BROWN v. YOUNG et al

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
BRITTNEY BROWN,
Plaintiff,
vs. Case No. 4:25-cv-419-MW-MJF
ROGER A. YOUNG and
MELISSA TUCKER,
Defendants.
______________________/
REPORT AND RECOMMENDATION
This cause is before the Court pursuant to an Order by U.S. District
Judge Mark E. Walker referring Plaintiff’s motion for sanctions, ECF No. 44,
to the undersigned U.S. Magistrate Judge for an evidentiary hearing. ECF
No. 45. After Defendants filed a response, ECF No. 47, a hearing was held
before the undersigned on March 18, 2026. Both parties have now filed their
written closing arguments. ECF Nos. 56, 57. This matter is ripe for review.
I. Relevant Procedural History
Plaintiff moved for a preliminary injunction on October 3, 2025. ECF
No. 8; 8-1 through 8-7. On October 30, 2025, Defendants filed a response
and attached a single declaration from Defendant Melissa Tucker. ECF No.
21; 21-1 (“Tucker affidavit” or “affidavit”). The Tucker affidavit was signed
under the penalty of perjury by Ms. Tucker on October 28, 2025. Id. at 1, 3.
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The preliminary injunction hearing was held on November 10, 2025. Neither
party requested limited discovery prior to the hearing. PI Transcript, ECF No.
30 at 5. Neither party called any witnesses, instead relying solely on the
declarations. Id. Judge Walker denied Plaintiff’s motion for preliminary
injunction, in large part due to the “unrebutted” Tucker affidavit. See Order,
ECF No. 26 at 11-12. After regular discovery began, depositions and
interrogatories revealed facts in conflict with the Tucker affidavit. Plaintiff
deems the affidavit fraudulent and seeks sanctions. See ECF No. 44.
Defendants disagree. See ECF No. 47.
One other matter needs to be addressed before moving forward. The
day before the sanctions hearing, Plaintiff filed a motion to exclude the
exhibits attached to Defendants’ response to the sanctions motion. ECF No.
52. Neither party raised the motion to exclude at the hearing, but Defendants
declined to introduce any evidence and did not reference or rely on the
disputed exhibits in their closing arguments. See Transcript, ECF No. 54 at
97:13-15; Defendants’ Closings, ECF No. 57. Then weeks after the hearing,
Defendants filed a response in opposition to Plaintiff’s motion to exclude,
arguing the exhibits (that they did not even use) should not be stricken
“wholesale,” claiming they “relied on those materials” only for authentication,
“context…and [to] “rebut [Plaintiff’s] premise that public reaction [to Plaintiff’s
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post] was fabricated.” See ECF No. 58 at 3.
Defendants’ post-hearing response and the exhibits themselves are a
little baffling. While Defendants included the exhibits in their response to
Plaintiff’s motion for sanctions, it can hardly be said they “relied on” any
because Defendants did not refer to or seek admission of those materials at
the evidentiary hearing or in written closings. Even if they had been admitted
or referenced, the evidentiary value of those materials for this issue is zero.
Defendants include screenshots of various comments on several of FWC’s
Facebook posts from late August through early September 2025 and the
September 14, 2025 “Libs of TikTok” thread on X about Plaintiff’s Instagram
re-post.1 ECF Nos. 47-4 through 47-10. These screenshots were obtained
by FWC interns in March 2026 in preparation for the sanctions hearing, after
discovery closed. See ECF Nos. 47-1 through 47-3.
Notwithstanding the potential discovery issue, Defendants cannot
impute knowledge of these comments to Ms. Tucker just because they exist
on the Internet. The issue is whether Tucker had personal knowledge of what
she swears to in her affidavit, at the time she swore to it. Tucker did not have
personal knowledge of Defendants’ challenged exhibits at the time of the
1 Plaintiff also included the “Libs of TikTok” X post, without the comments, in her motion
for preliminary injunction. ECF No. 8-3.
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declaration, or even at the time of the hearing—she was never presented
with the posts to review or authenticate. And as discussed later, her own
social media review was a very limited one-time glance on Facebook after
Plaintiff’s firing. See infra at 13 n.6. Therefore, Plaintiff’s motion to exclude
Defendants’ evidence, ECF No. 52, should be denied as moot because
Defendants failed to offer the evidence at the hearing, and even if they had,
the evidence is not relevant to the current issue.
II. Discussion
The issue presented by Plaintiff’s sanctions motion is not complex.
