Superior Court of New Jersey, Appellate Division.

Richard FINALDI and Bonnie Finaldi, h/w, Plaintiffs-Appellants,

v.

Matthew KNIGHT and Ean Holding, LLC, Defendants,

and

Cornucopia Logistics, LLC, Amazon Logistics, Inc., and Amazon Fulfillment Services, Inc., Defendants-Respondents.

DOCKET NO. A-0315-22

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Argued December 5, 2023

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Decided January 3, 2024

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2209-18.

Attorneys and Law Firms

Corey A. Dietz argued the cause for appellants (Brach Eichler, LLC, attorneys; Edward P. Capozzi and Corey A. Dietz, on the briefs).

Richard Francis Connors, Jr. argued the cause for respondent Cornucopia Logistics, LLC (Tompkins, McGuire, Wachenfeld & Barry LLP, attorneys; Richard Francis Connors, Jr., and Kimberly Dawn McDougal, on the brief).

Ahmed J. Kassim argued the cause for respondents Amazon Logistics, Inc., and Amazon Fulfillment Services, Inc. (Sills Cummis & Gross, PC, and Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, attorneys; Beth S. Rose, Ahmed J. Kassim, and Gina Calabria, on the brief).

Before Judges Whipple, Mayer and Paganelli.

Opinion

PER CURIAM

*1 During the early morning hours of January 27, 2017, plaintiff Richard Finaldi was driving through an intersection in Linden. At the same time, a man driving a delivery van nodded off and drove through the red light, colliding with Richard. Richard was seriously injured.

Plaintiffs Richard and Bonnie Finaldi appeal from the trial court’s grant of summary judgment in favor of the van’s lessee, defendant Cornucopia Logistics, LLC (Cornucopia), denial of their motion for reconsideration, and grant of summary judgment in favor of defendants Amazon Logistics, Inc., and Amazon Fulfillment Services, Inc. (collectively, Amazon). For the reasons that follow, we affirm.

Since 2014, Cornucopia had an agreement with Amazon to deliver groceries ordered through Amazon Fresh as an independent contractor. Under its agreement, Cornucopia had exclusive responsibility for its personnel and exclusive control over its policies relating to wages, hours, working conditions, and other employment conditions. Delivery vans—leased to Cornucopia by defendant EAN Holdings, LLC (EAN)—were stored at the Amazon Fulfillment Center facility in Avenel, where Cornucopia also had an office. Under the agreement, Cornucopia would provide, operate, maintain, and be responsible for all motor vehicles.

In 2017, Cornucopia had several employees at the Avenel facility, including a senior operations manager, Richard Bello; an operations manager, Carlos Gonzalez; a fleet coordinator; four dispatchers; and around thirty drivers each for the morning and night shifts.

There was one dispatcher for each shift. The drivers would report to work and clock in using their fingerprints, and the dispatcher would take attendance and assign the drivers their routes. Each time a driver clocked in, the dispatcher would give them a handbag containing a key to a van, an EZPass, vehicle registration and insurance, and a “rabbit.” The rabbit was a scanner, provided by Amazon, that allowed drivers to scan each package in and out; it also acted as a GPS, a camera, and calling support. The rabbit additionally allowed supervisors to see where each driver had dropped off their last package.

When the vans were not in use, the keys were kept in a cabinet behind the dispatch table. The dispatcher was supposed to lock the cabinet after checking in the drivers and giving them their handbags. Each dispatcher had a key to the cabinet, as well as Gonzalez and Bello. It was standard operating procedure for the dispatcher to log each key that was given to the drivers and take inventory of those keys. The dispatcher would again count the keys after the drivers returned. Ultimately, the fleet coordinator was responsible for knowing where each of the vehicles was at a given time.

If a dispatcher discovered a key was missing after taking inventory, they would see if the vehicle was in the parking lot. If it was not, they would notify Gonzalez or Bello.

