Opinion
Civ. Action No. 98-4092 (JBS)
Filed: November 29, 2000
MEMORANDUM OPINION
This matter comes before the Court on motion of defendant IBM Corporation (IBM) for reargument of this Court's decision in this case dated September 27, 2000 pursuant to Rule 7.1(g), L. Civ.R. For reasons explained in its Opinion of that date, Scott v. IBM Corp., 196 F.R.D. 233 (D.N.J. 2000), the Court granted in part and denied in part the parties' cross-motions for summary judgment pursuant to Rule 56, Fed.R.Civ.P. The Court dismissed plaintiff Henderson Scott's claims arising under the ADA. Plaintiff's claims under the ADEA and Title VII survived.
IBM urges the Court to reconsider its previous ruling that IBM's destruction of evidence relevant to this lawsuit could permit a factfinder to make a "spoliation inference" that the lost or destroyed evidence was harmful to IBM. The Court concluded that this available inference created a genuine issue of material fact as to whether IBM's proffered reasons for discharge were pretextual within the meaning ofMcDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), thus precluding summary judgment. For reasons now discussed, IBM's motion for reconsideration will be denied, but the Court's intent with respect to the prospect of a spoliation instruction to the jury will be clarified, and this case will be set for trial.
DISCUSSION
A. Reconsideration/Reargument Standard
Local Civil Rule 7.1(g) requires that a motion for reargument shall be served within 10 days of the entry of the order or judgment on which reargument is sought. Such motions should be accompanied by a "brief setting forth concisely the matters or controlling decisions which counsel believes the Judge or Magistrate has overlooked." Id. "A party seeking reconsideration must show more than a disagreement with the court's decision, and `recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden.'" Panna v. Firstrust Sav. Bank, 760 F. Supp. 432, 435 (D.N.J. 1991) (quoting Carteret Sav. Bank, F.A. v. Shushan, 721 F. Supp. 705, 709 (D.N.J. 1989)). As this Court has stated, "motions for reargument succeed only where a `dispositive factual matter or controlling decision of law' was presented to the Court but not considered." Damiano v. Sony Music Entertainment, 975 F. Supp. 623, 634 (D.N.J. 1996) (JBS) (quoting Pelham v. United States, 661 F. Supp. 1063, 1065 (D.N.J. 1987). Where no facts or cases were overlooked, such a motion will be denied. Egloff v. New Jersey Air Nat. Guard, 684 F. Supp. 1275, 1279 (D.N.J. 1988); Resorts International v. Greate Bay Hotel and Casino, 830 F. Supp. 826, 831 (D.N.J. 1992).
If the record was inadequately developed on a particular issue, the court has discretion to reconsider the matter, Hatco Corp. v. W.R. Grace Corp., 849 F. Supp. 987, 990 (D.N.J. 1994), but not to the extent of considering new evidence that was available but not submitted while the motion was pending. Florham Park Chevron, Inc. v. Chevron, USA, Inc., 680 F. Supp. 159, 162 (D.N.J. 1988). In other words, a "motion for reconsideration is not a vehicle to reargue the motion or to present evidence which should have been raised before." Bermingham v. Sony Corp. of America, Inc., 820 F. Supp. 834, 856-67 (D.N.J. 1992), aff'd, 37 F.3d 1485 (3d Cir. 1994). As the late Chief Judge Gerry noted, "[w]e are in fact bound not to consider such new materials, lest the strictures of our reconsideration rule erode entirely." Resorts International, 830 F. Supp. at 831 n. 3. (Emphasis in original). Consequently, only when the matters overlooked might reasonably have resulted in a different conclusion if the court had considered them will the court entertain such a motion. Panna, 760 F. Supp. at 435.
B. Analysis
IBM argues that this Court erred in denying summary judgment on plaintiff's Title VII and ADEA claims. In IBM's view, the Court erred because: (1) the Court's ruling denied IBM due process; (2) a spoliation inference is not warranted in this case; and (3) a spoliation inference alone is not an adequate ground upon which to deny summary judgment. The Court will address these arguments in turn.
The Court first addresses IBM's due process argument. IBM first posits that the Court imposed a sanction arising from the loss or destruction of certain documents. IBM's position is that the Court should not impose a spoliation sanction without first giving the party to be sanctioned (IBM) a chance to brief the relevant issues. (Def. Br. at 2-5.) This argument is unavailing.
