Bruno et al v. Bozzuto's, Inc.

Filing 234

MEMORANDUM (Order to follow as separate docket entry) re 224 MOTION for Reconsideration of Order Dated July 30, 2015 (Doc. 223) filed by Bruno's Market II, Michael Bruno, Bruno's Market, Inc., Lisa Bruno. Signed by Honorable Matthew W. Brann on 8/31/15. (km)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL BRUNO, et al.,
Plaintiffs
v.
BOZZUTO’S, INC.
Defendant

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CIVIL NO. 3:09-CV-00874
(Judge Brann)

MEMORANDUM
August 31, 2015
Currently pending before the Court is Plaintiffs Michael Bruno, Lisa Bruno,
Bruno's Market, Inc., and Bruno's Market II (collectively “Brunos”) Motion for
Reconsideration of the Court’s July 30, 2015 Order. (ECF No. 224). For the
reasons set forth below, the Motion will be denied.
I.

Background1
This Motion comes as a result of three separate Orders of this Court. On

February 6, 2012 while this case was still before the Honorable Robert D. Mariani,
an Order was issued related to Bozzuto’s motion for spoliation sanctions. (ECF
No. 127). In that Order, Judge Mariani concluded that Brunos had spoliated
evidence and ordered that Brunos recreate the missing evidence at their own
1

A detailed recitation of the facts of this case is contained in this Court’s April 23, 2015
Memorandum. See Bruno v. Bozzuto's, Inc., No. 3:09-CV-00874, 2015 WL 1862990, at *1-5
(M.D. Pa. Apr. 23, 2015). This Memorandum will address only the facts necessary to the
resolution of this Motion.

expense. Id. Judge Mariani denied further sanctions without prejudice, stating that
he would consider more severe sanctions if the evidence proved to be unavailable.
Id.
On April 23, 2015, this Court considered a renewed motion for sanctions,
and determined that an adverse inference sanction was appropriate based on
Brunos’ intentional and bad faith destruction of evidence. (ECF No. 212).
However, the Court denied monetary sanctions, noting that further discovery
disputes may be looming, and further noting that Bozzuto’s must specifically
delineate any time spent addressing discovery and spoliation issues. Id.
Finally, in response to Bozzuto’s renewed motion for monetary sanctions
and request that Brunos’ expert witnesses be disallowed, on July 30, 2015 this
Court issued an additional Order. (ECF No. 223). In that Order, the Court set a
date for a Daubert hearing and established a briefing schedule in anticipation of
that hearing. Id. The Court also concluded that it may be appropriate to issue
monetary sanctions prior to trial and advised the parties that, upon completion of
the Daubert hearing, the Court would entertain arguments relating to monetary
sanctions. Id.
II.

Discussion
A motion for reconsideration under Federal Rules of Civil Procedure 59(e)

“is a ‘device to relitigate the original issue’ decided by the district court, and used
2

to allege legal error.” United States v. Fiorelli, 337 F.3d 282, 288 (3d Cir. 2003)
(quoting Smith v. Evans, 853 F.2d 155, 158-59 (3d Cir. 1988). A proper Rule
59(e) motion “must rely on one of three major grounds: (1) an intervening change
in controlling law; (2) the availability of new evidence not available previously; or
(3) the need to correct clear error of law or prevent manifest injustice.” Holsworth
v. Berg, 322 F.App’x 143, 146 (3d Cir. 2009) (quoting N. River Ins. Co. v. CIGNA
Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)) (internal quotation marks
omitted).
Although counsel for Brunos (“Counsel”) has submitted an unclear,
confusing, and somewhat rambling brief in support of his Motion, the Court
believes that the Motion seeks reconsideration on the grounds that the Court’s
Order contained clear errors of law or fact. Additionally, although Counsel
presents his Motion as one seeking reconsideration of the Court’s July 30, 2015
Order, it is apparent that he in fact also seeks reconsideration of this Court’s April
23, 2015, and Judge Mariani’s prior Order of February 6, 2012.
A. Judge Mariani’s February 6, 2012 Memorandum and Order
First, Counsel appears to challenge Judge Mariani’s determination that Ms.
Bruno’s admitted contemplation of litigation triggered an affirmative duty to
preserve evidence germane to that litigation. (ECF No. 127, p. 9). Specifically,
Counsel argues “Judge Vanaskie in Baliotis v. McNeil required the decision to
3