Matthew Knight, one of Cornucopia’s dispatchers, fell asleep driving the Cornucopia delivery van that he stole and went through a red light, injuring plaintiff. Knight initially worked for Cornucopia as a driver, but then, after his license was suspended, he moved to dispatcher—a position which did not require driving—so he could continue to work at Cornucopia.

*2 Knight had stolen the van the day before the accident to assist his mother in moving. His plan was to return the van to the facility in time for the next shift. Knight entered the facility as if he was going to work, found the cabinet with the keys to the vans unlocked, and took one of them. Had the cabinet been locked, he testified, he would not have taken the van because ordinarily Knight only had access to the key when he was on duty as a dispatcher. He drove the van off the lot, through the main gate guarded by Amazon security workers. Only after the accident did Knight inform Gonzalez that he took the van. Thus, no one at Cornucopia knew the van was missing until after the accident. According to Bello, this was the first time, as far as he knew, that an employee had used a van for personal use.

The Finaldis¹ filed suit on June 25, 2018, against Knight, EAN,² and several fictitiously named individuals and corporations. Plaintiffs amended their complaint to add Cornucopia as a defendant, clarifying its position as Knight’s employer. In a second amended complaint, plaintiffs included Amazon as defendants. They asserted five claims: negligence against Knight, EAN, Cornucopia, and Amazon; negligent hiring, retention, and training against Cornucopia and Amazon; negligent entrustment and negligent supervision against EAN, Cornucopia, and Amazon; and loss of consortium.

Amazon moved for summary judgment, and plaintiffs consented to the dismissal of the negligent hiring, retention, and training claim and negligent entrustment and supervision claims against Amazon, since there was no evidence Knight was an Amazon employee. As to the general negligence claim, plaintiffs argued Cornucopia was an independent contractor over which Amazon retained enough control to render it liable for Cornucopia’s actions. The court denied summary judgment as to the general negligence and loss of consortium claims.

Cornucopia moved for summary judgment. Plaintiffs consented to dismissal of vicarious liability claims under the theory of respondeat superior. On March 29, 2022, the court granted summary judgment to Cornucopia as to the negligence and negligent hiring and retention claims. Addressing the general negligence claim, the court concluded Cornucopia owed no duty to plaintiffs because Cornucopia “had [no] reason to know … that there was an enhanced risk of harm to a third party by hiring Knight to work as a dispatcher.” The court also found “at the time of the accident, there was no … history of Cornucopia employees stealing vehicles.” Further, Cornucopia had adequate security measures in place.

The court also concluded that plaintiffs failed to establish Cornucopia’s actions were the proximate cause of plaintiff’s injuries. The court explained “Knight was not working at the time of the accident[,]” nor was he using the vehicle with permission. Cornucopia “took reasonable precautions to prevent against such actions.” The court declined to set a precedent where “employers would be liable for all of the senseless and unanticipated actions of their employees.”

The court found it too attenuated to link the administrative suspension of Knight’s license with the January 2017 accident and, thus, rejected the negligent hiring and retention claims. Knight’s license suspension did not put Cornucopia on notice that he would disregard its policies and take one of its vehicles for his own personal use.

Plaintiffs moved for reconsideration, asserting the court failed to consider probative, competent evidence, particularly the expert report of Joseph Vanderslice who opined defendants substantially breached their duty to undertake reasonable care to provide a safe facility and community in which their employees operated. Plaintiffs also argued the policies and procedures Cornucopia had in place were ineffective because they were not followed, and to find in Cornucopia’s favor would be contrary to public policy.

*3 The court rejected these arguments, noting it was not the expert’s function to determine whether there was a duty, but the court’s, and the court subsequently found Cornucopia owed no duty. Further, the court reiterated its earlier stance that finding in favor of plaintiffs would also be contrary to public policy because it would render employers liable for all the “senseless and unanticipated actions of their employees.” Finding no basis to grant reconsideration, the court denied plaintiffs’ motion.