Plaintiff asserts that the Tucker affidavit contained false statements, was
submitted and relied upon by Defendants in bad faith, and resulted in the
wrongful denial of Plaintiff’s motion for a preliminary injunction. See ECF No.
44. Plaintiff seeks a remedy for that wrong. For their part, Defendants do not
contend that the information provided in the Tucker affidavit was 100%
accurate. See ECF No. 57 at 2 (admitting Tucker’s use of “personal
knowledge” and “hundreds of contacts” was shown at the evidentiary hearing
to be imprecise, but arguing “[i]mprecision is not fraud”). They also
acknowledge that the information suffers from “evidentiary” and “foundation”
issues. E.g., ECF No. 47 at 2, 29. While they may not go as far as to say it
explicitly, there is no question that the information provided to Judge Walker
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was not verifiably true at the time it was submitted.
When a witness testifies, whether by declaration, affidavit, or live in
front of the Court from the witness stand, they are required to tell the truth,
the whole truth, and nothing but the truth. E.g., Fed. R. Evid. 603; 28 U.S.C
§ 1746. It’s a three part agreement. The “truth” is that which is verifiable,
compared to a standard that is known to be accurate. The “whole truth” is a
commitment to not exclude information which is relevant to the inquiry.
“Nothing but the truth” means that the witness will not embellish or expand
that which is known to be true to include exaggeration or extension. Tucker
committed to providing true information under such restrictions. See ECF No.
21-1 at 1, 3. Her affidavit does not live up to that standard. And the words
she used in her affidavit are important.2
A. The Tucker Affidavit
First, Tucker states in her affidavit that her representations are “based
on my personal knowledge and review of official Florida Fish and Wildlife
Conservation Commission (FWC) records.” ECF No. 21-1 at 1. She also
contends that she has “personal knowledge of the circumstances
2 At the hearing, Tucker testified that she did not prepare the affidavit for herself, but
before signing it she reviewed it for accuracy and even edited it. ECF No. 54 at 24:14-20,
25:1-11 (“There was a statement that I had received calls from partner organizations, and
I removed that because I had not received calls from partner organizations”). Thus, the
affidavit became her own words once she signed and swore to it.
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surrounding the termination of [Plaintiff’s] employment and of the events
leading up to and following that decision” and that her statements “are based
on firsthand involvement, direct observation, and contemporaneous agency
records maintained in the ordinary course of business.” Id. ¶ 2. These
statements relate to the sources of the information used by Tucker in
formulating the testimony contained within her affidavit.
Beyond that, Tucker asserts that “within hours” of FWC becoming
aware of Plaintiff’s post,3 “the agency’s communications office began
receiving a large volume of calls, emails, and online messages from citizens,
volunteers, and partner organizations” and that “[m]any expressed concern
or outrage, questioning whether the post reflected FWC’s values or political
neutrality.” Id. at 2 ¶ 4. Tucker goes on to state that “[o]ver the next two days,
hundreds of citizen contacts, and multiple media inquiries were received
across FWC’s public channels” and that “[t]he volume and tone of these
communications disrupted agency operations, required diversion of staff
resources to manage responses, and raised legitimate concerns about the
agency’s credibility and public trust.” Id. at ¶ 5.
3 FWC become aware of the post via Defendant Young during the evening of Saturday,
September 14, 2025. Tucker did not find out until the next day, when Mr. Warthen called
her and told her there had “been escalating social media campaigns, information, and
that [Young] had decided that [Plaintiff’s] employment would be terminated.” ECF No. 54
at 30.
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There are two separate issues at play with the content of the above
paragraphs: the purported versus actual source of Tucker’s knowledge; and
the actual accuracy of the statements, regardless of the source.
B. Source of Information
First, the source of Tucker’s information. In reality, and as admitted by
Tucker during the hearing, the statements at issue in her affidavit were not
based on her “personal” knowledge, “firsthand involvement,” or “direct
observation,” but were based on conversations she had with two other FWC
employees, Mr. Warthen and Ms. Blunden, and possibly a conversation with
Director Young sometime after the termination. ECF No. 54 at 25-26, 53-59.
Moreover, while Tucker claimed to base her affidavit on FWC records, the
only documents she reviewed prior to Plaintiff’s termination on September
16, 2025 was FWC policy relating to OPS employment, confirming that
Plaintiff was subject to termination without any sort of pre-termination
hearing process.4 Id. at 27, 60.
