ANDRES GREGORY, as personal Representative of the estate of SEBASTIAN GREGORY Plaintiff, v. OFFICER LUIS PEREZ, Defendant Case No. 13-21350-CIV-GRAHAM/SIMONTON United States District Court, S.D. Florida Entered on FLSD Docket May 21, 2018 Counsel Michael Benjamin Feiler, Martin Eric Leach, Feiler & Leach, P.L., Coral Gables, FL, for Plaintiff. Ana Angelica Viciana, Ezra Saul Greenberg, Bernard Pastor, Miami-Dade County Attorney's Office, Miami, FL, for Defendant. Graham, Donald L., United States District Judge ORDER *1 THIS CAUSE comes before the Court upon Defendant's Motion to Dismiss for Plaintiffs’ Discovery Misconduct and for Reconsideration of Motion for Summary Judgment Based on Newly Discovered Evidence Concealed by Plaintiffs [D.E. 208]. Plaintiffs filed their Memorandum of Law in Opposition [D.E. 213], to which Defendant filed his Reply [D.E. 219]. THE COURT has reviewed the pleadings, pertinent portions of the record, and is otherwise fully advised in the premises. For the reasons stated herein, Defendant's Motion to Dismiss for Plaintiffs’ Discovery Misconduct is DENIED. While the Court finds that no basis exists for granting the relief sought, the Court grants the alternative relief described herein. I. Background[1] Defendant originally filed the instant Motion on September 24, 2015 seeking two forms of relief: (1) reconsideration of this Court's summary judgment Order [D.E. 192] in light of newly-discovered evidence, and (2) dismissal for purported discovery misconduct.[2] On or about January 12, 2016, Plaintiff Sebastian Gregory committed suicide. Thereafter, Andres Gregory was substituted as the Plaintiff.[3] [D.E. 227]. On October 13, 2016, this Court granted Defendant's Motion for Reconsideration of Motion for Summary Judgment Based on Newly Discovered Evidence Concealed by Plaintiffs. [D.E. 239]. Upon reconsideration, this Court dismissed Plaintiffs’ § 1983 excessive force, battery, and intentional infliction of emotional distress claims, and administratively closed the case. [D.E. 239]. In the same Order [D.E. 239], this Court denied as moot Defendant's Motion to Dismiss for Plaintiffs’ Discovery Misconduct based on Plaintiffs’ alleged concealment of a video-taped interview of the decedent, which was broadcasted on Columbian television in January 2015 (“the Broadcast”). Several appeals have been taken in this matter. On January 25, 2018, the Eleventh Circuit issued a mandate which, inter alia, reversed this Court's dismissal of the § 1983 excessive force, battery, and intentional infliction of emotional distress claims, and remanded this case for trial on the remaining issues. [D.E. 250]. In accordance therewith, the undersigned held a status conference on February 20, 2018. During the status conference, Defendant asked the Court to rule on his Motion to Dismiss for Plaintiffs’ Discovery Misconduct. That Motion is now ripe for purposes of deciding the sanctions issues. II. DISCUSSION *2 In his Motion to Dismiss, Defendant urges this Court to dismiss this case with prejudice as a sanction for Plaintiffs’ concealment of the Broadcast and for Plaintiffs’ commission of fraud on the Court. Defendant submits that he became aware of the Broadcast on August 27, 2015, over four months after discovery closed, when a co-worker sent him a link containing the Broadcast. According to the Defendant, Plaintiffs failed to comply with their obligation under Rule 26(e) to supplement their discovery disclosures and responses when they did not inform the Defendant about the Broadcast. Specifically, Defendant propounded Interrogatory No. 5 and Request for Production No. 21, which asked Plaintiffs to list and provide contact information for “every person whom you have spoken to or otherwise communicated with about the Incident ... [that] is the subject of this lawsuit” and to produce “[d]ocuments relating to any conversations or interviews you have had with any members of the media related to the Incident, your injuries, or this Action,” respectively. Magistrate Judge Simonton also ordered the Parties to supplement “any disclosures and/responses to discovery requests” forty-five-days prior to the close of discovery.