAL HISTORY
above-captioned matter was filed on May 19, 2014 by
Plaintiff, DEON PATRICK (“Plaintiff”), against
Defendants CITY OF CHICAGO, ANTHONY VILLARDITA, THOMAS
JOHNSON, RICK ABREU, TERRY O'CONNOR, BRIAN KILLACKY, SEAN
GLINSKI, MICHAEL BERTI, MARTIN FOGARTY, and JOSEPH MAGATS. In
general summary, Plaintiff alleged that Defendants framed him
for a double murder occurring on November 16, 1992, coerced
his confession to same, fabricated evidence, maliciously
prosecuted him, and conspired to do such acts. After
extensivepre-trial discovery, trial began on March 6, 2017. A
jury verdict was rendered on April 12, 2017 and Plaintiff was
awarded $13, 300, 000 in compensatory damages and $90, 000 in
punitive damages. See Dckt. No. 365.
reasons set forth below, under well-established precedent,
the judgment in favor of Plaintiff must be vacated and
entered in favor of Defendants and/or other relief must be
entered in favor of all Defendants on all claims as a result
of Plaintiff's intentional, severe, and pervasive
perjury, obstruction of justice, and repeated discovery
REPEATED ACTS OF ADMITTED PERJURY AND OBSTRUCTION OF ACCESS
committed perjury on at least two material issues in this
case and intentionally concealed highly material information
during the pre-trial discovery period. First, Plaintiff
intentionally and repeatedly lied about his communications
with an individual whom Plaintiff and his cohorts had
attempted to frame for the murders for which Plaintiff was
convicted. It is undisputed that Plaintiff lied for the
admitted and express purpose of withholding such information
from Defendants in this civil case. Second, Plaintiff
committed perjury in post-conviction filings filed in the
Circuit Court of Cook County regarding his personal knowledge
of Daniel Taylor's “lock up alibi.” Plaintiff
then lied in the course of this civil case about this perjury
and, additionally, intentionally withheld highly material
information from Defendants. These actions were repeated,
intentional and motivated by a specific malicious intent on
behalf of Plaintiff to obstruct Defendants' access to
relevant information. Even though prejudice is not required
in order to vacate the judgment in this case, Defendants
suffered great prejudice as a result of these actions and
were deprived of their right to a fair trial. Accordingly,
under well-established law, Defendants pray this Court vacate
the verdict in favor of Plaintiff, enter judgment in favor of
Defendants on all counts, and grant Defendants whatever other
relief this Court deems fit and just.
Authority of the Court and Fed.R.Civ.P. 37: A
district court has inherent power to sanction a party who
“has willfully abused the judicial process or otherwise
conducted litigation in bad faith.” Secrease v.
Western & Southern Life Ins. Co., 800 F.3d 397 (7th
Cir. 2015); Salmeron v.
Recovery Systems, Inc., 579 F.3d 787, 793 (7th
Cir.2009); see Chambers v. NASCO, Inc., 501 U.S. 32,
48-49 (1991); Greviskes v. Universities Research
Ass'n, 417 F.3d 752, 758-59 (7th Cir.2005). A
district court may also dismiss a case for discovery
violations or other egregious conduct in litigation under
Federal Rule of Civil Procedure 37 or under the inherent
authority of the district court. See Greviskes, 417
F.3d at 758-59; White v. Williams, 423 Fed.Appx. 645
(7th Cir. 2011)("Dismissal may be appropriate when a
party has shown a lack of respect for the court or
Rule 37, the District Court may impose a wide range of
remedies including dismissal and awarding of attorney's
fees. See Fed. R. Civ. P. 37(b)(2) and (c). Although
Rule 37 requires violation of a judicial order before a court
imposes sanctions, "[c]ourts can broadly interpret what
constitutes an order for purposes of imposing sanctions"
and a formal order is not required. Quela v.
Payco-General Amer. Credits, Inc., 2000 WL 656681, at *6
(N.D.Ill. May 18, 2000)(collecting cases).
