August 17, 2015
The Complaint of Boston Boat III, LLC d/b/a vs J.G.,
In this case, the maritime attorneys at Lipcon, Margulies, Alsina & Winkleman, P.A. asked the Court to sanction the owner of the vessel for changing the area where the incident occurred because it made it impossible to inspect the boat in the condition it was in at the time of the incident. In connection with that motion, they filed this memorandum of law which discusses whether or not the Court needed to find that the owner of the vessel changed the area in bad faith in order to sanction them for spoliation of evidence.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-CIV-62116-JAL
IN THE MATTER OF:
The Complaint of Boston Boat III, LLC d/b/a
Water Transportation Alternatives as Owner of Island
Adventure, a 1964 Paasch Marine Service vessel
Bearing Hull Identification No. 153, USCG Official
Number 295280, its Engines, Tackle, Appurtenances,
Equipment, & Etc., in a cause of Exoneration from or
Limitation of Liability,
MEMORANDUM PERTAINING TO THE DISTRICT COURT’S POWER TO SANCTION A PARTY DUE TO THE SPOLIATION OF EVIDENCE
WITHOUT A FINDING OF BAD FAITH
COMES NOW, the Respondent, J.G., and hereby files his Memorandum pertaining to the District Court’s Power to Sanction a party due to the spoliation of evidence without a finding of bad faith, and for good cause states as follows.
The single question addressed in this memorandum is: Whether, in this Circuit, a federal district court may enter a spoliation sanction in the absence of a finding of bad faith?
The answer is yes according to the well-reasoned district court decision in Preferred Care Partners Holding Corp., No. 08–20424–CIV, 2009 WL 982460, at *4 (S.D.Fla. Apr. 9, 2009). Preferred Care stands for the proposition that the Eleventh Circuit’s decision in Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir.2005), relegated the bad faith inquiry as one of a handful of factors to consider ….” See Preferred Care Partners Holding Corp., No. 08–20424–CIV, 2009 WL 982460, at *4 (S.D.Fla. Apr. 9, 2009) (citing Brown v. Chertoff, 563 F.Supp.2d 1372, 1381 (S.D.Ga.2008)). Emphasis added.
In Brown, the district court stated that “since Flury, bad faith is only one factor to consider.” 563 F.Supp.2d at 1381. J.G. understands that Flury was a panel decision and as such did not overrule the prior panel decision in Bashir v. Amtrak, 119 F.3d at 931, requiring a showing of bad faith. See United States v. Steele, 147 F.3d 1316, 1318 (11th Cir.1998) (stating that “[t]he law of this [C]ircuit is emphatic that only the Supreme Court or this court sitting en banc can judicially overrule a prior panel decision.”).
Nonetheless, it is J.G.’s position that bad faith should only be a factor to consider, rather than a requirement to obtain any sanction. This is because a requirement of bad faith often allows litigants in this district to “lose” evidence without any repercussions. As such, the requirement of bad faith effectively undermines the policy considerations behind the doctrine of spoliation.
Furthermore, it is J.G.’s position that the holding from Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir.1997) (“In this circuit, an adverse inference is drawn from a party’s failure to preserve evidence only when the absence of that evidence is predicated on bad faith”), in no way limits the sanctions that available under Fed. R. Civ. P. 37.
Federal Rule of Civil Procedure 37 also authorizes a panoply of sanctions for a party’s failure to comply with the rules of discovery. See Optowave Co., Ltd. v. Nikitin, 6:05-CV-1083ORL22DAB, 2006 WL 3231422 (M.D. Fla. Nov. 7, 2006). The broad authority under Rule 37 should exist to supplement the inherent powers doctrine and give a district court the authority to impose a broad range of sanctions, depending on the culpability of the alleged spoliator, even without a showing of bad faith.
This broad range of sanctions available to courts is the approach taken by Florida courts (as set out in J.G.’s Motion for Sanctions for Spoliation, D.E. 57). It is J.G.’s argument that this is the approach that should be adopted by the federal courts because from a policy perspective, ‘the punishment should fit the crime.’ That is, the sanction(s) imposed should be commensurate with the level of the offense. For example, if the spoliation is merely negligent and in good faith, there should still be some type of sanction which ‘levels the playing field,’ such as a rebuttable presumption. Whereas if the spoliation was in bad faith, then the most draconian sanctions should be available.
Case law holds that “Florida based federal courts look to Florida law for guidance on when to impose sanctions for spoliation.” See FTC v. Nationwide Connections, Inc., No. 06–80180–CIV, 2007 WL 4482607, at *1 (S.D.Fla. Dec. 19, 2007). It is J.G.’s contention that Florida law should guide this Honorable Court in finding that bad faith should not be a requirement to obtain any sanction for spoliation of evidence.
CERTIFICATE OF SERVICE
I hereby certify that on this 17th day of August 2015, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing.
LIPCON, MARGUILIES ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone: (305) 373-3016
Facsimile: (305) 373-6204
By: /s/ Michael Winkleman
MICHAEL A. WINKLEMAN
Florida Bar No. 36719
PETER J. RIDGE
Florida Bar No. 114263
 J.G. notes that the instant memorandum should not be taken to concede that there is not bad faith in the facts before this Honorable Court. As set out in the Motion for Sanctions for Spoliation, bad faith clearly exists, such that this Honorable Court has the authority to impose even the most draconian sanctions, including dismissal.