[4] However, when that deadline came in February 2015 (only weeks after the Broadcast aired in January 2015), Plaintiffs represented, both in writing to the Defendant and in open court before Magistrate Judge Simonton, that they had nothing to supplement. Additionally, Defendant avers that the decedent perjured himself during his deposition on December 22, 2014 when he emphatically denied ever speaking to “anybody”, including any news reporters, about the Incident. Defendant believes, and Plaintiffs do not deny, that the interview was recorded on November 8, 2014. Defendant argues that dismissal with prejudice is warranted because Plaintiffs committed a willful discovery violation that has prejudiced the Defendant, and lesser sanctions have proven inadequate. Defendant posits that the Plaintiffs’ violation was willful because the discovery requests were clear and unambiguous, and Plaintiffs’ counsel presumably knew about the Broadcast since he also appeared in it. Further, willfulness may be inferred since Plaintiffs’ have been subject to at least six separate Court orders compelling discovery that they previously failed to provide, including this issue.[5] Defendant avers that he has been prejudiced by the concealment because he did not have the opportunity to further investigate the Broadcast during the discovery period. Defendant submits that lesser sanctions are clearly inadequate to assure Plaintiffs’ compliance with the rules that govern this action and this Court's orders. In support thereof, Defendant notes that sanctions have already been imposed on the Plaintiffs for the decedent's failure to attend depositions, the decedent's obstruction of his mental health IME, and the decedent's destruction of text/e-mail evidence. Plaintiffs argue that defense counsel knew about the Broadcast before discovery closed and, therefore, Plaintiffs have not violated Rule 26(e). According to the declaration of Plaintiffs’ counsel, his “recollection” is that he advised defense counsel about the television interview when he sought to depose Lieutenant Knapp, who also appeared in the Broadcast. Plaintiffs’ counsel avers that he “assumed that [defense counsel] already had the interview, especially since, after [his] questioning of Lieutenant Knapp about the story, [defense counsel] did not as [sic] ask a single question about it, of [him] or the witness.”[6] Furthermore, Plaintiffs aver that their failure to supplement their discovery responses and disclosures was at most “simple negligence.” Plaintiffs contend that the Defendant was not prejudiced because the Broadcast does not contain any new evidence. Finally, Plaintiffs assert that the decedent did not perjure himself and there was no fraud committed on the court. A. Discovery Misconduct Pursuant to Federal Rule of Civil Procedure 26(e)(1), a party who has responded to an interrogatory or request for production must supplement or correct its disclosure or response “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or as ordered by the court.” Rule 37(c)(1) provides that if a party fails to supplement discovery as required by Rule 26(e), “the party is not allowed to use that information ... at trial, unless the failure was substantially justified or is harmless.” Moreover, in addition to or instead of this sanction, the court “may order payment of the reasonable expenses, including attorney's fees caused by the failure; may inform the jury of the party's failure; and may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).” *3 Under Rule 37(b)(2), a party who fails to obey a discovery order may be sanctioned. Initially, the movant bears the burden of making a prima facie showing that the non-movant violated the court's order. In re Chase & Sanborn Corp., 872 F.2d 397, 400 (11th Cir. 1989). Then, the burden shifts to the non-movant to demonstrate that they were unable to comply with the court's order. Id.; see also id. (The non-movant “must go beyond a mere assertion of inability and satisfy his burden of production on the point by introducing evidence in support of his claim.”). Rule 37(b)(2) allows the court to sanction a party by, inter alia, striking the pleadings, dismissing the action, rendering a default judgment, or holding a party in contempt. District courts have broad, although not unbridled, discretion to impose sanctions under Rule 37. Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1542 (11th Cir. 1993). Indeed, “the Supreme Court has interpreted the Rule 37 requirement of a ‘just’ sanction to represent ‘general due process restrictions on the court's discretion.’ ” Id. (citing Insurance Corp. of Ireland, Ltd., v. Campagnie des Bauxites de Guinee, 456 U.S. 694, 707 (1982)). A district court abuses its discretion by dismissing a case under Rule 37 when “less draconian but equally effective sanctions were available.” See Adolph Coors Co. v. Movement Against Racism & the Klan, 777 F.2d 1538, 1543 (11th Cir. 1985). The Eleventh Circuit “consistently has treated dismissal with prejudice as a drastic sanction to be applied only after lesser sanctions are considered and found inadequate.” Camp v. Oliver, 798 F.2d 434, 438–39 (11th Cir. 1986); see also Wouters v. Martin County, 9 F.3d 924, 933 (11th Cir. 1993) (“[D]ismissal is justified only in extreme circumstances and as a last resort.”); Malautea, 987 F.2d at 1542 (“[T]he severe sanction of a dismissal or default judgment is appropriate only as a last resort, when less drastic sanctions would not ensure compliance with the court's orders.”). Dismissal should only be exercised where there is a showing of willfulness or bad faith. Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944–45 (11th Cir. 2005); BankAtlantic v. Blythe Eastman Paine Webber, Inc., 12 F.3d 1045, 1049 (11th Cir. 1994).”). Notably, “[v]iolation[s] of a discovery order caused by simple negligence, misunderstanding, or inability to comply will not justify a Rule 37 default judgment or dismissal.” E.g., Malautea, 987 F.2d at 1542. “A court may impose lesser sanctions without a showing of willfulness or bad faith on the part of the disobedient party.” BankAtlantic, 12 F.3d 1045, 1049 (11th Cir. 1994). Here, the Court finds that Plaintiffs have committed sanctionable discovery conduct in violation of Rule 26(e). Contrary to Plaintiffs’ assertion, there is nothing in the transcript of Lieutenant Knapp's deposition that would have put the Defendant on notice that the decedent had given a television interview in a Columbian news story about this case. The Court is also unpersuaded by Plaintiffs counsel's “assumption” that defense counsel already knew about the interview. Undoubtedly, Plaintiffs had an obligation under Rule 26 and this Court's orders to supplement their discovery responses and disclosures regarding the Broadcast. Their failure to do so is sanctionable. In any event, the Court finds that a sanction short of dismissal is adequate. This case has been pending since 2013 and the Parties have expended significant resources on preparing for trial. Discovery has closed and trial is imminent. Given this posture, the Court finds that an adverse inference jury instruction is the appropriate sanction. The instruction will allow the jury to infer that the Broadcast was not produced during the discovery period because it contained information favorable to the Defendant's case. The Court will fashion an instruction similar to the one implicitly approved by the Eleventh Circuit in Martinez v. Brink's, Inc., 171 F. App'x 263, 268 (11th Cir. 2006).[7] Furthermore, any additional prejudice suffered by Defendant can be cured by calling as a witness at trial the reporter who interviewed the decedent in the Broadcast. B. Fraud on the Court *4 Federal courts have the inherent power to dismiss an action for misconduct that abuses the judicial process, such as fraud on the court. Chambers v. NASCO, Inc., 501 U.S. 32, 50-51 (1991); Vargas v. Peltz, 901 F. Supp. 1572, 1582 (S.D. Fla. 1995). Sanctions for fraud on the court are generally reserved for only the most egregious misconduct. See Gupta v. U.S. Atty. Gen., 556 Fed. Appx. 838, 840 (11th Cir. 2014) (noting that only the most egregious misconduct, such as bribery of a judge or members of a jury, or the fabrication of evidence by a party in which an attorney is implicated, will constitute a fraud on the court). Fraud on the court is “only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication...” Travelers Indem. Co. v. Gore, 761 F.2d 1549, 1551 (11th Cir. 1985) (citation omitted). Inconsistent statements standing alone, however, do not constitute fraud on the court. Tarasewicz v. Royal Caribbean Cruises Ltd., No. 14-CIV-60885, 2016 WL 3944176, at *4 (S.D. Fla. Feb. 9, 2016), report and recommendation adopted, No. 14-CIV-60885, 2016 WL 3944178 (S.D. Fla. Mar. 17, 2016); see also Bryant v. Troutman, No. 3:05CV162-J-20MCR, 2006 WL 1640484, at *1 (M.D. Fla. June 8, 2006) (“In determining which cases are egregious enough to warrant dismissal, courts have been mindful that ‘[t]rials result from factual disputes. In these disputes, the facts on one side are, at best, less true and, at worse, false or fraudulent.””) (citation omitted). Instead, proving a fraud on the court requires “clear and convincing evidence of an unconscionable plan designed to improperly influence the court in its decision.” Johnson v. Law Offices of Marshall C. Watson, PA, 348 Fed. Appx. 447, 448 (11th Cir. 2009); Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989) (A fraud on the court occurs when “a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter.”). In the case sub judice, although the Court finds that the decedent did misrepresent the facts, the Defendant has not met its burden of demonstrating by clear and convincing evidence that the Plaintiffs’ perpetrated a fraud on the court. To the extent that Plaintiffs have been untruthful, however, the Defendant will have ample opportunity to expose those falsehoods at trial. Accordingly, it is hereby ORDERED AND AJUDGED that Defendant's Motion to Dismiss for Plaintiffs’ Discovery Misconduct [D.E. 208] is DENIED. However, the Defendant is entitled to the alternative relief described herein.[8] DONE AND ORDERED in Chambers at Miami, Florida, this 18th day Of May, 2018. Footnotes [1] The complicated facts of this case have been recited at length in previous orders. Therefore, only the facts pertinent to the determination of Defendant's Motion to Dismiss for Plaintiffs’ Discovery Misconduct are included herein. [2] As explained infra, the Court treats Defendant's Motion as two separate motions. [3] When this action and the instant Motion were originally filed, Plaintiff Sebastian Gregory was a minor. Therefore, Amalia Villafane-Gregory and Andre Gregory, parents and natural guardians of Sebastian Gregory, were included in the case caption as Plaintiffs. Despite the change of parties, however, the Court will refer to Plaintiff as “Plaintiffs” for purposes of consistency herein. [4] [D.E. 208 (citing D.E. 80 at 6)] [5] [D.E. 208 (citing D.E. 62, 73, 80, 92, 100, 136)]. [6] [D.E. 213 at 11-12]. [7] Martinez v. Brink's, Inc., 171 F. App'x 263, 268 (11th Cir. 2006) implicitly approved the following jury instruction: You have heard testimony about evidence which has not been produced. Counsel for Plaintiff has argued that this evidence was in Defendant's control and would have proven facts material to the matter in controversy. If you find that the Defendant could have produced the evidence, and that the evidence was within its control, and that this disputed evidence would have been material in deciding among the facts in dispute in this case, and that the Defendant acted in bad faith in not producing the evidence, then you are permitted but not required, to infer that the evidence would have been unfavorable to the Defendant. In deciding whether to draw this inference, you should consider whether the evidence not produced would merely have duplicated other evidence already before you. You may also consider whether the Defendant had a reason for not producing this evidence, which was explained to your satisfaction. Again, any inference you decide to draw should be based on all of the facts and circumstances of this case. [8] The Court does not grant Defendant the attorney's fees and costs associated with preparing his Motion to Dismiss for Plaintiffs’ Discovery Misconduct because defense counsel informed the Court during the February 20, 2018 status conference that he does not want money damages. [D.E. 255 at 10:18-11:25, 14:7-11].