Defendants contend there was no intent to mislead or deceive the
Court regarding the source of Tucker’s information; instead, she merely had
a different understanding of what is meant when one refers to “personal
4 During her deposition, Tucker testified that the phone calls to her and the hearsay
statements by others were part of the “records” she reviewed. Tucker Deposition, ECF
No. 42-6 at 126:9-13. She did not repeat this bizarre claim at the hearing.
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knowledge,” “firsthand involvement” and “direct observation.” E.g., ECF No.
57 at 4-5. But secondhand information is not firsthand involvement. It is
hearsay. See Fed. R. Evid. 801(c) (“Hearsay is a statement, other than one
made by the declarant while testifying at trial or hearing, offered in evidence
to prove the truth of the matter asserted”). In Tucker’s case, it was mostly
hearsay within hearsay. Tucker conceded to as much at the hearing. ECF
No. 54 at 26:16-24 (“The information that I received from [Blunden and
Warthen] was…their relying on information that they were getting from
[Young], and from themselves, and that Ms. Blunden was hearing from
[Plaintiff] directly”; Q: “Okay. But it’s not information that you heard with your
own ears or saw with your own eyes, correct? A: “Correct.”). Even giving
some credit to the notion that a layperson might consider hearsay to be
firsthand involvement, direct observation, or personal knowledge, it does not
alleviate the Court’s concern that Tucker misrepresented the foundation of
her information in the affidavit. And ignorance of the law, particularly where
an affiant is represented by counsel, is not an excuse.
Tucker could have appropriately stated in the affidavit that she was
aware of these matters from her conversations with persons within FWC.
Such a statement would have been accurate and would not have impacted
the relevance or admissibility of the affidavit. It was, after all, filed in
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opposition to a motion for preliminary injunction—not summary judgment.
Compare Levi Strauss & Co. v. Sunrise Intern. Trading Inc., 51 F.3d 982,
985 (11th Cir. 1995) (“At the preliminary injunction stage, a district court may
rely on affidavits and hearsay materials which would not be admissible
evidence for a permanent injunction, if the evidence is appropriate given the
character and objectives of the injunctive proceeding”) with Fed. R. Civ. P.
56(e) (“An affidavit or declaration used to support or oppose [summary
judgment] must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent
to testify on the matters stated”).
But the mischaracterization of Tucker’s source of information could
have impacted the weight to be assigned to the affidavit and each statement
within. Tucker’s affidavit explicitly paints the facts from personal knowledge,
not hearsay. In truth, most of her affidavit was based on information and
belief. The difference matters. See Marshall Durbin Farms, Inc. v. Nat'l
Farmers Org., Inc., 446 F.2d 353, 357 (5th Cir. 1971) (“While we do not rule
out the possibility that hearsay may form the basis for, or contribute to, the
issuance of a preliminary injunction, the district courts have shown
appropriate reluctance to issue such orders where the moving party
substantiates [their] side of a factual dispute on information and belief”). The
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harm here is that Judge Walker was not provided with an accurate picture of
what Tucker actually knew personally as opposed to what she learned from
discussions with others. Such information may have impacted whether
Judge Walker would have relied on such an affidavit in denying the motion
for preliminary injunction.
C. Accuracy of the Affidavit
Beyond the questions regarding the source of Tucker’s information, a
more troubling question is whether several of the statements in the affidavit
are true and accurate. The statements at issue, as raised by Plaintiff, are
within paragraphs 4 and 5. Each is addressed below.
Paragraph 4 of Tucker’s affidavit claims that “within hours” of Plaintiff’s
post, “the agency’s communications office began receiving a large volume
of calls, emails and online messages from citizens, volunteers, and partner
organizations.” ECF No. 21-1 at 2 ¶ 4. Tucker had no knowledge to support
most of this statement. First, Tucker had no knowledge or evidence of the
volume of calls, emails, or messages. ECF No. 54 at 61-63. This is because
no one quantified the number or type of communications for her and she did
not independently seek it out. E.g., Id. at 32-33, 42:25-43:1-2 (when asked
by Plaintiff’s counsel whether Warthen provided her “any information” about
“the number of calls” coming in, Tucker testified that she “did not ask”);
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Tucker Deposition, ECF No. 42-6 at 131 (Q: “So you relied on Mr. Warthen’s
call to determine that there had been hundreds of these contacts?” A: “Yes.”;
Q: “Was that [Warthen’s] phrasing?” A: “No.”; Q: “Do you remember what his
phrasing was?” A: “I don’t.”; Q: “Did someone else tell you a number?” A:
“No.”). Further, Tucker admitted in her deposition that it was not the
“agency’s communications office” receiving the contacts, but members of the
executive team, including the executive director. ECF No. 42-6 at 128:11-19
(stating in part, “it could not be the communications office” because it was
happening on a Sunday when the office was closed).
