Filed: Sep. 02, 2016
Latest Update: Sep. 02, 2016
Summary: ORDER DENYING ATTORNEY'S FEES AND COSTS ASSOCIATED WITH SPOLIATION MOTION BERNARD G. SKOMAL , Magistrate Judge . On November 20, 2015, the Honorable Gonzalo P. Curiel, referred Plaintiffs' Motion for Sanctions and Preservation to the Honorable Bernard G. Skomal, United State Magistrate Judge, for decision. [ECF Nos. 45-46.] On March 4, 2016, the Court granted in part and denied in part Plaintiff's motion for an adverse inference jury instruction finding that Defendant Ametek acted negligent
Summary: ORDER DENYING ATTORNEY'S FEES AND COSTS ASSOCIATED WITH SPOLIATION MOTION BERNARD G. SKOMAL , Magistrate Judge . On November 20, 2015, the Honorable Gonzalo P. Curiel, referred Plaintiffs' Motion for Sanctions and Preservation to the Honorable Bernard G. Skomal, United State Magistrate Judge, for decision. [ECF Nos. 45-46.] On March 4, 2016, the Court granted in part and denied in part Plaintiff's motion for an adverse inference jury instruction finding that Defendant Ametek acted negligentl..
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ORDER DENYING ATTORNEY'S FEES AND COSTS ASSOCIATED WITH SPOLIATION MOTION
BERNARD G. SKOMAL, Magistrate Judge.
On November 20, 2015, the Honorable Gonzalo P. Curiel, referred Plaintiffs' Motion for Sanctions and Preservation to the Honorable Bernard G. Skomal, United State Magistrate Judge, for decision. [ECF Nos. 45-46.] On March 4, 2016, the Court granted in part and denied in part Plaintiff's motion for an adverse inference jury instruction finding that Defendant Ametek acted negligently; therefore, a severe adverse inference instruction was inappropriate. [ECF No. 54 at 12:12-15:14.] Consequently, the Court ordered:
"In order to place Plaintiffs in substantially the same position as they would have been absent the failure of Ametek to sample initial vapor emissions before the activation of the SSD and AES systems, the Court finds Ametek must cease operation of the pilot test SSD and AES units in order to restore soil vapor conditions at Magnolia Elementary to those similar to condition before pilot testing was initiated. Plaintiff's experts shall also be permitted to collect vapor samples at the re-startup of the SSD and AES systems. Finally, to prevent any further negligent or inadvertent spoliation at the property the Court also requires Ametek to provide Plaintiffs with 30-days notice before conducting further remediation efforts at Magnolia Elementary."
[ECF No. 54 at 15:15-23.]
Given the intersection of this spoliation issue with discovery in general, as well as the parties' failure to successfully meet and confer about a site inspection and testing schedule, the Court in its order requested a declaration from Plaintiff's counsel concerning the reasonable attorney fees and costs associated with bringing the spoliation motion in order to determine a monetary sanction. Fed. R. Civ. P. 37 (a)(3)(B)(iv); Fed. R. Civ. P. 37(a)(5)(A)-(C). The Court asked only for a declaration as to the attorney's fees and costs associated with the spoliation motion. [ECF No. 16:11-14.] The Court also requested a response from Defendant Ametek. [ECF No. 16:15-16.]
In response to the Court's request for a supplemental declaration, Plaintiff submitted a declaration requesting not only attorney's fees and costs pertaining to the spoliation motion, but also expert fees and costs, which the Court did not request. [ECF No. 55.] Defendant filed its response as ordered by the Court arguing that neither the reimbursement of fees and costs for the spoliation motion, nor reimbursement of expert fees, which Plaintiff suggested, were available to the Court under its inherent power because only negligence, without more, was found. [ECF No. 57.]
Defendant is correct. As opposed to a fee award sanction under Federal Rule of Civil Procedure 37, which governs failures to cooperate in discovery that may be negligent, the payment of fees and costs associated with a spoliation motion are impermissible under the Court's inherent power without a finding of bad faith or at the very least, recklessness with something more such as an improper purpose. See e.g. Keithley v. The Home Store, Inc. 2008 WL 3833384, *3 (N.D. Cal. 2008) (observing that "[a]lthough there is some ambiguity in the case law as to the state of mind required to support the imposition of sanctions under the Court's inherent power (see United Medical Supply v. U.S.1, 77 Fed. Cl. 257, 266-67 (2007), the Ninth Circuit has concluded that sanctions are available under the Court's inherent power if `preceded by a finding of bad faith or conduct tantamount to bad faith,' such as recklessness `combined with an additional factor such as frivolousness, harassment or an improper purpose..... Sanctions for violations of Rule 37, by contrast, may be imposed for negligent conduct." (quoting Fink v. Gomez, 239 F.3d 989, 994 (9th Cir. 2001)). Specifically, in Fink, the Ninth Circuit summarized its holdings on the scope of intent needed to warrant sanctions under the inherent power stating:
"mere recklessness, without more, does not justify sanctions under a court's inherent power. But the cases ... make clear that sanctions are available if the court specifically finds bad faith or conduct tantamount to bad faith. Sanctions are available for a variety of types of willful actions, including recklessness when combined with an additional factor such as frivolousness, harassment, or an improper purpose. Therefore, we hold that an attorney's reckless misstatements of law and fact, when coupled with an improper purpose, such as an attempt to influence or manipulate proceedings in one case in order to gain tactical advantage in another case, are sanctionable under a court's inherent power."
Id. at 993-94.
Here, the Court found in its March 4, 2016 Order that it was careless for Ametek to go forward with pilot testing when it had received Plaintiff's preservation letters and it had received Plaintiff's emails asking for a meet-and-confer before any remediation occurred. The Court further determined, however, that improper purpose or conduct tantamount to bad faith had not been shown because organizations other than Ametek, namely the California Department of Toxic Substance Control and the Cajon Valley Union School District, which were not parties to the litigation, also controlled the scheduling of pilot testing and remediation efforts.
The Court notes that discovery was not yet open in this case when the allegation of spoliation arose because a motion to dismiss was pending before Judge Curiel and the parties had not yet had an Early Neutral Evaluation Conference. Because discovery was not open and there was no formal inspection request made, Federal Rule of Civil Procedure Rule 372 is unavailable as a source of authority for the Court to apportion reasonable expenses for the spoliation motion. The spoliation motion was brought only under the Court's inherent power, therefore monetary sanctions may not be imposed without a finding of recklessness and an additional factor of frivolousness, harassment or improper purpose on behalf of Ametek, which this Court did not find. Accordingly, the fees and costs requested3 in Plaintiff's declaration are DENIED. The Court's Order dated March 4, 2016 is AMENDED to exclude payment of reasonable attorney fees and costs associated with bringing the spoliation motion. The remainder of the Court's Order March 4, 2016 is unaffected.
IT IS SO ORDERED.