While it is true that due process requires that the parties have sufficient notice of the form of sanction to be imposed, see In re Tutu Wells Contamination Litig., 120 F.3d 368, 379-81 (3d Cir. 1997), it is manifest that in my previous opinion in this case I was making an evidentiary ruling, not imposing a sanction. Concerning the lost evidence at issue (the flipcharts created during the reduction in force process which may have included employee rankings), I stated:
Given that the evidence of spoliation in this case might be interpreted by the jury as circumstantial evidence of IBM's desire to cover up discriminatory reasons for discharging Mr. Scott, the Court will permit the use of spoliation evidence as support for plaintiff's pretext theory. The negative inference permitted by evidence that IBM destroyed relevant documents provides grounds for disbelieving IBM's proffered reasons for discharging Mr. Scott under prong one of Fuentes, and thus his Title VII and ADEA claims survive summary judgment. However, because there is no evidence that IBM's conduct in any way hindered plaintiff's ability to bring this suit, no remedy is warranted beyond a jury instruction. The Court emphasizes that plaintiff still bears the burden of proof should this case proceed to trial. At this stage, it only finds that a jury could find pretext on account of this negative inference. IBM's proffered reasons for discharging plaintiff are entirely plausible, and may carry the day.Scott, 196 F.R.D. at 249-50 (citation omitted) (emphasis added).
As this passage makes clear, this Court's decision regarding spoliation was an evidentiary ruling, not a sanction. As the Opinion makes clear, 196 F.R.D. at 248, the Court found that IBM's conduct is discarding the documents did not rise to the standards necessary to trigger sanctions, since the circumstances are "susceptible of an innocent explanation" and "plaintiff's motion for such sanctions will be denied." Courts in this Circuit have consistently held that a broad spectrum of evidence, both direct and circumstantial, is available to plaintiffs in employment discrimination cases. See Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 (3d Cir. 2000). Nothing in IBM's brief persuades the Court that its decision regarding this circumstantial evidence of pretext was in error. It is plaintiff's theory that IBM disposed of "the most important evidence in the case", i.e., the flip charts created during the reduction-in-force process. (Pl. Reply Br. in Support of Sum. J. at 9.) The circumstances of IBM's loss or destruction of these relevant documents provides reasonable grounds for a negative inference to be drawn that these documents were harmful to IBM's case, if a jury finds such an inference to be warranted. The jury may also decide, after hearing the relevant evidence, that an innocent reason exists for this non-retention of documents, in which case no negative inference may be drawn. If the proofs at trial are as proffered by the plaintiff in opposing the summary judgment motion, the jury will be instructed accordingly.
Moreover, this Court's decision to entertain a permissive spoliation instruction does not deny the defendant due process of law. The Court's consideration of the availability of the spoliation inference came after full briefing, and after both sides filed multiple supplementary submissions over the course of several months. Indeed, this case is one of the more aggressively litigated on this Court's docket, and the briefs, affidavits and certifications associated with it total in the thousands of pages. The suggestion that IBM would have benefitted from the opportunity to submit further briefing strains credulity. Furthermore, plaintiff's briefs provided ample notice that a spoliation inference might be entertained. In requesting that sanctions be imposed, plaintiff remarked that
[T]he real issue is not whether spoliation sanctions are in order, but how severe the sanction should be under the circumstances. The remedy ought to reflect the following relevant considerations:
(1) the large likely value of the destroyed documents . . .;
(2) IBM's persistent and egregious litigation misconduct . . .; and
(3) the degree to which IBM's evidence destruction corresponds to the tort of spoliation.
(Pl. Reply Br. in Support of Sum. J. at 11.) Opposing plaintiff's request for sanctions, defendant mustered its proofs of innocent intent and all such facts were considered and discussed. See Scott, 196 F.R.D. at 239 249. The Court is satisfied that plaintiff's explicit request for sanctions forseeably encompasses a permissive spoliation inference instruction, even if the permissive spoliation instruction is viewed as a "sanction" as noted by several courts. See Reilly v. NatWest Markets Group, Inc., 181 F.3d 253, 270 (2d Cir. 1999), cert. denied, 120 S.Ct. 940 (2000) (noting that a permissive spoliation instruction, given to the jury both before and after presentation of evidence, made upon a judicial pretrial adjudication of party misconduct in failing to search for, and retain, important documents, is a form of sanction and that the trial judge did not abuse discretion); Howell v. Maytag, 168 F.R.D. 502, 507 (M.D.Pa. 1996) (where plaintiff failed to preserve some fire scene evidence, court's choice of remedy of permissive spoliation instruction was the appropriate — and mildest — sanction). Simply because the Court did not impose the heavier sanctions requested by the plaintiff does not mean that defendant was deprived of fair opportunity to be heard prior to the Court's ruling that a negative inference might be drawn from IBM's destruction of evidence in this case.
In any event, because the Court has not made a final determination that the spoliation instruction will be given to the jury, for reasons expressed infra at 10-12, defendant IBM will have more than ample notice of this possibility before such a step is taken, if at all. The jury instruction will be formulated in the normal course, giving the parties all process that is due.