Thereafter, Amazon moved for reconsideration of the November 2021 order denying summary judgment. Amazon argued that, because the court granted Cornucopia’s motion for summary judgment, finding no basis for liability as to Cornucopia, the court must also dismiss the case against Amazon. The court agreed, found the motion was not untimely, and granted it. This appeal followed.

We review a trial court’s decision to grant or deny a motion for reconsideration under the abuse of discretion standard. Kornbleuth v. Westover, 241 N.J. 289, 301 (2020). We review a grant or denial of summary judgment de novo, applying the same standard as the trial court. Templo Fuente De Vida Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (citing Mem’l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012)).

“To sustain a cause of action for negligence, a plaintiff must establish four elements: ‘(1) a duty of care[;] (2) a breach of that duty[;] (3) proximate cause[;] and (4) actual damages.’ ” Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 584 (2008)). The plaintiff must establish those elements “by some competent proof.” Ibid. (quoting Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014)).

The threshold question is whether Cornucopia owed a duty to plaintiffs. “The question of whether a duty exists is a question of law.” Franco v. Fairleigh Dickinson Univ., 467 N.J. Super. 8, 25 (App. Div. 2021) (citing Robinson v. Vivirito, 217 N.J. 199, 208 (2014)). “Any common law duty imposed by [a c]ourt must ‘satisf[y] an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy.’ ” Est. of Narleski v. Gomes, 244 N.J. 199, 213 (2020) (second alteration in original) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993)). In order for a court to impose a duty, “there must be a foreseeable risk of harm.” Franco, 467 N.J. Super. at 26 (citing J.S. v. R.T.H., 155 N.J. 330, 337 (1998)).

When determining whether a party owed a duty to another, foreseeability refers to

the knowledge of the risk of injury to be apprehended. The risk reasonably to be perceived defines the duty to be obeyed; it is the risk reasonably within the range of apprehension, of injury to another person, that is taken into account in determining the existence of the duty to exercise care.

[Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 503 (1997) (quoting Hill v. Yaskin, 75 N.J. 139, 144 (1977)).]

The trial court determined Cornucopia owed no duty to plaintiffs because it was not foreseeable Knight would steal a van from Cornucopia. Cornucopia had procedures in place to prevent and detect theft. The delivery vans were parked in a lot with a security gate, and—according to standard procedure—the dispatcher took inventory of the keys twice each shift, locking the cabinet when not in use. Further, there was no prior history of employees stealing vans or borrowing them for their own personal use.

*4 Plaintiffs do not dispute these procedures were in place but assert, because Cornucopia’s employees did not follow these procedures, it owed a duty to plaintiffs. Plaintiffs argue they are not seeking to impose any duty on Cornucopia that Cornucopia had not already imposed on itself by securing the keys and taking inventories of the keys multiple times throughout the shift.

Plaintiffs rely on Hill v. Yaskin, 75 N.J. 139 (1977); however, that case is distinguishable. There, the plaintiff, a police officer, was injured while pursuing a car stolen from the parking lot of one of the defendants, a Camden parking lot operator. Id. at 140. Every day at 5:00 p.m., the parking lot closed and the attendant left. Id. at 141. The lot’s policy was that, if a customer had not returned to pick up their car by that time, the car would be left unlocked, and the keys placed under the floor mat or above the visor. Ibid. A patron familiar with this procedure, also a defendant, left her car in the lot and did not return until 7:30 or 8:00 p.m. Ibid. When she realized her car was not in the parking lot, she reported the car stolen. Ibid. The plaintiff spotted the car the next day and a chase ensued, resulting in the collision that injured him. Id. at 140-41.

The Supreme Court found that the grant of summary judgment in favor of the defendants was improper. Id. at 145.

