United States District Court, W.D. Arkansas, Texarkana Division
O. Hickey United States District Judge.
the Court is Plaintiff Jay Ragan's Motion for Sanctions
and Motion in Limine Regarding the Offering of Evidence of
Repairs. (ECF No. 22). Defendant Clifton Stafford
filed a response. (ECF No. 28). Plaintiff filed a reply. (ECF
No. 29). The Court finds the matter ripe for consideration.
morning of April 22, 2016, Plaintiff's vehicle struck a
black cow in the roadway on Arkansas Highway 24, between
DeQueen, Arkansas, and Horatio, Arkansas. It is undisputed
that the cow belonged to Defendant and was pastured and
fenced with other cattle on Defendant's nearby land. The
cow escaped the pasture after breaking the top strand of a
barbed-wire fence and pushing over a four-foot section of the
fence. Following the accident, Plaintiff traveled by
ambulance to the DeQueen Regional Medical Center. Soon after,
Defendant repaired the broken section of fence by fixing and
tightening the broken barbed-wire strand, putting in two new
posts, and pulling up the rest of the knocked-over section of
October 14, 2016, Plaintiff filed this lawsuit, alleging that
he suffered personal injury and damages as a result of,
inter alia, Defendant's negligent failure to
have, maintain, inspect, and repair safe fencing in order to
keep his cattle enclosed and off the nearby state highway. On
October 25, 2016, Defendant filed an answer to the complaint.
In November 2016, Defendant used a backhoe to remove the
entire fence around his land and replaced it with a new
fence. Defendant discarded the original, removed fence.
February 22, 2017, the parties filed their joint Rule 26(f)
report, which contained no reference to Defendant removing
the original fence. On July 6, 2017, Defendant answered
certain interrogatories inquiring about repairs and
replacements to the fence by stating that he decided to
replace the fence because it was “older.” (ECF
No. 21-3). On July 19, 2017, Defendant testified in his
deposition that he took the old fence down and built a new
fence on his land.
August 9, 2017, Defendant filed a motion for summary
judgment, arguing that the Court should grant summary
judgment in his favor because Plaintiff has not presented any
evidence that Defendant breached any duty of care with
respect to the kind and quality of fence enclosing
Defendant's property. On August 23, 2017, Plaintiff filed
the instant motion.
motion for sanctions argues that Defendant committed
spoliation of evidence by intentionally removing and
replacing the fence at issue in this case, and by failing to
keep or otherwise preserve the original fence. Accordingly,
Plaintiff asks the Court to enter spoliation sanctions
against Defendant. In his motion in limine, Plaintiff asks
the Court to allow him to present evidence at trial regarding
Defendant's immediate post-accident repairs to the fence
and his subsequent total removal and replacement of the
fence. The Court will address each of Plaintiff's motions
Motion for Sanctions
argues that Defendant committed spoliation of material
evidence by intentionally removing and replacing the fence
surrounding his land, and by failing to keep or otherwise
preserve the original fence. Plaintiff states that the fence
around Defendant's pasture was a key piece of evidence in
this case because his negligence claim is based largely on
Defendant's failure to have, maintain, and repair a
sufficient enclosure for his livestock. Plaintiff states
further that, because the fence removal occurred before the
parties conducted any discovery, Plaintiff is now prejudiced
because he cannot inspect and evaluate the fence, obtain
expert opinions regarding the fence's condition at the
time of the accident, or cross-examine Defendant about the
fence. Accordingly, Plaintiff asks the Court to enter various
spoliation sanctions against Defendant.
argues in response that Plaintiff was not prejudiced by the
removal of the fence because he has certain photographs of
the fencing along the highway. Defendant also argues that
Plaintiff had an adequate opportunity to inspect the fence
and preserve it as evidence between the time of the accident
and the disposal of the fence, and that Plaintiff regularly
drove along the highway before and after the accident and
could see the fence. Defendant argues further that the Court
should deny the instant motion because nothing suggests that
he removed and replaced the fence due to a “desire to
suppress the truth.”
courts have the inherent power to fashion an appropriate
sanction for conduct which abuses the judicial
process.” Gallagher v. Magner, 619 F.3d 823,
844 (8th Cir. 2010) (internal quotation marks omitted).
Spoliation of evidence can constitute such an abuse. See
Dillon v. Nissan Motor Co., 986 F.2d 263, 267 (8th Cir.
1993). Spoliation is “the intentional destruction of
evidence and when it is established, [the] fact finder may
draw inference that [the] evidence destroyed was unfavorable
to [the] party responsible for its spoliation.”
E*Trade Sec. LLC v. Deutsche Bank AG, 230 F.R.D.
582, 587 (D. Minn. 2005) (quoting Black's Law
Dictionary 1401 (6th ed. 1990)) (alterations in
original). Courts apply federal law to determine whether to
impose sanctions for spoliation of evidence. Sherman v.
Rinchem Co., 687 F.3d 996, 1006 (8th Cir. 2012). The
imposition of discovery sanctions is a decision committed to
the Court's discretion, but the scope of that discretion
narrows as the severity of the sanction increases.
Bergstrom v. Frascone, 744 F.3d 571, 576 (8th Cir.
an adverse inference instruction for spoliation to be
warranted, a district court is required to make two findings:
(1) there must be a finding of intentional destruction
indicating a desire to suppress the truth, and (2) there must
be a finding of prejudice to the opposing party.”
Lincoln Composites, Inc. v. Firetrace USA, LLC, 825
F.3d 453, 463 (8th Cir. 2016). The party seeking the sanction
bears the burden of showing the requisite intent and
prejudice. See Johnson v. Ready Mixed Concrete Co.,
424 F.3d 806, 811 (8th Cir. 2005) (internal quotation marks
omitted). The Court will now ...