                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                        May 31, 2006
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court



    NO RM AN H. RO W E,

                Plaintiff-Appellant,

    v.                                                   No. 05-4113
                                                  (D.C. No. 2:01-CV-78-TC)
    ALBERTSON’S, IN C.,                                   (D. Utah)

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.




         Plaintiff Norman H. Rowe, a Utah citizen appearing pro se, filed a

negligence complaint against Albertson’s Inc., arising from his slip and fall in one

of Albertson’s Texas stores. The district court, applying Texas law in the

diversity action, granted Albertson’s m otion for summary judgment. On appeal,




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
a panel of this court affirmed the summary judgment as to all issues except one:

we ordered a limited remand directing the district court to determine whether the

evidentiary doctrine of spoliation should apply with respect to a store videotape

that A lbertson’s did not preserve. Rowe v. Albertson’s, Inc., 116 F.App’x 171,

176 (10th Cir. 2004). On remand, the district court ruled that M r. Rowe was not

entitled to a presumption of spoliation, and again granted Albertson’s motion for

summary judgment. W e affirm.

      The Albertson’s store in which M r. Rowe fell was equipped with a video

surveillance system. After M r. Row e’s fall, two A lbertson’s employees,

M s. Enloe and M r. M iller examined the relevant videotape and concluded it did

not show M r. Rowe’s fall or the condition of the floor near the time of his fall.

The videotape was later recorded over as part of Albertson’s routine recycling of

surveillance tapes. W e need not describe further background information, which

may be found in our earlier order and judgment. Id. at 172-73.

      In our earlier decision, we concluded that M r. Rowe had failed to present

any evidence that Albertson’s had either actual or constructive knowledge of the

dangerous condition–the water on which he slipped–on its premises or that it

failed to exercise reasonable care to mitigate or eliminate the risk. Id. at 173.

W e concluded, however, that M r. Rowe may have been unable to present

favorable evidence because Albertson’s intentionally recycled the videotape that

might have shown how long the water was on the floor or whether employees had

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knowledge of the floor’s condition. Thus, we remanded to the district court for

a determination of whether M r. Rowe was entitled to an inference of spoliation

sufficient to allow him to survive summary judgment.

      Under Texas law, the intentional destruction, or spoliation, of evidence

relevant to a case may, in the district court’s discretion, give rise to a presumption

that the destroyed evidence would have been unfavorable to its destroyer.

Aguirre v. S. Tex. Blood & Tissue Ctr., 2 S.W .3d 454, 457 (Tex. Ct. App. 1999).

A presumption of spoliation may preclude summary judgment. Id. The person

asserting the presumption must show that “the party who destroyed the evidence

had notice both of the potential claim and of the evidence’s potential relevance.”

Wal-M art Stores, Inc. v. Johnson, 106 S.W .3d 718, 722 (Tex. 2003). The

presumption “may be rebutted by showing that the evidence in question was not

destroyed with fraudulent intent or purpose.” Aguirre, 2 S.W .3d at 457.

      In this case, the district court concluded that, while a close question,

M r. Rowe had presented sufficient evidence indicating that Albertson’s could

reasonably have anticipated that M r. Rowe was likely to file a claim for relief.

Nonetheless, it ruled that M r. Rowe had not demonstrated that the videotape had

any relevance to his claim. It therefore ruled that M r. Rowe was not entitled to a

presumption of spoliation and reaffirmed its grant of summary judgment in favor

of A lbertson’s.




                                          -3-
      M r. Rowe challenges the district court’s ruling on appeal, contending that

there are disputed issues of fact. W e review the district court’s rejection of

M r. R owe’s requested spoliation presumption for an abuse of discretion.

Wal-M art Stores, 106 S.W .3d at 723.

        Here, as comprehensively detailed by the district court, the undisputed

evidence indicated that the recycled videotape did not show M r. Rowe’s fall or

the liquid on the floor. M s. Enloe testified that the videotape showed “nothing,”

that it did not show M r. Rowe’s fall, but only showed her w alking over to him.

R., Vol. IV, Doc. 141, Ex. H, at 34-35. M r. M iller testified that he would have

preserved the videotape if it had shown M r. Rowe’s fall or the incident. See id.,

Ex. I, at 49-50.

      Under Texas law governing spoliation, “if the nonproducing party testifies

as to the substance or content of the missing evidence, an opposing party is not

entitled to the presumption.” Brumfield v. Exxon Corp., 63 S.W .3d 912, 920

(Tex. Ct. App. 2002) (denying spoliation presumption where nonproducing party

witnesses testified as to the content of the recycled surveillance videotape).

M oreover, as noted above, the person requesting the presumption of spoliation

has the affirmative burden of persuasion to demonstrate the potential relevance of

the unavailable evidence. Wal-M art Stores, 106 S.W .3d at 722 (applying Texas

law ); see also M ichael H. Graham, Federal Practice and Procedure § 7003 n.12

at 39 (interim ed. 2006) (“sponsor of the inference must proffer evidence

                                          -4-
sufficient to permit the trier [of fact] to find . . . the document’s potential

relevance to [the] claim.”); Kronisch v. United States, 150 F.3d 112, 128 (2d Cir.

1998) (holding that party requesting presumption must produce “some (not

insubstantial) evidence” indicating that the destroyed evidence would have been

relevant to the contested issue).

       Instead of presenting any affirmative evidence indicating that the

videotape might have some relevance, M r. Rowe simply makes conclusory

charges that M s. Enloe and M r. M iller are not credible. This is insufficient to

satisfy his burden of persuasion or to defeat summary judgment. See Nat’l Am.

Ins. Co. v. Am. Re-Ins. Co., 358 F.3d 736, 742 (10th Cir. 2004) (“Standing alone,

attacks on the credibility of evidence offered by a summary judgment movant do

not warrant denial of a summary judgment motion”); L & M Enters., Inc. v. BEI

Sensors & Sys. Co., 231 F.3d 1284, 1287 (10th Cir. 2000) (“Unsupported

conclusory allegations . . . do not create a genuine issue of fact”).

      W e conclude that the district court did not abuse its discretion in denying

M r. Rowe’s requested spoliation presumption and ruling that Albertson’s

recycling of the videotape, by itself, was not enough for M r. Rowe to survive

summary judgment on his negligence claim. See Kronisch, 150 F.3d at 128 (when

a party “has produced no evidence--or utterly inadequate evidence--in support of

a given claim,” “the destruction of evidence, standing alone, is [not] enough to

allow [the] party . . . to survive summary judgment on that claim”).

                                           -5-
The judgment of the district court is AFFIRMED.


                                          Entered for the Court



                                          John C. Porfilio
                                          Circuit Judge




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