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Khatabi v. Bonura

United States District Court, S.D. New York

April 21, 2016



          Edgardo Ramos, U.S.D.J.

         Before 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 (“Mazzei”) (collectively, “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.

         I. BACKGROUND

         A 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.

         Briefly 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 motion. Id.

         On 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.

         By 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.

         On 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. 66-74.

         On 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.

         On 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 Entry.

         On May 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.


         A. Standard of Review

         As a 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 id.

         Here, 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).

         To 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.”).

         Here, 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, 2007).

         B. Spoliation

         “Spoliation 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).

         Where, 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, ...

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