ELIAS E. ONIHA, Plaintiff, v. DELTA AIRLINES, INC., Defendant CIVIL ACTION NO. 1:19-cv-05272-LMM United States District Court, N.D. Georgia, Atlanta Division Filed September 13, 2021 May, Leigh M., United States District Judge ORDER *1 This matter is before the Court on the Magistrate Judge's Report and Recommendation [51] that Defendant Delta Airlines, Inc.'s Motion for Sanctions [44] be granted. After due consideration, the Court enters the following Order: I. BACKGROUND In this action, Plaintiff Elias E. Oniha, a Nigerian-American man, alleges Defendant, his former employer, refused to promote and then fired him based on his race and national origin, in violation of Title VII of the Civil Rights Act of 1964. See Dkt. No. [1]. Based on the same conduct, Plaintiff also raises claims under Georgia law for intentional infliction of emotional distress and negligent retention and supervision. See id. Plaintiff's wrongful termination claim stems from an alleged incident at Atlanta's Hartsfield-Jackson International Airport on June 14, 2019. After arriving at the airport for work, Plaintiff refused to allow a security officer to inspect his lunch container. That precipitated a confrontation between Plaintiff, Plaintiff's manager, airport security personnel, and Defendant's security officer, George Taylor. According to Plaintiff, Mr. Taylor told the airport security officer that he “hate[s] Nigerians,” that “Nigerians are criminals,” and that he would audit Plaintiff's Secure Identification Display Area (“SIDA”) badge and “make sure that sucker gets fired.” Dkt. No. [1] ¶ 20–21 (alterations omitted); see also Dkt. No. [45] at 114–15. After the incident, Plaintiff's manager confiscated Plaintiff's SIDA badge, which allows its holder passage to secure areas of the airport. Plaintiff subsequently composed a letter to his supervisors that recounted the incident from his perspective (the “First Statement”). The First Statement briefly refers to Mr. Taylor and does not mention any statements about Nigerians. Instead, the First Statement claims that when Mr. Taylor stopped at the scene of the confrontation to “ask[ ] what was going on,” he gave Plaintiff “words of advi[c]e relative to security check points,” provided “his official business cards to” the other individuals at the scene, and “went his way.” Dkt. No. [44-2]. Following the June 14 incident, Defendant investigated Plaintiff's past use of his SIDA badge. The investigation, conducted in part by Mr. Taylor, found that Plaintiff had twice misused his badge in September 2018. On both occasions, Plaintiff was a passenger, in his personal capacity, on Defendant's commercial flights and used his SIDA badge to exit and reenter a secure area of the airport. After concluding the investigation, Defendant terminated Plaintiff's employment on July 20, 2019. Three days later, Plaintiff appealed his termination to Defendant's Equal Opportunity department. According to the letter denying Plaintiff's appeal, Plaintiff had said in his appeal that he “believe[d] [his] termination was based on race or nationality.” Dkt. No. [47-1] at 48. The denial letter states that Plaintiff raised two allegations of animus, but the letter does not recount any allegations of anti-Nigerian statements made during the June 14 incident. See id. Defendant denied Plaintiff's appeal on August 7, 2019. *2 After Plaintiff initiated this action, Defendant sent Plaintiff Requests for Production of Documents (“RPDs”). Request No. 31 pertained to “[a]ny and all notes, diaries, calendars or other documents reflecting entries that mention [Defendant] or any [of Defendant's] employee[s].” Dkt. No. [44-3] at 20. Plaintiff represented that he did “not possess responsive, non-privileged, and non-protected documents responsive to Request No. 31.” Id. Request No. 3 asked for “[a]ny and all documents evidencing any complaint or expression of concern by Plaintiff to [Defendant], or any employee of [Defendant], that he had been the victim of discrimination or retaliation” while working for Defendant. Id. at 6. Though Plaintiff did not identify his responsive documents with particularity, he responded that he possessed and had attached responsive documents. Id. But Plaintiff did not produce the First