United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK, SENIOR U.S. DISTRICT JUDGE
Hernandez Concrete Pumping, Inc. (Hernandez Concrete) brought
suit against Defendant Raymond Albert Duquette, III
(Duquette) and ACE American Insurance Co. after a traffic
accident allegedly caused damage to Plaintiff's concrete
pumping truck. Hernandez Concrete seeks reimbursement for
repairs and lost profits arising from the time needed to
repair the truck. Defendant claims, however, that because the
truck was repaired immediately after the accident, evidence
needed to defend against the claims no longer exists. In this
Memorandum Opinion and Order, the Court addresses
Duquette's Motion to Dismiss Plaintiff's Complaint
for Spoliation of Evidence (Doc. 57). The Court finds that
while preserving the truck in its damaged state might have
been advisable, the facts neither warrant an outright
dismissal of Plaintiff's Complaint nor an adverse
instruction regarding the evidence. Therefore, the Court
denies Defendant's Motion to Dismiss for Spoliation of
November 28, 2017, Dennis Hernandez was driving a Hernandez
Concrete pumping truck on Interstate 40. (Doc. 1-1 (Compl.)
¶ 8.) Raymond Duquette's tractor-trailer collided
with and damaged Plaintiff's truck. (Id. ¶
8.) Plaintiff suggests that Duquette was looking in his
rearview mirror at the time of the collision and that this
“inattention” caused the accident. (Id.
¶ 9.) Plaintiff thus claims that Duquette is liable for
the damage to the truck. (Id. ¶ 10.)
filed suit in New Mexico state court on July 17, 2018. The
case was removed to this Court on September 4, 2018, through
the Court's diversity jurisdiction. (Doc. 1.) Hernandez
Concrete seeks $26, 000 in damages for repairs to the truck.
In addition, it seeks approximately $58, 000 in lost profits
for the time that the truck was not in service.
4, 2019, Defendant Duquette filed a Motion to Dismiss based
on spoliation of evidence. (Doc. 57.) Defendant argues that
after the accident, litigation was imminent, but because the
concrete pumping truck was immediately repaired, critical
proof relating to damages and liability no longer exists.
(See id.) As a result, Defendant asks the Court to
dismiss Plaintiff's Complaint, or in the alternative
impose appropriate sanctions. (Id.)
involves the “intentional destruction, mutilation,
alteration, or concealment of evidence.”
Spoliation, Black's Law Dictionary (8th
ed. 2004); see also West v. Goodyear Tire & Rubber
Co., 167 F.3d 776, 779 (2d Cir. 1999) (defining
spoliation as “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”). Litigants have an
“obligation to preserve evidence . . . when the party
has notice that the evidence is relevant to
litigation.” Zubalake v. UBS Warburg LLC, 220
F.R.D. 212, 216 (S.D.N.Y. 2003) (quoting Fujitsu Ltd. v.
Fed. Exp. Corp., 247 F.3d 423, 426 (2d Cir. 2001)). This
obligation to preserve evidence arises when litigation is
“imminent” and may attach prior to a threatened
lawsuit. See Burlington N. & Santa Fe Ry. Co. v.
Grant, 505 F.3d 1013, 1032 (10th Cir. 2007).
spoliation sanction combats any resulting prejudice
associated with the loss of evidence. See Silvestri v.
Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001)
(“The policy underlying this inherent power of the
courts is the need to preserve the integrity of the judicial
process.”). Its overarching goals include: (i)
punishment for discarding valuable evidence; (ii)
inclusion of inferences to accurately account for
the lost evidence; and (iii) compensation for the
aggrieved party. See Browder v. City of Albuquerque,
187 F.Supp.3d 1288, 1300 (D.N.M. 2016).
determining whether to sanction a party for spoliation of
evidence, courts evaluate two factors: “(1) the degree
of culpability of the party who lost or destroyed the
evidence, and (2) the degree of actual prejudice to the other
party.” Jordan F. Miller Corp. v. Mid-Continent
Aircraft Serv., Inc., 139 F.3d 912, at *4 (10th Cir.
1998) (citations omitted). First, courts are divided on
whether sanctions require bad faith or ordinary negligence to
prove culpability. See Id. at *3-4 (requiring no
showing of bad faith to uphold a spoliation sanction);
Allstate Ins. Co. v. Sunbeam Corp., 53 F.3d 804, 807
(7th Cir. 1995) (requiring no bad faith); Zubalake,
220 F.R.D. at 221 (discussing the Second Circuit's
approach, which only requires “ordinary
negligence”); but see Ashton v. Knight Transp.,
Inc., 772 F.Supp.2d 772, 800 (N.D. Tex. 2011)
(discussing the need to prove bad faith to make out a
spoliation sanction). Critical to an analysis, however, the
Tenth Circuit requires bad faith to prove spoliation when the
desired remedy is an adverse inference or dismissal. See
Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir.
1997) (holding that “[t]he adverse inference must be
predicated on the bad faith of the party destroying the
a party must show “meaningful evidence that [it] has
been actually, rather than merely theoretically,
prejudiced.” Burlington, 505 F.3d at 1032-33.
The crux of this prong is that without the evidence at issue,
a party “cannot defend [against the] lawsuit.”
Id. at 1032. Courts will not intervene, however,
unless the prejudice is “extraordinary.”
Silvestri, 271 F.3d at 593.
district courts are equipped with tools to address this
prejudice, and they have discretion to fashion remedies for
spoliation violations. See Chambers v. NASCO, Inc.,
501 U.S. 32, 45-46 (1991) (targeting only violations that
“abuse the judicial process”). These remedies
run the gamut from full dismissal, see Meade v.
Grubbs, 841 F.2d 1512, 1520 (10th Cir. 1988) (limiting
sanctions to those serving the interests of justice), to
adverse inference instructions, see Dillon v. Nissan
Motor Co., 986 F.2d 263, 265 (8th Cir. 1993) (upholding
a district court's adverse inference instruction), to
monetary sanctions, see Harlan v. Lewis, 982 F.2d
1255, 1260 (8th Cir. 1993) (upholding a monetary sanction
without an explicit finding of bad faith). Therefore, factual
circumstances dictate how district courts handle spoliation.
See Chambers, 501 U.S. at 45- 46.
core, this dispute is about whether Defendant Duquette is
left with enough resources to adequately defend the claims
against him, given that certain evidence from the ...