Hartley v. Time Warner Cable NY, LLC

Filing 37

MINUTE ORDER: Denying 33 Plaintiff's Motion and Request for Emergency Hearing Re: Spoliation of Evidence. Denying 34 Plaintiff's Motion to Strike Defendant's Pleadings and Motion for Summary Judgement. Plaintiff's tendered Revised: Complaint and Jury Demand 35 is stricken. By Magistrate Judge Michael J. Watanabe on 4/16/2013.(mjwcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00158-PAB-MJW
PATRICK G. HARTLEY, individually and on behalf of others
similarly situated,
Plaintiff(s),
v.
TIME WARNER CABLE NY, LLC DBA TIME WARNER CABLE et. ALL. [sic],
Defendant(s)
MINUTE ORDER

Entered by Magistrate Judge Michael J. Watanabe
It is hereby ORDERED that the Pro Se Plaintiff Patrick G. Hartley’s Motion and
Request for Emergency Hearing Re: Spoliation of Evidence (docket no. 33) and the
related Plaintiff Patrick G. Hartley’s Motion to Strike Defendant’s Pleadings and Motion
for Summary Judgement [sic] (Docket No. 34), which this court has construed as a
motion for sanctions based upon the alleged spoliation, are DENIED for the following
reasons.
The Pro Se Plaintiff argues that Defendant has engaged in spoliation of
evidence. In support of this contention, the Pro Se Plaintiff relies on his “Statement of
Patrick G. Hartley, Plaintiff” [exhibit C] attached to one of the subject motions (docket
no. 33). However, even exhibit C shows that any alleged spoliation of evidence by
Defendant’s Supervisor, Christopher McKitrick, has not taken place. On page one of
exhibit C, the sixth full line from the bottom of the page states:
Patrick:

did you delete the information?

Chris:

yes, from the desktop, but I saved it on the network drive.

(emphasis added).
Based upon this information, it is clear that such information is still retrievable
and could be made available to the Pro Se Plaintiff upon formal discovery request. The
Pro Se Plaintiff has not presented any other evidence to suggest spoliation of evidence.
Moreover, the Pro Se Plaintiff has not demonstrated that he had served the Defendant
with a preservation letter. Lastly, the Pro Se Plaintiff is permitted, per the Rule 16

2
Scheduling Order dated March 21, 2013 (docket no. 23), to serve discovery requests in
the forms of interrogatories, requests for production of documents, and requests for
admissions upon Defendant and to obtain such information suggested in exhibit B
attached to the subject motion (docket no. 33). Accordingly, the subject motions
(docket nos. 33 and 34) should be denied.
It is further ORDERED that the Plaintiff’s tendered Revised: Complaint and Jury
Demand (Docket No. 35) is stricken based upon the Plaintiff’s failure to comply with
Fed. R. Civ. P. 15(a)(2).

Date: April 16, 2013