Sandra Rinker and James Rinker Jr. v. Carnival Corporation, Ramanbhai Patel (Ship’s doctor), Yolanda Dormehl (Ship’s nurse), and Susan Law (Ship’s nurse) – Part 2

March 25, 2011

Sandra Rinker and James Rinker Jr. v. Carnival Corporation, Ramanbhai Patel (Ship’s doctor), Yolanda Dormehl (Ship’s nurse), and Susan Law (Ship’s nurse) – Part 2

Redacted Motion for Sanctions Against Defendant Ramanbhai Patel

In this motion the Plaintiff has asked the Court for sanctions against a Defendant who allegedly lied under oath and in sworn statements in order to frustrate the efforts of the Plaintiff and the Court.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case No. 09-23154-CIV-SEITZ-O’SULLIVAN

SANDRA RINKER AND JAMES RINKER Jr.
Plaintiffs,

V.

CARNIVAL CORPORATION,
RAMANBHAI PATEL (Ship’s Doctor),
YOLANDA DORMEHL (Ship’s Nurse),
SUSAN LAW (ship’s nurse).
Defendant.
___________________________/

(REDACTED)[1] MOTION FOR SANCTIONS AGAINST DEFENDANT RAMANBHAI PATEL

COMES NOW, Plaintiff, SANDRA RINKER, by and through undersigned counsel and hereby moves for entry of an order for sanctions against Defendant RAMANBAHAI PATEL (Ship’s Doctor) for repeatedly lying under oath at his deposition and in an affidavit submitted to the Court, and engaging in a scheme and/or pattern to defraud the Court, in an effort to hinder the Court’s ability to obtain personal jurisdiction over him. In support thereof, Plaintiff alleges as follows:

I. Standard of Analysis

The United States Supreme Court has held that in addition to the sanctions provisions in the Federal Rules of Civil procedure and federal statutes, federal courts possess the inherent power to sanction parties who conduct litigation in bad faith or who perpetrate fraud on the court. Quantum Communications Corp., v. Star Broadcasting, Inc., 473 F. Supp. 2d 1249 (S.D. Fla. 2007) (Hon. Judge Martinez) citing Chambers v. NASCO, Inc., 501 U.S. 32, 43-51 (1991). The Supreme Court has cautioned that a “court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists. Id. at 50. However, “if in the informed discretion of the Court, neither the statute nor the Rules are up to the task, the court may safely rely on its inherent power.” Id. The imposition of sanctions pursuant to a court’s inherent authority serves the dual purpose of “vindicating judicial authority without resort to the more drastic sanctions available for contempt of court and making the prevailing party whole for expenses caused by his opponent’s obstinancy.” Id. The Supreme Court has held that sanctions such as dismissal and attorney’s fees are within a court’s inherent power when a party’s conduct evidences bad faith and an attempt to perpetrate a fraud on the court. Id., at 40-46.

The Eleventh Circuit has explained that “the key to unlocking a court’s inherent power is a finding of bad faith.” Quantum Communications Corp., 473 F. Supp. 2d 1249 (S.D. Fla. 2007) (Hon. Judge Martinez), citing Allapattah Servs., Inc. v. Exxon Corp., 372 F. Supp. 2d 1344, 1373 (S.D. Fla. 2005) (Hon. Judge Gold) (striking defendant’s affirmative defenses pursuant to the court’s inherent powers) and Byrne v. Nezhat, 261 F. 3d 1075, 1106 (11th Cir. 2001).

