United States District Court, M.D. North Carolina
plaintiff, NuVasive, Inc., moved for imposition of sanctions
against the defendant, Kenneth Kormanis, for spoliation of
evidence. Doc. 85. The Magistrate Judge issued a memorandum
opinion, order, and recommendation, Doc. 154, granting the
motion in part and recommending additional action by the
Court. Mr. Kormanis has objected to the Magistrate
Judge's ruling. Doc. 165. For the reasons set forth in
open court on March 26, 2019, and as supplemented below, the
Court finds that the Magistrate Judge's ruling is without
error and adopts it in full.
challenged order and recommendation, the Magistrate Judge
found Mr. Kormanis failed to take reasonable steps to
preserve text messages to and from his phone that should have
been preserved in anticipation or conduct of litigation, that
such messages cannot be restored or replaced through
additional discovery, and that this prejudiced NuVasive. Doc.
154 at 2-3. The Magistrate Judge concluded that the record
supports, but does not compel, a finding that Mr. Kormanis
acted with the intent to deprive NuVasive of the use of the
text messages in litigation. Id. at 4.
Magistrate Judge authorized NuVasive to depose an additional
witness, Ashley Warrick, beyond the discovery deadline at Mr.
Kormanis' expense; set a deadline of March 27, 2019, for
the parties to file a joint notice confirming their
resolution of, or setting out their positions on, the payment
of those deposition expenses; ordered Mr. Kormanis to pay
NuVasive's reasonable expenses, including attorney's
fees, associated with drafting, filing, briefing, and orally
arguing NuVasive's motion for sanctions; and set a
deadline of March 27 for the parties to file a joint notice
confirming their resolution of, or setting out their
positions on, the payment of NuVasive's expenses
associated with its motion for sanctions. Id. at
41-42. The Magistrate Judge recommended that the Court defer
until trial a decision on whether more serious measures are
needed to cure the prejudice to NuVasive from the lost
evidence, and that the Court submit to the jury, with
appropriate instruction, the disputed question of whether Mr.
Kormanis acted with the intent to deprive NuVasive of use of
the lost evidence in litigation. Id. at 42-43.
Kormanis objects to the award of attorney's fees incurred
in bringing the motion for sanctions and contends the
Magistrate Judge “did not have the ability to consider
the spoliation of evidence” allegedly committed by
non-party Jarrett Clay, which Mr. Kormanis apparently
discovered after the spoliation hearing, and “which may
have affected the overall recommendations as to
Kormanis.” Doc. 165 at 6-7, 10.
Court reviews the order and recommendation of the Magistrate
Judge on this “pretrial matter [that is] not
dispositive of a party's claim or defense” for
clear error. Fed.R.Civ.P. 72(a); 28 U.S.C. §
636(b)(1)(A); Gardendance, Inc. v. Woodstock
Copperworks, Ltd., 230 F.R.D. 438, 447 (M.D. N.C.
2005). The Court has reviewed the Magistrate
Judge's order and finds it to be without error, much less
Mr. Clay spoliated evidence from his cell phone is largely
irrelevant to whether Mr. Kormanis spoliated messages on his
phone, and, if so, to what sanctions were warranted to cure
or limit any prejudice this may have caused NuVasive. The
Court will address Mr. Kormanis' motion for sanctions
against Mr. Clay for spoliation of evidence, Doc. 126,
separately and in due course. And while Mr. Kormanis did
ultimately obtain some of his cell phone messages from other
sources and provide them to NuVasive, it is clear that
NuVasive suffered prejudice and incurred costs. The amount of
a reasonable attorney's fee has yet to be determined, and
objections grounded in the amount are premature.
stated in open court on March 26, the Court overrules Mr.
Kormanis' objections and affirms and adopts the
Magistrate Judge's order and recommendation in full,
including as to scheduling resolution of the amount of
attorneys' fees and costs.
ORDERED that the plaintiff NuVasive's
motion for imposition of sanctions for spoliation of
evidence, Doc. 85, is GRANTED IN PART, the
defendant Kenneth Kormanis' objections to the Magistrate
Judge's order and recommendation, Doc. 165, are
OVERRULED, and the Magistrate Judge's
order and recommendation, Doc. 154, is
AFFIRMED and ADOPTED IN
 Mr. Kormanis is incorrect that this
Court must review de novo those portions of the
Magistrate Judge's report to which objection has been
made. Doc. 165 at 6. The Federal Magistrates Act, 28 U.S.C.
§ 636(b)(1), only requires de novo review of a
magistrate judge's recommendations on
“dispositive” matters, including but not limited
to summary judgment motions and motions to dismiss for
failure to state a claim. Gardendance, 230 F.R.D. at
447; see also Fed. R. Civ. P. 72(b). The district
court reviews a magistrate judge's ruling on a
non-dispositive matter solely to determine whether it is
“clearly erroneous or contrary to law.” See,
e.g., Gardendance, 230 F.R.D. at 447; 28 U.S.C.
§ 636(b)(1)(A); Fed.R.Civ.P. 72(a). The Magistrate