BARRETT v. FEDEX CUSTOM CRITICAL INC et al
ORDER denying 24 Motion for Sanctions. Ordered by US DISTRICT JUDGE CLAY D LAND on 04/09/2018. (CCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
FEDEX CUSTOM CRITICAL, INC.,
PROTECTIVE INSURANCE CO., and
RAFERCAR TRANSPORT LOGISTICS &
CASE NO. 3:17-CV-62 (CDL)
O R D E R
Presently pending before the Court is Plaintiff Presidee
Barrett’s motion for spoliation sanctions (ECF No.
discussed below, the motion is denied.
Barrett claims that when he stopped in an emergency lane
off I-20 to help a disabled motorist, Carl Milton Kelly ran his
tractor trailer off the side of the road and struck Barrett’s
disabled vehicle, and he was hit by a piece of his truck and
knocked into the disabled vehicle.
At the time of the December
16, 2015 incident, Kelly was driving a truck owned by Defendant
Defendant FedEx Custom Critical, Inc. (“FedEx”), with a trailer
Kelly died before this action was filed.
owned by FedEx.
On December 28, 2015, Barrett’s lawyer sent
FedEx a letter notifying FedEx that Barrett sustained personal
injuries and property damage as a result of the incident.
At the time of the incident, FedEx had two computer systems
to keep track of its drivers and trucks.
First, FedEx used a
system called Omnitracs to keep data on its drivers.
Omnitracs system, drivers input their status (driving, on-duty
not driving, off duty, or sleeper berth).
It is undisputed that
Kelly’s Omnitracs data, which showed how many hours Kelly said
he was on duty each day during the two weeks before the December
Omnitracs to preserve it.
tracked the GPS location of each of its trucks.
The Pro Detail
data can be used to determine the drive time for each truck
during a specified time period.
Unlike Kelly’s Omnitracs data,
the Pro Detail data for Kelly’s truck was preserved.
operated one truck when he accepted dispatched loads for FedEx,
and he did not operate a truck under the operating authority of
any motor common carrier other than FedEx.
14, ECF No. 25-1.
McCahan Aff. ¶¶ 12-
Thus, the Pro Detail report for Kelly’s truck
shows the entire amount of time Kelly spent driving his truck
during the eight days before the December 16, 2015 incident: 41
hours and 40 minutes.2
Id. ¶¶ 16-17.
Barrett seeks spoliation sanctions based on FedEx’s failure
to preserve the Omnitracs data.
preserve the Omnitracs data.
Barrett argues that the Court
In the alternative, Barrett argues
contest Barrett’s evidence on liability and punitive damages.
preserve evidence that is necessary to contemplated or pending
Bath v. Int’l Paper Co., 807 S.E.2d 64, 68 (Ga.
provides guidance that the Court may consider.
Flury v. Daimler
Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005).
sanctions “are intended to prevent unfair prejudice to litigants
and to insure the integrity of the discovery process.”
Court has “broad discretion” to impose sanctions for spoliation
But, the most severe sanctions “are reserved
Under the applicable federal regulations, a motor carrier may not
“permit or require a driver of a property-carrying commercial motor
vehicle” to drive if the driver has “been on duty 70 hours in any
period of 8 consecutive days if the employing motor carrier operates
commercial motor vehicles every day of the week.”
for ‘exceptional cases,’ generally only those in which the party
lost or destroyed material evidence intentionally in bad faith
and thereby prejudiced the opposing party in an uncurable way.”
Cooper Tire & Rubber Co. v. Koch, No. S17G0654, 2018 WL 1323994,
S.E.2d 596, 606 (Ga. 2015)).
prejudiced as a result of the destruction of the Omnitracs data,
whether the prejudice can be cured, the practical importance of
the evidence, whether FedEx acted in good or bad faith, and the
potential for abuse if sanctions are not granted.
uncurable prejudice where the plaintiff failed to preserve an
allegedly defective vehicle in a crashworthiness case).
contends that the Omnitracs data was central to his claim that
Kelly was impaired due to fatigue at the time of the collision
and that FedEx knew or should have known that it was dispatching
an unsafe driver.
If the Omnitracs data were the only evidence
of Kelly’s duty status during the days before the December 16,
2015 incident (as Barrett’s brief suggests), Barrett might have
a good argument for some type of spoliation sanction.
Omnitracs data was not the only evidence of Kelly’s duty status.
As discussed above, the Pro Detail data provides Kelly’s driving
time for the two weeks prior to the December 16, 2015 incident.3
And, the present record establishes that Kelly only drove for
FedEx at the time of the incident.
In light of this evidence,
Omnitracs data will result in uncurable prejudice to Barrett,
and Barrett did not clearly explain how such prejudice would
For the same reason, the practical importance of the
Omnitracs data is low.4
Under these circumstances, even if FedEx
did wrongfully fail to preserve the Omnitracs data, the Court is
sanctions (ECF No. 24) is therefore denied.
IT IS SO ORDERED, this 9th day of April, 2018.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
The Pro Detail data admittedly does not show Kelly’s on-duty not
driving status. But to be in violation of the regulation, Kelly would
have had to be on-duty but not driving for at least twenty-eight hours
during the eight days before the incident.
Based on the present
record, it would have been rare for a truck driver like Kelly to spend
so much time on-duty but not driving. McCahan Aff. ¶ 19.
Barrett did point to evidence that five months after the incident,
the North Carolina State Highway Patrol cited Kelly for driving while
fatigued and for falsifying his record of duty status. Pl.’s Mot. for
Sanctions Ex. 8, Citation (May 19, 2016), ECF No. 24-9.
It is not
clear how this evidence supports Barrett’s argument that the
information Kelly input into Omnitracs would have given a reliable
account of Kelly’s duty status.
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