In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3287

JORGE NEGRETE,

Plaintiff-Appellant,

v.

NATIONAL RAILROAD PASSENGER

CORPORATION (Amtrak),

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 08 C 873—Joan B. Gottschall, Judge.

ARGUED APRIL 10, 2008—DECIDED OCTOBER 27, 2008

Before EASTERBROOK, Chief Judge, and ROVNER and

SYKES, Circuit Judges.

SYKES, Circuit Judge. Jorge Negrete, a former trackrepair worker for Amtrak, hurt his back when he fell off

a welding truck. He sued Amtrak, alleging that the

injury had left him permanently disabled and unable to

work. The district court, however, dismissed his case

after determining that Negrete had intentionally flouted

discovery deadlines, hidden and tampered with evidence,

and lied in his deposition. We affirm, and because it
2 No. 07-3287

appears that Negrete may have committed perjury, we

refer this opinion to the United States Attorney.

Negrete’s litigation conduct in this case can only be

described as appalling. The problems began when

Amtrak tried to investigate the allegations in Negrete’s

lawsuit. Understandably, it sought to answer two questions: how badly Negrete was injured, and whether he

was still able to work. To shed light on the first question,

it asked Negrete for the name of each doctor who had

seen him for his injury. Negrete provided only the

names of the doctors whose findings helped his case,

withholding the names of two who had concluded that

he was not permanently injured and was able to work.

He also neglected to mention the name of a third doctor,

who had performed an MRI on him.

With the exception of the MRI, which Amtrak was

unable to locate for almost a year, Amtrak wasn’t prejudiced by Negrete’s deceit; it already knew about all but

one of the undisclosed doctors. But because Negrete’s

incomplete answers left the impression that it wasn’t

getting the whole story, Amtrak tried to obtain copies

of the medical records kept by the Railroad Retirement

Board (“RRB”). Once again the investigation was

thwarted. Amtrak requested a copy of the file from

Negrete (the RRB will only disclose medical records to a

patient), who responded by delivering 12 pages. Amtrak

couldn’t believe that the 12 pages were a complete

record, so it moved to compel production, after which

Negrete eventually turned over 236 pages. These

included a never-before-disclosed report by an RRB
No. 07-3287 3

physician, who disagreed with a prior doctor’s conclusion

that Negrete couldn’t work. Strangely, however, the

supposedly complete 236-page file did not contain the

12 pages Negrete had originally produced. Tired of these

shenanigans, the court ordered Negrete to obtain a

sealed copy of his RRB file and to submit that file, unopened, for inspection. He eventually turned over an

envelope purporting to be the file, but the envelope

had been opened—twice—leaving the court to speculate

that he had once again tampered with the file.

In addition to investigating the seriousness of Negrete’s

injury, Amtrak also tried to assess whether Negrete was

still able to work, inquiring about all the sources of

Negrete’s postaccident income. Once again it was

thwarted. At a deposition Negrete initially testified that

he had no income apart from the money he received

from Amtrak. When asked specifically whether he

owned any property, however, he admitted owning

one apartment building with two tenants, each of whom

paid him $450 per month, but stated that he did not

own any other buildings. Both of these responses turned

out to be false. Negrete’s 2002 through 2005 tax returns

revealed that he had at least $160,000 in income from three

apartment buildings. And his rental receipt booklets—whose existence he initially denied—indicated that

he received not $450 per month but $650 per month from

his rentals. (Adding to the impression that Negrete was

hiding income were a number of loan applications on

which Negrete claimed to receive not $450 per month

but $800 or even $1,000 per month from each tenant!)

Worse still, Amtrak later discovered that Negrete had not
4 No. 07-3287

two tenants, as he originally testified, not six tenants as

he later claimed, but fifteen tenants.

So the district court found that Negrete was trying to

hide his rental income, which was relevant to his case

because he claimed to be unable to earn a living because

of his injury. But it also appears that Negrete may have

been trying to hide the rental income for a second reason. Although Negrete testified at his deposition that

he was unable to do even minor housework, his tenants

told an Amtrak investigator that since the accident

Negrete had personally painted, changed windows,

repaired a floor, laid tile, and installed a new toilet. We

may never know for sure whether that was true: Negrete

seeks to explain the discrepancy by claiming that the

tenants confused him with his sons, whom he claims to

have paid to work on the apartments, and the district

court did not make a specific finding on the issue. What

is clear, however, is that Negrete was less than forthcoming about who actually performed the maintenance

on his apartments. At his deposition he first indicated

that his brother maintained the apartments in exchange

for beer. And in response to a later interrogatory requesting a list of each person who had been paid to do maintenance on his apartments, Negrete disclosed only his

sons. When his sons were deposed, however, they denied

ever having been paid to do maintenance (they claimed

to have helped their father for free) and testified that

their father had hired contractors to do the large maintenance projects on the apartment. Negrete then admitted

to hiring a dry-wall contractor and promised to provide

his contact information but later claimed not to have it.
No. 07-3287 5

In Maynard, we held that dismissal was appropriate only if 1

there is clear and convincing evidence of willfulness, bad faith

or fault, but we have subsequently suggested that the

preponderance-of-the-evidence standard is more appropriate.

See Wade, 500 F.3d at 564. There is no need to resolve the

standard here because the evidence was clear and convincing.

Relying on these prevarications and others (the

district court noted, for example, that Negrete missed

21 discovery deadlines—in one case, verifying his interrogatory responses more than one year late), the district

court dismissed the lawsuit under Rule 37(b)(2)(A)(v) of

the Federal Rules of Civil Procedure, which authorizes

dismissal as sanction for discovery violations. Dismissal

is a drastic penalty, but it was no abuse of discretion to

dismiss this case given Negrete’s repeated, willful efforts

to hide evidence. See Wade v. Soo Line R.R. Corp., 500

F.3d 559, 564 (7th Cir. 2007); Maynard v. Nygren, 332

F.3d 462, 467 (7th Cir. 2003). Negrete argues that his 1

mistakes were innocent, but we will overturn factual

determinations only if they are clearly erroneous, a standard not met here. True, Negrete often produced documents directly contradicting his deposition testimony,

but that does not prove, as his lawyer claims, that his

false testimony was inadvertent; it shows only that

Negrete is a poor liar. Given Negrete’s repeated misconduct, it would have been hard to reach any conclusion

other than that he was acting in bad faith.

Negrete also argues that the sanction of dismissal was

too harsh because he is uneducated and lied only about

collateral issues. But Negrete’s misconduct related to the
6 No. 07-3287

most important issues of the case—how badly he was

injured and whether he was able to work. And although

Negrete may not be well educated, it does not take a

graduate degree to understand that it is unacceptable to

hide evidence and lie in a deposition. The district court’s

analysis was thorough; dismissal was an appropriate

sanction.

AFFIRMED.

10-27-08