Statement. Instead, he produced a Second Statement. This Statement is dated June 14, 2019 and contains the heading, “Subject: Security Incident Report.” Dkt. No. [44-4] at 1. The Second Statement is in many respects identical to the First Statement: Approximately the first third of the Second Statement repeats the corresponding language in the First Statement verbatim; Plaintiff introduces himself by name in both statements; both are addressed to “[m]y superiors”; and both are signed, “Yours faithfully Elias Effuoria Oniha.” Id. at 1–2. However, the First Statement's description of Mr. Taylor's innocuous conduct had been deleted. In its place were allegations that Mr. Taylor said “Nigerians are criminals” and told a Delta security officer he would “make sure [Plaintiff] get[s] fired/terminated from [his] job.” Id. Only in the Second Statement does Plaintiff state a belief that he was targeted due to his national origin. Id. at 2. Plaintiff produced this ostensible letter to Defendant without any indication that he had ever drafted or sent the First Statement. However, Defendant had retained the First Statement. On February 19, 2020, Defendant's counsel alerted Plaintiff's counsel to the existence of the First Statement and the differences between the First and Second Statements. Dkt. No. [47-2] at 32–33. Defendant's counsel attached the First Statement to its communication. Defendant's counsel followed up on February 23, 2020 to request that Plaintiff produce any copies of the First Statement he possessed. Id. at 40. The next day, Plaintiff's counsel responded that Plaintiff “ha[d] produced all documents in [his] possession responsive to Defendant's discovery requests.” Id. at 43. Plaintiff did not produce a copy of the First Statement or attempt to correct any misimpression as to the Second Statement. Defendant later deposed Plaintiff about the First and Second Statements. According to Plaintiff, on June 14, 2019 he used an airport computer to write the First Statement, and then saved the First Statement to a personal flash drive. Dkt. No. [45] at 118–19. When he returned home on June 14, he transferred the First Statement to his personal computer. Id. at 120. Then, Plaintiff said, on the same day, he created the Second Statement by saving a new version of the First Statement and editing that document to include the anti-Nigerian language. Id. at 130–36. Plaintiff testified that he did not relay Mr. Taylor's alleged anti-Nigerian comments in the First Statement because he wrote the First Statement in an attempt to save his job. Id. at 122. Plaintiff testified that he created the Second Statement “for [his] record,” and to “add additional information to [the First Statement] to help [his] case.” Id. at 133. At multiple points, Plaintiff represented that he retained copies of the First and Second Statements on his home computer. Id. at 21, 118. Following Plaintiff's deposition, his counsel sent to Defendant documents that counsel represented had been produced from Plaintiff's personal computer and flash drive. See Dkt. No. [44-7]. This production contained multiple versions of the Second Statement. However, despite Plaintiff's testimony that he retained the First Statement, his document production did not contain the First Statement. On September 15, 2020, Plaintiff provided a supplemental response to Defendant's RPDs, which again averred that Plaintiff did not possess documents responsive to Request No. 31. On September 30, 2020, Plaintiff amended his response again, claiming for the first time that the Second Statement, and the documents produced from his personal computer and flash drive, were responsive to Request No. 31. In other words, on September 30 Plaintiff indicated for the first time that those documents are his personal notes, and that the Second Statement was not in fact a letter to Defendant. Dkt. No. [47-2] at 83–84. At that point, Plaintiff and Defendant engaged a third party to conduct a forensic examination of Plaintiff's personal computer and flash drive. The forensic examination revealed that the Second Statement was not created on June 14, the day of the alleged incident. Instead, it showed that the Second Statement was created on July 23, 2019. See Dkt. No. [44-9]. The examination