United States District Court, D. Oregon
OPINION AND ORDER
Michael H. Simon, District Judge.
States Magistrate Judge John V. Acosta issued Findings and
Recommendation in this case on December 28, 2016. ECF 89.
Judge Acosta recommended that Plaintiff Dallas Buyers,
LLC's Motion to Strike (ECF 72) be granted in part.
Specifically, Judge Acosta recommends: (1) denying the motion
to strike Defendant's letter, docketed as an Answer in
this matter (ECF 71), in its entirety; and (2) granting the
motion in part and striking Defendant's assertions
relating to his health and to settlement negotiations between
the parties. Judge Acosta also recommends granting
Plaintiff's Spoliation Motion (ECF 75) and, as sanctions
for the spoliation, entering a default order against
the Federal Magistrates Act (“Act”), the court
may “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the
magistrate.” 28 U.S.C. § 636(b)(1). If a party
files objections to a magistrate's findings and
recommendations, “the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.” Id.; Fed.R.Civ.P. 72(b)(3).
those portions of a magistrate's findings and
recommendations to which neither party has objected, the Act
does not prescribe any standard of review. See Thomas v.
Arn, 474 U.S. 140, 152 (1985) (“There is no
indication that Congress, in enacting [the Act], intended to
require a district judge to review a magistrate's report
to which no objections are filed.”); United States.
v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc) (holding that the court must review de novo
magistrate's findings and recommendations if objection is
made, “but not otherwise”). Although in the
absence of objections no review is required, the Act
“does not preclude further review by the district
judge sua sponte . . . under a de novo or
any other standard.” Thomas, 474 U.S. at 154.
Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b)
recommend that “[w]hen no timely objection is filed,
” the Court review the magistrate's recommendations
for “clear error on the face of the record.”
Defendant timely filed an objection (ECF 91), to which
Plaintiff responded. ECF 93. Defendant objects to the portion
of Judge Acosta's recommendation finding that Defendant
intentionally and willfully destroyed evidence and that the
appropriate sanction for that destruction is the entry of
default against Defendant.
party having objected to the portion of the Findings and
Recommendation relating to Plaintiff's motion to strike,
the Court follows the recommendation of the Advisory
Committee and reviews that portion of the Findings and
Recommendation for clear error on the face of the record. No
such error is apparent. Accordingly, the Court adopts that
portion of the Findings and Recommendation.
his objections, Defendant offers additional factual
information. Construing his pro se submission
liberally and giving Defendant the benefit of the doubt, the
Court construes the statements in Defendant's Objections
as factual assertions by Defendant, even though they are not
in the proper form of a Declaration or Affidavit.
Additionally, Defendant offers an exhibit relating to his
return of purportedly malfunctioning hard drives under a
warranty plan and the Declaration of his court-appointed
counsel, who was appointed to provide three hours of legal
services to Defendant without charge. In responding to
Defendant's objections, Plaintiff references some of this
new evidence and does not raise any objection to the
additional evidence. The Court exercises its discretion to
consider this additional evidence. See 28 U.S.C.
§ 636(b)(1) (permitting a court to “receive
further evidence” at its discretion); United States
v. Howell, 231 F.3d 615, 621 (9th Cir. 2000) (discussing
the Circuit split on whether a district court must or may
consider new evidence when reviewing de novo a
magistrate judge's findings and recommendation, and
concluding that a district “has discretion, but is not
required” to consider new evidence).
Court reviews de novo Plaintiff's Spoliation
Motion. The Court agrees with the Findings and Recommendation
that spoliation of evidence occurred. In light of the record
as a whole, including the newly-submitted evidence that was
not submitted to Judge Acosta, the Court does not adopt the
portion of the Findings and Recommendation recommending the
sanction of an entry of default against Defendant.
Legal Standards on Imposing Sanctions
have the authority to levy sanctions for spoliation of
relevant evidence. See United States v. $40, 955.00 in
U.S. Currency, 554 F.3d 752, 758 (9th Cir. 2009)
(“Under its inherent power to control litigation, a
district court may levy sanctions, including dismissal of the
action, for spoliation of evidence.”). In considering
what spoliation sanction to impose, courts generally consider
three factors: “‘(1) the degree of fault of the
party who altered or destroyed the evidence; (2) the degree
of prejudice suffered by the opposing party; and (3) whether
there is a lesser sanction that will avoid substantial
unfairness to the opposing party.'” Nursing
Home Pension Fund v. Oracle Corp., 254 F.R.D. 559, 563
(N.D. Cal. 2008) (quoting Schmid v. Milwaukee Elec. Tool
Corp., 13 F.3d 76, 79 (3d Cir.1994)). The Ninth Circuit
has emphasized, however, that before imposing the most severe
sanctions, such as dismissal or entry of default, a
“district court should consider the following factors:
‘(1) the public's interest in expeditious
resolution of litigation; (2) the court's need to manage
its dockets; (3) the risk of prejudice to the party seeking
sanctions; (4) the public policy favoring disposition of
cases on their merits; and (5) the availability of less
drastic sanctions.'” Leon v. IDX Sys.
Corp., 464 F.3d 951, 958 (9th Cir. 2006) (quoting
Anheuser-Busch, Inc. v. Natural Beverage Distribs.,
69 F.3d 337, 348 (9th Cir. 1995)).
alleges that Defendant infringed on Plaintiff's rights to
its movie Dallas Buyers Club by illegally
downloading the movie using BitTorrent software. Defendant
owns a small business that provides internet services,
including network and email services. Defendant denies that
he downloaded Dallas Buyers Club. He contends that
he had not even heard of the movie until this lawsuit and
that after learning about the movie, he has no interest in
seeing it. Defendant also asserts that he has never
downloaded a movie using BitTorrent software and would not
risk his livelihood or his customer base by engaging in such
internet protocol (“IP”) address identified by
Plaintiff as infringing on Plaintiff's movie is an IP
address associated with a one of Defendant's servers.
Defendant operated this server as a virtual machine
(“VM”). Using VM technology, Defendant migrated
information from his old multiple servers onto two servers
operating as VMs. One of these is the physical machine
associated with the allegedly infringing IP address
Infringing Machine, Defendant installed Tor Network software
and created a “Tor Node, ” which facilitates use
of the Tor Network by end users by routing information
through Defendant's machine. Also on this machine were
VMs for two email servers. The Infringing Machine had two
hard drives, which were mirrored. Defendant did not use the
Infringing Machine as a personal computer ...