United States District Court, E.D. New York
May 6, 2005.
MARY STEELE, Plaintiff,
COSTCO WHOLESALE CORPORATION and WEST COAST INDUSTRIES, Defendants. COSTCO WHOLESALE CORPORATION, Third-Party Plaintiff, v. WEST COAST INDUSTRIES, Third-Party Defendant.
The opinion of the court was delivered by: NINA GERSHON, District Judge
Plaintiff appeals from an order of Magistrate Judge Go denying
her motion for discovery sanctions. For the reasons set forth
below, the order is affirmed.
Plaintiff alleges that she suffered personal injuries from a
fall that occurred while she was attempting to seat herself at a
table at one of defendant's stores. On October 25, 2004,
plaintiff moved, pursuant to Federal Rule of Civil Procedure 37,
for sanctions against defendant Costco Wholesale Corporation for
spoliation of evidence based on defendant's failure to preserve
the allegedly defective table for inspection by plaintiff.
Specifically, plaintiff sought an order striking defendant's
answer, or, in the alternative, an adverse inference charge
instructing the jury that it "must infer that Costco destroyed
evidence that it was legally required to preserve and that such
evidence would have been in the condition alleged by plaintiff
had it been produced for examination." By order dated December
13, 2004, the Honorable Marilyn D. Go, United States Magistrate
Judge, to whom all pretrial matters in this case have been
referred, denied the motion "because plaintiff has failed to
establish the requisite elements for the extreme sanctions she
seeks." Nevertheless, Judge Go ruled that defendant would be
precluded from using information derived from any inspection of
the table, other than the inspection conducted by a store
manager, in the presence of plaintiff, immediately following
plaintiff's fall. Judge Go also ruled that her order is without
prejudice to renewal by plaintiff of the request for an adverse
inference charge at the time of trial because, on a fuller
record, the trial judge may conclude that such a charge is
warranted. Plaintiff filed objections to Judge Go's order on
January 7, 2005, and defendant filed opposition to the objections
on January 21, 2005.
I. Standard of Review
As an initial matter, the court must determine the applicable
standard of review. Incorporating the jurisdictional standards of
28 U.S.C. § 636, Federal Rule of Civil Procedure 72(a) provides
that a magistrate judge is authorized to "hear and determine" any
pretrial matter that is "not dispositive of a claim or defense of
a party." Fed.R.Civ.P. 72(a); accord
28 U.S.C. § 636(b)(1)(A). The order of a magistrate judge made pursuant to
the judge's "hear and determine" jurisdiction may be modified or set aside by the district court only if it is
"clearly erroneous or contrary to law." Id. With respect to
pretrial matters that are dispositive, Federal Rule of Civil
Procedure 72(b) provides that a magistrate judge "shall enter
into the record a recommendation for disposition of the matter,
including proposed findings of fact when appropriate."
Fed.R.Civ.P. 72(b); accord 28 U.S.C. § 636(b)(1)(B). Such
recommendations are subject to de novo review by the district
Here, plaintiff argues that its motion was dispositive in
nature because one of the sanctions it sought, striking
defendant's answer, would require the entry of a default judgment
in favor of plaintiff. As a result, plaintiff asserts that Judge
Go's order was unauthorized and should be construed as a report
and recommendation, subject to de novo review.
When a party brings a motion for discovery sanctions, the
sanction chosen by the magistrate judge, rather than the sanction
sought by the party, governs the determination of whether the
decision is dispositive. 14 Moore's Federal Practice §
72.02[b] (2005); accord 12 Charles Alan Wright, Arthur R.
Miller & Richard L. Marcus, Federal Practice and Procedure §
3068.2 (2005) ("The critical issue here is what sanction the
magistrate judge actually imposes, rather than the one requested
by the party seeking sanctions."). If a moving party requests a
dispositive sanction, but the magistrate judge declines to impose
it, the judge's decision is governed by Rule 72(a). See, e.g.,
Phinney v. Wentworth Douglas Hospital, 199 F.3d 1, 5-6 (1st
Cir. 1999) ; Gomez v. Martin Marietta Corp., 50 F.3d 1511,
1519-20 (10th Cir. 1995); Segal v. L.C. Hohne Contractors,
Inc., 303 F. Supp. 2d 790, 794 (S.D.W. Va. 2004); Magee v. Paul
Revere Life Ins. Co., 178 F.R.D. 33, 37 (E.D.N.Y. 1998) (citing
Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525-26
(2d Cir. 1990)). On the other hand, if a magistrate judge finds
that a dispositive sanction is appropriate, Rule 72(b) governs.
See, e.g., Zises v. Dept. of Social Services, 112 F.R.D. 223,
226 (E.D.N.Y. 1986). Since Judge Go declined to impose a dispositive sanction on
defendant, her decision is governed by Rule 72(a). Accordingly,
this court may not modify or set aside any part of the decision
unless it is clearly erroneous or contrary to law.
II. Rule 37 Sanctions
Upon a thorough review of the record, this court concludes that
Judge Go's determination that defendant's failure to preserve the
table does not warrant the extreme sanction of striking its
answer is neither clearly erroneous nor contrary to law.
Likewise, Judge Go's determination that adopting an adverse
inference charge would be premature at this stage of the
litigation does not constitute clear error.
For the reasons set forth above, the order of Judge Go, dated
December 13, 2004, is affirmed.
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