did not locate the First Statement. *3 Defendant then filed the instant Motion for Sanctions. After full briefing, the Magistrate Judge recommended that the Court use its inherent power to dismiss Plaintiff's entire Complaint with prejudice. Dkt. No. [51] at 34. Plaintiff has objected to the Magistrate Judge's findings, Dkt. No. [53], and Defendant has replied to Plaintiff's objections, Dkt. No. [54]. On September 2, 2021, the Court held an oral argument on Defendant's Motion and Plaintiff's objections. See Dkt. Nos. [56, 58]. The matter is ripe for the Court's review. II. LEGAL STANDARD Under 28 U.S.C. § 636(b)(1), the Court reviews the Magistrate Judge's Report and Recommendation for clear error if no objections are filed. 28 U.S.C. § 636(b)(1). If a party files objections, the district court must review de novo any part of the Magistrate Judge's disposition that is the subject of a proper objection. Id. As Plaintiff has filed objections to the Magistrate Judge's findings, the Court reviews the challenged findings and recommendations on a de novo basis. III. DISCUSSION It is well established that federal courts have the “inherent power to control the proceedings and the conduct of the parties involved” in litigation before them. In re Mroz, 65 F.3d 1567, 1574 (11th Cir. 1995). That power affords courts discretion to order the “severe sanction” of “outright dismissal.” Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991). Before a court may deploy its inherent power, it must “afford the sanctioned party due process” in the form of notice and an opportunity to respond. In re Mroz, 65 F.3d at 1575–76; see also Chambers, 501 U.S. at 57. Once that requisite is satisfied, a court must find that the party to be sanctioned has subjectively acted in bad faith. Purchasing Power, LLC v. Bluestem Brands, Inc., 851 F.3d 1218, 1223 (11th Cir. 2017); see also In re Mroz, 65 F.3d at 1575. And, when using the inherent power to dismiss a suit, “lesser sanctions [must] not suffice.” Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005). After finding Plaintiff had received sufficient process,[1] the Magistrate Judge recommended dismissing Plaintiff's Complaint. The Magistrate Judge extensively reviewed the record evidence and found that Plaintiff had willfully and in bad faith “fabricated evidence” that is critical to his discriminatory termination claim “and committed perjury” when questioned at deposition about his conduct. Dkt. No. [51] at 11. The Magistrate Judge considered whether lesser sanctions might suffice and concluded that, given the gravity and repetition of Plaintiff's misconduct, nothing less than outright dismissal would be appropriate. Id. at 31–32. Plaintiff objects to each of these conclusions.[2] A. Willfulness and Bad Faith *4 As an initial matter, Plaintiff argues that “perjury and fabricated evidence do not constitute” the “fraud on the court” that, according to Plaintiff, a court must find to dismiss a claim using its inherent power. Dkt. No. [53] at 15. Plaintiff's narrow focus on fraud on the court is misplaced; “[t]he key to unlocking a court's inherent power is a finding of bad faith.” Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998); see also Flury, 427 F.3d at 944; In re Sunshine Jr. Stores, Inc., 456 F.3d 1291, 1305 (11th Cir. 2006). “Fraud on the court” is one of several ways a party can display bad faith. A party may, for example, “demonstrate[ ] bad faith by delaying or disrupting the litigation.” Barnes, 158 F.3d at 1214. A party may also evince bad faith by making false statements “for a harassing or frivolous purpose.” Byrne v. Nezhat, 261 F.3d 1075, 1125 (11th Cir. 2001), abrogated on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008); see also Absolute Activist Value Master Fund Ltd. v. Devine, 826 F. App'x 876, 878–79 (11th Cir. 2020) (per curiam) (listing fraud on the court alongside other means of showing bad faith, including “purposely vexatious behavior”). Thus, the concept of bad faith clearly embraces fabricating or destroying evidence and then lying about doing so. See Access Innovators, LLC v. Usha Martin Ltd., No. 1:09-cv-2893-TCB, 2010 WL 11508119, at *1 (N.D. Ga. Apr. 28, 2010) (collecting cases); Neal v. IMC Holdings, Inc., No. 1:06-CV-3138-WSD/AJB, 2008 WL 11334050, at *5 (N.D. Ga. Oct. 20, 2008) (dismissing case under inherent power when plaintiff lied at deposition about evidence she had doctored), adopted by 2009 WL 10669622 (N.D. Ga. Mar. 31, 2009); Pope v. Fed. Express Corp., 974 F.2d 982, 984 (8th Cir. 1992) (affirming dismissal “based on the district court's finding that manufactured evidence and perjured testimony had been introduced in an attempt to enhance the case through fraudulent conduct”).