Smith et al v. Slifer Smith & Frampton/Vail Associates Real Estate, LLC et al

Filing 118

ORDER overrulling the 112 Objection to the Recommendation of the Magistrate Judge. The Recommendation 111 re: 74 Plaintiffs' Motion for Sanctions is adopted, incorporated herein by reference, and made an Order of this Court, by Judge John L. Kane on 02/25/09.(wjc, ) Modified on 2/25/2009 to create linkage(wjc, ). Modified on 3/2/2009 to add linkage and text (wjc, ).

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 06-cv-02206-JLK JANET STUART SMITH and JUSTINE SCOTT TAYLOR, individually and as co-personal representatives of THE ESTATE OF JUSTINE H. SMITH, deceased, Plaintiffs, v. SLIFER SMITH & FRAMPTON/VAIL ASSOCIATES REAL ESTATE, LLC and PETER W. SEIBERT, JR., Defendants. ORDER K a n e , J. T h i s matter is before me on Defendants' Objection (Doc. 112) to the R e c o m m e n d a t i o n of the Magistrate Judge Regarding Plaintiffs' Motion for Sanctions for D e s t r u c t i o n of Evidence (Doc. 111). With meticulous care I have reviewed the R e c o m m e n d a t i o n , Defendants' Objection, the Plaintiffs' Response to Defendants' O b j e c t i o n (Doc. 17), as well as the underlying briefs and the entire Court file. Review is n o t de novo, as Defendants suggest, but I have done more than review for clear error or a b u s e of discretion. B y any standard of review, the Magistrate Judge's Recommendation gave careful a n d deliberate consideration to the Motion for Sanctions and the Recommendation is s o u n d , without legal error, and based upon substantial evidence. The recommended s a n c t i o n s are not dispositive of the case, nor are they unfair. They are appropriate and

d e m o n s t r a t e restraint by the Magistrate Judge. Finally, I note Defendants and their c o u n s e l have employed ad hominem comments and sarcasm regarding Plaintiffs' counsel a n d impertinent descriptions of the Magistrate Judge's conduct and rulings in this m a t t e r . Such are counterproductive to the objective of persuasion. Based on my considered review of the legal and factual bases underpinning P l a i n t i f f s ' Motion for Sanctions and the Magistrate Judge's Recommendation, the O b j e c t i o n to the Recommendation of the Magistrate Judge is OVERRULED and the R e c o m m e n d a t i o n is ADOPTED, incorporated herein by reference, and made an ORDER o f this Court. The Defendants are hereby advised that any further sanctions which may b e imposed will be more severe and may include entry of default judgment against them a n d each of them. T h e next item of business in this case will be consideration of the pending Motion i n Limine (Doc. 59) and Motion for Summary Judgment (Doc. 60), both of which have b e e n fully briefed and which I will get to as soon as my currently heavy trial schedule w i l l allow. In the interim, the parties are advised that if they would like a reference for s e t t l e m e n t , the reference would be to a different Magistrate Judge. D a t e d : February 25, 2009. B Y THE COURT: s / J o h n L. Kane S E N I O R U.S. DISTRICT JUDGE

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