United States District Court, S.D. New York
OPINION AND ORDER
Edgardo Ramos, U.S.D.J.
the Court is Plaintiff Kian Daniel Khatabi's
(“Plaintiff” or “Khatabi”) objections
to Magistrate Judge Paul E. Davison's Order dated
September 21, 2012 (“the Order”). Plaintiff's
Rule 72 Objections (“Pl.'s R. 72 Obj.”) Doc.
108. In the Order, Judge Davison denied Plaintiff's
request for discovery sanctions against Defendants Village of
Pleasantville (“Village”), Village of
Pleasantville Police Department (“VPPD”), Stephen
Bonura (“Bonura”), and Robert Mazzei
“Defendants”) for the alleged spoliation of
evidence. Memorandum and Order Denying Motion for Sanctions
(“Order”) (Doc. 57). For the reasons stated
herein, the Court OVERRULES Plaintiff's objections.
detailed factual background and procedural history relevant
to the underling motion are set forth in the Order and the
parties' submissions, familiarity with which is assumed.
stated, in February 1998, following an investigation by
Defendants, Plaintiff was arrested for allegedly stabbing two
victims during a fight at a bar, William Boyar
(“Boyar”) and Brian Duffy (“Duffy”).
See Order at 2. Following a jury trial in February
1999, Plaintiff was convicted of assault in the first degree
and criminal possession of a weapon in the fourth degree, and
was sentenced to an indeterminate prison term of seven to
fourteen years on the assault count and a concurrent term of
one year on the weapon possession count. Id. After a
series of unsuccessful attempts to appeal the decision, in
November 2007, more than eight years later, Plaintiff's
brother confessed to his family that he was in fact the one
who committed the stabbing and that Plaintiff was innocent.
Id. at 2-3. Based upon his brother's confession,
in April 2009, Plaintiff moved to vacate his judgment of
conviction and dismiss the indictment. Id. at 3. In
September 2008, based on this newly discovered evidence, the
state court reversed Plaintiff's conviction and ordered a
new trial. Id. In December 2008, the Westchester
County District Attorney's Office moved to dismiss
Plaintiff's indictment, and the state court granted the
February 16, 2010, Plaintiff initiated this civil action
against Defendants, alleging that during the course of the
underlying police investigation and prosecution of Plaintiff,
Defendants engaged in various violations of his civil rights
under federal and New York state law, as well as related
state law torts. See Doc. 1
(“Complaint”). Plaintiff seeks compensatory
damages, punitive damages, and attorneys' fees and costs.
motion dated July 16, 2012, Khatabi sought sanctions for the
destruction of or failure to preserve during the course of
the criminal investigation and prosecution the following
evidence: (1) handwritten notes purportedly taken by Lead
Detective Mazzei during his interviews of the victims; (2)
clothing that was worn by the victims on the night of the
stabbing that was not recovered by the police; (3) clothing
that was worn by the victims that was recovered by the police
near the crime scene but was later lost; (4) a videotape
recording showing Plaintiff inside the police station on the
night of the stabbings that was subsequently taped over; and
(5) audio recordings of police transmissions made shortly
after the stabbings that were subsequently taped over. Doc.
44 at 2-3. Pursuant to Plaintiff's request, Magistrate
Judge Davison heard oral argument on the motion on September
14, 2012. See 9/14/12 ECF Minute Entry.
September 21, 2012, Magistrate Judge Davison issued the
Order, declining to impose sanctions. Doc. 57. On October 5,
2012, Plaintiff filed his Rule 72 Objections to the Order,
asserting fifteen objections. Doc. 58. Defendants filed their
response on October 19, 2012. Doc. 61. The Court rejected
Plaintiff's sixty-four page memorandum in support of his
objections because it exceeded the twenty-five page limit for
motion papers outlined in the Court's individual
practices. Doc. 62. The Court directed Plaintiff to re-file
the memorandum of law within the appropriate page limit by
November 26, 2012. Id. In October and early November
2012, in a series of communications via telephone and email,
Plaintiff made known to his counsel that he no longer wished
to be represented by them, and directed his attorneys to
refrain from taking any further actions on his behalf.
See Declaration of Ameer Benno (Doc. 63-1) at ¶
8. On November 13, 2012, Plaintiff's counsel filed a
motion requesting to withdraw as counsel. See Docs.
January 22, 2013, the Court granted counsel's motions to
withdraw. See 1/22/2013 ECF Minute Entry. At the January 22,
2013 Conference, Plaintiff's former counsel provided a
status update for the Court, indicating that as a result of
the breakdown in the relationship, Plaintiff was not in a
position to file the amended spoliation motion under the
original deadline. See Doc. 79 at 2-3.