Second, there is no evidence to support that Tucker knew who was
making these calls or messages. While “citizens” is broad enough to include
all human beings, “volunteers” and “partner organizations” are specific terms
used for a specific meaning—to show harm and disruption to FWC’s
reputation and operations. But Tucker had no knowledge that volunteers or
partners were reaching out. See ECF No. 54 at 43:3-8 (Q: “In terms of…who
called, did you have any information about that?” A: “I didn’t.”), 62:16-18 (Q:
“Do you have any specific knowledge that a volunteer called to complain?”
A: “I do not”); 62:25-63:2 (Q: “Isn’t it fair to say you have no information about
partner organizations complaining about [Plaintiff’s] post?” A: “Correct.”), 44
(testifying that Warthen did not tell her who was calling or if agency partners
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had reached out and confirming that none had reached out directly her).5
Similarly, in paragraph 5 of Tucker’s affidavit, she states that “over the
next two days, hundreds of citizen contacts, and multiple media inquiries
were received across FWC’s public channels.” ECF No. 21-1 at 2 ¶ 5. Tucker
had no basis for this assertion. Even at a hearsay level, no one told her
hundreds of contacts were coming in. At best, Tucker now claims she “used
the word ‘hundreds’ in a generalized context.” ECF No. 54 at 32. Yet she
went on to state that it meant “many, more — hundred or more, but definitely
not a tallied count of the number of complaints or anything that came in.” Id.
Then she waffled again, claiming “it implie[d] a generalized sense that there
were many complaints that were coming in” and “it was an attempt to give
context around the fact that this was an escalating situation and the numbers
were continuing to grow.” Id. at 33. Tucker also admitted that prior to
Plaintiff's firing, she made no effort to quantify the number of calls or contacts
to FWC regarding Plaintiff’s post. Id. at 34. Even at Tucker’s deposition in
5 To anyone else, it would not be true to say you have personal knowledge of “a large
volume” of contacts from “volunteers and partner organizations” when you actually have
no information that any contacts came from volunteers or partner organizations. Tucker
disagrees. See ECF No. 54 at 62:19-22 (declining to admit that including “volunteers” was
inaccurate, instead stating, “I should have been more clear that” it was “specific to general
citizens”); 63:3-6 (declining to admit including “partner organizations” was untrue, stating,
“Again, I was hearing from our executive director’s office that they were getting a variety
of calls. And I don’t know, some of them may have been from partner organizations.”).
This type of reckless speculation and outright falsity has no place in a sworn declaration.
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January 2026, she was unsure of the number of contacts. ECF No. 42-6 at
132 (Q: “Is it possible that there were fewer than a hundred [contacts]?” A: “I
don’t know”).6
The troubling fact is that Tucker had access to a specific number of
complaints made to the agency as of 1:15 PM on Monday, September 15th
but chose not to review it. This information was delivered directly to her email
inbox in the form of a report from the FWC Office of the Inspector General
(OIG). ECF No. 54 at 35; OIG Report, ECF No. 42-15. The report notes
“numerous complaints concerning” Plaintiff’s post and includes contact
information for approximately 50 people who complained to OIG. ECF No.
42-15 at 18, 21-43. It’s not clear what Tucker did with the report. She claimed
she “looked at it” but “did not review it in detail.” ECF No. 54 at 35. She did
not count the number of the complaints. Id. When asked why, Tucker stated
“the report was there and it was available for someone to look at if they
needed to, but I did not need to count.” Id. She never went back and reviewed
the OIG report in preparation of her affidavit or in preparation for the
6 At the hearing, Tucker claimed she looked at Facebook sometime after Plaintiff was
fired, “towards the end of September [2025],” before signing the declaration. ECF No. 54
at 33, 79, 86. She typed Plaintiff’s name and “FWC” into the Facebook search bar and
saw “many” posts from “people who were upset.” Id. She did not screenshot the posts.
