Court Invokes “Inherent Powers” To Order Sanctions For Negligent Spoliation Of Evidence

In Rodgers v. Rose Party Functions Corp., No. 10 CV 4780 (E.D.N.Y. Nov. 12, 2013), Chief Magistrate Judge Steven Gold granted the plaintiff an adverse inference as a sanction for the defendant’s negligent failure to preserve a key piece of evidence.  Plaintiff Tiffani Rodgers was injured when she slipped on a flight of stairs on the premises of defendant Rose Castle, a catering hall.  She thought her fall was caused by liquid or debris on the stairs.  The hall’s security personnel called an ambulance for her, and she was taken to the hospital.  Two days after the accident, Rodgers called Rose Castle seeking the defendants’ insurance information.  In discovery, it emerged that a video camera on the stairway captured the plaintiff’s fall, but that the footage generally recycled every two weeks and the footage of the fall was not saved.

Judge Gold held that the defendants were negligent in failing to preserve the videotape because they should have anticipated litigation on the day of the accident, when Rodgers was rushed to the hospital in an ambulance called by the hall’s own security guard, or at the very latest, two days later when Rodgers called about the defendants’ insurance information, which made “clear that plaintiff was seeking compensation for her injuries from defendants’ insurance carrier.”  Judge Gold ruled that the “culpable state of mind” requirement for spoliation sanctions is satisfied by negligent destruction of evidence, and that the plaintiff did not have to show bad faith or gross negligence.  Rather, “[o]nce a duty to preserve evidence arises, any destruction of that evidence is, at a minimum, negligent,” and the destruction at that point, without more, reflects “a culpable state of mind.”  Slip op. at 5.

The Court said that sanctions were therefore warranted and the Court would impose them “pursuant to its inherent powers and even absent violation of a discovery order.”  Slip op. at 3.  As a sanction Judge Gold granted Rodgers an adverse inference instructing the jury that it may infer that the absent videotape would have corroborated the plaintiffs’ allegations and rebutted the defendants’.  The plaintiff didn’t have to present “extrinsic evidence” that the contents of the video “would have been favorable to her case,” as Judge Gold acknowledged was “generally” required.  Slip op. at 5.  Ouch.  But don’t tell a judge in the Eastern District you weren’t warned.  Any company that experiences a conceivably litigable incident had better suspend its document destruction or recycling procedures immediately.

Search Reasonable Even Though Police Mistaken Regarding Type Of Evidence Search Would Uncover

Judge Pamela Chen decided a case “all about chickens” in Santos v. Zabbara, 11 CV 2516 (E.D.N.Y. Oct. 18, 2013), where a police raid of plaintiff’s residence for “chickens,” code for cocaine, turned up no drugs but instead resulted in the seizure of real fighting chickens. Santos and his immediate family brought suit under 42 U.S.C. § 2516 against several police officers for their role in issuing and executing the warrant, claiming violation of their Fourth Amendment rights to be free from unreasonable searches and seizures.

A State Supreme Court judge had issued a warrant to search the “entire premises” of Santos’s home. The warrant was based on a police officer’s affidavit describing a web of drug dealing in the neighborhood, involving three of Santos’s brothers. The affidavit stated that the police believed evidence obtained through telephonic intercepts and direct surveillance showed that Santos’s brothers used his residence to store drugs and make sales – references to “roosters” and “chickens” were supposedly code for cocaine. The affidavit alleged that the police had probable cause to conduct an unannounced search of Santos’s residence for evidence potentially relevant to drug dealing.

The police raided Santos’s residence by entering without announcing and throwing flash bang explosive devices. In the backyard, an officer saw an extension cord running from the house to an outdoor shed, entering the shed he saw roosters who had their waddles removed and wore bracelets with razors around their legs. The police arrested Santos solely for possessing fighting roosters.

Judge Chen granted defendants’ motion for summary judgment dismissing the suit in its entirety. Santos argued that the search warrant violated the Fourth Amendment since the underlying affidavit omitted evidence that Santos was not involved in any illicit drug dealing. The Court found the fact that Santos did not participate in any drug-related activities was irrelevant since the critical element in a reasonable search is not whether the owner of the property is suspected of crime but, as here, that there is reasonable cause to believe that the specific things to be searched for and seized are located on the property.

The Court also rejected Santos’s argument that use of flash bang devices violated the Fourth Amendment. Judge Chen surveyed inconsistent circuit law and determined that the use of such devices is unconstitutional only where the users knew that serious injuries to individuals would, and did occur – conditions not present here. Finally, the Court found that since the search warrant authorized search of the “entire premises,” the search of the shed was reasonable. Further, the roosters and their razor-blade bracelets were in plain view in the shed, making it was reasonable for the officers to seize the roosters.

Search Reasonable Even Though Police Were Mistaken About Type of Evidence Search Would Uncover

Judge Pamela Chen decided a case “all about chickens” in Santos v. Zabbara, 11 CV 2516 (E.D.N.Y. Oct. 18, 2013), where a police raid of plaintiff’s residence for “chickens,” code for cocaine, turned up no drugs but instead resulted in the seizure of real fighting chickens. Santos and his immediate family brought suit under 42 U.S.C. § 2516 against several police officers for their role in issuing and executing the warrant, claiming violation of their Fourth Amendment rights to be free from unreasonable searches and seizures.

A State Supreme Court judge had issued a warrant to search the “entire premises” of Santos’s home. The warrant was based on a police officer’s affidavit describing a web of drug dealing in the neighborhood, involving three of Santos’s brothers. The affidavit stated that the police believed evidence obtained through telephonic intercepts and direct surveillance showed that Santos’s brothers used his residence to store drugs and make sales – references to “roosters” and “chickens” were supposedly code for cocaine. The affidavit alleged that the police had probable cause to conduct an unannounced search of Santos’s residence for evidence potentially relevant to drug dealing.

