In Gunter v. Alutiiq Advanced Security Systems, LLC, 2023 WL 2330707 (D. Md. Mar. 2, 2023)(Rubin, J.), the Court relied in part on Fed.R.Civ.P. 41(b) to dismiss a litigant’s lawsuit for failure to comply with the Federal Rules of Civil Procedure. The case involved egregious misconduct that included fraud on the Court, failure to produce ESI, and alteration of ESI. The prior history of this case was discussed in Sanctions Imposed for Fabricated and Unproduced Text Messages.
Gunter sued Alutiiq on employment-related claims. However, Alutiiq filed the report of its expert forensic examiner, J. Christopher Racich of Vestigant LLC, which the Court found reliable and persuasive. Mr. Racich opined that Gunter had “targeted [certain text messages] for deletion” and that other texts were “not genuine and were altered.” The Court described them as “in fact fraudulent.”
Part of the decision focused on “misconduct,” unrelated to ESI, and described Mr.Gunter’s “unflinching and ready dishonesty to the court….” The Court wrote that the false statements “leave this court rather gobsmacked.” However, this blog focuses on the ESI issues and Rule 41(b).
The Court explained that:
Mr. Gunter had deleted portions of texts messages between him and his Alutiiq supervisor, Zachary Caster, that Mr. Gunter expressly relied upon in support of his claims…. Mr. Gunter admitted these apparent deletions were made following his administrative Charge of Discrimination while he was under a duty to preserve, and not spoliate, relevant materials.
Mr. Gunter testified: “A lot of these old text messages get deleted by Verizon, not me.” The Court rejected that explanation, writing: “He was unable to explain, however, how or why Verizon deleted only select passages of the adulterated messages.”
Alutiiq adroitly compared Mr. Gunter’s messages with those on the phone of Mr. Caster and showed “material distinctions.” The Court explained that: “During his deposition, when asked whether he had an explanation for the dramatic text message variance, Mr. Gunter disavowed knowledge and suggested that covert government agents were responsible…. Mr. Gunter went on to challenge counsel for Alutiiq to ‘prove it’ – referencing counsel’s implicit suggestion that Mr. Gunter was responsible for the text message variance….”
Notably, Alutiiq requested a telephone conference with the Court during the deposition and the Court ordered an immediate forensic analysis of Mr. Gunter’s cell phone. Three days later, his attorneys moved to withdraw their appearances. The Court added that “it bears mentioning that during the period of discovery that forms the foundation of the instant motions, and the court’s consideration of Mr. Gunter’s conduct as a litigant in this court, Mr. Gunter had the benefit of multiple able and experienced counsel at all times relevant to the matters now before the court.”
After a review of the record, Judge Rubin wrote:
The intentional and egregious nature of Plaintiff’s conduct, which demonstrates a disregard of the Federal Rules of Civil Procedure and a willingness to commit fraud on the court to prevail and receive an award of monetary damages, not to mention the resultant material injurious effect upon Defendant, shocked the conscience of the court – so much so that the court questioned whether it could, in good conscience, submit any of Plaintiff’s evidence or testimony to a jury. [emphasis added].
The Court found that Mr. Gunter intentionally created false, fraudulent documents and engaged in intentional, wholesale spoliation, “i.e., deliberate deletion and failure to produce” six text messages.
The Court then looked to the following sources of authority to impose sanctions:
The Court thoroughly analyzed each source, and the decision provides a textbook discussion of each. This blog focuses on Rule 41(b). That Rule states in part:
(b) Involuntary Dismissal…. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it…. [emphasis added].
Rule 41is based on the Court’s inherent power. 2023 WL 2330707, at *10. It may be invoked sua sponte. After invoking it, the Court proceeded to examine each of the six factors applicable to a dismissal. Id. at *11, et seq.
The Court wrote that:
Regarding Rule 41(b), the court finds that Mr. Gunter failed to comply with Rule 26(a)(1)(A)(ii) and 26(g)(1)(A) and (B). [emphasis added].
It then held that dismissal was the appropriate sanction.
Based on the court’s conclusion that dismissal of this action is warranted as a sanction for Mr. Gunter’s misconduct, and that no lesser sanction is appropriate, the court will grant the Motion for Sanctions and Dismissal by dismissing this action with prejudice in accordance with Federal Rules of Civil Procedure 26(g)(3), 37(c)(1)(C), and 41(b) and the inherent authority of this court; and by requiring that Mr. Gunter pay reasonable attorneys’ fees and costs associated with Mr. Racich’s engagement and services subject to Mr. Gunter’s capacity to pay….