Id. at 80. She did not mention the search to anyone until she was preparing for the
sanctions hearing and told FWC’s legal office. Id. at 80-81. She does not know when any
of those posts or comments were made, so her implication that these are included within
her personal knowledge of “hundreds” of contacts over a specific two-day period fails.
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sanctions hearing. Id. at 37.
Tucker’s affidavit also asserts that “[t]he volume and the tone of these
communications disrupted agency operations, required diversion of staff
resources to manage responses and raised legitimate concerns about the
agency’s credibility and public trust.” ECF No. 21-1 at 2 ¶ 5. Other than
possibly interrupting Young’s Saturday evening of watching football and
requiring a phone call amongst members of the executive committee, there
was no evidence of disruption of agency operations or diversion of staff
resources, especially over the two days in question. ECF No. 54 at 45-46.
Further, both Tucker and Young, in their respective interrogatories
submitted in December 2025, admitted there was no actual agency
disruption. ECF No. 42-2 at 3 (Tucker “has no personal knowledge of any
operational disruptions to FWC operations attributable to [Plaintiff’s post]”);
ECF No. 42-1 at 3-4 (Young cites “reputational concerns” and “a reasonable
prediction of disruption, though no documented payroll overruns, facility
access impairments, or security deployments were identified”; denies
knowledge of “any instance in which a partner refused to work with FWC or
altered its relationship with the agency due to [Plaintiff’s post]”). This might
be the clearest case of a lie in Tucker’s affidavit: she swore to have personal
knowledge that Plaintiff’s post disrupted agency operations, only to swear a
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month later that she had no personal knowledge of such a thing. What’s
more, it is clear that there was no actual disruption.
D. Impact and Prejudice
Defendants explain these inaccuracies and shortcomings as nothing
more than imprecise language. But that is not nothing. Tucker’s affidavit fails
to adhere to the obligation to tell the “whole” truth and “nothing but the truth.”
It leaves out pertinent information such as the source and basis for the
assertions contained in the affidavit. It overstates the actual extent of the
impact of Plaintiff’s Instagram post—especially in the two days before her
termination. Tucker could have accurately reported that she received a
phone call from her supervisor who said that Young became aware of an
employee’s Instagram post receiving a negative social media backlash. Such
testimony may have been sufficient to convince the Court that a preliminary
injunction was not appropriate because of the potential for disruption.
Instead of that accurate report, Tucker reported a large volume of calls,
emails and messages from specific types of people; and hundreds of citizen
contacts and multiple media inquiries that resulted in actual agency
disruption. Such embellishment was intended to sway the Court to deny the
preliminary injunction. This is confirmed by Defendants’ own argument in
response to Plaintiff's motion for preliminary injunction:
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Defendants, by contrast [to Plaintiff’s declarations], have submitted
sworn declarations grounded in firsthand knowledge and supported by
authenticated exhibits. Those declarations show that Plaintiff’s public
identification as an FWC employee caused operational disruption and
concern among agency partners . . .
ECF No. 21 at 4. Despite this claim, Defendants offered no exhibits,
authenticated or otherwise, outside of Tucker’s affidavit. Defendants then
dug in on the importance of the Tucker affidavit at the preliminary injunction
hearing:
[Defense counsel]: First, I'd like to point to the statements referencing
the conclusory nature or alleged conclusory nature of Ms. Tucker's
declaration. It's concise, but it's specific…her declaration noted, again,
hundreds and hundreds of complaints via citizen calls, emails, partner
requests, and media inquiries.
ECF No. 30 at 54:3-12. When Judge Walker pushed back on what would be
sufficient to make the affidavit more than conclusory, Defendants agreed:
[Judge Walker]: It seems to me that if the declaration of Ms. Tucker
had simply said, we received complaints, and based on the complaints,
we concluded it would be disruptive, Judge, there's actual facts beyond
that conclusion, which is there's hundreds of citizen contacts, multiple
media inquiries, and the volume and the tone were negative, so,
Judge, she may not have written a tome on it, but she did provide facts
underlying the conclusion; correct?
[Defense counsel]: That's correct, yes.
[Judge Walker]: And your view is, Judge, based on those facts,
whether you believe they are a scam or not, that's enough for us and
it would be the plaintiff's burden to overcome those facts; correct?
[Defense counsel]: That's correct, Your Honor.