The police raided Santos’s residence by entering without announcing and throwing flash bang explosive devices. In the backyard, an officer saw an extension cord running from the house to an outdoor shed, entering the shed he saw roosters who had their waddles removed and wore bracelets with razors around their legs. The police arrested Santos solely for possessing fighting roosters.

Judge Chen granted defendants’ motion for summary judgment dismissing the suit in its entirety. Santos argued that the search warrant violated the Fourth Amendment since the underlying affidavit omitted evidence that Santos was not involved in any illicit drug dealing. The Court found the fact that Santos did not participate in any drug-related activities was irrelevant since the critical element in a reasonable search is not whether the owner of the property is suspected of crime but, as here, that there is reasonable cause to believe that the specific things to be searched for and seized are located on the property.

The Court also rejected Santos’s argument that use of flash bang devices violated the Fourth Amendment. Judge Chen surveyed inconsistent circuit law and determined that the use of such devices is unconstitutional only where the users knew that serious injuries to individuals would, and did occur – conditions not present here. Finally, the Court found that since the search warrant authorized search of the “entire premises,” the search of the shed was reasonable. Further, the roosters and their razor-blade bracelets were in plain view in the shed, making it was reasonable for the officers to seize the roosters.

Attempt To Lift Officer–Director Bar Fails

In SEC v. Alexander, No. 06 CV 3844 (E.D.N.Y. Oct. 24, 2013), Judge Nicholas Garaufis denied a motion by the former CFO of Comverse to modify a consent judgment.  Facing charges that he participated in a scheme to backdate stock option grants in Comverse stock, David Kreinberg had pleaded guilty in 2006 and entered into a consent order with the SEC in which he agreed never again to be an officer or director of a public company.  Kreinberg sought to remove the officer and director bar, claiming that it caused him to forego numerous employment opportunities.

The Court first noted that motions for reconsideration of a final judgment are generally disfavored and require a showing of exceptional circumstances.  That showing needed to be even stronger here where the judgment at issue was on consent, described by the court as “basically [] a contract.”  The Court rejected Kreinberg’s arguments that his seven years of good behavior and extensive cooperation warranted lifting the bar.  Instead, Kreinberg was held to his bargain:

Defendant’s underlying conviction has not been overturned.  Defendant knew, when he agreed to the bar, that he was forfeiting future potential earnings.  As a financial professional, he would be aware of the ramifications of such as choice.  Having weighed the costs and benefits, he chose the bar over further negotiations or litigation of the issue.  And he received not only the benefits of quick settlement of his civil case, but extreme leniency in criminal sentencing as a direct result of his civil settlement.  To put the SEC to its proof on the issue of the bar, he might have had to risk greater sanctions.  That he miscalculated, if indeed he did, is not a reason to revise his bargain absent the showing of any extraordinary hardship.

Slip. op. at 8 (citation omitted).

Three-Judge Panel Holds That Defendant Sued In One Capacity Cannot Bring Cross-Claim In A Different Capacity

The October 29 Memorandum and Order in Favors v. Cuomo, No. 11 CV 5632 (E.D.N.Y. Oct. 29, 2013), is the third decision of the three-judge panel presiding over challenges to New York’s state and federal legislative redistricting, which the Panel earlier noted courts have come to expect “at predictable ten year intervals” coinciding with the census.  After a pair of 2012 decisions that dealt more directly with the merits of the plaintiffs’ challenges under the Constitution and Voting Rights Act, see 881 F. Supp.2d 356 (E.D.N.Y. 2012), and 2012 WL 928223 (E.D.N.Y. March 19, 2012), the motion addressed in the October 29 order provided an occasion for the Panel (consisting of Circuit Judges Raggi and Lynch and District Judge Irizarry) to clarify a point of civil procedure that is not limited in application to decennial challenges to legislative redistricting plans.

The defendants in the case include New York State Senators from the majority and minority parties.  The minority members asserted a cross-claim against the majority members alleging that the majority’s proposed redistricting plan violated the equal population requirement of the Fourteenth Amendment, which requires that each of the state’s electoral districts have equal populations, in order to conform to the principle of one person, one vote.  See Favors v. Cuomo, 2012 WL 928223, at *3 (E.D.N.Y. March 19, 2012).  The majority members moved to dismiss the cross-claim for lack of standing and res judicata.  The Panel granted the motion based on the standing argument, and declined to rule on the res judicata argument.  The court ruled that the legislators, who are sued in their official capacities, do not have the requisite personal stake in the equal population claim to confer standing on them to bring the claim.  In other words, the Court rejected the concept of “legislative standing.”   No new ground there.

What is new, the Panel explained, was the next step:  the Panel went on to hold that even if the minority party legislators could establish that they were personally harmed as voters in underrepresented voting districts, so as to give them a personal stake in the equal population claim, they would not be permitted to assert a cross-claim in their personal capacities when they had been sued in their official capacities.  The minority argued that their cross-claim should be allowed under Rule 13(g), which permits a “party” to bring a cross-claim against a “co-party.”  Finding nothing in the Circuit case law or Advisory Committee notes interpreting these terms, the Panel imported the Circuit’s interpretation of analogous language in the rule for permissive counterclaims, which also refers to an “opposing party” bringing a counterclaim.  The Circuit has interpreted that language to mean that a defendant sued in one capacity cannot bring a counterclaim in another capacity.  The rationale is that “each of a person’s different legal capacities constitutes a separate “’party.’”  Under Favors v. Cuomo, this rule now applies to cross-claims, meaning that a defendant sued in one capacity will not be permitted to bring a cross-claim in a different capacity.