pursue litigation, as opposed to mere contemplation.” Since “[n]o counsel was
hired or litigation pursued at the time documents were at the time the documents
were destroyed before Plaintiffs moved to California[,]” the “Court made a bald
conclusion[.]” (ECF No. 230, p. 5).
The Court cannot help but note that the Motion for Reconsideration was
filed an astounding 1,281 days after Judge Mariani issued his February 6, 2012
Memorandum and Order. Local Rule 7.10 provides that any “motion for
reconsideration . . . must be . . . filed within fourteen (14) days after the entry of
the order concerned.” Under this rule, Counsel’s Motion is patently untimely.
Importantly, Counsel has failed to submit any argument as to why this untimely
Motion should be considered under Federal Rule of Civil Procedure Rule 6(b) and
its “excusable neglect” standard.2 On that basis, the Motion to Reconsider the
February 6, 2012 Order is denied.
Importantly though, even considering Counsel’s Motion, the Court
concludes that it is without even a modicum of merit. The case that Counsel cites
to for the proposition that “mere contemplation” of a lawsuit is insufficient to
create a duty to preserve evidence in fact demonstrates the obvious fallacy of his
argument. In Baliotis v. McNeil, Judge Vanaskie explained that:

2

Two cases provide an in-depth discussion of the requirements for satisfying the excusable
neglect standard: Pioneer Inv. Servs. Co. v. Brunswick Associates Ltd. P'ship, 507 U.S. 380
(1993); and Ragguette v. Premier Wines & Spirits, 691 F.3d 315 (3d Cir. 2012).
4

[A] duty to preserve evidence, independent from a court order to
preserve evidence, arises where there is: (1) pending or probable
litigation involving the defendants; (2) knowledge by the plaintiff of
the existence or likelihood of litigation; (3) foreseeability of harm to
the defendants, or in other words, discarding the evidence would be
prejudicial to defendants; and (4) evidence relevant to the litigation.
870 F.Supp. 1285, 1290 (M.D. Pa. 1994) (citation omitted) (emphasis in original).
Ultimately, Judge Vanaskie rested much of his conclusion that spoliation had
occurred on the fact that “the knowledge of a potential . . . claim is deemed
sufficient to impose a duty to preserve evidence.” Id. (emphasis in original).
Consequently, this Court concludes that no clear legal or factual error occurred,
and any request to reconsider Judge Mariani’s ruling on the matter is denied.
B. April 23, 2015 Spoliation Order
In the Motion, Counsel also challenges certain portions of this Court’s April
23, 2015 Spoliation Order. See (ECF No. 224, pp. 4-5). Counsel primarily argues
that he will be able to provide documents, and prove that Bozzuto’s has failed to
provide documents, which “will show that there was no spoliation by Plaintiffs[.]”
Id. at p. 4. Counsel also contends that “without any evidence whatsoever, this
Court has made findings contrary to Judge Mariani’s as to plaintiff’s motive and
degree of evidence needed to show that there was not spoliation and/or no
prejudice to Defendant.” Id. at p. 5.
As an initial matter, the Motion for Reconsideration was filed one-hundred
nine (109) days after this Court issued its April 23, 2015 Memorandum and Order.
5

As previously noted, Local Rule 7.10 requires that a motion for reconsideration be
filed within fourteen days of an Order and therefore this motion is again untimely
and denied on that basis. Nevertheless, for the sake of clarity, the Court will
address the arguments proffered by Counsel.
1.

Law of the Case Doctrine

The Court first turns to Counsel’s contention that certain determinations in
the April 23, 2015 Order were “contrary to Judge Mariani’s as to plaintiff’s motive
and degree of evidence needed to show that there was not spoliation and/or no
prejudice to Defendant.” (ECF No. 224, p. 5).
The law of the case doctrine is an “amorphous concept” which “posits that
when a court decides upon a rule of law, that decision should continue to govern
the same issues in subsequent stages in the same case.” Arizona v. California, 460
U.S. 605, 618 (1983). This doctrine governs a court’s “exercise of discretion” and
was developed to “maintain consistency and avoid reconsideration of matter once
decided during the course of a single continuing lawsuit.” In re Pharmacy Benefit
Managers Antitrust Litig., 582 F.3d 432, 439 (3d Cir. 2009) (quoting Casey v.
Planned Parenthood of Se. Pa., 14 F.3d 848, 856 (3d Cir. 1994); Pub. Interest
Research Group of N.J., Inc. v. Magnesium Elektron, 123 F.3d 111, 116 (3d Cir.
1997)).

