Sexton v. Hannibal, Missouri, City of et al

Filing 97

MEMORANDUM AND ORDER......IT IS HEREBY ORDERED that Plaintiff's motion for sanctions due to spoliation of evidence is DENIED. [Doc. #73]re: 73 MOTION for Sanctions Spoliation of Evidence filed by Plaintiff Mary Sexton. Signed by Honorable Audrey G. Fleissig on 4/14/2011. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
MARY SEXTON,
Plaintiff,
vs.
CITY OF HANNIBAL, et al.,
Defendants.

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Case No. 2:09CV0008 AGF

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Mary Sexton’s motion for sanctions
due to spoliation of evidence (Doc. #73). An evidentiary hearing was had on the motion
on March 16, 2011. Based on the entire record, and the Court’s assessment of the
credibility of the witnesses at the hearing, Plaintiff’s motion shall be denied.
BACKGROUND
Plaintiff claims that she was fired November 10, 2008, from her job with the
City of Hannibal in violation of her First Amendment rights and state law for reporting
that her supervisor, Beau Hicks, was stealing money from the City, specifically, from
money the City made from souvenir sales and admissions to a museum. Plaintiff testified
at the hearing that on the day of her termination, there were documents in her desk and
file cabinets that supported her assertion that the monies in question were missing. She
described these documents as deposit slips, receipts and tally sheets. Plaintiff had
requested these documents from Defendants -- the City and several City officials,
including Hicks -- who responded that the documents could not be located. Several

witnesses, including Hicks, testified accordingly on Defendants’ behalf and specifically
denied destroying any such documents.
Plaintiff argues that she is entitled to sanctions in the form of a default
judgment against Defendants. In the alternative, she asks the Court to give an adverse
inference instruction to the jury, telling the jury that there is an inference to be drawn
from the destruction of this evidence that the evidence would have been favorable to
Plaintiff. Defendants argue that sanctions must be denied as there is no evidence that any
of the Defendants intentionally destroyed the documents. The Defendants other than
Hicks also argue that there is no evidence that they had access to or were even aware of
the documents at issue.
DISCUSSION
Where spoliation of evidence occurs prior to litigation, “[a] district court is
vested with discretion to impose sanctions upon a party under its inherent disciplinary
power.” Bass v. Gen. Motors Corp., 150 F.3d 842, 851 (8th Cir. 1998) (citations
omitted). The Eighth Circuit has held, however, that before a court may impose sanctions
for the destruction of evidence, there must be “‘a finding of intentional destruction
indicating a desire to suppress the truth,’” and a finding of prejudice to the opposing
party. Morris v. Union Pac. RR, 373 F.3d 896, 901 (8th Cir. 2004) (quoting Stevenson v.
Union Pac. RR Co., 354 F.3d 739, 745 (8th Cir. 2004)).
Here, the Court finds that there is insufficient evidence that any of the
Defendants intentionally destroyed the documents in question. Indeed, as they correctly
note, there is no evidence that any of the Defendants other than Hicks had any dealings
whatsoever with the documents. Accordingly, sanctions against Defendants are not

warranted. See Gallagher v. Magner, 619 F.3d 823, 845 (8th Cir. 2010) (“[W]here a
court expressly finds, as here, that there is no evidence of intentional destruction of
evidence to suppress the truth, then the district court also acts within its discretionary
limits by denying sanctions for spoliation of evidence.”); Menz v. New Holland N. Am.,
Inc., 440 F.3d 1002, 1006 (8th Cir. 2006) (reversing dismissal of the case as a sanction
for the plaintiff’s prelitigation destruction of evidence where the district court did not first
make a finding of bad faith on the plaintiff’s part).
Plaintiff shall not be precluded from requesting an adverse inference
instruction at a later point in the proceedings, should the case go to trial.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion for sanctions due to
spoliation of evidence is DENIED. [Doc. #73]

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 14th day of April, 2011.