As to [the parking lot operator], while we accept the proposition that a lot operator has the right to fix the hours of business, we cannot lose sight of the fact that this lot was located in a high[-]crime area and had experienced a history of vandalism. Under these special circumstances the unreasonably enhanced hazards attendant upon the defendant lot’s method of operation are clear. [The parking lot operator] had a duty, which a jury might determine from all the evidence was breached, to protect users of the highways from the action of a thief who uses the keys left in the vehicle to mobilize it and then to operate it in a negligent fashion, resulting in plaintiff’s injuries.

[Id. at 146.]

The Court found the patron owed a similar duty, as “the likelihood of theft and the subsequent unhappy occurrence was [not] any the less foreseeable by [her] than by her co-defendant.” Id. at 147.

In Hill, the defendants’ liability was based on the foreseeability that an unlocked car with keys inside would be stolen in a high-crime area, thereby increasing the risk of harm to others. The parking lot operator’s policy and other circumstances were the reasons the defendants owed a duty. But here, Cornucopia’s policy was to keep the keys in a locked cabinet and have the dispatcher on duty take inventory of them twice every shift. The record contains no suggestion the Avenel facility is in a high-crime area. The other extenuating circumstances present in Hill are not present here.

The fact the van was taken by an employee with access further distinguishes this case from Hill. Cornucopia had even less reason to suspect an employee would take a van for their own personal use—presumably it would not have hired the employee if it had had that suspicion. Cornucopia’s policies prohibited employees from taking the delivery vans for their own use, and an employee could be terminated for violating that policy.

We decline to follow plaintiffs’ argument that the unauthorized use of the van and the accident were sufficiently foreseeable to impose a duty upon Cornucopia. According to Bello, this was the first time an employee had used a delivery van for his own use. Further, even if it was foreseeable an employee would steal one of the vans, Cornucopia could not have known Knight—who had no prior accidents as a driver for the company and was presumably accustomed to driving during early morning hours—would doze off at the wheel and collide with Richard. See Johnson v. Usdin Louis Co., 248 N.J. Super. 525, 530 (App. Div. 1991) (finding it was unforeseeable an employee would steal nitric oxide from his employer and throw it on his family members).

*5 We also reject plaintiffs’ argument Cornucopia was negligent in promoting Knight to a dispatcher position after his license was suspended and he could no longer work as a driver. A license suspension alone does not suggest an employee is deceitful or prone to theft. The mere fact Knight had his license suspended would not put Cornucopia on notice that he would use its vehicle in violation of company policy. Knight’s disciplinary record at Cornucopia was unblemished, and he had never before been accused of theft or similar conduct.

We also affirm the grant of summary judgment in favor of Amazon. Plaintiffs asserted a theory of vicarious liability, arguing that, although Cornucopia was an independent contractor of Amazon, Amazon retained control of the manner and means of Cornucopia’s operations, subjecting it to liability for Cornucopia’s actions. Because we agree Cornucopia is not liable for the accident—this theory falls apart.

Any remaining arguments raised by plaintiffs are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

All Citations

Not Reported in Atl. Rptr., 2024 WL 26712

Footnotes  

1. Bonnie asserts a per quod claim.  
2. The parties stipulated to the dismissal of Knight and EAN as defendants on October 19, 2022.  

End of Document

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United States District Court, W.D. Pennsylvania.

Jamie GUTHRIE, Plaintiff,

v.

Eloy MONTEAGUDO and JY Prado Transport Corp., Defendants.

Civil Action No. 22-1610

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Signed January 24, 2024

Attorneys and Law Firms

Hannah J. Molitoris, Kevin Clancy Boylan, Pro Hac Vice, Morgan & Morgan, Philadelphia, PA, for Plaintiff.

Mark T. Caloyer, Lewis Brisbois Bisgaard & Smith, Pittsburgh, PA, for Defendants.