The order, or equivalent, serves as notice to a disobedient
party that sanctions may be imposed. In this case, although
there has been no specific court order, we believe such an
order is not required to provide notice that parties must not
engage in such abusive litigation practices as coercing
witness testimony, lying to the court, and tampering with the
integrity of the judicial system. Because all litigants are
presumed to know that contumacious conduct of this sort is
absolutely unacceptable, we can properly consider the
sanctions available under Rule 37. Quela, 2000 WL
656681 at *6 citing United States v. Golden Elevator, Inc
., 27 F.3d 301, 302 (7th Cir.1994)("Lawyers and
litigants who decide that they will play by rules of their
own invention will find that the game cannot be won.");
Hal Commodity Cycles Management v. Kirsh, 825 F.2d
1136, 1139 (7th Cir.1987)("The Federal Rules of Civil
Procedure, as well as local rules of court, give ample notice
to litigants of how to properly conduct themselves.").
reason for this broad interpretation of Rule 37 is that all
offending parties are presumed to know that tampering with
the integrity of the judicial system, lying to the court, or
engaging in other deceptive or abusive practices are
absolutely unacceptable regardless of the absence of a
specific court order to the contrary. Id.; see
also Lightspeed Media Corp. v. Smith, 2015 WL 3545253,
*5 (S.D. Ill. 2015)("Although the language of Rule 37(b)
requires violation of a judicial order in order to impose
sanctions, a formal, written order to comply with discovery
is not required, where a litigant engages in abusive
litigation practices."); JFB Hart Coatings, Inc. v.
AM Gen. LLC, 764 F.Supp.2d 974, 981-82 (N.D. Ill.
2011)(“Although Rule 37 requires violation of a
judicial order before a court imposes sanctions,
‘[c]ourts can broadly interpret what constitutes an
order for purposes of imposing sanctions' and a formal
order is not required. This broad latitude "stems from
the presumption that all litigants ... are reasonably deemed
to understand that fabricating evidence and committing
perjury is conduct of the sort that ‘is absolutely
order of any sort is required in order to dismiss a case
based upon the inherent authority of this Court. These
inherent powers "are governed not by rule or statute but
by the control necessarily vested in courts to manage their
own affairs so as to achieve the orderly and expeditious
disposition of cases." Chambers, 501 U.S. at
43. Under these powers, courts can impose sanctions including
entering judgment and shifting attorney's fees. See
Id. at 44-45.
is warranted when "there is a record of delay [or]
contumacious conduct ... In deciding what measure of
sanctions to impose, the district court should consider the
egregiousness of the conduct in question in relation to all
aspects of the judicial process.'"
Greviskes, 417 F.3d at 758-59. The
"contumacious" conduct required for dismissal of a
case with prejudice occurs "where a party has displayed
fault, bad faith, or willfulness." Id. citing Downs
v. Westphal, 78 F.3d 1252, 1257 (7th Cir.1996).
Willfulness and bad faith are associated with conduct that is
either "intentional or reckless[.]" Long v.
Steepro, 213 F.3d 983, 987 (7th Cir.2000); see also
Maynard v. Nygren, 332 F.3d 462, 467-68 (7th Cir. 2003).
Fault, however, "does not speak to the noncomplying
party's disposition at all, but rather only describes the
reasonableness of the conduct-or lack thereof-which
eventually culminated in the violation." Id.
District Courts are not required to impose lesser sanctions
to remedy misconduct if the misconduct is sufficiently
serious. See Patterson by Patterson v. Coca-Cola Bottling
Co. Cairo-Sikeston, Inc., 852 F.2d 280, 284-85 (7th
Cir.1988)("Plaintiffs urge this court to reverse the
dismissal, arguing that less drastic sanctions would achieve
the same result. Yet we see no reason to impose a requirement
that prevents a district court from imposing sanctions if,
under the circumstances, it is warranted.”).
in assessing whether dismissal is an appropriate sanction
under the inherent powers of the Court, the Court need not
find party's misconduct caused its opponent any
prejudice. See Barnhill v. United States, 11 F.3d
1360, 1368 (7th Cir. 1993)(“We continue to eschew
grafting a requirement of prejudice onto a district
court's ability to dismiss or enter judgment as a
sanction under its inherent power.”); Raziev v.
Compass Truck Sales, LLC, 2016 WL 1449933, at *9 (N.D.
