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Fowler v. Wal-Mart Stores, Inc.

United States District Court, D. Nevada

July 26, 2017

LINDA FOWLER, Plaintiffs,
v.
WAL-MART STORES, INC., Defendants.

          ORDER

         Presently 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).

         1. Facts

         The 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).

         Plaintiff 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).

         On 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. 21).

         In 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 No. 23).

         The magistrate judge granted in part and denied in part plaintiff's motion to strike (ECF No. 21), concluding as follows:

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 jury instruction

         (ECF 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).

         In the 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).

         II. Legal Standard

         A 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).

         Magistrate 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).

         A 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 & ...


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