Re: ECF No. 51

MEMORANDUM ORDER

MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE

*1 Presently before the Court is Plaintiff’s Motion for Sanctions Directed to Defendant JY Prado Transport Company. ECF No. 51.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On October 13, 2022, Plaintiff was operating a motor vehicle when a tractor–trailer driven by Defendant Eloy Monteagudo (“Monteagudo”), and owned by Defendant JY Prado Transport Corp. (“JY Prado”), crossed the center line of the road and went into the opposite lane of traffic. The tractor–trailer crashed into the vehicle operated by Plaintiff. As a result of the impact, Plaintiff suffered serious injuries to her head, neck, back, internal organs and shoulder. ECF No. 1 ¶¶ 8-18.

Plaintiff initiated this action with the filing of a Complaint on November 15, 2022. Id. Defendants filed their Answer on February 1, 2023. ECF No. 5. The initial case management conference was conducted and a case management order was issued on March 7, 2023. ECF Nos. 19 and 20.

On January 5, 2023, Plaintiff propounded discovery upon Defendants which included Interrogatories directed to Defendant Monteagudo, Interrogatories directed to Defendant JY Prado and Requests for Production of Documents directed to Defendants. ECF No. 51 ¶ 3.

Defendants were not forthcoming in providing responses to Plaintiff’s discovery requests. However, defense counsel was able to produce a limited number of documents in the custody of Defendants’ insurer, Brooklyn Specialty Insurance Company. Defense counsel undertook efforts to try to locate Defendants.

Due to the ongoing and vast deficiencies in Defendants’ discovery responses, Plaintiff was forced to file a Motion to Compel discovery on October 10, 2023. ECF No. 32. The Court conducted a status conference with counsel on October 25, 2023, and addressed the deficiencies. ECF No. 41. That same date, the Court entered an order granting the Motion to Compel. ECF No. 42. The Court directed as follows.

1. Defense counsel is directed to promptly schedule a video or telephone conference (by November 3, 2023) with Defendant Monteagudo, with an interpreter, to inquire as to responses to Plaintiff’s requests for production of documents and interrogatories. Defendant Monteagudo must provide a verification to his discovery responses.

2. Video deposition of Defendant Monteagudo is to be scheduled for a Saturday be video. It will take place at a Florida office of defense counsel.

3. Mr. Prado, as owner of Defendant JY Prado Transport, is directed to promptly meet with his attorney via video conference with the assistance of an interpreter. (By November 6, 2023).

4. Mr. Prado is ordered to provide responses to Plaintiff’s requests for production of documents and interrogatories. Mr. Prado must provide a verification to his discovery responses.

5. The video deposition of Mr. Prado must be promptly scheduled. It will take place at a Florida law office of defense counsel.

6. NOTICE IS HEREBY GIVEN TO MR. PRADO THAT FAILURE TO COOPERATE IN DISCOVERY MAY RESULT IN THE IMPOSITION OF COURT SANCTION IN ACCORDANCE WITH THE FEDERAL RULES OF CIVIL PROCEDURE.

*2 Id.

On November 13, 2023, Plaintiff was required to file a Second Motion to Compel Discovery and for Sanctions against JY Prado Transport Company. ECF No. 45. In the motion, Plaintiff informed the Court that: Defendant Monteagudo has provided answers to interrogatories but no verification; Defendants JY Prado had not provided answers to Interrogatories and JY Prado failed to meet with defense counsel. Id.

Upon review, the Court granted the Second Motion to Compel Discovery on December 7, 2023, and ordered as follows.

1. Eloy Monteagudo shall produce a verification to the Interrogatory answers by December 29, 2023.

2. JY Prado shall produce verified answers without objection to Interrogatories, verified answers to Request for Production of Documents and all documents responsive to Plaintiff’s Request for Production of Documents by December 29, 2023 or all factual averments against JY Prado shall be accepted as true if so ordered.

3. If Defendants do not comply with this Order, Plaintiff may move for sanctions.

ECF No. 49.

On December 12, 2023, the Court conducted another status conference to address the failure of Defendants to provide discovery responses. The Court directed that JY Prado provide that dashcam video and GPS data from the tractor–trailer involved in the accident at issue and directed that Mr. Prado and a corporate designee of the company appear for deposition in person in Pittsburgh. ECF No. 50.

