IMPERIAL Pacific International LLC has not established any factor that warrants vacating the entry of default, attorney Bruce Berline said in opposing IPI’s motion to vacate entry of default.
Berline represents Joshua Gray, a former employee of IPI who sued the casino investor over allegations of discrimination.
In April 2021, Chief Judge Ramona V. Manglona of the District Court for the NMI issued an order striking IPI answers to the lawsuit and directed the clerk of court, Magistrate Judge Heather Kennedy, to enter a default against the defendant for failing to comply with a previous discovery order.
A default means the plaintiff has won the case but has not settled the issue of monetary compensation for damages.
On July 8, 2021, IPI, represented by attorney Stephen Nutting, filed a motion to vacate entry of default pursuant to rule 55(c) of the Federal Rules of Procedure.
In his opposition to the motion, Berline said, “IPI has repeatedly failed to comply with its discovery obligations and has repeatedly failed to obey this court’s discovery orders. This court repeatedly warned IPI that its continued failure to obey the court’s discovery orders would result in an entry of default. Despite such warnings, IPI continued to disobey the court’s discovery orders. As a result of the court finding that IPI’s violations were willful, this court struck IPI’s answer and entered a default against it.”
To date, he said, IPI has failed to produce the following discovery as requested by the plaintiff on July 17, 2020: (1) All USCIS visa applications, including CW-1 and H-1B initial and renewal visa applications, for all applicants applying for such visas for an IPI director position and above from February 1, 2015 to February 28, 2019; (2) all IPI HR training materials; and, (3) documents regarding IPI’s floating hotel project.
Berline said IPI’s counsel has “never filed a declaration in this matter which sets forth with clarity all efforts IPI has undertaken to search for Electronically Stored Information or ESI and paper documents responsive to plaintiff’s discovery, the places and sources that have been searched, who conducted the searches, and what ESI and paper discovery has been collected and produced to plaintiff,” despite being ordered to do so twice by this court.”
Finally, he added, IPI has failed to pay plaintiff attorney’s fees and costs as ordered by this court on July 8, 2021.
“This court ordered IPI to pay plaintiff $19,616.25 in fees and costs no later than 30 days from the date of the order or by Aug. 9. To date, plaintiff has not received these fees and costs,” Berline said.
“IPI’s failure to obey this court’s discovery orders is not only intentional, but IPI’s intent to disobey may be presumed by the court,” he added.
“IPI is a large, sophisticated corporation that employs numerous attorneys to represent it in this case and other cases before this court. IPI conducts business here on Saipan on a massive scale. IPI built a massive casino/hotel project in the center of Garapan, spent vast sums in connection with building the casino, employed thousands of people, and infiltrated nearly every aspect of business in Saipan. IPI now wants to set aside the default motion that was entered by this court claiming that its outright refusal to participate in discovery for the past year and a half was not willful — despite this court having found that IPI acted willfully when it entered the default,” Berline said.
“IPI fails, entirely, to meet its burden to show that good cause exists to set aside the default under Fed. R. Civ. P. 55(c), and thus its motion should be denied,” Berline added.
ESI
He said ESI is crucial to this case especially since IPI’s principal form of employee communication was WeChat and e-mail.
In its motion, Berline said, “IPI boldly and confidently claims that its discovery production, including more than a terabyte of ESI, contains absolutely no evidence showing that IPI wanted to terminate Mr. Gray because of race or nationality, and/or his alleged continuing complaints of alleged unlawful hiring practice on the part of IPI.”
According to Berline, in an earlier court hearing, “Mr. Nutting told the Court, while discussing the requested ESI, ‘if we’re looking for a smoking gun of racial discrimination, it’s probably somewhere there because it wouldn’t be kept in the normal course of business.’ ”
Berline added, “It turns out that the latter in-court statement is the true and correct one. When IPI produced the hard drives, Mr. Gray began the near impossible task of trying to review the ESI data.”
He said “Gray began with searching the 49,000 page report on [then-IPI legal counsel] Kelley Butcher’s cell phone because he could conduct simple word searches on that document, unlike other documents that had to be uploaded into the appropriate program (i.e. Microsoft Outlook for each email viewed).”
While searching the Butcher cell phone report, Berline said Gray eventually found a text message exchange, dated January 24, 2019, between Butcher and another IPI legal counsel, Viola Alepuyo.
Berline said the text exchange was as follows:
Kelley Butcher: “We are serving Josh his term today…(emoji)”
Viola Alepuyo: “WHAT???!!! WHY???!!!”
Kelley Butcher: “Per Ji and our new chair mama Ji…‘why is the fat black guy still here?! He does nothing!!!’…MAB [then-IPI CEO Mark A. Brown] said he has been trying to fight it but cannot anymore… “
Viola Alepuyo: “Jesus!!”
Berline said further searching by Gray revealed a text exchange between Mark A. Brown and Kelley Butcher, dated January 23, 2019.
Berline said the text exchange “reveals Mark Brown’s attempt to save Mr. Gray’s job but also reveals a strategy by IPI to obscure the discriminatory firing of Mr. Gray by attempting to offer a restructure of his position and salary, much like IPI did with Donald Browne.”
Berline said Gray also found a text exchange, dated April 14, 2019, between Butcher and Phil Tydingco, another former IPI counsel.
“Ms. Butcher tells Mr. Tydingco that she ‘[j]ust ran into Josh Gray at Wild Bill’s, apparently his suit against the company will be served on Monday!!’
“Mr. Tydingco responded, ‘Lovely.’ Ms. Butcher then apparently identifies the lawyer representing Mr. Gray by texting ‘Fitzgerald.’ Mr. Tydingco states ‘Yup, you better brush up on EEO [Equal Employment Opportunity] law.’ Then Ms. Butcher states: ‘You think it’s gonna be a discrimination? On what?? Fat and black?? [two laughing emojis].’ ”
Berline said these text exchanges “demonstrate the importance of ESI in this matter.”
He said “the texts also negate IPI’s baseless assertion that plaintiff is on a ‘fishing expedition’ and ‘should not be allowed to continue until he provides some measure of evidence to support his [allegation of] discrimination.’ ”
Berline said “the ESI in this matter contains multiple smoking guns confirming what Mr. Gray has claimed in his complaint — that IPI systematically was replacing American workers with Chinese workers and fired him based on discriminatory reasons.”
“There are undoubtedly more smoking guns within the ESI,” Berline added. “However, IPI refuses, to this day, to place the ESI onto an ESI platform thus preventing plaintiff’s ability to search the majority of the ESI data.”
Gray sued IPI for discrimination based on race and retaliation for complaints about its employment practices.
Gray asked the court to issue an order awarding him damages and other relief as the court deemed appropriate.
Besides Berline, Gray is also represented by attorney William Fitzgerald.
