The opinion of the court was delivered by: Honorable David H. Coar
MEMORANDUM OPINION AND ORDER
Plaintiff Patricia Romaine ("Romaine" or "Plaintiff") brought a complaint alleging various federal and state law claims against Defendants City of Chicago ("the City") and its officers Rick Caballero and Thomas Davey (collectively "Defendants"), for the death of her son at Defendant officers' hands. Presently before this Court are Plaintiff's Petition for Sanctions, Fees & Costs (Doc. No. 132), which seeks recovery related to the City's violation of this Court's preservation order (Doc. No. 9), and Magistrate Judge Cole's Report and Recommendation on this issue (Doc. No. 90). For the reasons stated below, Plaintiff's motion is GRANTED in part and DENIED in part, and the Report and Recommendation is ADOPTED in its entirety.
The relevant facts were previously described by Magistrate Judge Cole in his Report and Recommendation of December 28, 2006 (Doc. No. 90) ("Report and Recommendation"). There is therefore little reason to repeat those events in detail, and a summary will suffice for present purposes.
The automobile Plaintiff's son was driving when he was killed was arguably a key piece of evidence, in that it might have allowed Plaintiff to analyze bullet trajectory inside the vehicle driven by decedent at his death.*fn1 Realizing this, Plaintiff moved for and was granted a preservation order to ensure that the vehicle would be available for discovery and trial purposes. The City of Chicago, through a sequence of administrative errors, failed to implement this Court's order and the vehicle was destroyed. In response, Plaintiff filed a "MOTION for rule to show cause why City of Chicago should not be held in contempt," and Magistrate Judge Cole accepted briefs on this issue. The Report and Recommendation that resulted found that "the City should be held in civil contempt and required to pay the costs plaintiff has incurred in bringing this motion, and any other costs that she can document that resulted from the destruction of the car," but that because prejudice suffered by Plaintiff as a result of the vehicle's destruction could not be assessed at that time, any additional question of sanctions should be deferred. See Report and Recommendation at 15-17. The case has since been settled without trial, and Plaintiff now moves for the imposition of monetary sanctions against the City, as well as recovery of the fees and costs addressed by the magistrate judge.
Plaintiff requests that she be repaid the following sums: attorney fees of $18,135.00, for 40.3 hours of work at $450 per hour; court reporter costs of $698.22; and expert fees of $700.00. Plaintiff also requests that a replacement vehicle purchased by the City -- intended to stand-in for the lost auto and mitigate the City's error -- should be transferred to the owner of the destroyed automobile. In addition, Plaintiff maintains that Defendant should be forced to pay additional funds as monetary sanctions for being found it contempt of this Court's preservation order.
a. Adoption of Report and Recommendation
As discussed above, the Report and Recommendation generally recommended that the City be found in civil contempt, that it be held liable for costs and fees related to Plaintiff's motion for rule to show cause, and that this Court reserve judgment on whether or not sanctions should be levied against the City. The parties do not object to any of these findings, but continue to dispute the nature and amount of the fees and costs to be repaid to Plaintiff, and also argue over the only unresolved issue remaining from the magistrate judge's findings, i.e., whether or not Defendant's contempt caused any prejudice to Plaintiff's case. These arguments do not challenge the Report and Recommendation itself but rather seek clarification of its terms and impact. This Court sees no reason to doubt the magistrate judge's opinion as it is amply supported by the record and unchallenged by the parties. Therefore, the Report and Recommendation is hereby ADOPTED in its entirety, with the understanding that it left open the question of whether further sanctions should be imposed (beyond the cost of presenting the motion before Magistrate Judge Cole).
Though the City is to be held in contempt, Plaintiff has failed to show that the contemptuous destruction prejudiced her case so as to warrant sanctions beyond the recovery of fees and costs. See generally Report and Recommendation at 10 et seq. The magistrate judge framed the issue of sanctions in this case in the following manner:
If the plaintiff proves no more than it has proven thus far, no sanctions should be imposed beyond whatever costs the plaintiff can proveup, including the costs of bringing the motion. If, at the end of all the discovery, the plaintiff, through competent evidence, can prove that its case has indeed been compromised as a consequence of the car's destruction, rather than its failure to comply with discovery deadlines, the matter can be revisited and the question of sanctions reassessed.
The reasons for finding a lack of prejudice were discussed by the magistrate judge, but some are worth reiterating here. First, any analysis on the car itself would have been excluded from discovery anyway for the simple reason that Plaintiff's expert did not request to see the vehicle until after discovery had closed. See Fed. R. Civ. P. 37(c)(1). This notable delay also puts the lie to Plaintiff's claim that the car was essential to her case. Second, alternatives to production of the vehicle were not pursued, such as requests for higher resolution photos of the car, or increased zoom on photos then in possession, to see if it could be determined whether or not there was a bullet hole in the back of the driver's seat. See generally Nixon Dep. 37-50. Similarly, Plaintiff chose not to use the replacement vehicle provided by the City to develop arguments based on possible bullet trajectories. Whatever Plaintiff's reason for not pursuing alternatives that might have obviated the need for the car itself, the consequences of failing to pursue them should not be placed at the feet of the City. Third, even if the car had been available and discovery were expanded, there is still no clear indication of how much it would have assisted Plaintiff's calculation of trajectories; for example, the position of vehicle windows was unlikely to have been preserved between the night of the killing and discovery, see Report and Recommendation at 13, and Plaintiff's expert himself admits that the trajectory of the bullet would have been unpredictably altered as it broke through the vehicle's window, Resp. to Petition at 5. Finally, ...