Unfortunately, Plaintiff was forced to file a Motion for Sanctions Directed to JY Prado Transport Company on January 8, 2024. ECF No. 51. In the motion, Plaintiff reported that JY Prado had still not provided any discovery responses in violation of the December 7, 2023 Order of this Court. JY Prado and Mr. Prado failed to appear for deposition as directed. JY Prado did not produce the dashcam video and the GPS data. Id.

Defense counsel filed a Response to Plaintiff’s Motion for Sanctions. ECF No. 54. In the Response, he reported that he had not had any success in obtaining Mr. Prado’s cooperation in the defense of this case and he had not received any additional documents from Mr. Prado. Id. ¶ 8. Defense counsel also identified his continuing efforts, and those of Brooklyn Specialty Insurance Company, to locate Mr. Prado and obtain his cooperation. Id. ¶ 12. These efforts have included the use of a private investigator, to no avail. Id. ¶ 13; ECF No. 54-1.

The Motion for Sanctions is now ripe for consideration.

II. DISCUSSION

Rule 37 authorizes a court to impose sanctions against a party that fails to provide discovery as required by the Federal Rules of Civil Procedure. Although the Federal Rules of Civil Procedure permit a court to sanction, “[t]he ultimate decision to impose sanctions under Rule 37 and any determination as to what sanctions are appropriate are matters entrusted to the discretion of the district court.” Dufala v. Primanti Bros., No. 2:15-cv-647, 2015 U.S. Dist. LEXIS 132964, at *2 (W.D. Pa. Sept. 30, 2015) (citing Bowers v. Nat’l College Athletic Ass’n, 475 F.3d 524, 538 (3d Cir. 2007)).

*3 Federal Rule of Civil Procedure 37 provides, in pertinent part, as follows.

(b) Failure to Comply with a Court Order.

(2) Sanctions Sought in the District Where the Action is Pending.

(A) For Not Obeying a Discovery Order. If a party or a party’s officer, director, or managing agent – or a witness designated under Rule 30(b)(6) or 31(a)(4) – fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35 or 37(a), the court where the action is pending may issue further just orders. They may include the following:

(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;

(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;

(iii) striking pleadings in whole or in part;

(iv) staying further proceedings until the order is obeyed;

(v) dismissing the action or proceeding in whole or in part;

(vi) rendering a default judgment against the disobedient party; or

(vii) treating as contempt of court the failure to obey any order except to submit tot a physical examination.

(c) Failure to Disclose, to Supplement and Earlier Response or to Admit.

(1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:

(A) may order payment of the reasonable expenses, including attorney’s fees, caused by the failure;

(B) may inform the jury of the party’s failure; and

(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i) – (vi).

(d) Party’s Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection.

(1) In General

(A) Motion; Grounds for Sanctions, The court where the action is pending may, on motion, order sanctions if:

(i) a party or a party’s officer, director, or managing agent—or a person designated under Rule 30(b)(6) or 31(a)(4)—fails, after being served with proper notice, to appear for that person’s deposition; or

(ii) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response.

(B) Certification A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action.

(2) Unacceptable Excuse for Failing to Act. A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).

*4 (3) Types of Sanctions. Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)—(vi). Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.

(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

In considering the imposition of discovery sanctions, it is also recognized that a party subject to a sanction under Rule 37(b)(2) generally has engaged in multiple discovery violations. See Nat’l Fire & Marine Ins. Co. v. Robin James Construction, Inc., 478 F. Supp. 2d 660, 663 (D. Del. 2007) (sanctioning defendant for violating multiple discovery orders); Moser v. Bascelli, 879 F. Supp. 489, 493-94 (E.D. Pa. 1995) (imposing a sanction of attorneys’ fees and expenses on plaintiff for continuing to disobey a court order).