[3] Indeed, “[s]anctions based upon a court's inherent power,” including dismissal, “are ‘most often invoked where a party commits perjury or destroys or doctors evidence.’ ” Access Innovators, 2010 WL 11508119, at *1 (quoting Qantum Commc'ns Corp. v. Star Broad, Inc., 473 F. Supp. 2d 1249, 1269 (S.D. Fla. 2007)); see also Chemtall, Inc. v. Citi-Chem, Inc., 992 F. Supp. 1390, 1408–09 (S.D. Ga. 1998) (collecting cases to illustrate the proposition that courts often order default or dismissal when parties commit perjury or “destr[oy], alter[ ], or fabricat[e]” evidence); Vargas v. Peltz, 901 F. Supp. 1572, 1579 (S.D. Fla. 1995) (“Plaintiff's intentional misconduct in presenting false evidence in support of her claims compels dismissal of this case.”); cf. Shepherd v. Am. Broadcasting Cos., Inc., 62 F.3d 1469, 1479 (D.C. Cir. 1995) (listing circumstances in which “courts generally respond to document destruction or alteration with the ultimate sanction of dismissal or default”). Fabrication of evidence, and false statements when questioned at deposition about that fabrication, clearly amount to the bad faith required for dismissal. Plaintiff's version of events is the following: the Second Statement is merely a personal record; he has never claimed the Second Statement was a document he sent to Defendant; he produced the Second Statement in response to Defendant's RPDs merely because it “appeared responsive to several” of the requests, Dkt. No. [53] at 17; and his testimony that he still possesses the First Statement and created the Second Statement on June 14, 2019 merely reflects a mistaken recollection of “distant events,” id. at 19; see Dkt. No. [58] at 10. Considered together and against the extensive evidence in the record, the Court does not find these arguments credible. *5 First and most importantly, Plaintiff's first response to Defendant's RPDs is flatly inconsistent with Plaintiff's claims that he created the Second Statement as a personal record and never represented otherwise. If those claims were true, he would have produced the First Statement in response to Request No. 3 and the Second Statement in response to Request No. 31. Instead, he knowingly put forward the Second Statement as if it were the letter he wrote to Defendant on June 14. Request No. 31 asked for just the kind of personal record that Plaintiff later claimed in deposition, and at oral argument, see Dkt. No. [58] at 6, the Second Statement is. Yet at the same time Plaintiff responded to the RPDs with the Second Statement, he stated he possessed no documents responsive to Request No. 31. Plaintiff instead produced the Second Statement in response to Request No. 3, which asked for Plaintiff's communications with Defendant about discriminatory statements. Plaintiff argues the Second Statement was responsive to multiple requests, but, even so, it was clearly produced in response to Request No. 3; the Second Statement is, on its face, a letter from Plaintiff to Defendant, dated June 14, 2019, about discriminatory comments he received at work. In other words, Plaintiff's RPD responses misrepresented the Second Statement as the statement he sent to Defendant on June 14. Had Defendant not preserved the First Statement, it may not have discovered Plaintiff's fabrication. Plaintiff's explanation of the First and Second Statements is also belied by the fact that his counsel could not rectify their inaccurate response to Defendant's RPDs. When Defendant's counsel initially confronted Plaintiff's counsel as to the existence of the First Statement, there was no fulsome explanation as to what had occurred. The forensic examination makes clear why Plaintiff's counsel did not explain the discrepancy and could not produce the First Statement: Plaintiff had discarded