April 24, 2013, a status conference was held, and the Court
inquired about the status of his objections to Judge
Davison's Order, but no deadlines were set regarding an
amended filing. See Doc. 82 at 23-24. On January 13,
2014, new counsel appeared for Plaintiff. Doc. 94. At the
status conference on March 14, 2014, the Court ordered
Plaintiff to submit his amended objections to the spoliation
motion by June 16, 2014. See 03/14/2014 Minute
21, 2014, Plaintiff filed his amended and narrowed objections
to the Order, arguing that spoliation sanctions are warranted
for the loss of: (1) the handwritten notes purportedly taken
by Mazzei; (2) the hat and shirt worn by the victims that was
recovered near the crime scene; and (3) the videotape
recording showing Plaintiff inside the police station at the
time of the stabbings. Pl.'s R. 72 Obj. at 1. Thus,
Plaintiff does not challenge the Order with respect to the
clothing that was not recovered by the police and audio
recordings of police transmissions. See id.
Standard of Review
threshold matter, the parties dispute the appropriate
standard of review. Plaintiff argues the Court should review
the Order de novo because “Plaintiff sought
terminating sanctions and a Magistrate Judge's
determination of a dispositive motion is subject to de
novo review by the District Judge.” Pl.'s R.
72 Obj. at 8. Defendants contend that the appropriate
standard is whether the Order is clearly erroneous or
contrary to law because the underlying sanctions motion is a
non-dispositive motion. Defendants' Response to
Plaintiff's Rule 72 Objections to Magistrate Judge
Davison's September 21, 2012 Memorandum and Order on
Plaintiff's Motion for Sanctions for the Alleged
Spoliation of Evidence (“Defs.' Resp.”) (Doc.
112) at 2. Rule 72 of the Federal Rules of Civil Procedure,
which sets forth the procedures for objecting to a
magistrate's pretrial order or recommendation, divides
pretrial matters into two categories: Rule 72(a) speaks to
pretrial matters “not dispositive of a party's
claim or defense” while Rule 72(b) governs pretrial
matters that are so dispositive. Fed.R.Civ.P. 72. The former
invokes a “clearly erroneous” or “contrary
to law” standard of review while the latter requires a
“de novo” determination. See
the Court referred the discovery dispute to Judge Davison as
a “non-dispositive motion dispute” and shortly
thereafter referred the entire case for general pre-trial
purposes. See Docs. 30, 33. In the sanctions motion,
Plaintiff requested, inter alia, that the Court
strike defendants' answers and grant Plaintiff default
judgment on his claims. Doc. 44 at 22. Pursuant to those
referrals, Judge Davison had the authority to impose
sanctions for spoliation-as long as those sanctions were
non-dispositive. See, e.g., UBS Int'l Inc. v. Itete
Brasil Instalacoes Telefonicas Ltd., No. 09 Civ. 10004
(LAK) (JCF), 2011 WL 1453797, at *1 n.2 (S.D.N.Y. Apr. 11,
2011) (explaining that a magistrate judge lacks authority to
dismiss a case as a sanction for spoliation, but “has
the authority to issue less severe sanctions, including
preclusion orders, in the course of overseeing
discovery”); R.F.M.A.S., Inc. v. So, 748
F.Supp.2d 244, 247-48 & n. 1 (S.D.N.Y. 2010) (holding
that a magistrate judge had authority to preclude evidence as
a sanction for spoliation). A magistrate judge can recommend
default judgment as a sanction for spoliation for the
Court's consideration, although he cannot impose such a
sanction unilaterally. See Fed. R. Civ. P. 72(b);
see also Kiobel v. Millson, 592 F.3d 78, 101 (2d
Cir. 2010) (Leval, J., concurring) (explaining that a
magistrate judge has authority to impose only those discovery
sanctions that are non-dispositive); Dorchester Fin.
Holdings Corp. v. Banco BRJ S.A., 304 F.R.D. 178, 180
(S.D.N.Y. 2014) (magistrate judge to whom pretrial
proceedings, including non-dispositive motions, have been
referred, has the authority to impose sanctions for
spoliation, including the preclusion of evidence, so long as
those sanctions are non-dispositive, and the review of any
such non-dispositive decision is under a clearly erroneous or
contrary to the law standard, but dispositive spoliation
sanctions, such as dismissal, could only be recommended and
that recommendation is subject to de novo review).
determine whether a magistrate judge's ruling regarding
discovery sanctions is “dispositive, ” the Court
must look to the effect of the sanction-if imposed. See
Kiobel, 592 F.3d at 97 (“Analyzing the
effects of the particular sanction imposed
by a magistrate judge, to determine whether it is dispositive
or nondispositive of a claim, is the approach that best
implements Congress's intent.”) (emphasis added).