Although Rule 37(b) “provides a ‘veritable arsenal of sanctions’ to deter and rectify discovery violations,” is not equivalent to carte blanche; the Court’s discretion is limited in two ways: (1) any sanction must be just; and (2) the sanction must be specifically related to the specific claim that was at issue in the order to provide discovery. Clientron Corp. v. Devon IT, Inc., 894 F.3d 568, 580-582 (3d Cir. 2018) (citations omitted) (rejecting veil piercing sanction not authorized by substantive law). In other words, the “unproduced discovery [must] be sufficiently material to the administration of due process to support a presumption that the failure to produce constituted an admission by the offending party that its asserted claim or defense lacked merit.” Id. In Clientron, the United States Court of Appeals for the Third Circuit cautioned: “nothing in this opinion should be read to cast doubt on the District Court’s authority to levy a sanction given the gravity of the misconduct, nor should the opinion be read to take issue with the severity of the sanction originally imposed.” Id. at 582.

In the instant case, as noted above, there is no dispute that Defendant JY Prado has repeatedly failed to participate in any discovery. JY Prado has failed to provide answers to interrogatories and requests for production. It has failed to produce the dashcam video and GPS date from the tractor–trailer involved in this accident. Neither a corporate representative of JY Prado or Mr. Prado have appeared for deposition. Further, even after being ordered to so, JY Prado and Mr. Prado have failed to produce any discovery and appear for deposition. Under these circumstances, the entry of sanctions is certainly warranted.

*5 In the instant Motion for Sanctions, Plaintiff relies on Federal Rule of Civil Procedure 37(b)(2) and requests that the Court enter an order “directing that matters embraced in the order or other designated facts be taken as established for purposes of this action as the prevailing party claims.” ECF No. 51 ¶ 21. Therefore, Plaintiff requests that all factual averments of the Complaint by accepted as true for purposes of this action. Id. ¶ 22.

Plaintiff also submits that, to the extent stored electronically, the dash came footage and GPS data from the tractor–trailer and Defendant Monteagudo’s employment and driver qualification files as well as driver logs should have been preserved by JY Prado in anticipation or conduct of litigation. Id. ¶¶ 23-24. There is no evidence that JY Prado preserved this key information relative to the accident at issue. As such, Plaintiff further argues that this failure to preserve evidences an intent by JY Prado to deprive her of key evidence and that such failure to preserve has prejudiced her. Id. ¶ 25-26.

Upon review, the Court finds that JY Prado has failed to participate in discovery, ignored this Court’s discovery orders and acted with intent to deprive Plaintiff of substantial information relevant to the pursuit of her claims. Therefore, the entry of sanctions is justified. In tailoring sanctions to JY Prado’s conduct – or lack thereof – during discovery, the following sanctions are imposed against JY Prado. First, all factual averments asserted against JY Prado in Plaintiff’s Complaint are hereby accepted by this Court as true, including for purposes of trial. Second, at the trial of this case, the jury will be instructed, pursuant to Federal Rule of Civil Procedure 37(e)(2), that it must presume that GPS data and dashcam video from tractor–trailer, along with Defendant Monteagudo’s employment and driver qualification files as well as driver logs, were unfavorable to JY Prado.

III. CONCLUSION

For the reasons set forth herein, Plaintiff’s Motion for Sanctions Directed to JY Prado Transport Company, ECF No. 51, is GRANTED. An appropriate order follows.

ORDER

AND NOW, this 24^th day of January, 2024, it is hereby ORDERED that Plaintiff’s Motion for Sanctions, ECF No. 51 is GRANTED.

It is ordered that all factual averments asserted against JY Prado in Plaintiff’s Complaint are hereby accepted by this Court as true, including for purposes of trial.

It is further ordered that at the trial of this case, the jury will be instructed pursuant to Federal Rule of Civil Procedure 37(e)(2), that it must presume that GPS data and dashcam video from tractor trailer along with Defendant Monteagudo’s employment and driver qualification files and logs were unfavorable to JY Prado.

All Citations

Slip Copy, 2024 WL 264075

End of Document

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