In Quantum Communications, Judge Martinez eloquently explained the applicability of the “inherent power doctrine” stating, in part:

As Plaintiff correctly observes, the inherent powers doctrine is most often invoked where a party commits perjury … See, e.g., Vargas v. Peltz, 901 F. Supp. 1572, 1581-82 (S.D. Fla. 1995) (dismissing sexual harassment suit when it was revealed that the plaintiff had fabricated evidence and lied at deposition); Chemtall, Inc. v. Citi-Chem, Inc., 992 F. Supp. 1390, 1410 (S.D. Ga. 1998) (finding by clear and convincing evidence that defendant had engaged in abusive conduct, including lying under oath, and finding that a lesser sanction would not suffice).Defendants emphasize that the Eleventh Circuit has explained that “false statements alone do not indicate bad faith,” however, the Eleventh Circuit further explained in the case cited by Defendants, that “[a] false statement can be evidence of bad faith, if, for instance, there is other evidence in the record indicating that the statement was made for a harassing or frivolous purpose. Byrner v. Nexhat, 261 F. 3d 1075, 1125 (11th Cir. 2001). Furthermore, several federal courts have held that the need for sanctions is heightened when the misconduct relates to the pivotal or “linchpin” issue in the case. See, e.g., Vargas, 901 F. Supp. At 1582; Nichols v. Klein Tools, Inc. 949 F. 2d 1047, 1049 (8th Cir. 1991) (dismissing plaintiff’s claims after he “repeatedly and pointedly lied under oath regarding a pivotal issue in [the] case”.)

Perhaps most relevant to the instance case, one Court in the Sourthern District of Georgia struck defendant’s answers and entered default judgments after a defendant repeatedly lied under oath at his deposition and produced misleading documents in an effort to hinder plaintiff’s efforts to collect a debt. Chemtall, Inc., 992 F. Supp. At 1406-10. To prove the defendant’s deception, the plaintiff conducted third-party discovery and confronted the defendant with documents that contradicted his previous testimony. Id. at 1409. That Court observed that “a district court may use its inherent powers to enter a default judgment only if it finds first, by clear and convincing evidence – a preponderance is not sufficient- that the abusive behavior occurred; and second, that a lesser sanction would not sufficiently punish and deter the abusive conduct while allowing a full and fair trial on the merits.’

Id.(Emphasis Added). See also Allapattah Servs., Inc. v. Exxon Corp., 372 F. Supp. 2d 1344, 1373 (S.D. Fla. 2005) (Hon. Judge Gold) (“Bad faith exists when the court finds that a fraud has been practiced upon it, or ‘that the very temple of justice has been defiled’); see also Chambers, 501 U.S. 32, 45-46 (every court possesses the inherent power to impose sanctions when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons).

II. At all times material, Defendant Patel engaged in an deceptive scheme to hinder the Court’s ability to obtain personal jurisdiction over him. First, Defendant Patel repeatedly lied under oath regarding his contacts with Florida – a key issue in the case. Additionally, to create the impression that his contacts with Florida are nominal, after the filing of this lawsuit and on the eve of filing his Motion to Dismiss for Lack of Personal Jurisdiction, Defendant Patel withdrew close to ninety-seven (97) percent of his assets from his Florida Bank account. Defendant Patel’s deceptive conduct – which has obligated the Plaintiff to incur substantial costs in jurisdictional discovery, warrants sanctions.

First, in his affidavit in support of his Motion to Dismiss for Lack of Personal Jurisdiction, Defendant Patel swore that he did not have bank accounts or other interest or property in Florida. [D.E. 68 – 1]. See Patel’s Affidavit, attached hereto as “Exhibit A.” That testimony is false. In fact, during his deposition on January 26, 2011, Defendant Patel contradicted his previous sworn affidavit and admitted to having a Bank of America Account in Florida. See Patel’s deposition excerpt, pg. 102 and 103, attached hereto as “Exhibit B.”

Second, in his affidavit Defendant Patel’s also swore that he had not incurred an obligation to pay, and has not paid, any taxes in Florida. That testimony is also false. In fact, Bank of America financial records indicate that over a period of three and a half years Defendant Patel earned interest from his deposits in Florida and as a result incurred an obligation to pay, and in fact paid taxes.

