Free Order - District Court of Colorado - Colorado

Case 1:02-cv-01697-WYD-MJW

Document 104

Filed 08/30/2005

Page 1 of 3

.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 02-cv-01697-WYD-MJW MARIE HENNING, Plaintiff, v. ROSESTAR SOUTHWEST, LLC d/b/a HYATT REGENCY BEAVER CREEK, Defendant. _____________________________________________________________________ ORDER ADOPTING AND AFFIRMING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE _____________________________________________________________________ THIS MATTER is before the Court in connection with Plaintiff' Motion for s Sanctions for Spoliation of Evidence (" Motion" filed June 30, 2004. This motion was ), referred to Magistrate Judge Michael J. Watanabe, who issued an Order Regarding Plaintiff' Motion (" s Recommendation" on August 30, 2004 which is incorporated herein ) by reference. See 28 U.S.C. § 636(b), Fed. R. Civ. P. 72. The Magistrate Judge recommends therein that Plaintiff' Motion be denied. s Since I find Plaintiff filed a timely Objection on September 27, 2004, I must review Magistrate Watanabe' Recommendation to determine whether it is "clearly s erroneous or contrary to law" since the nature of the matter is nondispositive. FED. R. CIV. P. 72(a). " order is clearly erroneous when the reviewing court on the entire An evidence is left with the definite and firm conviction that a mistake has been made." Cook v. Rockwell Int'Corp., 147 F.R.D. 237, 242 (D. Colo. 1993). l

Case 1:02-cv-01697-WYD-MJW

Document 104

Filed 08/30/2005

Page 2 of 3

In her Objection to the Magistrate Judge' Recommendation, Plaintiff generally s asserts dismissal of her Motion is improper because she promptly reported the injurycausing incident to the front desk of the Hyatt. Objection, at 2. Plaintiff also asserts the Magistrate Judge placed too much emphasis on the belief that " Plaintiff did not even the inform the Defendant' staff that there was a broken chair in the room in which she was s staying." Id. Lastly, Plaintiff contends the Magistrate Judge' conclusion is erroneous s given the " issue of whether intentional conduct is required for a spoliation sanction"was not resolved by Pfantz v. Kmart Corp., 85 P.3d 564 (Colo. App. 2003).1 I find that Plaintiff' objections should be overruled, and the Recommendation s affirmed and adopted. Spoliation occurs when a party destroys discoverable material which the party knew or should have known was relevant to pending, imminent, or reasonably foreseeable litigation. Gates Rubber Co. v. Bando, 167 F.R.D. 90, 102 (D. Colo. 1996). Here, the record before the Court indicates that at the time of the alleged injury, there was nothing to suggest to Defendant that litigation was reasonably foreseeable, because Defendant had no indication a broken chair existed. Specifically, Plaintiff admits she did not inform Defendant that there was a broken chair in her room after the alleged incident took place. Objection, at 2. Plaintiff also stated that after she fell, Mr. Hamilton, the individual staying with Plaintiff in Defendant' hotel room, put the s chair back together. Pl.' Dep., at p. 78, line 5. It was not until Plaintiff filed this action, s

The Colorado Supreme Court granted Kmart Corporation' Writ of Certiorari on March s 15, 2004 on the following issue: " [w]hether the court of appeals erred in upholding the trial court' imposition of an adverse inference against a defendant in a personal injury action for s spoliation of evidence upon finding the defendant acted in bad faith and that defendant' s conduct was ` either intentional or so reckless that it must be held accountable.' 2004 WL " 500848.

1

2

Case 1:02-cv-01697-WYD-MJW

Document 104

Filed 08/30/2005

Page 3 of 3

nearly two (2) years after the alleged accident, that Defendant was informed about the broken chair. I further find Plaintiff' claim that this Court should reserve ruling on Plaintiff' s s Motion until Pfantz v. Kmart Corp. is decided, is without merit. Accordingly, it is ORDERED that the Order Regarding Plaintiff' Motion for Sanctions for s Spoliation of Evidence (Docket No. 51), filed August 30, 2004, is AFFIRMED and ADOPTED. In accordance therewith, it is FURTHER ORDERED that Plaintiff' Objection to Magistrate' Order Regarding s s Plaintiff' Motion for Sanctions for Spoliation of Evidence, filed September 27, 2004, is s OVERRULED. It is FURTHER ORDERED that Plaintiff' Motion for Sanctions for Spoliation of s Evidence, filed June 30, 2004, is DENIED. Dated: August 30, 2005 BY THE COURT:

s/ Wiley Y. Daniel Wiley Y. Daniel U. S. District Judge