it. Nor was there any evidence to support Plaintiff's claim that he created the Second Statement on June 14 (the day of the incident); the forensic examination showed that Plaintiff had created the Second Statement on July 23, 2019, and had modified the Second Statement as recently as October 14, 2019. See Dkt. No. [44-9]. In conjunction with Plaintiff's RPD responses, the forensic examination provides clear evidence that Plaintiff knowingly provided false testimony at deposition about the origins of the First and Second Statements. Now, Plaintiff admits that the Second Statement was not created on the day of the incident. In sum, Plaintiff's deposition testimony regarding the First and Second Statements is squarely at odds with his response to Defendant's RPDs, his own counsel's prior representation about the completeness of that response, and a forensic analysis conducted shortly after his deposition. Taken together, Plaintiff's omission of the First Statement from his response to Defendant's RPDs, his production of the Second Statement as if it were his letter to Defendant, his counsel's inability to correct that misrepresentation, and his false deposition testimony “point[ ] to only one conclusion”: Plaintiff discarded the First Statement and fabricated the Second Statement.[4] Dkt. No. [51] at 18. Plaintiff's fabrication of evidence and false statements when questioned about that fabrication constitute subjective bad faith and call for the exercise of the Court's inherent power. See Betty K Agencies v. M/V MONADA, 422 F.3d 1333, 1338 (11th Cir. 2005). *6 As the Magistrate Judge noted, this case resembles McDowell v. Seaboard Farms of Athens, Inc., No. 95-609-CIV-ORL-19, 1996 WL 684140 (M.D. Fla. Nov. 4, 1996). There, a plaintiff attempted to use what he said were contemporaneously recorded diary entries to support his claims of race-based discrimination. Id. at *7–8. Given inconsistencies between the plaintiff's purported diary entries and other record evidence, including the plaintiff's deposition testimony, the court found the plaintiff had fabricated linchpin evidence and perjured himself when questioned about his conduct. Id. at *8. The court accordingly used its inherent power to dismiss the plaintiff's complaint outright. Though the court found the plaintiff's “fabrication of ... evidence of discrimination [was] a sufficient basis for dismissal,” the plaintiff's perjury “reinforce[d] the [c]ourt's conclusion.” Id. The Court finds McDowell persuasive, and Plaintiff's attempts to distinguish it are unavailing. First, he argues the plaintiff in that case “engaged in repeated in-court perjury,” while he “has not offered any in-court testimony.” Dkt. No. [53] at 24. McDowell involved “perjury by [the] [p]laintiff during his deposition and during [a] hearing.” 1996 WL 684140, at *8 (emphasis added). But in any event, Plaintiff offers no support for the assertion that, for sanctions purposes, false statements under oath at a deposition deserve less weight than false statements made under oath in an evidentiary hearing. Second, Plaintiff asserts he has not relied on the Second Statement to prove his case and “ha[s] no intent” to do so. Dkt. No. [53] at 24. As an initial matter, Plaintiff's Complaint premises the discriminatory termination claim on the exact statements purportedly recorded in the Second Statement on the day those statements were made. See Dkt. No. [1] ¶¶ 20, 28, 34. “Plaintiff's reliance on” this alleged discriminatory “language in the judicial process started” there. Neal, 2008 WL 11334050, at *5 (dismissing complaint where gender discrimination plaintiff had referenced fabricated language in her complaint and then produced fabricated documents in discovery to support her claim). Under Title VII, Plaintiff must show his termination was motivated, at least in part, by discrimination. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 343 (2013). It is easiest to do so by introducing direct evidence of discrimination: “[A]ctions or statements of an employer [that] reflect a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997) (alterations omitted) (quoting Caban-Wheeler v. Elsea, 904 F.2d 1549, 1555 (11th Cir. 1990)); see also Lamothe v. Bal Harbour 101 Condo. Ass'n Inc., 316 F. App'x 844, 846 (11th Cir. 2008) (per curiam) (“When statements displaying discriminatory animus are directed at an employee and made contemporaneously with an adverse employment action toward that employee, those statements constitute direct evidence of discrimination.”). The Second Statement purports to be a document supporting his evidence of a discriminatory motive harbored by the supervisor who conducted the investigation that led to Plaintiff's termination. The presence or absence of such a motive is without question a “pivotal” issue in Plaintiff's discriminatory termination claim. Qantum Commc'ns, 473 F. Supp. 2d at 1269. As a result, “the need for sanctions is heightened” and dismissal is particularly appropriate.[5] Id. (first citing Vargas, 901 F. Supp. at 1582; and then citing Nichols v. Klein Tools, Inc., 949 F.2d 1047, 1049 (8th Cir. 1991)). In addition, a document such as this may have motivated Defendant to settle the case at a premium. *7 Finally, Plaintiff objects that the Magistrate Judge “disregard[ed]” two of his cited Eleventh Circuit cases. Dkt. No. [53] at 25. Although the Magistrate Judge discussed both at length, see Dkt. No. [51] at 24–27, the Court addresses them below. The first case is Purchasing Power, where, Plaintiff says, “there was no bad faith despite problematic court submissions and the failure to investigate.” Dkt. No. [53] at 25. In Purchasing Power, a defendant incorrectly represented that diversity jurisdiction existed after it inadequately investigated the parties' citizenship. 826 F.3d at 1226–28. The party whose sanction the court reversed did not fabricate evidence or intentionally misstate key facts, and the court found both parties somewhat culpable. See id. at 1226–27. Likewise, in Plaintiff's second case, Meunier Carlin & Curfman, LLC v. Scidera, Inc., 813 F. App'x 368 (11th Cir. 2020) (per curiam), an improperly sanctioned party had not acted with subjective bad faith because “everyone in the case was simply confused about what the law required.” Id. at 376. As explained above and as thoroughly discussed in the Report and Recommendation, this is far from a case of mutual confusion. Instead, Plaintiff doctored the First Statement to create the Second Statement, represented that the Second Statement was a document he sent to Defendant on June 14, and then falsely testified at deposition about the Second Statement's origin. If lesser sanctions would not suffice, such conduct warrants dismissal. B. Lesser Sanctions “Dismissal represents the most severe sanction available to a federal court ....” Flury, 427 F.3d at 944. In finding complete dismissal appropriate, the Magistrate Judge considered the possibilities of “monetary sanctions, exclusion of the fabricated evidence, or dismissal of only the claim that would have relied on the fabricated evidence.” Dkt. No. [51] at 28 (citing Neal, 2008 WL 11334050, at *5–7). The Magistrate Judge found that Plaintiff would likely not have the financial ability to pay a monetary sanction commensurate with the severity of his misconduct. Id. at 29. Merely excluding Second Statement from evidence would not suffice “because Plaintiff would be allowed to continue pursuing the very claim that he intended to bolster with his fabricated evidence.” Id. Dismissing only the discriminatory termination claim, rather than dismissing Plaintiff's suit outright, would be neither adequately severe nor a sufficient deterrent to other litigants who might consider fabricating evidence.[6] Id. at 30–31. The Magistrate Judge added that complete dismissal is particularly appropriate here because Plaintiff himself, rather than his counsel, committed sanctionable misconduct. Id. at 31. *8 Plaintiff objects that “the record is devoid of any evidence concerning monetary sanctions.” Dkt. No. [53] at 28. Although Plaintiff's financial situation is not clear, the Magistrate Judge listed several substantial expenses Defendant has incurred as, over a period of several months, it investigated Plaintiff's fabrication of the Second Statement. Dkt. No. [51] at 29. Plaintiff has not disputed these. Moreover, courts routinely find monetary fines to be insufficient when a party engages in misconduct as severe as doctoring or destroying evidence. See Qantum Commc'ns, 473 F. Supp. 2d at 1269; Access Innovators, 2010 WL 11508119, at *1; Neal, 2008 WL 11334050, at *4–5; Young v. Office of U.S. Senate Sergeant at Arms, 217 F.R.D. 61, 70 (D.D.C. 2003) (“[W]here there has been fraudulent misconduct, ‘monetary sanctions may be inherently inadequate to remedy the harm to the public interest in preserving the integrity of the courts and in deterring future misconduct.’ ” (quoting Derzack v. County of Allegheny, 173 F.R.D. 400, 417 (W.D. Pa. 1996)). “[S]uch misconduct threatens the very integrity of courts, which otherwise cannot command respect if they cannot maintain a level playing field amongst participants.” Chemtall, 992 F. Supp. at 1409 (citation omitted). Next, Plaintiff claims that if the Second Statement is the linchpin of his discriminatory termination claim, barring him from using the Second Statement to support that claim, while allowing the claim to survive, would constitute a sufficiently severe sanction. Dkt. No. [53] at 28. Plaintiff's proposed solution would effectively have the Court disregard the product of his misconduct while allowing his case to proceed as normal. Simply acting as if Plaintiff had not fabricated a key piece of evidence and then perjured himself at deposition would not adequately address his abuses of the judicial process. Only dismissal would do so. Plaintiff argues that, even if the Court considers dismissal an appropriate sanction, it should dismiss only the discriminatory termination claim because that is the sole claim to which the Second Statement lends support. This argument fails for two reasons. First, Plaintiff's state-law claims incorporate and depend on the allegations underlying his discriminatory termination claim, including the anti-Nigerian remarks contained in the Second Statement. See Dkt. No. [1] ¶¶ 56–69. Second, Plaintiff's severe and repeated misconduct amounts to a “pattern of ... willful contempt” that warrants complete dismissal in any event. Betty K Agencies, 432 F.3d at 1338 (citation omitted). Plaintiff not only fabricated the Second Statement, which would itself warrant sanctions—he made false statements under oath several months later. No sanction short of dismissal would both match the severity of Plaintiff's “contumacious conduct” and ensure he does not repeat it. Id.; see also Nichols, 949 F.2d at 1049 (scheme to “conceal[ ] a material fact” and lying under oath about the “pivotal issue in th[e] case” warranted dismissal); Anheuser-Busch, Inc. v. Nat. Beverage Distribs., 69 F.3d 337, 352 (9th Cir. 1995) (“It is appropriate to reject lesser sanctions where the court anticipates continued deceptive misconduct.”); Young, 217 F.R.D. at 70 (dismissing case where plaintiff “attempted to create false testimony on the dispositive facts underlying her” sexual harassment claim). Finally, as the Magistrate Judge noted, see Dkt. No. [51] at 31, “the harsh sanction of dismissal with prejudice is thought to be more appropriate in a case where a party, as distinct from counsel, is culpable,” Betty K Agencies, 432 F.3d at 1338 (citation omitted). That is exactly the situation this case presents. To review: Plaintiff discarded the First Statement and gave his counsel the Second Statement. Accordingly, Plaintiff's counsel produced the Second Statement as if it was a genuine a letter to Defendant drafted on June 14, 2019. After months of investigation, Plaintiff was questioned under oath about the origins of the First and Second Statements. A forensic examination revealed his testimony to be false. In these circumstances, “vindicating judicial authority” requires dismissal. Chambers, 501 U.S. at 46 (citation and alterations omitted). No lesser sanction would suffice. IV. CONCLUSION *9 In light of the foregoing, the Court ADOPTS IN PART AND DECLINES TO ADOPT IN PART AS MOOT the Magistrate Judge's Report and Recommendation [51] as the opinion of this Court. The Court DECLINES TO ADOPT AS MOOT the Report and Recommendation to the extent it addresses Plaintiff's due process rights,[7] but otherwise ADOPTS the Report and Recommendation. Plaintiff's objections are otherwise OVERRULED. Defendant's Motion for Sanctions [44] is GRANTED, and Plaintiff's Complaint [1] is DISMISSED WITH PREJUDICE. The Clerk