Parker v. Bill Melton Trucking, Inc. et al

Filing 160

ORDER: The plaintiff's 154 objections are OVERRULED, and the Magistrate Judge's 154 order denying plaintiff's motion for sanctions for spoliation is ADOPTED. (Ordered by Senior Judge A. Joe Fish on 2/24/2017) (epm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

BRIANNA PARKER,
Plaintiff,
VS.
BILL MELTON TRUCKING, INC. and
FRANKIE THACKER, as the
Representative of the Estate of Charles
Edward Thacker,
Defendants.

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CIVIL ACTION NO.
3:15-CV-2528-G

ORDER

Before the court are the plaintiff’s Federal Rule of Civil Procedure 72(a)
objections (docket entry 156) to the magistrate judge’s February 13, 2017 order
(docket entry 154) denying the plaintiff’s motion for sanctions for spoliation of
evidence (docket entry 84). For the reasons discussed below, the court overrules the
plaintiff’s objections and adopts the magistrate judge’s order.
I. BACKGROUND
The plaintiff, Brianna Parker (“Parker”), filed a motion for sanctions
contending that the defendants, Bill Melton Trucking, Inc. (“Melton Trucking”) and

Frankie Thacker, as representative of the estate of Charles Edward Thacker (“Charles
Thacker”) (collectively, “the defendants”), conspired to destroy evidence, including
the tractor-trailer and the load of forklifts involved in the accident as well as various
documents related to Charles Thacker’s safety record and employment with Melton
Trucking. Plaintiff’s Motion for Sanctions for Spoliation of Evidence (“Motion for
Sanctions”) at 6-8 (docket entry 84).
United States Magistrate Judge Renée Harris Toliver held that while the
defendants had a duty to preserve evidence, Parker had not met her burden of
showing that the defendants destroyed or concealed evidence in bad faith. Order
Denying Plaintiff’s Motion for Sanctions for Spoliation of Evidence (“Order”) at 6-7,
12 (docket entry 154). Therefore, Judge Toliver denied Parker’s motion. Parker filed
objections to the order contending that it is clearly erroneous. Plaintiff’s Objections
to Order on the Motion for Sanctions (“Objections”) at 1 (docket entry 156).
II. ANALYSIS
A. Legal Standard
If a person files objections to a magistrate judge’s order, under Federal Rule of
Civil Procedure 72(a), the district judge can “modify or set aside any part of the order
that is clearly erroneous or is contrary to law.” See also 28 U.S.C. § 636(b)(1)(A)
(setting forth the standards of review used in F ED. R. CIV. P. 72(a)). Courts have
interpreted this language to create distinct standards of review for findings of fact and

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conclusions of law. Specifically, “[t]he [c]ourt reviews the [m]agistrate [j]udge’s legal
conclusions de novo, and reviews [his] factual findings for clear error.” Merrill v. Waffle
House, Inc., 227 F.R.D. 475, 476 (N.D. Tex. 2005) (Lynn, J.) (citing Lahr v. Fulbright
& Jaworksi, L.L.P., 164 F.R.D. 204, 208 (N.D. Tex. 1996) (Fitzwater, J.)). Each of
Parker’s objections is addressed below.1
B. Objection Number One
Parker objects to the following statement on page nine of the February 13,
2017 order:
[h]owever, “[Plaintiff] does not point to any provision in
the insurance policy -- or for that matter to any other
signed agreement -- that evidences the [Defendants’]
consenting to [the insurance company] taking actions
subject to their control.
Objections at 6. The court has reviewed the communications cited by Parker and
concludes that Parker has failed to submit any evidence that the defendants’ insurer,
Progressive Insurance Company (“Progressive”), was acting as the defendants’ agent.
See Jamison v. National Loan Investors, L.P., 4 S.W.3d 465, 468 (Tex. App.--Houston
[1st Dist.] 1999, pet. denied) (holding that an agent is a person or entity who is

