Lord v. Flanagan

Filing 43

ORDER denying 40 Motion to reconsider and/or object to magistrate's order. Signed by Chief Judge Dana L. Christensen on 2/24/2014. (dle)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

DANIEL LORD,

CV 13–26–BU–DLC–JCL
Plaintiff,
ORDER

vs.
MATTHEW FLANAGAN,
Defendant.

On February 11, 2014, United States Magistrate Judge Jeremiah Lynch
issued an order granting Plaintiff Daniel Lord’s motion for leave to file an
Amended Complaint joining Gallatin County, Montana as a defendant for the
purpose of advancing independent torts for negligent and intentional spoilation of
evidence against that entity. (Doc. 39.) The following day, Defendant Matthew
Flanagan filed a Motion to Reconsider and/or Object to Magistrate’s Order
Allowing Amendment of Second Amended Complaint. (Doc. 40.)
The Court will review Judge Lynch’s order pursuant to Federal Rule of
Civil Procedure 72(a), which states: “The district judge in the case must consider
timely objections and modify or set aside any part of the order that is clearly

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erroneous or is contrary to law.”1 Since the parties are familiar with the factual and
procedural background of this case, it will not be restated here.
Flanagan specifically challenges Judge Lynch’s rejection of his argument
that the amendment must be denied as futile under Foman v. Davis, 371 U.S. 178,
182 (1962). Although, Flanagan does not challenge Judge Lynch’s finding that the
Court possesses subject matter jurisdiction over the pendent state law claims
which Lord seeks to bring against Gallatin County, the Court finds that Judge
Lynch’s analysis on that issue was accurate, as was his conclusion.
Ordinarily, a motion for leave to file an amended pleading is governed by
Federal Rule of Civil Procedure 15(a)(2), which provides that leave should be
given “freely . . . when justice so requires.” However, Lord’s motion is initially
governed by Federal Rule of Civil Procedure 16.
The Court’s scheduling order entered in this case pursuant to Federal Rule
of Civil Procedure 16(b) established September 16, 2013, as the deadline for the
parties to amend their pleadings. (Doc. 18.) Lord filed his motion for leave to file
an amended complaint on January 9, 2014. Therefore, because the deadline for
amendments has passed, Lord must satisfy the “good cause” standard imposed by

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28 U.S.C. § 636(b)(1)(A) establishes the same standard of review, stating that the Court
“may reconsider any pretrial matter . . . where it has been shown that the magistrate judge’s order
is clearly erroneous or contrary to law.”

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Rule 16(b)(4) as required to modify a scheduling order before he can invoke the
liberal amendment standards of Rule 15(a). Coleman v. Quaker Oats Co., 232 F.3d
1271, 1294 (9th Cir 2000) (Citing Johnson v. Mammoth Recreations, Inc., 975
F.2d 604, 607-09 (9th Cir)). This good cause standard “primarily considers the
diligence of the party seeking the amendment. Coleman, 232 F.3d at 1294
(quoting Johnson, 975 F.2d at 609). Thus, a scheduling order can be modified if
the party requesting the modification establishes he cannot reasonably meet, or
could not have reasonably met deadlines imposed in the scheduling order despite
his diligence. Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087
(9th Cir. 2002) (quoting Johnson, 975 F.2d at 609). If the requesting party fails to
establish that he was diligent, then the Court’s “‘inquiry should end’ and the
motion to modify” the scheduling order and the motion to file an amended
pleading should be denied. Id.
Although neither party addressed Rule 16 in their briefing on the motion to
amend, the Court has sufficient information to answer the question of whether
good cause existed, and it will do so in the interest of efficiency and to spare the
parties the time and expense associated with additional briefing on that subject.
On October 12, 2011 – four days after Lord lost a portion of his thumb in
the incident that gave rise to this action – his counsel at the time sent a letter to the
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Gallatin County Attorney requesting “any and all videotape that may have shown
what occurred.” (Doc. 36-1.) On November 27, 2013 Flanagan responded to
Lord’s Fourth Discovery Requests. Flanagan informed Lord that three cameras
provided at least a partial view of his cell, and that copies of the video recordings
from two of those cameras “were not retained.” (Doc. 34-1 at 3-4.) This answer
constitutes the factual foundation for the spoliation claim Lord now seeks to bring
against Gallatin County. Thus, Lord could not have reasonably met the deadline
for amending the pleadings – despite his diligence – because he did not learn
about that factual foundation until well after the deadline. Accordingly, the Court
finds that good cause exists pursuant to Rule 16, and will move on to address
Flanagan’s Rule 15 objection to Judge Lynch’s order.
Flanagan’s objection is almost identical to his response to Lord’s motion to
amend, and offers no fresh arguments. Instead, Flanagan renews his argument that
because the amendment would be futile, it should not be permitted pursuant to
Foman v. Davis, 371 U.S. 178, 182 (1962). Judge Lynch addressed this argument
in his order, stating:
The sole argument Flanagan offers in opposition to Lord’s
motion is that if Gallatin County is joined as a defendant,
it will no longer be a non-party against which the torts of
intentional and negligent spoliation of evidence can be
asserted. Thus, so the argument goes, Lord’s requested
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amendment must be denied as futile. See Foman v. Davis,
371 U.S. 178, 182 (1962) (recognizing that a Federal Rule
of Civil Procedure 15 motion to amend a complaint may be
denied based on futility of the proposed amendment).
Flanagan’s argument is without merit.