is DIRECTED to CLOSE this case. IT IS SO ORDERED this 13th day September, 2021. Footnotes [1] The Magistrate Judge issued the Report and Recommendation without an oral hearing. The Magistrate Judge reasoned that Plaintiff had notice of the possibility of sanctions when Defendant filed its Motion, and an adequate opportunity to respond through briefing. Dkt. No. [51] at 11–13. Plaintiff objected that the Court cannot dismiss his case without a formal hearing. Dkt. No. [53] at 13–14. Because the Court subsequently held an oral argument, Plaintiff's due process objection is OVERRULED AS MOOT. [2] The Magistrate Judge also considered and swiftly rejected Plaintiff's argument that the Court should not dismiss his claims because Defendant has engaged in similar misconduct. Dkt. No. [51] at 32–33. The Court agrees with the Magistrate Judge. It is true, as Plaintiff states, that at one point during discovery Defendant omitted a single page from a production of documents. Correspondence provided by Plaintiff's counsel shows that Plaintiff's counsel notified Defendant's counsel of the error, Dkt. No. [47-2] at 54, which Defendant's counsel corrected less than five hours later, id. at 56. That is nothing like the misconduct detailed below. [3] Plaintiff's definition of fraud on the court also misinterprets the law. He cites to cases defining the term in the context of Federal Rule of Civil Procedure 60(b), which governs courts' power to grant relief from final judgments. However, courts' “inherent power to vacate their judgments” is distinct from their “inherent power to sanction for misconduct in litigation.” Williamson v. Recovery Ltd. P'ship, 826 F.3d 297, 302 (6th Cir. 2016); see Access Innovators, 2010 WL 11508119, at *1 n.3 (stating that plaintiff's reliance on the Rule 60(b) fraud standard was “misplaced” for this reason). In any event, as explained above, parties may demonstrate bad faith in numerous ways. [4] Plaintiff argues he could not have destroyed the First Statement because “the Statement [was] in [Defendant's] possession.” See Dkt. No. [53] at 19. That claim is meritless. Plaintiff clearly could have deleted his own copy of the First Statement, which he created. The fact that Defendant happened to preserve its own copy of the First Statement does not render Plaintiff's conduct any less sanctionable. [5] In his objections to the Report and Recommendation, Plaintiff argues he has other “direct evidence” of the alleged discriminatory statements but only cites portions of the record in which he testified from memory about the June 14 incident. Dkt. No. [53] at 20. Plaintiff's counsel did not identify any other evidence at oral argument. Even if the Court credited Plaintiff's claim that he had no plan to use the Second Statement, it would not erase the fact that Plaintiff fabricated evidence and uttered demonstrably false statements about that evidence at his deposition. Such conduct itself constitutes subjective bad faith. See Crider v. Amerigas Propane, Inc., No. 1:16-CV-04331-ELR-LTW, 2018 WL 7019354, at *8 (N.D. Ga. Dec. 7, 2018) (finding that the plaintiff's lying during discovery amounted to subjective bad faith because “[t]he judicial process includes all aspects of discovery, including a party's obligation to tell the truth” (citation and emphasis omitted)), adopted by 2019 WL 1178424 (N.D. Ga. Jan. 17, 2019). [6] In multiple objections to the Magistrate Judge's consideration of lesser sanctions, Plaintiff argues that deterring other litigants' misconduct “is not the purpose of sanctions.” Dkt. No. [53] at 28. While the Court finds dismissal appropriate wholly apart from its value as a deterrent, courts frequently incorporate deterrence into their analyses of possible lesser sanctions. When a party “demonstrates a clear pattern of disregard for the integrity of the judicial system,” dismissal “helps vindicate the judicial system as a whole.” Qantum Commc'ns, 473 F. Supp. 2d at 1278; see also Young, 217 F.R.D. at 70; Shepherd, 62 F.3d at 1472 (finding “that a lesser sanction would not sufficiently punish and deter the abusive conduct”). [7] Plaintiff argued that a hearing should have been conducted. As this Court held a hearing and considered the issue de novo, this issue is now moot.