United States District Court, D. Nevada
JAMES C. MAHAN, District Judge.
Presently before the court is plaintiff Stephanie Roberts' motion to reconsider. (Doc. # 75). Defendant has not filed a response to this motion.
In the instant motion, plaintiff argues that Magistrate Judge Foley erred in denying her motion for discovery sanctions. (Doc. # 74). In the underlying motion, plaintiff argued that sanctions against defendant were warranted due to (1) defendant's failure to produce surveillance video of the alleged collision between plaintiff and defendant's employee and (2) letters written by defendant's counsel that were sent directly to Dr. Moris Senegor, plaintiff's treating physician.
The magistrate judge denied plaintiff's motion, finding that (1) there is no evidence on the record showing that a surveillance video of the accident ever existed and (2) plaintiff suffered no prejudice as a result of defendant's counsel's ex parte communication with Dr. Senegor.
II. Legal standard
Magistrate judges are authorized to resolve pretrial matters subject to district court review under a "clearly erroneous or contrary to law" standard. 28 U.S.C. § 636(b)(1)(A); see also Fed.R.Civ.P. 72(a); D. Nev. R. 3-1(a) ("A district judge may reconsider any pretrial matter referred to a magistrate judge in a civil or criminal case pursuant to LR IB 1-3, where it has been shown that the magistrate judge's ruling is clearly erroneous or contrary to law."). "This subsection would also enable the court to delegate some of the more administrative functions to a magistrate, such as... assistance in the preparation of plans to achieve prompt disposition of cases in the court." Gomez v. United States, 490 U.S. 858, 869 (1989).
"A finding is clearly erroneous when although there is evidence to support it, the reviewing body on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. Ressam, 593 F.3d 1095, 1118 (9th Cir. 2010) (quotation omitted). "An order is contrary to law when it fails to apply or misapplies relevant statutes, case law or rules of procedure." Global Advanced Metals USA, Inc. v. Kemet Blue Powder Corp., 2012 WL 3884939, at *3 (D. Nev. 2012).
A magistrate's pretrial order issued under 28 U.S.C. § 636(b)(1)(A) is not subject to de novo review, and the reviewing court "may not simply substitute its judgment for that of the deciding court." Grimes v. City & County of San Francisco, 951 F.2d 236, 241 (9th Cir. 1991).
In the instant motion, plaintiff reiterates the same arguments that were rejected by the magistrate judge. Plaintiff asserts that a statement made by a manager at Smith's speculating that the incident had been recorded demonstrates that defendant has failed to preserve relevant evidence. Additionally, plaintiff argues that defendant's counsel's letter to Dr. Senegor was prejudicial because Dr. Senegor later testified that the subject incident did not cause plaintiff's injuries. The court will address each of these contentions in turn.
(1) Failure to Preserve Surveillance Footage
Immediately following the accident, Claudia Bonner, a manager at Smith's, prepared a customer incident report detailing the events surrounding plaintiff's fall. The customer incident report form included the question: "Is there Video Evidence?" next to which Bonner circled "Y." (Doc. # 66-3). After this suit was filed, plaintiff sent a letter requesting that defendant preserve any video recordings of the accident. Later, in a response to an interrogatory, defendant stated that no pictures, photographs, videos, or visual depictions of the accident existed. Defendant subsequently submitted an affidavit stating "there were no surveillance cameras trained on the aisle or area where plaintiff was bumped." (Doc. # 68-9).
Plaintiff now points to her own deposition testimony, in which she recounted that Bonner had said "the whole incident's on tape" while Bonner was filling out the incident report. Even taking plaintiff's self-serving testimony as true, the court does not find that the magistrate judge committed clear error in ruling that defendant did not fail to preserve evidence. Plaintiff does not assert that Bonner had viewed the surveillance footage at the time she filled out the incident report, and therefore Bonner's oral ...