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Pro se hit with jail, sanctions for forgery.

Byline: Peter Vieth

A man who twice submitted forged documents with his court pleadings was ordered to pay $127,702 in sanctions, fees and a fine. The plaintiff in the Fairfax County case also was jailed for 10 days, the maximum for criminal contempt, according to a circuit judge's opinion.

Circuit Judge David Bernhard said the pro se plaintiff's conduct was best characterized as "grifting behavior calculated to misuse the Court system to extract financial gain from the Defendants by means of defrauding the Court."

Bernhard imposed a sanction of $90,000 plus $37,452 in attorneys' fees, in addition to a $250 fine and the jail time for contempt.

"The Court system cannot long endure as a fair forum for the adjudication of claims if litigants believe they have license to peddle forgeries in the midst of trial in furtherance of their claims," Bernhard wrote.

Bernhard's 23-page opinion is Don v. Tera Int'l Group Inc. (VLW 018-8-108).

'Abusive' tactics

The case involved a deal to help a company secure a lucrative contract with the government of Sri Lanka, according to Bernhard's summary of the background dispute. Plaintiff Sisira Kumara Kumaragamage Don, also known as Don Gamage, promised to help Tera International Group Inc. win the contract in exchange for a success fee. Tera did not win the contract.

Kumara first sued in Loudoun County Circuit Court. Tera responded with a counterclaim for alleged conversion of Tera's confidential information. Kumara then sued in federal court for breach of contract and tortious interference with a contractual relationship, based on Tera's counterclaim in the Loudoun action.

Bernhard expressed doubts that Kumara ever engaged in substantial efforts to win the contract. He granted a plea in bar and the defendants moved for sanctions. They said a critical email document central to Kumara's case was a forgery.

Bernhard held a trial on the motion for sanctions.

Defending the plea in bar, Kumara had offered a purported email from Tera's president to an employee of the Asian Infrastructure Investment Bank. But the president testified he was in a deposition at the time, and offered proof. It was, as Bernhard said, "the perfect alibi."

Offering a phony document was just another example of what the defendants termed Kumara's "abusive litigation tactics." They said he threated a frivolous lawsuit to extort a settlement and discourage the sanctions efforts. The defendants said they had spent "into the six figures" defending themselves against "fallacious litigation" brought by Kumara.

Kumara's defense of the plea in bar was contradictory and unsupported, Bernhard said. He concluded the defendants proved Kumara forged the submitted email. Moreover, Bernhard decided Kumara later had filed a fake news article to undermine the credibility of the defendants.

Bernhard doubted the authenticity of the article: "The language is more reflective of a draft by someone for whom English is not their mother tongue, like Kumara," Bernhard wrote.

"At trial, Kumara was evasive, untruthful, and relied on demonstrably false evidence whose source the Court reasonably infers was only him. The evidence presented by Defendants was highly credible. Kumara in contrast attempted to head off sanctions with threats of yet more litigation. That was followed by rambling, nonsensical testimony alleging facts and conspiracies which this Court finds are only figments of Kumara's imagination in nefarious pursuit of financial gain at the expense of Defendants," Bernhard said.

Good faith statute applied

Even though the forged document was attached only to a response to a motion, it was subject to Virginia's good faith pleading statute, the judge ruled.

"This Court concludes that an attachment of a document to a court filing alone amounts to a certification by the signatory that such exhibit supports the filing as a well-grounded fact," Bernhard said.

Kumara's actions supported a criminal contempt finding as well as civil sanctions and the award of fees, Bernhard said.

"Plaintiff made a mockery of the proceedings. Knowing that he stood accused of submitting forged evidence in response to Defendants' Plea in Bar, Kumara responded to the ensuing Motion for Sanctions by submitting additional forged evidence," the judge wrote.

"The Court is not blind to the fact some witnesses occasionally do not take their oath to tell the truth as seriously as they are required to do by the law. This case however is in a different category of violence to the oath. Kumara submitted forged exhibits to the Court, relied on them in false testimony under oath, and admitted only in closing that at least one of those exhibits did not contain an ounce of truth," Bernhard said.

Tera and its president were represented by Rebecca Bricken Segal and Bret C. Marfut of Tysons Corner. Kumara appeared pro se.

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Title Annotation:Virginia Circuit Court in Don v. Tera International Group
Author:Vieth, Peter
Publication:Virginia Lawyers Weekly
Date:Dec 17, 2018
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