While “Mr. Gunter demonstrated with searing clarity to this court that he does not countenance rules of candor to the tribunal and ethical conduct in litigation,” and that is fortunately a relatively rare factual predicate, the use of Rule 41(b) as a power to sanction significant violations of the Rules is an important decision.
Reliance on Rule 41(b) is permitted, at least where there is “egregious” non-compliance with the Rules. In Federal Practice & Procedure §2369, Wright and Miller wrote:
Rule 41(b) lumps together three quite different grounds for involuntary dismissal.… The third ground set out in the Rule providing for a dismissal for failure to “comply” with “these rules” or with a “court order,” is rather amorphous; if read literally, it would allow dismissal for the most trivial noncompliance with the Federal Rules or court orders. [emphasis added].
Here, of course, the Rules-based violations were far from trivial.
Frequently, Rule 41(b) is invoked for failure to comply with Court orders or to prosecute an action. Mackin v. Charles Schwab & Co., 2019 WL 127364, at *2 (D. Md. Jan. 8, 2019); Fiorani v. Lowry, 2006 WL 8456792, at *2 (D. Md. June 28, 2006); Mitchel v. LVNV Funding, LLC, 2022 WL 17834152, at *2 (D. Md. Dec. 21, 2022).
Sometimes a combination of factors is present: “Adams’s conduct and her disregard for the Court’s orders and the Rules establish a history of delay.” Adams v. Maryland Mgmt. Co., 2013 WL 142074, at *3 (D. Md. Jan. 10, 2013)(dismissal); Snead v. Automation Indus., Inc., 102 F.R.D. 823, 827 (D. Md. 1984)(failure to comply with Rules, failure to prosecute, failure to comply with Court orders, and “justice dictates dismissal with prejudice of the within case under Rule 41(b).”); Aerodyne Sys. Eng’g, Ltd. v. Heritage Int’l Bank, 115 F.R.D. 281, 287–88 (D. Md. 1987)(“dismissal of plaintiff’s complaint can be based, under Rule 41(b), on two grounds: failure to comply with the Federal Rules of Civil Procedure and failure to comply with the Orders of this Court.”).
If an action can be dismissed under Rule 41(b) for want of prosecution, and it can, dismissal for the more egregious act of prosecuting via a fraud on the Court or significant Rules violations should also be permitted. “District courts possess a comprehensive arsenal of Federal Rules and statutes to protect themselves from abuse.” Chu v. Great N. Ins. Co., 2013 WL 4541606, at *2 (D. Md. Aug. 26, 2013)(quotation and citation omitted).
However, a prudent litigant would not rely solely on Rule 41(b) if other bases are also potentially applicable. In fact, the Alutiiq Court did not rely solely on that Rule.
 See 2023 WL 2330707, at *2.
 See also Should an ESI Protocol Be Incorporated Into a Court Order? discussing Alutiiq.
 The Court “recognized Mr. Racich as ‘an expert in the area of forensic examination of metadata’ and, per Rule 702, allowed him to testify regarding “his expert opinion with respect to matters at issue as to the text messages in this matter.” It also wrote that “Mr. Racich further opined that these messages were ‘deleted’ after the date on which Plaintiff filed his Charge of Discrimination with the EEOC (out of which this action arises).” Judge Rubin wrote that: “As did Judge Bennett, this court credits the testimony of Mr. Racich in its entirety, which is to say that the court finds by clear and convincing evidence that the text messages described above … are not genuine.”
 For example, and without limitation, the Court wrote: “Mr. Gunter’s reprehensible conduct has resulted in the expenditure of many thousands of dollars by Defendant in the form of attorney’s fees and expert costs, and no doubt an emotional toll upon the human beings that make up Alutiiq, including most notably Mr. Zachary Caster, Mr. Gunter’s former supervisor at Alutiiq and the other party to the text messages Mr. Gunter falsified and destroyed…. Further, the court has expended countless hours of judicial resources dedicated to safeguarding the judicial process from Mr. Gunter’s dishonesty.”
 Link v. Wabash R. Co., 370 U.S. 626 (1962).
 “It is well-settled that the term ‘these rules’ in Rule 41(b) refers not only to the Federal Rules of Civil Procedure but also to the local rules of practice for a district court.” Walker v. New York State Dep’t of Correction & Cmty. Supervision, 2023 WL 2402816, at *1 (N.D.N.Y. Mar. 8, 2023).