Turning to consider IBM's arguments that a spoliation inference is not warranted in this case and that this inference is inadequate grounds for denying summary judgment, the Court again finds no cause to disturb its previous ruling. First, IBM maintains that it was under no obligation to preserve the documents in question, and thus no negative inference arises from their destruction. This argument is simply a rehashing of a position that IBM has maintained throughout this litigation, and IBM's disagreement with the Court's decision does not provide grounds for reconsideration.
Second, with respect to IBM's argument that a spoliation inference does not provide grounds for denying summary judgment, this simply states a straightforward disagreement with this Court's holding that such an inference does provide evidence from which a jury could find that IBM's proffered reasons for discharge are pretextual. The Court relies upon its previous ruling on this issue. See Scott, 196 F.R.D. at 249 ("[P]laintiff, as the party opposing summary judgment, is entitled to all favorable inferences from these circumstances, including the inference that the defendant's destruction of the decisionmaking document was intentional because the information was adverse to defendant's position."). Having found that there is a genuine dispute of material fact as to whether a jury could find pretext, it would be inappropriate for this Court to grant summary judgment against plaintiff's ADEA and Title VII claims.
In sum, the Court is satisfied that the defendant has failed to point to any dispositive factual or legal matters that the Court has overlooked.
The Court also finds that defendant has failed to come forward with any controlling legal authority that the Court overlooked in its summary judgment opinion. Indeed, the out-of-circuit cases IBM cites most predominantly are contrary to its position here. See Reilly, 181 F.3d at 270 (holding adequate notice was provided before determination at a pretrial conference to give a spoliation instruction based upon party's gross negligence in searching for and preserving certain files during discovery); Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998) (affirming district court's ruling that a spoliation inference was warranted). The Third Circuit case of Prosser v. Prosser, 186 F.3d 403 (3d Cir. 2000), is also distinguishable from the matter at hand. In that case, the Court's holding dealt with a district court's error in timing. That is, the district court erred when it imposed a fine after issuing its final decision on the merits. Id. at 406. There is no such situation here. That case is also distinguishable from this one because there the Court of Appeals dealt with the actual imposition of sanctions (fines) rather than an evidentiary ruling as in this case.
The Court therefore reaffirms its prior holding that the existence of material factual disputes — including the possibility that a reasonable jury could infer from all the facts and circumstances that the destroyed documents contain vital evidence of the selection process favorable to plaintiff — precludes granting defendant's motion for summary judgment upon his substantive Title VII and ADEA claims. The Court has, however, reconsidered whether it is appropriate to determineat this time that the jury shall be instructed as to the spoliation inference. The spoliation inference is available in this case if the evidence at trial plays out as the plaintiff has proffered in opposing summary judgment. The Opinion considers the giving of the spoliation instruction as a remedy for conduct "not rising to the level of sanctionable conduct." Scott, 196 F.R.D. at 248. Because sanctionable conduct has not been judicially found, it may be premature to determine how the jury should be instructed. Indeed, as the Court observed, "[t]he circumstances are also susceptible of an innocent explanation, including mere negligence in failing to preserve possibly important documents."Id. The sensitivity of a spoliation instruction to events that unfold at trial should be recognized, including the possibility of a more severe sanction, Howell v. Maytag, 168 F.R.D. at 508 n. 5 ("should the evidence at trial lead us to conclude that the prejudice to Maytag is more severe than the record reveals at this juncture"), as well as the possibility that the trial evidence does not warrant such an instruction at all. This modification, upon reconsideration, requires that the Opinion and Order be amended to delete the implication that the Court has already decided to give the spoliation instruction to the jury upon this pretrial record.
The following language at 196 F.R.D. 249-250 will be deleted:
However, because there is no evidence that IBM's conduct in any way hindered plaintiff's ability to bring suit, no remedy is warranted beyond a jury instruction. See Webb v. District of Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998) (least onerous sanction should be applied).
The remainder of that paragraph is retained. The following new paragraph is added following the retained language:
Plaintiff's application for sanctions arising from destruction of defendant's documents will be denied without prejudice to the possibility that a spoliation inference will be given to the jury. The availability of that instruction will depend upon the proofs adduced at trial. Since the content of a jury instruction is normally formulated after the conclusion of evidence, or at least during trial, see Fed.R.Civ.P. 51, it would be premature, in the absence of a judicial determination of defendant's misconduct at this pretrial stage, to conclude that the spoliation instruction will actually be given.
