Almeciga v. Center for Investigative Reporting et al., Case No. 1:15-cv-4319-JSR, --- F. Supp. 3d ---, 2016 WL 2621131 (S.D.N.Y. 2016)
This past May, Judge Jed S. Rakoff of the Southern District of New York issued a blistering 65-page opinion tossing a plaintiff's suit against the Center for Investigative Reporting (CIR) and labeling it a "fraud upon the court."
CIR interviewed plaintiff Erica Almeciga in August 2012 for a documentary concerning Rosalio Reta, a former hitman for the Los Zetas cartel, currently serving a prison sentence in Texas. CIR interviewed Almeciga because she represented to CIR that Reta was her husband. Almeciga willingly participated in the approximately 30-minute interview and signed a release in the presence of CIR's producers, and the story—titled "I was a Hitman for Miguel Treviño"—was published online in July 2013. A Spanish-language version of the story was also broadcast by Univision and viewed by millions.
Nearly a year later, in June 2014, Almeciga began calling CIR, claiming that she wanted her identity obscured in future uses of her interview footage. Almeciga hired counsel, Kevin Landau of The Landau Group (with offices in New York and Michigan), who demanded that CIR obscure Almeciga's identity in the existing published piece. After CIR advised Landau that his client had signed a full release, Almeciga insisted that the release was forged. Landau sent CIR an opinion letter that he had obtained from a purported "handwriting expert," claiming that the signature on the release was not Almeciga's.
On April 23, 2015, Alemciga filed a complaint in New York state court, asserting claims for breach of oral contract, fraud and fraudulent concealment against CIR and the individual producers who worked on the piece, as well as a claim for negligence against Univision on the grounds that it should have personally verified her consent to participate in the report, notwithstanding the signed release.
CIR removed the case to the Southern District of New York. Hearing Univision's motion to dismiss the negligence claim—the only claim brought against it—along with CIR's opposition to the motion to remand on the grounds that Univision was fraudulently joined, the court agreed that there was no duty owed by Univision to the plaintiff and, thus, no plausible negligence claim. The court dismissed Univision from the case, finding that it had been fraudulently joined, and rejected the plaintiff's remand motion. See 121 F. Supp. 3d 379 (S.D.N.Y. 2015).
After Almeciga amended her complaint to add a claim for unjust enrichment, CIR filed a motion for judgment on the pleadings on the grounds that plaintiff's breach of oral-contract claim—based on an alleged oral agreement to conceal her identity in perpetuity—is barred by New York's Statute of Frauds. CIR also argued that Almeciga's remaining claims—fraud, fraudulent concealment and unjust enrichment—were duplicative of the deficient contract claim.
In the meantime, CIR discovered court papers filed by Almeciga in a local Georgia court seeking and then withdrawing a request for a restraining order. These certified court papers contained numerous examples of Almeciga's distinctive signature—a clear match for her signature on the release she claimed was forged. The court documents also contained Almeciga's home address, phone number and date of birth, as well as the names and dates of birth of her children. CIR provided these court documents to Almeciga and her counsel, demanding that the case be withdrawn on threat of sanctions.
Rather than withdraw her case, Almeciga doubled down on her claim that the CIR release was forged—and now insisted that she never filed the Georgia court documents either. Almeciga then replaced her first "handwriting expert" with a second purported expert, Wendy Carlson, who submitted a Rule 26 expert report stating that Almeciga did not sign the release. However, Almeciga and her counsel chose not to provide their new expert with the Georgia court documents that were the basis of CIR's threatened sanctions motion. Instead, the new proffered expert relied solely on five signatures provided by Almeciga, none of which predated her legal claims and many of which appeared to have been created expressly for the purpose of comparison.
CIR moved for Rule 11 sanctions on Sept. 14, 2015. Along with the Georgia court documents, CIR's motion included documents indicating that Almeciga was aware of the story at the time it was initially published in July 2013 and had even publicized the interview (and her role in it) via Twitter. CIR also attached footage from the full interview, which contains no circumstantial evidence that—as Almeciga claimed—there was an oral agreement to conceal her identity for fear of retribution from the cartel. Almeciga's interview was shot in full light, with no screen or other concealing device, and she confirms on camera that she is not afraid of retribution for her participation in the interview.
