Hall v. City of Depoe Bay

Filing 54

ORDER: I adopt Magistrate Judge Russo's F&R 46 in its entirety. Accordingly, the Motion for Summary Judgment 17 is DENIED. Signed on 9/25/2018 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

RICHARD HALL,

Case No. 6:17-cv-00479-MK

ORDER
Plaintiff,
v.

CITY OF DEPOE BAY,
Defendant.

AIKEN, District Judge:
Magistrate Judge Jolie Russo filed her Findings and Recommendation ("F&R") (doc. 46)
recommending that defendant's Motion for Summary Judgment (doc. 17) should be DENIED.
The matter is now before me. See 28 U.S.C. § 636(b)(l)(B) and Fed. R. Civ. P. 72(b).
When either party objects to any portion of a magistrate judge's F&R, the district court
must make a de nova determination of that portion of the magistrate judge's report. See 28
U.S.C. § 636(b)(l); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d
1309, 1313 (9th Cir. 1981), cert denied, 455 U.S. 920 (1982).
Plaintiff filed timely objections to the F&R (doc. 48), and defendant filed a timely
response to those objections (doc. 52). Thus, I review the F&R de nova.
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Plaintiff avers that Judge Russo erred in ordering an adverse inference instruction to the
fact-finder in this case as a sanction for spoliation of evidence. Specifically, Judge Russo opined
that:
[A]lthough dismissal is inappropriate in this case, the Court orders an adverse inference
instruction based on the following findings: (!) plaintiff had control over the Siamez and
an obligation to preserve the vessel at the time it was destroyed; (2) plaintiff authorized
the destruction of the Siamez with a sufficiently culpable state of mind because he had
notice of potential relevance of the Siamez to this litigation; and (3) the Siamez was relevant
evidence to the defense of plaintiff's claim because without the vessel defendant is prejudiced in
defending against plaintiff's claim.
F&R at *15. (internal quotations omitted.)
I agree with Judge Russo's analysis of the issue and her findings outlined above. I also
conclude that she was correct in her use of the factors outlined in Justice v. Rockwell Collins,

Inc. and her holding that those factors are satisfied in this case. 117 F. Supp.3d 1119, 1130-31 (D.
Or. 2015), ajf'd, 2017 WL 6559788 (9th Cir. 2017). In sum, I find no error in Judge Russo's F&R.
Thus, I adopt Magistrate Judge Russo's F&R (doc. 46) in its entirety. Accordingly, the
Motion for Summary Judgment (doc. 17) is DENIED.
IT IS SO ORDERED.
Dated this 25th day of September, 2018.

Ann Aiken
United States District Judge

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