Ill. Apr. 13, 2016)(“The Seventh Circuit has not
imposed a requirement of prejudice on a court's ability
to dismiss or enter judgment as a sanction under its inherent
power.”). As explained in Barnhill, some
misconduct “may exhibit such flagrant contempt for the
court and its processes that to allow the offending party to
continue to invoke the judicial mechanism for its own benefit
would raise concerns about the integrity and credibility of
the civil justice system that transcend the interests of the
parties immediately before the court.” 11 F.3d at 1368
(7th Cir.1993). Thus, a court may use its inherent powers to
dismiss a case or enter default judgment even when the
innocent party “incur[s] no real inconvenience”
and “suffer[s] no real prejudice .” Id.;
see also Secrease, 800 F.3d at 402 (“Even if
it is not successful, the effort imposes unjust burdens on
the opposing party, the judiciary, and honest litigants who
count on the courts to decide their cases promptly and
fairly.”); see also Fuery v. City of Chicago,
2016 WL 5719442, at *11 (N.D. Ill. Sept. 29, 2016)(The
“Court may still impose sanctions even where there is
no prejudice but the actions of the party exhibit such
flagrant contempt for the court and its processes that to
allow the offending party to continue to invoke the judicial
mechanism for its own benefit would raise concerns about the
integrity and credibility of the civil justice system that
transcend the interests of the parties immediately before the
R. Civ. P. 60(b)(3): Fed.R.Civ.P. 60(b)(3) provides
that “[o]n motion and just terms, the court may relieve
a party or its legal representative from a final judgment,
order, or proceeding for the following reasons:...fraud
(whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party.”
Fed.R.Civ.P. 60(b)(3). This rule requires a party to
“show that he has a meritorious claim that he was
prevented from fully and fairly presenting at trial as a
result of the adverse party's fraud, misrepresentation,
or misconduct.” Wickens v. Shell Oil Co., 620
F.3d 747, 758-59 (7th Cir.2010). In ascertaining whether a
party has been prevented from fully and fairly litigating its
case, the Court need not find that the fraud would
necessarily have altered the outcome of the trial so long as
the party is prejudiced in the presentation of its case.
Lonsdorf v. Seefeldt, 47 F.3d 893, 897 (7th Cir.
1995)(“[I]t is unnecessary for Lonsdorf to establish
that the misrepresentation altered the outcome of the trial.
It is sufficient that prejudice has occurred.”).
Plaintiff's Repeatedly and Intentionally Committed Acts
of Perjury Relating To His Communications
With The Alleged “True Killer” of Sharon
Haugabook and Jeffrey Lassiter.
intentionally and maliciously lied at his deposition in this
case (and in his sworn Interrogatory answers) about his
communications with an apparently innocent individual whom
Plaintiff and his cohorts attempted to frame for the very
murders for which Plaintiff was convicted.
nearly an entire decade prior to being released from prison,
Plaintiff had pursued a factual theory that the “true
killer” of Sharon Haugabook and Jeffrey Lassiter
included an individual named “Lamuel Hardy.”
See Def.'s Tr. Ex. 215 at 4, 7-9; Def.'s Tr.
Ex. 234 at 18.  Specifically, these accusations
against Mr. Hardy were contained in a Verified Petition to
Vacate Judgment filed in 2004 and were repeated in
Plaintiff's Verified Successive Petition for
Post-Conviction Relief filed in 2013. Id. The latter
of these filings was successful and ultimately resulted in
Plaintiff being released from prison and having his
conviction vacated. See Pl.'s Tr. Ex. 87.
Mr. Hardy being named by Plaintiff as the “true
killer” in 2004 (and again in 2013), no credible
evidence of his alleged involvement in these murders appears
to have surfaced at any point over the following nine (9)
years. More importantly, however, the
timing of Mr. Hardy's identification as the “true
killer” was highly suspicious in the first place.
Specifically, Mr. Hardy had fortuitously shown up at
Stateville Prison in 2003 after being convicted of a
different murder. At this time, Plaintiff, Dennis Mixon, and
Daniel Taylor all happened to be serving their sentences at
Stateville as well. Shortly after being placed in Stateville,
Mr. Hardy claimed that “[h]e was approached at
Stateville and someone wanted him to file papers at
Stateville about some murders to get an inmate off.”
See Def.'s Tr. Ex. 817 at ¶ 236. This
incident prompted Mr. Hardy to request placement in
protective custody. Id.
2013, Mr. Hardy was interviewed by investigators from the
Cook County State's Attorney's Office. See
Def.'s Tr. Ex. 812. At that time, Mr. Hardy advised that
the individual that had initially approached him in this
regard was Dennis Mixon. Id. Mr. Hardy went on to
state that, after he had been placed in protective custody,
Plaintiff also approached him in protective custody (where
Plaintiff had access as a result of a work detail) and again
pressured Mr. Hardy to take responsibility for the murders.
