Herrmann v. Rain Link, Inc. et al

Filing 151

ORDER 125 Motion for Spoilation Sanctions be hereby denied as set forth in the foregoing order; adopting Report and Recommendations re 150 Report and Recommendations.. Signed by District Judge Richard D. Rogers on 8/7/2013. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
WAYNE B. HERRMANN,
Plaintiff,
v.
RAIN LINK, INC., et al.,
Defendants.

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Case No. 11-1123-RDR

O R D E R
This matter is presently before the court upon the Report and
Recommendation of Magistrate Judge K. Gary Sebelius.

The Report and

Recommendation addresses the plaintiff=s motion for spoliation
sanctions.

Judge Sebelius recommended that a portion of plaintiff=s

motion be denied.

He recommended that plaintiff=s requests for

adverse-inference jury instructions, analogous inferences by the
court in conjunction with summary judgment briefing, and attorney
fees and additional monetary sanctions be denied.

He further

recommended that the remainder of the motion, which included requests
for the admission and exclusion of evidence at trial, be denied
without prejudice.

He suggested that these issues should be

addressed by the judge presiding over the trial of this case.
The parties have not filed objections to the Report and
Recommendation, and the time for doing so has passed. See 28 U.S.C.
' 636(b)(1).

AIn the absence of timely objection, the district court

may review a magistrate. . .[judge=s] report under any standard it

deems appropriate.@ Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.
1991)(citing Thomas v. Arn, 474 U.S. 140, 150 (1985) (stating that
A[i]t does not appear that Congress intended to require district court
review of a magistrate=s factual or legal conclusions, under a de novo
or any other standard, when neither party objects to those findings@).
The court has reviewed the relevant pleadings concerning the Report
and Recommendation.

Based upon that review, the court finds that

Judge Sebelius= Report and Recommendation should be adopted in its
entirety.

Accordingly, the court hereby adopts Judge Sebelius=

Report and Recommendation, and plaintiff's motion for spoliation
sanctions shall be denied.

The court shall deny plaintiff=s motion

in so far as it seeks adverse-inference jury instructions and
analogous inferences by the court in conjunction with summary
judgment briefing, attorney fees, and other monetary sanctions.
court

shall

prejudice.

deny

the

remainder

of

plaintiff=s

motion

The

without

The court will decide the issues of the admission or

exclusion of the spoliation evidence at the time of trial.
IT IS THEREFORE ORDERED that the Report and Recommendation of
the Magistrate Judge K. Gary Sebelius (Doc. # 150) is hereby adopted.
IT IS FURTHER ORDERED that plaintiff=s motion for spoliation
sanctions (Doc. # 125) be hereby denied as set forth in the foregoing
order.

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IT IS SO ORDERED.
Dated this 7th day of August, 2013, at Topeka, Kansas.

s/Richard D. Rogers
United States District Judge

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