Early Dismissal Strategies When Dealing with a Dishonest Plaintiff

While there sometimes is nothing that can be done about a dishonest plaintiff other than to attack his/her credibility in front of a jury, it is critical to ensure that all early dismissal strategies are explored before reaching the dispositive motion stage of case. These early dismissal strategies include examination of the plaintiffs' representations in their post-employment bankruptcy petitions and in forma pauperis (IFP) applications.

Those new to employment litigation may be surprised by the percentage of plaintiffs who file for bankruptcy and/or seek IFP status. Given that the majority of employment-related lawsuits allege wrongful termination of employment, there is one thing that many plaintiffs have in common ' financial hardship resulting from the termination of their employment, especially given the current state of the economy and abysmal job market. Thus, it is not uncommon for plaintiffs to have filed for bankruptcy following the termination of their employment. Nor is it uncommon for plaintiffs, especially those proceeding pro se, to request permission from the court to proceed without the payment of a filing fee (i.e., to proceed in forma pauperis). Of course, these mechanisms serve an important function in society, and this article is not intended to discourage their use by honest litigants. Rather, this article outlines defense strategies for dealing with dishonest litigants who seek the discharge of their debts in bankruptcy and/or the waiver of a federal court filing fee through fraud.