Third, in his deposition – when admitting to having a Bank of America account in Florida – Defendant Patel testified that he only had “one” Bank of America account. That testimony is also false. In fact, Defendant Patel has maintained up to three separate Bank of American accounts in Florida ([types of accounts redacted]).

Fourth, in his deposition, Defendant Patel testified that the account was “dormant” and that he did “not use” the account. That testimony is also false. In fact, Bank of America financial records indicate that from 2005 through 2011 Defendant Patel 1) has earned interest from the accounts, 2) has made regular withdrawals from – as well as substantial deposits to- his Florida accounts, 3) has made purchases using check cards and credit cards from the accounts, and 4) has made substantial wire transfers from his Florida accounts.

Fifth, in his affidavit Defendant Patel declared that he has “not engaged in any activities within the State of Florida” and that he has “not conducted any business activities whatsoever in Florida.” That testimony is also false. In fact, in addition to his extensive banking in Florida, during his deposition Defendant Patel contradicted his previous sworn affidavit and admitted that in the years 2005, 2006, 2007, 2008 and 2009, he attended seminars in Miami, Florida for the Institute of Cruise Ship Medicine. See Patel’s Deposition Excerpt, pg. 84, attached hereto as “Exhibit B.”

Finally, in order to create the impression that his contacts with Florida are nominal, after the filing of this lawsuit – and on the eve of filing his Motion to Dismiss for Lack of Personal Jurisdiction [D.E. 68], Defendant Patel withdrew close to ninety-seven (97) percent of his assets from his Florida Bank account.

As shown below, Defendant Patel’s deceptive conduct – which has obligated the Plaintiff to incur substantial costs in jurisdictional discovery, warrants sanctions.

A. Defendant Patel committed perjury several times by repeatedly lying under oath.

In his affidavit, filed in support of his Motion to Dismiss for Lack of Personal Jurisdiction [D.E. 68-1] (Exhibit A”), dated September 21, 2010, Defendant Patel swore under oath as follows:

BEFORE ME, the undersigned official, on this day appeared RAMANBHAI PATEL, M.D., and after being first duly sworn according to law upon his oath stated the following:

My name is Ramanbahai Patel and I am over the age of eighteen (18) years of age, I have never been convicted of a felony or crime of moral turpitude and I am fully competent to make this affidavit.

2. I have personal knowledge of the facts stated in this affidavit, and they are true and correct.

I have reviewed Plaintiffs Complaint in Sandra Rinker and James Rinker, Jr., Plaintiffs v. Carnival Corporation, Ramanbahi Patel (ship’s doctor), Susan Law (ship’s nurse), Yolanda Dormehl (ship’s nurse), Case No. 09- 23154-CIV-Seitz-O’Sullivan, United States District Court, Southern District of Florida, Miami, Division

I do not operate, conduct, engage in, carry on, or transact business in the State of Florida;
A. I do not maintain an office, place of business, a post office box, or telephone listing in Florida;
B. I currently do not have any real estate, bank accounts, or other interest in property in Florida; and have not ever had any real estate or other interest in property in Florida;
C. I have not incurred any obligation to pay, and have not paid, any taxes in Florida;
D.I have not conducted any business activities whatsoever in Florida;
E. I am not engaged in any activities within the State of Florida;
(Emphasis Added).
i. Contrary to the declarations in his affidavit, Dr. Patel has maintained from 2005 to the present active bank accounts in Florida. Therefore, Defendant Patel committed perjury when he testified in his affidavit that he did not have “any bank accounts,” and that he has not “ever had any interest in property in Florida.”

During his deposition, when asked about whether he had any bank accounts in the state of Florida, Defendant Patel contradicted his previous sworn affidavit and admitted to having a Bank of America Account in Florida. See Patel’s deposition excerpt, pg. 102 and 103 (“Exhibit B”) which provides in part:

Q. Do you have any bank accounts in the United States?
MR. DRAHOS: Object to the form.
MS. CERDA: Join.
THE WITNESS: Yes, sir.
BY MR. MARGULIES:

Q. Okay. Where are your bank accounts in the United States located?
A. I have one at Bank of America, which is dormant really, I don’t use the account. It’s a small balance there.