Id. at 55:2-15. The specific number, volume, and nature of the calls clearly
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mattered to the analysis:
[Judge Walker]: But what we do know is I've got Ms. Tucker who is
under oath who said that they got hundreds of citizen contacts. So that
could be—"hundreds" would be more than 100, so it could be 200; it
could be 900— and also multimedia inquiries, and that the volume and
the tone—so it's not just the number, but it was the tone of them.
Id. at 58:20-25.
Contrary to Tucker’s oath, her affidavit was not grounded in personal
knowledge, firsthand involvement, direct observation, and contemporaneous
agency records. See ECF No. 21-1 at 1, 1-2 ¶ 2. She could not have
knowingly sworn that there were “hundreds” of contacts because she made
no attempts to quantify the actual number. See Id. at 2 ¶ 5. She swore there
had been “a large volume” of contacts from various people, choosing to
specifically include “volunteers” and “partner organizations,” when she had
no idea who or how many were reaching out. It’s highly suspect that she
could have known there was actual operational disruption to FWC as a result
of Plaintiff’s post because both Tucker and Young later denied there was
any. Yet Judge Walker relied on the misrepresentations in her affidavit when
making his ruling.
“When parties and attorneys prepare affidavits on behalf of witnesses
to sign under penalties of perjury, care must be taken to ensure their
testimony is being set forth accurately. Sloppiness in preparing accurate
witness affidavits cannot be excused on the basis that opposing counsel may
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impeach the witness” later if “an inconsistency” is ever discovered. Pappas
v. Hurst, 2018 IL App (1st) 171759-U, ¶ 47, 2018 WL 3814934 at *11.7 It
does not appear that sufficient care was taken to confirm the accuracy of
Tucker’s affidavit. That falls not only on Tucker, but also on Defendants’
counsel and their due diligence, or lack thereof.
Even after everything, Tucker continues to maintain that the affidavit is
accurate. ECF No. 54 at 24-25. It could be that Tucker believed she was
testifying truthfully when she signed the affidavit because she believed the
information in the affidavit to be true. But there is a difference in believing
something is true based on a game of telephone and overall vibes, and
knowing something is true based on experiencing it firsthand and ensuring
due diligence. Sworn affidavits demand more than vibes. Words matter.
Tucker’s explanation is that she said “personal knowledge” when she meant
“I learned from others.” She said “hundreds” when she meant “many” based
on her “generalized impression.” She said there was actual “disruption” and
“diversion” when she meant that disruption and diversion were possible. As
discussed below, the Court does not find Tucker’s explanation credible given
the circumstances and her attempts at minimization. These were not slight
7 Pappas is an unpublished state appellate court decision, but the Court finds the quoted
language applicable and persuasive here.
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mistakes. What’s worse, the inaccuracies may have impacted the district
court’s ruling at the preliminary injunction stage.
E. Sanctions
“The inherent powers of the federal courts include the authority to
fashion sanctions for conduct that abuses the judicial process.” J.C. Penney
Corp., Inc. v. Oxford Mall, LLC, 100 F.4th 1340, 1346 (11th Cir. 2024).
“Courts considering whether to impose sanctions under their inherent power
should look for disobedience and be guided by the purpose of vindicating
judicial authority.” Purchasing Power, LLC v. Bluestem Brands, Inc., 851
F.3d 1218, 1225 (11th Cir. 2017). The question of sanctions hinges on a
finding of subjective bad faith by a party. Id. at 1223-1224; Barnes v. Dalton,
158 F.3d 1212, 1214 (11th Cir. 1998).
A finding of bad faith is fact specific given the circumstances of the
case, but encompasses a broad enough range of conduct so a district court’s
hands are not tied. It may arise with conduct that “delays or disrupts the
litigation or hampers a court order’s enforcement.” Chambers v. NASCO,
Inc., 501 U.S. 32, 33 (1991). Reckless conduct, or a false statement, “can be
a starting point,” but neither are sufficient alone to warrant bad faith. See
Purchasing Power, LLC, 851 F.3d at 1225; Byrne v. Nezhat, 261 F.3d 1075,
1125 (11th Cir. 2001), abrogated on other grounds as recognized by Jackson
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v. Bank of Am., N.A., 898 F.3d 1348,1357 n.10 (11th Cir. 2018). There must
be something additional, like frivolousness or a harassing purpose. Id. Intent
can be inferred from the circumstances. J.C. Penney Corp., Inc., 100 F.4th
at 1346.
