United States District Court, D. Nevada
before the court is defendant Wal-Mart Stores, Inc.'s
(“Wal-Mart” or “defendant”) motion to
reconsider. (ECF No. 43). Plaintiff Linda Fowler filed a
response. (ECF No. 45).
instant action involves a slip-and-fall incident at
Wal-Mart's store on October 27, 2013, from which
plaintiff sustained injuries. Plaintiff alleges that she
slipped on a wet substance in an aisle near the house and
garden center, causing her to fall on the ground. (ECF No.
1-2 at 3). Plaintiff further alleges that after the fall, a
Wal-Mart employee was shown cleaning up a foreign substance
on the floor in the main cross aisle connected to the aisle
that she fell in. (ECF No. 1-2).
originally filed the complaint in state court on October 8,
2015, alleging one cause of action for negligence. (ECF No.
1-2). Wal-Mart removed the action to federal court on March
2, 2016. (ECF No. 1).
January 18, 2017, plaintiff filed a motion to strike
defendant's answer or for an adjudication as to liability
or in the alternative, for adverse presumption or inference
due to defendant's spoliation of evidence relating to the
subject action. (ECF No. 21). Plaintiff asserted that the
occurrence of the subject incident was sufficient to put
Wal-Mart on notice of its need to preserve evidence. (ECF No.
21). Plaintiff argued that sanctions are appropriate,
inter alia, because Wal-Mart had notice of
plaintiff's accident and failed to take photographs of
the foreign substance in the main cross aisle, thereby
failing to preserve potentially relevant evidence. (ECF No.
response, Wal-Mart argued that there was no reasonable basis
to believe that the foreign substance in the main cross aisle
was related to the substance on which plaintiff slipped. (ECF
magistrate judge granted in part and denied in part
plaintiff's motion to strike (ECF No. 21), concluding as
Sanctions are not warranted against Defendant based on its
alleged failure to preserve video from the so-called east
camera or from the camera pointed at the fire exit door.
Defendant did breach its duty to inspect and photograph the
substances that the employee was shown cleaning up in the
main cross-aisle as Plaintiff was departing the store. The
appropriate sanction for this breach is an adverse inference
No. 40 at 17). The magistrate judge found that
“[b]ecause Wal-Mart negligently failed to preserve
evidence regarding the substance in the main cross-aisle, the
jury should be instructed that they can infer that the
substances in the main cross-aisle were part of the same
spill that deposited the foreign substances were part of the
same spill that cause [p]laintiff's fall.” (ECF No.
40 at 17).
instant motion, Wal-Mart seeks reconsideration of the
magistrate judge's order (ECF No. 40) granting in part
and denying in part plaintiff's motion to strike (ECF No.
21). (ECF No. 43).
district judge may affirm, reverse, or modify, in whole or in
part, a magistrate judge's order, as well as remand with
instructions. LR IB 3-1(b).
judges are authorized to resolve pretrial matters subject to
the district judge's 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);
LR IB 3-1(a) (“A district judge may reconsider any
pretrial matter referred to a magistrate judge in a civil or
criminal case under LR IB 1-3, when it has been shown the
magistrate judge's order is clearly erroneous or contrary
to law.”). The “clearly erroneous” standard
applies to a magistrate judge's factual findings, whereas
the “contrary to law” standard applies to a
magistrate judge's legal conclusions. See, e.g.,
Grimes v. Cty. of San Francisco, 951 F.2d 236, 240
(9th Cir. 1991).
magistrate judge's finding is “clearly
erroneous” if the district judge has a “definite
and firm conviction that a mistake has been committed.”
United States v. U.S. Gypsum Co., 333 U.S. 364, 395
(1948). “[R]eview under the ‘clearly
erroneous' standard is significantly deferential.”
Concrete Pipe & ...