Id. According to Mr. Hardy, Plaintiff was later
placed in Menard Correctional Center. Id. As luck
would have it, both Dennis Mixon and Plaintiff were
eventually placed there as well. Id. Mr. Hardy
claimed that Plaintiff and Dennis Mixon again attempted to
pressure him to implicate himself in the Lassiter/Haugabook
the obvious probative value of Plaintiff's active
involvement in trying to intimidate an apparently innocent
person into taking responsibility for the murders for which
Plaintiff was alleging he himself was framed, Defendants
explored this issue extensively in pre-trial discovery.
Defendants propounded specific Interrogatories requesting
that Plaintiff list any “contact or
communication” that he had with Mr. Hardy during the
entire period of Plaintiff's incarceration as well as
“describe in detail the dates, number of times, nature
of [Plaintiff's] contact, the contents of any
conversations and identify by name the facility where
[Plaintiff] incarcerated when [Plaintiff] had contact
with” Mr. Hardy. See Pl.'s Resp.
Villardita Interrog. at ¶ 13, pp. 25 (attached hereto as
Ex. A). Plaintiff denied, under oath, having any contact or
communications whatsoever with Mr. Hardy. Id. These
statements were sworn under oath by Plaintiff on November 17,
2014. Id. These answers were never amended nor
supplemented at any point (prior to trial or otherwise).
Plaintiff's later deposition, Plaintiff was again asked
(repeatedly) about any contact or communications he had with
Mr. Hardy. See Def.'s Tr. Ex. 997 at
492:14-498:14 . While Plaintiff admitted that Mr. Hardy was
indeed placed at Stateville with him in 2003, Plaintiff
specifically, repeatedly, and unambiguously denied having any
communication with Mr. Hardy whatsoever. Indeed, the
questions posed on this topic could not have been more clear
and the answers given by Plaintiff could not have been more
unequivocal. To wit:
Q. Okay. Did you ever have any conversation with Lemuel
Q. Okay. Did you ever -- have you ever spoken to Lemuel Hardy
about your case?
Q. Never? A. No.
Q. Have you ever told anyone that you've told -- spoken
to Lemuel Hardy about your case?
A. Not that I recall.
Q. Okay. If you had, in fact, said that to somebody, would
that be a lie?
A. To my recollection, yes. Def.'s Tr. Ex. 997 at
response to being confronted with the statements attributed
to Mr. Hardy by CCSAO (as referenced above), Plaintiff
responded unequivocally “I've never spoken to
Lemuel Hardy.” Def.'s Tr. Ex. 997 at 495:10-496:2.
Indeed, Plaintiff testified that he never even
considered having such conversation with Mr. Hardy
and appeared to scoff at the very idea that anyone would do
such a thing:
Q. Did you ever consider speaking to Lemuel Hardy about your
Q. Why not?
A. I don't want to know Lemuel Hardy. I don't want to
know Dennis Mixon. I didn't want to know what happened in
that house because when I was sitting in this room, I
don't want to know. And what I'm telling you and I am
saying that I'm speaking from what I know to be the
truth, that's what I want it to be.
Q. Well, you were given information that an individual who
you were locked up with had something to do with the murders
that you were serving a life sentence for, correct?
Q. Okay. And didn't you have any sort of urge to want to
go and talk to this person and maybe try to get him to take
responsibility for what they did?
A. Who does that?
A. If he was going to take any sort of responsibility, he
would have been done it. I don't want to talk to Lemuel
Hardy. I was just in Menard with Lemuel Hardy. Lemuel Hardy
didn't know me, but he will sit there and say that he had
a conversation with me where I said, "My nigger wrap,
are you going to something"? He didn't know me until
somebody pointed me out to him. We don't know each other.
We've never seen each other. We've never been around
each other like that. Def.'s Tr. Ex. 997 at
trial in this case, however, Plaintiff admitted that his
previous sworn statements regarding his allegedly having had
no communications whatsoever with Mr. Hardy were simply
false. Specifically, Plaintiff testified as follows:
Q. Now, after Lemuel Hardy shows up in Stateville where
you're housed and Dennis Mixon is housed, you become
aware that Lemuel Hardy actually had been ...