Brantley et al v. Smtih et al

Filing 131

ORDER re 108 Appeal of Magistrate Judge Decision to District Court. The Court reaffirms its prior denial of the 65 Sanctions Motion. Signed by Magistrate Judge Brian K. Epps on 11/28/2018. (jlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
HAROLD H. RICKS; ROGER SMITH;
)
SHON BUTLER; and MALIK BRANTLEY, )
Administrator of the Estate of Leroy Brantley, )
Jr., on behalf of themselves and all
)
others similarly situated,
)
)
Plaintiffs,
)
)
v.
)
)
HANDI-HOUSE MFG. CO., and DONALD )
FLANDERS,
)
)
Defendants.
)
_________

CV 617-089

ORDER
_________
Plaintiffs request reconsideration of the July 11, 2018 Order denying their sanctions
motion, citing for the first time depositions wherein James Akridge and John Wilkerson
admitted destroying, in December 2017, a loan list they created in late June 2017 before
service of the Complaint on July 10, 2017. Messrs. Akridge and Wilkerson admitted Mr.
Akridge kept the list from its creation in June until he lost it in December. (Akridge Dep.,
doc. no. 87-10, pp. 16-17; Wilkerson Dep., doc. no. 87-11, pp. 33-34.) Mr. Akridge quickly
recovered the list, and they destroyed it. (Wilkerson Dep., pp. 27-34.) Alfred Johnson
photographed the list before its destruction.

(Akridge Dep., p. 36.)

Mr. Wilkerson

explained, “At that time we did not know that somebody had done sent it to y’all. To us it
was just trash. . . . [W]e just didn’t have no more use for it.” (Wilkerson Dep., pp. 33-34.)

In discovery responses served before Mr. Akridge lost the list, Messrs. Akridge and
Wilkerson claimed there were no responsive documents concerning the loan business, and
they could not recall the name of even one borrower. (Interr. Resps., doc. no. 87-13, pp. 6,
18.) In response to the motion for sanctions, both stated no responsive documents existed on
July 10, 2017, and they never destroyed any documents. (Akridge Aff., doc. no. 69, p. 15,
¶ 6; Wilkerson Aff., doc. no. 69, p. 13, ¶ 5.) Mr. Akridge further attested Mr. Wilkerson
gave him the June 2017 loan list in early July, before July 10, and Mr. Akridge “lost the list
on that same date.” (Akridge Aff., 16, ¶ 8.) Mr. Wilkerson died before the hearing on
October 30, 2018. (Doc. no. 127.) Mr. Akridge’s hearing testimony is a tangled web, but at
bottom, he admitted possessing the June 2017 loan list and destroying it in December 2017.
(Court’s recording system, For the Record, (“FTR”) 12:23:06 – 12:52:47.)
This history of deception proves Messrs. Akridge and Wilkerson cannot be trusted,
and a jury hearing their testimony should receive a cautionary instruction.

However,

Plaintiffs have dismissed all claims against Messrs. Akridge and Wilkerson and are no longer
seeking sanctions against them. The sanctions motion fails with respect to the remaining
Defendants Handi-House Mfg. Co. (“Handi-House”) and Donald Flanders. Plaintiffs do not
allege Defendants failed to cooperate in discovery. It is undisputed the loan business was a
side venture by Messrs. Akridge and Wilkerson, and Defendants neither participated in nor
profited from it. (FTR 10:28:23 – 10:32:41.) Nor is there any evidence they had knowledge
of, or involvement in, the destruction of loan documents. (FTR 10:24:26 – 10:25:22.)
Plaintiffs concede spoliation sanctions are “only available against the party who had
possession or control of the missing evidence.” (Doc. no. 75, p. 8.) Defendants did not have
possession or control of the June 2017 loan list or any other loan documents. Sanctions are
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also appropriate when a third party destroys information while acting (1) as the litigant’s
agent; and (2) “at the behest” of the litigant. Daniels v. United States, 86 F. Supp. 3d 1375,
1379–80 (S.D. Ga. 2015). An agency relationship arises “wherever one person, expressly or
by implication, authorizes another to act for him or subsequently ratifies the acts of another
in his behalf.” O.C.G.A. § 10–6–1. Because the loan business did not belong to Defendants,
Messrs. Akridge and Wilkerson could not have acted as Defendants’ agents when operating
it or destroying loan documents. There is also no evidence Messrs. Akridge and Wilkerson
destroyed documents “at the behest” of Defendants.
Plaintiffs argue Handi-House should be sanctioned under the doctrine of respondeat
superior because Messrs. Akridge and Wilkerson acted within the course and scope of their
employment when operating the loan business. Defendants argue there is no vicarious
liability when an employee commits torts during regular job duties for purely personal
reasons unrelated to any purpose beneficial to the employer. This issue will be determined in
the context of the pending summary judgment motions. (Doc. nos. 87, 88.) If Plaintiffs
prevail, they may refile the sanctions motion if there is a meritorious argument the doctrine
allows sanctioning Handi-House for discovery abuses by Messrs. Akridge and Wilkerson.
For these reasons, the Court REAFFIRMS its prior denial of the sanctions motion.
SO ORDERED this 28th day of November, 2018, at Augusta, Georgia.

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