6

“A court has the power to revisit prior decisions of its own or of a coordinate
court in any circumstance, although as a rule courts should be loathe to do so in the
absence of extraordinary circumstances.” Christianson v. Colt Indus. Operating
Corp., 486 U.S. 800, 816 (1988) (citing Arizona v. California, 460 U.S. at 618 n.
8). Extraordinary circumstances exist where: (1) the initial decision was “clearly
erroneous and would make a manifest injustice;” (2) “new evidence is available;”
(3) “a supervening new law has been announced;” (4) where the court is
“clarifying or correcting an earlier, ambiguous ruling;” or (5) “it appears that a
previous ruling, even if unambiguous, might lead to an unjust result.” Pharmacy
Benefit Managers, 582 F.3d at 439 (citing Christianson, 486 U.S. at 816;
Magnesium Elektron, 123 F.3d at 116-17; Swietlowich v. Cnty. of Bucks, 610 F.2d
1157, 1164 (3d Cir. 1979)).
In this case, Judge Mariani ruled that, based on the evidence before the
Court at the time, he would not attribute “any malice or bad faith” to the Brunos’
actions in spoliating evidence.3 (ECF No. 127, p. 11). In contrast, the undersigned
3

This Court’s April 23, 2015 Memorandum and Order was not contrary to Judge Mariani’s
Order in regard to the “degree of evidence needed to show that there was no spoliation and/or no
prejudice to Defendant.” Judge Mariani explicitly held that spoliation had occurred, a finding
that this Court directly referenced in its Memorandum. See (ECF No. 127, p. 9, 11; ECF No.
212, p. 10). Furthermore, Judge Mariani withheld any determination of prejudice since
“[o]bviously, if the documents still exist in electronic form, then Defendant is not much
prejudiced[.]” (ECF No. 127, p. 12). Thus, as Judge Mariani noted, the determination of
prejudice was not yet ripe, since he was unable to determine what evidence may still exist.
Finally, nothing in Judge Mariani’s Opinion referenced in any way the degree of evidence
required to show prejudice. Therefore, it would be impossible to conclude that this Court’s
opinion was contrary to that of Judge Mariani in those respects.
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attributed bad faith to the Brunos’ actions. (ECF No. 212, p. 13). These actions
included throwing away every paper copy of relevant evidence because storage
was too inconvenient or costly, as well as throwing away the store’s only
computer. Id. at pp. 11-13. The undersigned revisited the issue of bad faith due to
the availability of new evidence which largely undermined the Brunos’ claims of
good faith in their destructive acts.
Judge Mariani based his spoliation determination in large part upon the
Brunos’ repeated asseverations that “the records still existed in electronic form
with AWI.” (ECF No. 127, p. 3). Contrary to the Brunos’ repeated, and ultimately
inaccurate, claims that AWI maintained all RORC sales data, AWI attested that,
not only did it not possess the RORC data, but the “RORC data is maintained only
at the retailer store’s location and is not, at any point, pulled back to AWI.” (ECF
No. 202, Ex. O, p. 1) (emphasis added).
Given that AWI never maintained RORC data, it strains credulity to believe
the Brunos believed the electronic data was available through other means even
after they purposefully destroyed all physical and electronic copies of their records.
There is no reasonable explanation for the Brunos’ purported belief that AWI
maintained this data in light of the fact that AWI never even had access to the data.
Given the dubious explanations previously posited by the Brunos, this new
evidence proved to be, for this Court, the proverbial straw that broke the camel’s
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back. This new evidence therefore provided the exceptional circumstances that led
the Court to revisit the issue of bad faith. Pharmacy Benefit Managers, 582 F.3d at
439.
Furthermore, the Court apparently must reiterate for Counsel’s benefit that
its finding of bad faith was not pivotal to the spoliation sanctions that it issued.
The Court noted in the Memorandum that a finding of bad faith was not necessary
to impose an adverse inference, (ECF No. 212, p. 11, n. 1), a proposition that is
well settled within the Third Circuit. E.g., Micron Tech., Inc. v. Rambus Inc., 917
F.Supp.2d 300, 326 (D. Del. 2013), appeal dismissed (Jan. 8, 2014) (“adverse jury
instructions are appropriately used in cases where a party's spoliation was not done
in bad faith and where the degree of prejudice is low”) (citing Baliotis, 870 F.Supp.
1285). Consequently, even if this Court did reconsider and find that bad faith was
not present in the Brunos’ intentional destruction of evidence,4 it would still
conclude that an adverse inference sanction is appropriate.
Consequently, because there is no clear error of law or manifest injustice
that must be corrected, North River, 52 F.3d at 1218, the Court denies the Motion
4