Q.What branch did you established it at?
A.I opened the account in Port Canaveral.

Q.In Florida?
A.In Florida, yes.

Q. And you’ve maintained it ever since?
MR. DRAHOS: Object to the form.
MS. CERDA: Join.
THE WITNESS: Well, it’s open, yes, but it’s not active at all.
BY MR. MARGULIES:

Q. Well, it’s an active account; isn’t it that correct?
MR. DRAHOS: Object to the form, he just said it wasn’t.
MS. CERDA: Join.
THE WITNESS: I don’t make any deposits into the account, I don’t make any withdrawals to the account now anymore.
BY MR. MARGULIES:

Q. Have you closed the account?
A. I haven’t closed the account.

Q. So the account has been maintained open in the State of Florida at Bank of America since 2005 to the present, correct?
A. That’s correct.

Q. And you have money in that account, correct?
A. I have a small balance just to maintain the account, just to keep the account open.

(Id., Exhibit B, pg. 102 – 103 ) (Emphasis Added).

Therefore, as evidenced from the contradictory testimony in his deposition (indicating that Defendant Patel has in fact maintained from 2005 to the present active bank accounts in Florida), Defendant Patel committed perjury when he asserted in his affidavit that he did not have “any bank accounts,” and that he has not “ever had any interest in property in Florida.”

ii.Contrary to Defendant’s false declarations in his affidavit and misleading testimony in his deposition, Defendant has not only maintained one bank account in Florida, but instead up to three separate bank accounts in Florida.

As a result of Defendant Patel’s inconsistent and untrustworthy testimony, to test its veracity, Plaintiff was forced to propound discovery from non-party Bank of America. [2] On March 3, 2011, Plaintiff served a subpoena on Bank of America, N.A. (attached hereto as “Exhibit C”), requesting, in part:

Any and all records, contracts and/or banking transaction reports pertaining to account(s) currently and/or previously held by Ramanbahai Patel in Florida. These documents shall include, but not be limited to: 1) Information of wire transfers to and from Florida, 2) information of wire transfers to Dinesh C. Patel.

On March 22, 2011 Plaintiff’s counsel’s office received documents from Bank of America responsive to the subpoena.[3] An examination of the documents, which include Defendant Patel’s banking statements, has revealed that Defendant Patel has continuously maintained several bank accounts in Florida from September 10, 2005 through February 23, 2011. During this period, all these accounts were domiciled at Bank of America, N.A. P.O. Box 25118 Tampa, Florida 33622-5118.[4]

In fact, contrary to Defendant’s false affidavit and misleading deposition testimony, the documents reveal that between October 27, 2005 and November 27, 2006 Defendant Patel maintained three separate bank accounts in Florida. During this period Defendant Patel maintained an [redacted] account, a [redacted] account and a [redacted]. Subsequently, between November 28, 2006 and October 28, 2008, Defendant Patel maintained two separate bank accounts in Florida. During this period Defendant Patel maintained an [redacted] account and a [redacted].From October 29, 2008 through February 23, 2011, Defendant Patel maintained an [redacted] account.

Rather than filing a truthful affidavit and admitting in deposition to the existence of three accounts in Florida, Defendant improperly filed a false affidavit and then testified in deposition he only had one bank account in Florida. To prove the defendant’s deception, Plaintiff was forced to conduct additional discovery to unearth the actual facts. Defendant’s improper conduct warrants the imposition of sanctions. See Torr, Inc. v. Chong, 862 So. 2d 744 (Fla. 3d DCA 2003) (“[T]he defendants nonetheless had an obligation to testify truthfully at deposition and to respond accurately to Plaintiffs discovery request. The trial court [properly] found that defendant Torr had testified untruthfully and that plaintiffs’ counsel should be compensated for the extra litigation time required to unearth the actual facts of the case). See also Chemtal, Inc. v. Citi-Chem, Inc., 992 F. Supp. 1390 (S.D. Ga. 1998) (granting sanctions after Defendant repeatedly lied under oath, forcing Plaintiff to prove Defendant’s deception by conducting third-party discovery).