Thus, in determining between dispositive and non-dispositive
discovery sanctions, the critical factor is what sanction the
magistrate judge actually imposes, rather than the
one requested by the party seeking sanctions. Gomez v.
Martin Marietta Corp., 50 F.3d 1511, 1519-20 (10th Cir.
1995) (rejecting argument that magistrate judge ruled on
dispositive motion because litigant sought entry of a default
judgment and explaining that “[e]ven though a movant
requests a sanction that would be dispositive, if the
magistrate judge does not impose a dispositive sanction,
” the order is treated as non-dispositive under Rule
72(a)); 12 Wright, Miller & Marcus, Federal Practice
& Procedure § 3068.2, at 342-44 (2d ed. 1997)
(disputes about handling of discovery ordinarily viewed as
non-dispositive under Rule 72 and treated as dispositive only
when “the magistrate judge actually imposes” a
dispositive sanction); cf. La Barbera v. ASTC
Labs., Inc., No. Civ. 2006-5306 (DLI) (MDG), 2007 WL
1423233, at *1 (E.D.N.Y. May 10, 2007) (“However, since
entry of default is a potential sanction, whether my decision
is a matter within my pretrial reference authority depends on
the sanction imposed.”); but see Estate of Jackson
ex rel. Jackson v. Cty. of Suffolk, No. 12 Civ. 1455
(JFB), 2014 WL 3513403, at *3 (E.D.N.Y. July 15, 2014) (in
case where Plaintiff requested to strike Defendants'
pleading and enter default judgment, “[i]n an abundance
of caution, the Court has treated the Spoliation Order as a
Report and Recommendation and conducted a de novo review of
the entire Spoliation Order.”).
Magistrate Judge Davison ultimately denied the motion for
sanctions, including denying Plaintiff's request for
default judgment. See Order at 36. Therefore,
because Judge Davison did not impose any terminating
sanctions, the Court treats his ruling as non-dispositive and
considers whether his Order is clearly erroneous or contrary
to law. See Fed. R. Civ. P. 72(a). An order
is clearly erroneous only when the reviewing court on the
entire evidence is left with the definite and firm conviction
that a mistake has been committed. See, e.g., Surles v.
Air France, 210 F.Supp.2d 501, 502 (S.D.N.Y. 2002). It
is contrary to law if “it fails to apply or misapplies
relevant statutes, case law or rules of procedure.”
MacNamara v. City of New York, 249 F.R.D. 70, 77
(S.D.N.Y. 2008). This is a highly deferential standard, and
the objector thus carries a heavy burden. U2 Home
Entm't, Inc. v. Hong Wei Int'l Trading Inc., No.
04 Civ. 6189, 2007 WL 2327068 (JFK), at *1 (S.D.N.Y. Aug. 13,
is the destruction or significant alteration of evidence, or
the failure to preserve property for another's use as
evidence in pending or reasonably foreseeable
litigation.” West v. Goodyear Tire & Rubber
Co., 167 F.3d 776, 779 (2d Cir. 1999). “[T]he
spoliation doctrine is predicated on evidence actually
existing and being destroyed.” Khaldei v.
Kaspiev, 961 F.Supp.2d 564, 569 (S.D.N.Y. 2013) (quoting
Orbit One Commc'ns v. Numerex Corp., 271 F.R.D.
429, 441 (S.D.N.Y. 2010) (internal quotation marks omitted)).
Thus, “for sanctions to be appropriate, it is a
necessary, but insufficient, condition that the sought-after
evidence actually existed.” Farella v.
City of New York, 2007 WL 193867, at *2 (S.D.N.Y. Jan.
25, 2007) (emphasis in original).
as here, a party seeks “severe” sanctions for the
alleged spoliation of evidence- such as the preclusion of
critical evidence, an adverse inference instruction, or
dismissal of the case-it must establish that: (1) the party
having control over the evidence had an obligation to
preserve it at the time it was destroyed; (2) the evidence
was destroyed “with a culpable state of mind;”
and (3) the destroyed evidence was “relevant” to
the party's claim or defense such that a reasonable trier
of fact could infer that it would support that claim or
defense. Residential Funding Corp. v. DeGeorge Fin.
Corp., 306 F.3d 99, 107 (2d Cir. 2002). Moreover,
“a court should never impose spoliation sanctions of
any sort unless there has been a showing- inferential or
otherwise-that the movant has suffered prejudice.”
In re Pfizer Inc. Sec. Litig., 288 F.R.D. 297, 316
(S.D.N.Y. 2013) (citation omitted); see also Riley v.
Marriott Int'l, Inc., No. 12 Civ. 6242P, 2014 WL
4794657, at *5 (W.D.N.Y. Sept. 25, 2014) (“Although a
finding that the moving party has been prejudiced is not a
prerequisite to the imposition of sanctions, ...