Preventing The Creation Of Evidence Does Not Amount To Spoliation
DURAN v. TOWN OF CICERO (August 9, 2011)
Alejandro and Maria Duran threw a party at their Cicero, Illinois home to celebrate their daughter’s baptism. Close to 100 people attended. The Cicero police received two telephone complaints from neighbors. Shortly after the Cicero police responded to the second complaint, the party guests and the police exchanged heated words. Once the police actually entered the property, ostensibly to make an arrest, the verbal melee became a physical one. Seventy-eight guests claim they were physically injured and several police officers required medical treatment. The police made seven arrests but there were no convictions. The 78 injured guests brought suit against 17 police officers and the Town of Cicero pursuant to § 1983 and Illinois law. They also asserted a spoliation of evidence claim based on the police's confiscation of two video cameras, one that was returned but that did not contain any footage of the physical confrontation and one that was not returned that did contain footage of the confrontation. Before trial, Cicero stipulated to his liability under § 1983 and to its vicarious liability on the state law claims. The jury returned verdicts in favor of 23 plaintiffs, on which the court entered judgment. The court then tried to spoliation case. It excluded from that case the issue of the returned video camera, rejecting plaintiffs' theory that preventing the creation of evidence amounts to spoliation. Cicero filed a Rule 59 motion to amend the judgments pursuant because they appeared to list separate awards against both the individual defendants and Cicero for the same injuries. Judge Grady (N.D. Ill.) denied the motion. Cicero appeals the denial of the Rule 59 motion. The plaintiffs cross-appeal.
In their opinion, Seventh Circuit Judges Ripple, Manion, and Sykes vacated and remanded in part and affirmed in part. The Court first addressed Cicero's appeal. It noted the fundamental principle that a plaintiff is only entitled to one recovery for his injuries. Here, Cicero had stipulated to its liability and that issue should not have been submitted to the jury. It was -- and they were obviously confused. In addition, instructions and special verdict forms asked damages to be assessed by defendant or by claim and not for a particular injury to a particular plaintiff. A Rule 59(e) motion is a proper way to correct a manifest error of law such as this. The Court concluded that it was reasonably clear what the jury was trying to do and remanded for an amended judgment to eliminate any possibility of double recovery. The plaintiffs raise three issues on appeal: the exclusion of the videotape, the exclusion of misconduct complaints against one defendant, and the exclusion of a civil rights conviction against another defendant. First, the Court agreed with the district court that the evidence regarding the returned video camera was properly excluded. Spoliation occurs only when one fails to preserve existing evidence. Here, plaintiffs argue that the videographer would have continued recording the physical melee, creating valuable evidence for trial. That does not amount to actionable spoliation in Illinois. Second, the Court concluded that the district court did not abuse its discretion in excluding four misconduct complaints accusing one of the defendants of verbally abusing minorities. The Court noted the substantial leeway a district court has in ruling on an issue like this that requires a balancing of the evidence’s probative value with its prejudicial effect. Third, the plaintiffs sought to introduce a criminal conviction on a civil rights charge against another officer. They argued admissibility under either Rule 609(a)(1) or 609(a)(2). The Court concluded that plaintiffs forfeited their (a)(1) argument because they did not renew it at trial after the court's conditional pretrial ruling excluding it. With respect to (a)(2), the Court concluded that, although there was some evidence of an attempted cover-up, the crime with which the officer was charged and convicted did not involve dishonesty.
Three sisters and their friends were enjoying a night at Buffalo Wild Wings restaurant in the summer of 2007. A dispute arose over the girls' bill. The police were called and the girls were arrested on charges of disorderly conduct. The charges were dropped. The sisters brought an action against the restaurant, its owner, and the responding police officer. The girls' mother, Christine Lopez, appeared as next friend of the two minor girls. The magistrate held a settlement conference, attended by the plaintiffs, Lopez, their attorney, and the defendants' attorneys. Although the conference was off the record, the magistrate judge reported that the parties agreed to a $6000 settlement. The girls' father, a nonparty, argued with the girls' attorney and declared that he would find new representation. At that point, the family left, although their attorney remained. The Magistrate Judge entered a recommendation to the district court to dismiss the case with prejudice in accordance with the settlement agreement. At a hearing a short time later before the district court, the girls' attorney appeared again and advised the district court that the girls' recollection was that was no agreement. The district court dismissed the case with prejudice. Ten business days later, Lopez filed a handwritten pro se “Motion to vacate and Reinstate.” Newly retained counsel supplemented the motion nine days later. The district court did not recognize the pro se filing as a Rule 59(e) motion and treated counsel’s motion as a Rule 60(b) motion and denied it. The girls appeal.
Ibrihim Kiswani was arrested for, and later acquitted of, an unlawful use of weapon charge. He filed an action against several police officers and the Phoenix Security Agency, alleging unlawful arrest and malicious prosecution, as well as other counts. Most of the counts were resolved prior to trial. Two counts against one individual officer were resolved at trial -- one on a motion for judgment as a matter of law and one by the jury. Judgment was entered on June 16, 2008. On June 24, Kiswani filed a renewed motion for judgment as a matter of law and a Rule 59 motion for a new trial. The magistrate judge denied the motions on August 20. On September 12, Kiswani moved for reconsideration of those motions. That motion was denied on September 24. Kiswani appeals (on September 29)..jpg)
James Stilwell was an entrepreneur and property owner in central Illinois. Stilwell found himself at times in need of cash, however. He devised a scheme whereby he would write a check on his account at Tuscola National Bank (“TNB”) and present it to First State Bank of Monticello (“FSB”) in return for a bank money order. Stilwell frequently had no money in his account at TNB. Even though cashing a check for a noncustomer was against FSB’s policy, it sold him almost $2 million in money orders over the course of several months. When questioned by bank representatives, Stilwell made up stories to cover his scheme. Finally, TNB froze his account, leaving FSB with $307,000 in worthless checks. Stilwell agreed to repay FSB, but died before he did. FSB filed a claim with its insurer, Ohio Casualty Insurance Company (“Ohio Casualty”). Ohio Casualty denied the claim on two grounds: that the loss was not covered under the policy and that it was an excluded loss because it was caused by a FSB employee. FSB filed suit to recover. The district court granted summary judgment to FSB. FSB requested prejudgment interest in a Rule 59(e) motion. The court declined. Both Ohio Casualty and FSB appeal.