In the Memorandum in support of this Motion, Counsel makes the unfounded assertion that
Judge Mariani’s Opinion supports the proposition that there is “no evidence . . . that Plaintiffs
intentionally destroyed evidence.” (ECF No. 230, p. 10). To the contrary, Judge Mariani noted,
and Ms. Bruno’s deposition testimony unequivocally shows, that the Brunos “admitted that they
had thrown out the paper copies” of invoices, trial balances, income statements, and balance
sheets. (ECF No. 127, p. 9) (emphasis added). Although not directed stated, it is clear from the
verb chosen and the context of Judge Mariani’s Memorandum that the Brunos’ actions were
intentional. The Brunos made a conscious and intentional decision to throw away relevant
evidence because “there was no storage space for all of the documents[.]” Id. at p. 9.
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for Reconsideration to the extent that it requests a reconsideration of the finding of
bad faith.5
2.

Prejudice to the Defendant

Next, Counsel argues that the Court’s determination as to prejudice is
erroneous and should be reconsidered.6 Although somewhat difficult to decipher,
it appears that Counsel provides three reasons for this assertion: (1) the issue of
prejudice is a jury determination; (2) Bozzuto’s had access to the requested
discovery documents in early 2007 prior to the Brunos’ destruction of that
evidence; and (3) the only evidence contradicting the conclusion that Bozzuto’s
had that information are self-serving affidavits. See (ECF No. 230).
First, Counsel’s argument that determination of prejudice is properly left for
the jury is clearly erroneous. Counsel does not cite to a single case in support of
this bald assertion, nor is the Court able to locate any on Counsel’s behalf. The
reason for this is clear: a determination of prejudice as it relates to spoliation
sanctions is a question of law, not of fact.
5

Brunos’ counsel also asserts that “Judge Brann decided that Plaintiffs must present three years
of documents [in discovery], rather than the one year ordered by Judge Mariani.” (ECF No. 230,
p. 10). This assertion is rather puzzling since a thorough reading of Judge Mariani’s Opinion and
Order fails to support this claim. Judge Mariani was addressing Bozzuto’s request for records
dating from January 1, 2010 through June 10, 2010. See (ECF No. 94, Ex. H). Judge Mariani
ordered that Brunos “take such actions as are necessary to obtain the requested data from AWl
and turn them over to Defendant.” (ECF No. 127, p. 12). Logical leads to the inevitable
conclusion therefore that Judge Mariani’s Order encompassed records for the same period of
time that this Court considered – that is, three years.
6
Although addressed in regard to the April 23, 2015 Order, the Court notes that Counsel’s
arguments are also applicable to the Court’s July 30, 2015 Order.
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The Court should not need to explicate such an obvious conclusion. After
all, the power to sanction a party is an inherent power of the Court, not of the jury,
and is a power reserved to the sound discretion of the district court. E.g.,
Chambers v. NASCO, Inc., 501 U.S. 32 (1991). Consequently, the United States
Court of Appeals for the Third Circuit has time and time against stressed that “a
court is to consider” three factors in determining what sanctions should be imposed
for spoliation of evidence. Capogrosso v. 30 River Court E. Urban Renewal Co.,
482 F.App'x 677, 682 (3d Cir. 2012) (quoting Bull v. United Parcel Serv., Inc., 665
F.3d 68, 72–73 (3d Cir. 2012)) (emphasis added). Therefore, the Court will deny
Counsel’s motion to reconsider on those grounds.
Second, even assuming that Bozzuto’s had access to the requested
documents more than two years prior to the commencement of litigation, and
assuming that their affidavits to the contrary truly are self-serving sham affidavits,
Bozzuto’s has still sufficiently demonstrated prejudice. In arguing that prejudice
does not exist, Counsel fails to comprehend the relevant test for prejudice. The
issue is not whether a party ever had access to information, but whether the party’s
experts were provided adequate and meaningful access to the information such that
they are able to present a defense on the merits. See Capogrosso, 482 F.App'x at
682 (ability to inspect property five months before a claim for damages was filed
did not render a spoliation claim moot); N.J. Manufacturers Ins. Co. v. Hearth &
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Home Technologies, Inc., No. 3:06-CV-2234, 2008 WL 2571227, at *11 (M.D. Pa.
June 25, 2008) (holding that, where non-experts from the non-spoliating party had
opportunity to examine evidence prior to commencement of litigation, the degree
of prejudice is only slightly reduced); In re Wechsler, 121 F. Supp. 2d 404, 421
(D. Del. 2000) (the “crucial question is whether the other side had an adequate or
meaningful opportunity to inspect the evidence”); Am. States Ins. Co. v. Scripto–
Tokai Corp., 94 Ohio Misc. 2d 172, 704 N.E.2d 1280, 1284 (1997) (relevant
“evidence should be retained for inspection until the opposing party has a
reasonable opportunity, after notice, to conduct an examination by its experts”).
Even if Bozzuto’s had access to the evidence prior to its destruction, its
employees examined the evidence in early 2007, months prior to the alleged breach
of contract and more than two years prior to the commencement of litigation. See
(ECF No. 230, Ex. B-8). Bozzuto’s experts were unable to view the evidence, and
the inability to view this evidence prejudiced their ability to present certain
defenses to this action. Bruno, 2015 WL 1862990, at *7. Consequently, Brunos’
arguments that no prejudice occurred here fails, and the Motion to reconsider on
those grounds is denied.
C. July 30, 2015 Order
Finally, Counsel objects to two issues relating to the July 30, 2015 Order.
First, Counsel argues that the Court erred in directing the Plaintiffs to file a brief in
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support of their experts, followed by Defendant submitting a brief in opposition.
Second, Counsel objects to the determination that Courts may award monetary
sanctions for spoliation of evidence prior to trial.7
The Court will deny Counsel’s Motion to reconsider the briefing order
provided in the July 30, 2015 Order. It is well established that the proponent of an
expert witness bears the burden of proving, by preponderance of the evidence, that
the expert is proposing to testify to (1) scientific knowledge that (2) will assist the
trier of fact to understand or determine a fact in issue. Oddi v. Ford Motor Co.,
234 F.3d 136, 144 (3d Cir. 2000) (quoting Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 592-93 (1993)). Given that Brunos bears the burden of proving the
admissibility of its experts and expert reports, the Court believes it is appropriate
for Brunos to submit a brief in support of its expert first, providing Bozzuto’s the
opportunity to respond.
The Court will also deny Counsel’s motion to reconsider its determination
that an award of monetary sanctions prior to trial is permissible. The Court reaches
this conclusion for two reasons. First, while Counsel asserts that the three
representative cases cited by the Court in its July 30, 2015 Order are
7