The Order of September 27, 2000, will be amended in its 6th decidual paragraph, which shall state:
Plaintiff's application for sanctions arising from defendant's alleged spoliation of evidence is DENIED without prejudice to the possibility that the Court may determine at trial that the evidence of spoliation warrants giving the jury a spoliation instruction or no such instruction or imposition of a greater sanction.
In sum, the Court finds that IBM has failed to present a "dispositive factual matter or controlling decision of law" that was presented to the Court but not considered. Accordingly, IBM's motion for reconsideration will be denied. Nevertheless, upon reconsideration the Court amends its previous Opinion and Order in this case to delete the implication that the Court has already decided to give the spoliation instruction to the jury upon this pretrial record.
C. Defendant's Request for Permission to File an Interlocutory Appeal
IBM has applied to this Court requesting that the Order denying the present reconsideration motion contain a certification permitting it the right to appeal from this order, pursuant to 28 U.S.C. § 1292(b), subject to the Court of Appeals' discretion. With regard to interlocutory decisions by district courts, section 1292(b) provides:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he [sic] shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order. . . .28 U.S.C. § 1292(b) (emphasis supplied).
The Third Circuit set forth the standards governing certification of interlocutory appeals under this provision in Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir. 1974) (en banc). Under Katz, the certification of a matter for appeal is discretionary. Id. at 754. Each of the three criteria for certification — that the matter (1) involve a controlling question of law; (2) offer substantial ground for difference of opinion as to its correctness; and (3) materially advance the ultimate termination of the litigation — must be satisfied.Id. Further, this Court must keep in mind that section 1292(b) is to be used only in exceptional cases where an intermediate appeal may avoid protracted and expensive litigation. See Mattioni v. Ecological Shipping Corp., 530 F. Supp. 910, 917 (E.D.Pa. 1981).
Here, neither this Court's Order denying summary judgment on plaintiff's Title VII and ADEA claims, nor its Order denying IBM's reconsideration motion is the final decision on the merits of this case, thus is not appealable pursuant to 28 U.S.C. § 1291. Furthermore, IBM has satisfied none of the three Katz factors listed above that would give this Court cause to issue an order permitting interlocutory appeal under 28 U.S.C. § 1292(b). Defendant's dissatisfaction with this Court's denial of summary judgment as to plaintiff's Title VII and ADEA claims is reduced to an argument that a favorable inference supporting pretext in unavailable under the circumstances of this case — a matter which can be resolved upon ordinary appeal after final judgment, if necessary. Moreover, this question, even if resolved favorably to defendant, would not substantially alter the trial terrain for the remaining claims relating to post-complaint retaliation. Accordingly, IBM's application for a certification permitting it the right to appeal from this order is denied.
CONCLUSION
For the reasons discussed herein, IBM's motion for reconsideration of this Court's Opinion and Order in this case dated September 27, 2000 will be denied, except that the Court's Opinion and Order will be modified in part, as set forth in subpart B above, to clarify that the Court has not determined that a spoliation instruction will be given to the jury. IBM's request for permission to file an interlocutory appeal of this Court's Orders in this case is likewise denied.
ORDER
THIS MATTER having come before the Court on motion of defendant IBM Corp. for reargument of this Court's Order in this case dated September 27, 2000, and the Court having reviewed the parties' submissions, and for the reasons discussed in the Opinion of today's date;
IT IS this day of November, 2000, hereby
ORDERED that defendant's motion for reargument [Docket Entry No. 25] is DENIED , except that the Opinion and Order of September 27, 2000 shall be modified as follows:.
1. The following language at 196 F.R.D. 249-250 will be deleted :
However, because there is no evidence that IBM's conduct in any way hindered plaintiff's ability to bring suit, no remedy is warranted beyond a jury instruction. See Webb v. District of Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998) (least onerous sanction should be applied).
2. The remainder of that paragraph is retained .
3. The following new paragraph is added following the retained language:
Plaintiff's application for sanctions arising from destruction of defendant's documents will be denied without prejudice to the possibility that a spoliation inference will be given to the jury. The availability of that instruction will depend upon the proofs adduced at trial. Since the content of a jury instruction is normally formulated after the conclusion of evidence, or at least during trial, see Fed.R.Civ.P. 51, it would be premature, in the absence of a judicial determination of defendant's misconduct at this pretrial stage, to conclude that the spoliation instruction will actually be given.
4. The Order of September 27, 2000, will be amended in its 6th decidual paragraph, which shall state:
Plaintiff's application for sanctions arising from defendant's alleged spoliation of evidence is DENIED without prejudice to the possibility that the Court may determine at trial that the evidence of spoliation warrants giving the jury a spoliation instruction or no such instruction or imposition of a greater sanction.IT IS FURTHER ORDERED that defendant's motion for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) shall be DENIED .