iii. Contrary to his sworn affidavit, over a period of three and a half years Defendant Patel earned interest from his deposits in Florida. As a result, Defendant Patel incurred obligations to pay, and in fact paid taxes from his Florida accounts. Therefore, Defendant Patel committed perjury when he testified in his affidavit that he has “not incurred an obligation to pay and has not paid any taxes in Florida.”

As set forth earlier, in the affidavit in support of his Motion to Dismiss for Lack of Personal Jurisdiction, Defendant Patel swore: “I have not incurred any obligation to pay, and have not paid, any taxes in Florida.” However, an examination of the Bank of America documents, reveals that at least between October 27, 2005 and May 26, 2009, Defendant Patel earned monthly interest from his deposits. The records further reveal that in each of the months in which Defendant Patel earned interest, Defendant Patel incurred an obligation to pay taxes. This is indicated in his monthly statements, setting forth the exact amount of “Federal Withholding for the period.” See Bank of America documents, incorporated by reference and contemporaneously filed under seal.

iv. Contrary to the testimony in his deposition that his Florida account was “dormant” and that he did “not use” the account, records indicate that from 2005 through 2011 Defendant Patel 1) earned interest from the accounts, 2) made regular withdrawals from – as well as substantial deposits to – his Florida accounts, 3) made purchases using check cards and credit cards from the accounts, and 4) made substantial wire transfers to and from his Florida accounts.

As shown above, during his deposition Defendant Patel testified that his Bank of America account was “dormant,” that he “didn’t use the account” and that the account was “not active.” See “Exhibit B”, pp. 102-103.

Defendant Patel earned interest from his deposits in Florida. Contrary to Defendant Patel’s testimony, an examination of the Bank of America records reveals that from September 10, 2005 through December 28, 2009 earned interest from his various Florida accounts. For instance, every single month, beginning on September, 2005 through December 28, 2009, Defendant Patel earned interest from his [redacted] account. Additionally, beginning on November, 2005 through July 26, 2007, every month Defendant Patel earned approximately [redacted] in interest from his [redacted] account. Finally, beginning on September, 2005 through July 26, 2006, every month Defendant Patel earned approximately [redacted] in interest every month from his [redacted] account.

Defendant Patel made regular withdrawals from – as well as substantial deposits to – his Florida accounts. Defendant Patel also made substantial wire transfers from his Florida accounts. Contrary to Defendant’s statements that his bank account was dormant and/or inactive an examination of the Bank of America records reveals that on virtually every month between September 10, 2005 through June 14, 2010, Defendant Patel made regular deposits and withdrawals to and from his various Florida bank accounts. Defendant Patel’s most significant deposits, withdrawals and wire transfers (equal or in excess of [redacted]) can be summarized as follows:

Between September and December 2005, Defendant Patel made three deposits into his bank accounts, each amounting to [redacted], [redacted], and [redacted]. In 2006, Defendant Patel made two deposits, each amounting to [redacted] and [redacted]. Additionally, in 2006 Defendant Patel made three withdrawals, each amounting to [redacted], [redacted] and [redacted].

In 2007, Defendant Patel made two deposits, each amounting to [redacted] and [redacted]. Also in 2007, Defendant Patel made three withdrawals, each amounting to [redacted], [redacted], and [redacted]. Out of these 2008 deposits and withdrawals, Defendant Patel made a total of four wire transfers worth approximately [redacted].