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Parker also contends that the order “places an insurmountable burden
on a plaintiff to establish bad faith destruction or concealment of evidence.”
Objections at 1. The court neither finds this to be the case nor that Judge Toliver
misapplied the Fifth Circuit’s “bad faith” standard. A close examination of the
evidence before the court does not permit the court to reasonably infer that the
defendants intentionally spoliated unfavorable evidence for the purpose of precluding
its admission. See Whitt v. Stephens County, 529 F.3d 278, 284 (5th Cir. 2008).
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authorized to act for another and is subject to the control of the other). Moreover, as
discussed below, Parker did not establish that Progressive acted in bad faith. Thus,
Objection Number One is overruled.
C. Objection Number Three
Parker objects to the following statement on page nine of the February 13,
2017 order:
[t]he offer to Plaintiff’s counsel of an opportunity to
inspect the tractor-trailer before its destruction would
appear to negate any suggestion of bad faith or
concealment. Moreover, any notion of bad faith is further
undermined by Mr. Najafi giving notice to Mr. Pittman
that the tractor-trailer would soon be sold as salvage.
Objections at 9. Parker has two objections to this statement: (1) Parker contends
that the order does not address her inability to inspect the load of forklifts and
(2) Parker contends that the alleged attempt by the insurance adjuster, Synergy
Adjusting Corporation (“Synergy”), to permit an inspection of the tractor-trailer does
not negate bad faith. Objections at 9-10.
The order noted that even if Progressive and Synergy acted as the defendants’
agents, Parker has not shown that either Progressive or Synergy acted in bad faith.
Order at 9. The order emphasized that Synergy sent a July 8, 2013 letter to Parker’s
counsel, Mr. Pittman, stating, “We wish to advise that you are permitted to inspect
the tractor and trailer; however . . . [a]s soon as the claim is settled for the first party
physical damages aspect of the loss, salvage will be sold to the highest bidder.” Id.
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(quoting Defendants’ Appendix in Support of Their Response to Plaintiff’s Motion
for Spoliation of Evidence (“Defendants’ Appendix”), Exhibit H (docket entry 1031)). The order further notes that “[t]here were no further communications from Mr.
Pittman until his August 26, 2013 letter to Progressive reiterating his demands to
inspect the tractor-trailer.” Id. The order correctly concludes that Synergy’s offer
negates the notion that the defendants acted in bad faith. Id.
The district court has reviewed all of the correspondence between Mr. Pittman,
Progressive, and Synergy submitted by the parties. Parker has failed to produce any
evidence that Mr. Pittman responded to Synergy’s July 8, 2013 letter to arrange an
inspection. Mr. Pittman’s next correspondence, the August 26, 2013 letter to
Progressive, did not respond in any fashion to Synergy’s offer of inspection.
Plaintiff’s Appendix in Support of Her Objection to the Order (“Plaintiff’s
Appendix”) at 55-56 (docket entry 157); Defendants’ Appendix, Exhibit H. Parker
has submitted no evidence showing that Mr. Pittman’s ability to inspect the tractortrailer was obstructed in bad faith by Progressive, Synergy, or the defendants.
As to Parker’s inability to inspect the forklifts, the record reflects that the
cargo insurance carrier, the Hartford, came into possession of the forklifts after the
accident. See Defendants’ Appendix, Exhibit G. In her motion for sanctions, Parker
failed to discuss the Hartford’s role in the matter. Specifically, Parker did not
address why or how the actions of the Hartford are imputed to Progressive and/or the

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defendants.2 Nonetheless, any notion that the defendants were culpable, via
Progressive, for not arranging an inspection of the forklifts fails because (1) as
discussed above, Parker has not demonstrated that Progressive was acting as the
agent of the defendants, and (2) Parker did not meet her burden of showing bad
faith.
Progressive satisfied any responsibility owed to Parker regarding the load of
forklifts. On June 18, 2013, after receiving the preservation of evidence letter from
Mr. Pittman, Progressive promptly forwarded it to the Hartford. See Defendants’
Appendix, Exhibit G. On September 3, 2013, Progressive notified Mr. Pittman that
the load of forklifts was in the possession of the Hartford and provided Mr. Pittman
with the Hartford’s contact information. Plaintiff’s Appendix at 57. The evidence
submitted by Parker clearly shows that neither the defendants nor Progressive sought

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It does not appear that the defendants had a duty to preserve the load
of forklifts. Melton Trucking was shipping the forklifts on behalf of Darr Equipment,
Company (“Darr”). After the accident, the load was towed to Walnut Hill Wrecker.
Defendants’ Appendix, Exhibits A and B. On May 24, 2013, Walnut Hill Wrecker
released the forklifts into the possession of Darr. Id., Exhibit C. In fact, Parker
acknowledges in the reply to the defendants’ response to her motion for sanctions
that “the decision as to when to retrieve the Load [from Walnut Hill Wrecker] was
made by co-defendant Darr.” Reply to Plaintiff’s Motion for Sanctions for Spoliation
of Evidence at 3 (docket entry 106). At some point after that, the forklifts were
transferred to the Hartford. See Defendants’ Appendix, Exhibit G. Therefore, it
appears to be Darr -- not the defendants -- that had responsibility for the load of
forklifts after the accident.
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in bad faith to prevent Parker from inspecting the forklifts. Therefore, Objection
Number Three is overruled.
D. Objection Numbers Two, Four, Five, and Six
Parker’s objection numbers two, four, five,3 and six depend on whether Parker
has met her burden of showing that the defendants acted in bad faith. Objections at
8, 11, 12, 14. The crux of the order was that Parker had not met her burden of
establishing bad faith. Smith v. Chrysler Group, LLC, No. 1:15-CV-218, 2016 WL
7741735, at *5 (E.D. Tex. Aug. 31, 2016) (“[T]he burden is on [the party seeking
sanctions] to demonstrate bad faith.”). After closely reviewing the record and the
evidence submitted by the parties, the court holds that the magistrate judge did not
err in failing to find that the defendants acted in bad faith. Parker has not produced
evidence that the defendants “intentionally destroy[ed] important evidence in bad
faith [and] did so because the contents of those documents were unfavorable to that
party.” Whitt, 529 F.3d at 284 (quoting Russell v. University of Texas of Permian Basin,

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As to objection number five, Parker contends that the order did not
recognize that the doctrine of spoliation includes concealment of evidence and failure
to preserve it. Objections at 12. It is true that the doctrine of spoliation
encompasses the failure to preserve evidence as well as the destruction, mutilation,
alteration, or concealment of evidence. Id. (citing Toth v. Calcasieu Parish, No. 06-998,
2009 WL 528245, at *1 (W.D. La. Mar. 2, 2009)). However, the party invoking the
doctrine of spoliation has the burden of proving that the party who committed the
alleged spoliation -- in any form -- acted in bad faith. As the order correctly notes,
Parker has not done so here.
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234 Fed. App’x 195, 207 (5th Cir. 2007)). Therefore, Objections Number Two,
Four, Five, and Six are overruled.
III. CONCLUSION
For the reasons stated above, Parker’s objections are OVERRULED, and the
order of the Magistrate Judge denying Parker’s motion for sanctions for spoliation is
ADOPTED.
SO ORDERED.

February 24, 2017.

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A. JOE FISH
Senior United States District Judge

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