This is not a case of a single false statement, or imprecise language
that could have been better defined. Tucker’s affidavit is replete with
problems. She knew her source of information was hearsay, yet she signed
an affidavit under oath claiming she had firsthand involvement and personal
knowledge. She had no knowledge (from hearsay or otherwise) of the
number of contacts, yet swore there were hundreds. The same is true for
any actual agency disruption, yet again, she swore there was.8 These
statements were not just reckless, but knowingly false. She made no effort
to correct the record with the Court after the issues were raised during her
deposition. It was not until Plaintiff filed the current sanctions motion and
Tucker testified at the hearing that she finally had to face the music. But
instead of admitting the issues, she minimized. After everything, she had the
audacity to claim she still believed the affidavit was true and accurate.
Her knowing and material omissions, mischaracterizations,
8 Until around two months later, when she swore to the opposite in her interrogatory
response.
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embellishments, falsehoods, and willful refusal to read the OIG report all lead
to one conclusion: the motivation behind her affidavit was not to provide true
information to the Court, but to blindly support the agency’s legal theory with
enough testimonial evidence to defeat a preliminary injunction. This intent is
further supported by Defendants’ arguments in their response to the
injunction and during the injunction hearing, as well as defense counsel’s
failure to verify Tucker’s affidavit with due diligence. It was result-oriented
testimony and argument without regard for accuracy. These actions
disrupted litigation and are an abuse of the judicial process. There is
sufficient bad faith to warrant sanctions.
In deciding the appropriate sanction, Plaintiff’s conduct cannot be
ignored. Plaintiff had every opportunity to request expedited discovery prior
to the preliminary injunction hearing. She declined. She also had every
opportunity to call witnesses at the injunction hearing, including Tucker, yet
chose to rely only on the affidavits. Had Plaintiff taken the simple step of
questioning Tucker at the injunction hearing, most of the information in her
affidavit could have been tested. Plaintiff should not reap the benefit of the
ultimate sanction of default judgment when her own failures encouraged the
delayed discovery of this issue.
That said, the Court must be able to rely on sworn testimony submitted
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by a litigant, especially when that litigant is represented by counsel. See Bus.
Guides, Inc. v. Chromatic Commc'ns Enters., Inc., 498 U.S. 533, 544-46
(1991) (the signature of a party, even when represented, “denotes merit” and
“sends a message to the district court that this document is to be taken
seriously”). The narrowest sanction this Court can discern which will punish
Defendants’ bad behavior, discourage such behavior in the future, and
remedy the harm to Plaintiff without rewarding her for her own lack of
diligence in challenging the affidavit during the injunction stage, would be to
strike the offending paragraphs and language9 from Tucker’s affidavit and
allow the district court to proceed with whatever course it chooses with
respect to Plaintiff’s motion for a preliminary injunction.10 That is the sanction
the undersigned recommends would be appropriate here.
III. Recommendation
For the reasons discussed, it is respectfully RECOMMENDED that
Plaintiff’s motion for sanctions, ECF No. 44, be GRANTED in part, as noted
above, and Plaintiff’s motion to exclude Defendants’ evidence, ECF No. 52,
9 Plaintiff challenged paragraphs 4 and 5, but paragraph 2 contains Tucker’s purported
source of information. The ultimate decision on what should be stricken or re-weighed
should be left to the district court.
10 The undersigned makes no judgment regarding whether the remaining evidence before
the district court would have been sufficient to change the outcome of the injunction
hearing. Moreover, Plaintif’s entitlement to attorneys’ fees in this matter will ultimately be
driven by the district court’s conclusion on Plaintiff’s motion for a preliminary injunction.
No such award of fees is made at this time.
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be DENIED.
IN CHAMBERS at Tallahassee, Florida on April 9, 2026.
s/ Martin A. Fitzpatrick
MARTIN A. FITZPATRICK
UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES
Within fourteen (14) days after being served with a copy of this
Report and Recommendation, a party may serve and file specific
written objections to these proposed findings and recommendations.
Fed. R. Civ. P. 72(b)(2). A copy of the objections shall be served upon
all other parties. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy thereof. Fed.
R. Civ. P. 72(b)(2). Any different deadline that may appear on the
electronic docket is for the Court’s internal use only and does not
control. If a party fails to object to the Magistrate Judge’s findings or
recommendations as to any particular claim or issue contained in this
Report and Recommendation, that party waives the right to challenge
on appeal the District Court’s order based on the unobjected-to factual
and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636(b)(1)(C).
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