(Doc. 39 at 4.) Judge Lynch is entirely correct.
Lord seeks to bring claims against Gallatin County for the torts of negligent
and intentional spoliation of evidence, which the Montana Supreme Court has
recognized as independent causes of action. Oliver v. Stimson Lumber Co., 993
P.2d 11, 19 (Mont. 1999). In the same opinion, the Court found “no reason to
recognize a new tort theory or provide relief to litigants when evidence is
intentionally or negligently destroyed by a party to the litigation.” Id. at 17; See
also, Estate of Willson v. Addison, 258 P.3d 410, 415 (Mont. 2011) (“The torts of
intentional and negligent spoliation are stand alone torts that must be affirmatively
plead and apply only to non-parties to the litigation”). Flanagan essentially argues
that if the amendment is permitted, it would be rendered futile since Gallatin
County would then be a party to the action, and spoliation claims cannot be made
against parties. This Court does not find any support for Flanagan’s theory in
Stimson Lumber, nor any of its progeny. To the contrary, the logic that led the
Supreme Court to arrive at its conclusion that spoliation claims cannot be brought

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against existing parties supports Lord’s position. The Supreme Court stated:
“Remedies already exist for parties to an action who have
suffered a loss as a result of the spoliation of evidence by
another party . . . Trial Judges are well equipped under the
Montana Rules of Civil Procedure to address the problem
as it occurs and deal with it accordingly, even entering
default when the circumstances justify such relief. When
evidence is in the possession if a third party, however, the
various sanctions available to the trial judge are
inapplicable and other considerations arise.”
Id. at 345. Gallatin County is not currently a party to this litigation, and thus not
subject to the existing judicial safeguards that led the Supreme Court to bar
spoliation claims against current parties. Acceptance of Flanagan’s circular logic
would severely undermine, if not altogether eviscerate Stimson Lumber, in that no
tort for spoliation could be brought in Montana because the moment a non-party is
joined or sued in a separate action, it would then become a party, and therefore
shielded from spoliation liability.
Flanagan also appears to suggest that Lord should be required to bring his
claims for spoliation against Gallatin County in an entirely separate action, stating
“the plaintiff cannot be permitted to amend his Second Amended Complaint in
order to assert an independent cause of action for spoliation against Gallatin
County in this lawsuit.” (Doc. 40 at 6 (emphasis in original).) This argument is
also unsupported by Stimson Lumber. Flanagan emphasizes the Supreme Court’s
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use of the expressions “underlying claim” and “underlying action” in its
discussion of the causation element of negligent spoliation to support his claim
that Lord may only advance its claims against Gallatin County in an entirely
separate action. See Stimson Lumber, 993 P.2d at 20-21. The Court uses these
terms simply to establish that there must be a causal element between the alleged
spoliation and the claim or action to which the allegedly spoliated evidence was
related. There is no indication that the Court intended to require plaintiffs to bring
a separate action, nor preclude them from bringing claims against third parties in
the same action. Flanagan simply reads too much into the Court’s use of these
phrases.
Finally, Flanagan’s argument as to the need for a separate, subsequent
lawsuit is illogical from a policy perspective. As Judge Lynch notes, trying a
plaintiff’s independent torts for spoliation with the underlying federal claim will
promote both convenience and judicial efficiency.
Judge Lynch’s order is not clearly erroneous, nor is it contrary to law.
Accordingly,
IT IS ORDERED that Flanagan’s motion (Doc. 40) is DENIED.

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Dated this 24th day of February, 2014.

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