In2008 (the year when the incident in the Complaint happened) Defendant Patel made five deposits, each amounting to [redacted], [redacted], [redacted], [redacted], and [redacted]. Also in 2008, Defendant Patel made two withdrawals, amounting to [redacted] and [redacted] respectively. Out of these 2008 deposits and withdrawals, Defendant Patel made a total of six wire transfers worth [redacted].

In 2009 (the year this lawsuit was filed) Defendant Patel made four deposits amounting to [redacted], [redacted], [redacted] and [redacted]. Also in 2009, Defendant Patel made two withdrawals, each amounting to [redacted] and [redacted].

Finally, in 2010 Defendant Patel made two deposits, each amounting to [redacted] and [redacted]. Also in 2010, on the eve of filing his Motion to Dismiss for Lack of Personal Jurisdiction [D.E. 68], Defendant Patel withdrew ninety-seven (97) percent of his assets from his Bank of America Bank Account – or [redacted].

All in all, between September 10, 2005 and June 14, 2010, Defendant Patel made eighteen (18) deposits worth a total of [redacted], nine withdrawals worth a total of [redacted], and ten (10) wire transfers worth a total of [redacted]. The records further show monthly purchases were made with the check card and credit cards tied to Defendant Patel’s Florida bank accounts.Therefore, contrary to the testimony in his deposition, 1) Defendant Patel’s Bank of America accounts were not dormant, 2) he in fact used the accounts and 3) the accounts were active at all times. See Bank of America documents, incorporated by reference andcontemporaneously filed under seal.

v. Contrary to the declarations in his affidavit, in addition to his extensive banking in Florida, during the years 2005, 2006, 2007, 2008 and 2009, Defendant Patel attended seminars in Miami, Florida, at the Institute of Cruise Ship Medicine. Therefore, Defendant Patel committed perjury when he declared in his affidavit that he “has not engaged in any activities within the State of Florida.”

As set forth earlier, in the affidavit in support of his Motion to Dismiss for Lack of Personal Jurisdiction, Defendant Patel testified, in part: “I have not conducted any business activities whatsoever in Florida”and “I am not engaged in any activities within the State of Florida”. However, jurisdictional discovery has revealed that Defendant Patel’s declarations are untrue. In fact, While working as a ship’s doctor for Defendant Carnival, Defendant Patel traveled to Miami, Florida during the years 2005, 2006, 2007, 2008, and 2009. As a result of that attendance, Dr. Patel was awarded by the Institute of Cruise Ship Medicine various certificates of completion. See Institute of Cruise Ship Medicine Certificates, attached hereto as “Exhibit E.”

During his deposition, when confronted with these documents, Defendant Patel contradicted once again his previous sworn affidavit and admitted that he in fact did travel and attended seminars in Miami, Florida in the years 2005, 2006, 2007, 2008, and 2009. See Patel’s deposition excerpt, pg. 83 through 90 (“Exhibit B”) which provides in part:

Q. Okay. Now, what is the Institute of Cruise Ship Medicine?
A. I don’t know, sir.
Q. Okay. Well, how did you receive these certificates?
A. When we attend the seminar, whatever it is, in Miami for the week we are given the certificate.
Q. Okay. Did you attend a seminar in Miami, Florida for the Institute of Cruise Ship Medicine in the years 2006, 2007, 2008, and 2009 and 2005?
A. Yes, sir.
Q. Okay. And was it approximately a week long each seminar?
A. Yes, sir.
Q. Okay. And where in Miami, Florida was each seminar held?
A. At the Doral.
Q. And where would you stay?
A. At the Doral, sir.
Q. At a hotel?
A. They have a hotel at the Doral, sir.
Q. Okay. So you would stay at a hotel in the Doral?
A. Yes, sir.
Q. And who would pay for that hotel stay?
A. I don’t know, sir.
Q. Okay. Did you have to pay for that hotel stay?
A. No, sir.
Q. Were you employed by Carnival at the time that you were attending
these seminars?
A. Yes, sir.
Q. Were you provided time off the ship by Carnival so you can attend