Counsel also asserts that “[t]he Court should, at the very least, see the methodology used in
determining damages, as will be shown in the Daubert Hearing, which involved a methodology
admitted as customary by Defendant.” (ECF No. 230, p. 8). The Court does not interpret this as
seeking reconsideration, since the Court’s July 30, 2015 Order was clear that a Daubert hearing
will be used assist the Court in determining whether Brunos’ experts may be submitted to the
jury. (ECF No. 223, pp. 1-2). Thus, the Court agrees with this statement.
13

distinguishable on the basis that spoliation occurred in those cases after litigation
commenced, the Court believes this is a distinction without a difference.
Bozzuto’s had requested the imposition of monetary sanctions in an effort to
receive compensation for the time and money it expended addressing Brunos’
intentional spoliation of evidence. (ECF No. 203, p. 15). Any award of monetary
sanctions would therefore be remedial, not punitive, and Brunos’ degree of fault is
not relevant to such a sanction.
Second, to the extent that the cases cited by the Court are distinguishable
from this matter, it is of little consequence. The Court was clear that the cases
cited to were representative of a larger number of cases that supported its
proposition.8 (ECF No. 223, pp. 2-3). There are numerous cases wherein
monetary sanctions were awarded, pre-trial, for spoliation that occurred prior to the
commencement of litigation. See, e.g., Bozic v. City of Wash., Pa., 912 F. Supp.
2d 257 (W.D. Pa. 2012); Kounelis v. Sherrer, 529 F. Supp. 2d 503, 518 (D.N.J.
2008); PersonalWeb Technologies, LLC v. Google Inc., No. C13-01317 EJD
(HRL), 2014 WL 4090558, at *1 (N.D. Cal. Aug. 19, 2014) motion for relief from
judgment denied, No. 5:13-CV-01317 EJD, 2014 WL 5422933 (N.D. Cal. Oct. 24,
2014). Consequently, no clear error of law was committed.
8

As any workhorse attorney understands, the signal term “see, e.g.” is used “to introduce an
authority that is one of multiple authorities . . . clearly supporting the same proposition[.]” THE
BLUEBOOK: A UNIFORM SYSTEM OF CITATION B3.2 (Columbia Law Review Ass’n et al. eds.,
19th ed. 2010).
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IV.

Conclusion
For the foregoing reasons, the Brunos’ Motion for Reconsideration is

denied. A separate Order will be issued.

BY THE COURT:
s/Matthew W. Brann
Matthew W. Brann
United States District Judge

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