The court convened a full two-day evidentiary hearing on CIR's sanctions motion and, relatedly, the admissibility of Almeciga's expert under Daubert and Kumho Tire. The court used this hearing to grill the plaintiff's expert on her qualifications and the basis for her opinion that Almeciga's release was "forged." At the hearing, in addition to the Georgia court documents, CIR confronted Almeciga with documents filed in various Massachusetts court proceedings which contained copious examples of her distinctive handwriting and several signatures that were contemporaneous with—and nearly identical to—her August 2012 signatures on the CIR release. During her testimony, Almeciga denied filing any of the documents containing a signature identical to the release but admitted to filing the remainder. When it came time for Almeciga's fiancé to take the stand, he was asked to identify Almeciga's signature in the same set of documents, and the court's clerk caught Almeciga attempting to coach his responses on the stand, prompting an admonishment from Judge Rakoff that Almeciga not make any further eye contact with the witness.
The court granted CIR's motion for judgment on the pleadings by order dated March 31, 2016, noting that a written opinion would follow. On May 6, 2016, the court issued its Opinion and Order explaining the basis for its dismissal on the pleadings; excluding the plaintiff's expert under Daubert and Kumho Tire; and granting CIR's Rule 11 motion against the plaintiff, terminating the case as a sanction.
The court's opinion was a full-throated vindication for CIR and its producers and provides a helpful road map for the types of behavior that may be subject to Rule 11 sanctions. The court found CIR's witnesses to be credible and noted that there was "no discernible motive" for CIR and its producers to breach a promise to conceal Almeciga's identity—nor any evidence that such a promise existed in the first place. In contrast, the court found the plaintiff to be "not remotely credible." The court provided a litany of examples where the plaintiff failed to offer any plausible explanation for her various allegations, which "collapse[d] under scrutiny," and noted that she was "caught in several apparent lies at the evidentiary hearing," further reinforcing the court's finding that she was an "incredible and unreliable witness." In light of the evidence presented, the court found "by clear and convincing evidence that [the] plaintiff perpetrated a fraud on the court by pressing critical and serious allegations that she knew to be false." Given the plaintiff's indigent circumstances, the court imposed only the nonmonetary sanction of dismissal with prejudice. Id. at *18-*22.
Regarding CIR's claim for sanctions against Almeciga's counsel, Landau, the court noted that the motion "raises the thorny issue of where vigorous advocacy ends and punishable disregard of the facts begins." Id. at *23. Finding that "counsel (barely) satisfied his obligation under Rule 11," the court declined to impose sanctions. The court explained: "Counsel's pursuit of this lawsuit in the face of mounting evidence indicating his client was lying is certainly questionable and borders on unreasonable, but the court does not find that it quite meets the high standard that must be satisfied to impose sanctions." Id.
The opinion also wades heavily into the debate over the admissibility of handwriting experts under Rule 702. The court included a lengthy discussion of the history of handwriting analysis and forensic document examination, expressing healthy skepticism about the reliability of such analysis under Rule 702 as a general matter. After this introduction, the court found that Carlson's testimony did not meet the standards of either Daubert or Kumho Tire, finding it "fundamentally unreliable and critically flawed." Id. at *17. In particular, the court noted that Carlson relied solely on the plaintiff's representation that the "known" signatures she reviewed —all of which were created after the dispute arose—were accurate representations of Almeciga's signature and were not intentionally disguised to obtain a favorable result. The court considered this assumption to be a "critical flaw" in Carlson's methodology, rendering her analysis "effectively pre-ordained" and, thus, unreliable under Rule 702. Id. at *16. The court punctuated its analysis with images of the contested signatures and handwriting samples, noting "strong similarities to the naked eye" that "any layperson" could identify. Id. at *19-*20.
The decision may also provide helpful precedent in cases involving disputes over alleged promises to sources. The court held that an oral agreement to conceal an individual's identity in perpetuity—as the plaintiff alleged here—is void under the statute of frauds because it cannot be completed within a year. Accordingly, a promise to shield a subject's identity must be in writing to be enforceable. The court also affirmed well-established law that a plaintiff "may not bootstrap a breach of contract claim into a fraud claim by simply including … an allegation that the defendant never intended to uphold his end of the deal." Id. at *4 (internal citations omitted).
Defendants Center for Investigative Reporting, Bruce Livesey, and Josiah Hooper were represented by Thomas R. Burke, Alison Schary, and Jeremy Chase of Davis Wright Tremaine LLP.
Thomas R. Burke is partner and co-chair of DWT's media practice group, based in our San Francisco office. Alison Schary, based in Washington D.C., is an associate in the media practice group.
Reprinted with permission from the June 2016 issue of the MLRC MediaLawLetter. © 2016, Media Law Resource Center, Inc. All rights reserved.