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Thomas Botell, et al v. United States of America

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


May 13, 2013

THOMAS BOTELL, ET AL., PLAINTIFFS,
v.
UNITED STATES OF AMERICA, DEFENDANT.

ORDER

On March 20, 2013, the magistrate judge filed findings and recommendations herein which were served on the parties and which contained notice that any objections to the findings and recommendations were to be filed within fourteen days. Objections were filed on April 3, 2013, a reply was filed on April 10, 2013, and they were considered by the district judge.

This court reviews de novo those portions of the proposed findings of fact to which objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982). As to any portion of the proposed findings of fact to which no objection has been made, the court assumes its correctness and decides the motions on the applicable law. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge's conclusions of law are reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983).

The court has reviewed the applicable legal standards and, good cause appearing, concludes that it is appropriate to adopt the March 20, 2013 Findings and Recommendations in full,*fn1 except for the following modification to recommendation number three (dkt no. 91 at 21:1-2): Any determination whether spoliation of evidence precludes the defense of discretionary function is deferred until the court's resolution of plaintiff's currently pending motion for partial summary judgment. After resolution of plaintiff's motion for partial summary judgment, the court will notify the parties whether an evidentiary hearing regarding the spoliation of evidence as it relates to defendant's discretionary function defense is necessary. Accordingly, IT IS ORDERED that:

1. Plaintiffs' motion for sanctions for spoliation of evidence, filed December 24, 2012 (dkt. no. 77), is granted in part and denied in part.

2. It is established for all purposes in this case, that defendant is deemed to have been negligent in causing the death of Tommy Botell and injury to plaintiff K.B.

3. Any determination whether spoliation of evidence precludes the defense of discretionary function is deferred until the court's resolution of plaintiff's currently pending motion for partial summary judgment. After resolution of plaintiff's motion for partial summary judgment, the court will notify the parties whether an evidentiary hearing regarding the spoliation of evidence as it relates to defendant's discretionary function defense is necessary.


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