                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 09-12375                ELEVENTH CIRCUIT
                                                           OCTOBER 30, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                  D. C. Docket No. 07-00903-CV-T-TBM

JEAN COX,


                                                           Plaintiff-Appellant,

                                  versus

TARGET CORPORATION,

                                                          Defendant-Appellee.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                            (October 30, 2009)

Before BLACK, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:
      Jean Cox appeals the court’s order denying her motion for a new trial in her

action against Target Corporation (“Target”). We conclude that the court did not

abuse its discretion and affirm.



                                   I. Background

      According to evidence adduced at trial, Cox fell at 4:35 p.m. while shopping

in the Health and Beauty Aids department of one of Target’s retail stores. After

costly lower back surgery, she brought a negligence claim against Target in state

court, seeking compensatory damages for Target’s failure to clean up a foreign

substance on the floor that allegedly caused her fall. Target removed the case to

federal court and both parties consented to a jury trial before a magistrate judge

pursuant to 28 U.S.C. § 636(c).

      Before trial, the court gave a specific order forbidding Target from

suggesting that Cox was a litigious person. During trial, Cox twice objected to

actions of Target’s counsel on the ground that they violated the court’s order. On

the first objection, Cox moved for a mistrial when Target’s counsel asked Cox on

cross examination if she had brought a claim and been deposed concerning a

previous fall at another retail store. On Cox’s second objection, after defense

counsel again mentioned that Cox had brought a claim and been deposed for a



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previous fall, the court issued a curative instruction to the jury.

         At trial, Target produced evidence suggesting that no foreign substance was

on the floor. In particular, Target presented the testimony of Target’s on-duty

safety manager, Susan Lockery, who testified that Cox had told her nothing was on

the floor just after the fall. Lockery then testified that she personally verified

Cox’s statement by wiping her hand on the floor and finding that the area was dry.

         Target also produced videotape footage of the area where Cox fell ten

minutes prior to her fall, showing an employee working in the area. Cox

questioned the fact that there was no videotape evidence of the area at the exact

time of her fall. Consequently, Cox moved for sanctions against Target for

spoliation of evidence, alleging that Target acted in bad faith by destroying

videotape evidence relating to Cox’s fall. Specifically, Cox requested a jury

instruction stating that, if the jury found that Target disposed of the videotape

before giving Cox an opportunity to review it, the failure to preserve it would raise

a rebuttable presumption that this evidence would be unfavorable to Target.1 The

court denied this motion, finding that there was not an adequate showing of bad

faith.



         1
        In Flury v. Daimler Chrysler Corp., 427 F.3d 939 (11th Cir. 2005), this court held that a
sanction in accordance with principles of federal spoliation law was a jury instruction raising a
presumption against the spoliator.

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      At the conclusion of a two-and-a-half day trial, the jury returned a verdict in

favor of Target. Cox then moved for a new trial, arguing that (1) opposing counsel

had violated the court’s prior order by suggesting that Cox was a litigious person,

and (2) the court erred in failing to instruct the jury on spoliation of evidence. The

court denied Cox’s motion on both grounds. Cox now appeals.



                                    II. Discussion

      We review the denial of a motion for a new trial for an abuse of discretion.

Goldstein v. Manhattan Indus., 758 F.2d 1435, 1447-48 (11th Cir. 1985).

      We conclude that the court did not abuse its discretion in denying Cox’s

motion for a new trial on either ground. First, Target did not violate the court’s

order by suggesting that Cox was litigious. Target’s counsel never specifically

referred to Cox as “litigious” and only mentioned her prior claim and deposition

twice in front of the jury. Taken together, these incidents do not rise to the level of

a direct violation of the court’s order requiring us to grant Cox a new trial. Cf.

McWhorter v. City of Birmingham, 906 F.2d 674 (11th Cir. 1990) (concluding that

a new trial was warranted when plaintiff’s counsel, in violation of a court order

prohibiting mention of a prior claim, both extensively argued his case using the

prior lawsuit and sent an excluded exhibit to the jury). Moreover, Target’s counsel



                                           4
raised the issue on cross examination of Cox after Cox already raised the incident

on her direct examination. Finally, when Target’s counsel mentioned Cox’s

previous lawsuit and deposition in his closing argument, the court immediately

issued a curative instruction to the jury, directing it not to consider the mere fact

that Cox had made another claim. Thus, the court was acting well within its

discretion in finding that Target’s counsel had not violated the court order against

suggesting that Cox was litigious.

      We also conclude that the court acted within its discretion in denying Cox’s

motion for a jury instruction on spoliation of evidence. A jury instruction on

spoliation of evidence is required “only when the absence of that evidence is

predicated on bad faith.” Bashir v. Amtrak, 119 F.3d 929 (11th Cir. 1997). Cox

identified no evidence in the record suggesting that Target had destroyed the

relevant videotape in bad faith. In fact, given the uncontroverted testimony of a

Target employee that Target’s surveillance cameras do not provide comprehensive

coverage of the entire store at all times, Cox was unable to establish that videotape

footage of her fall existed at all. As a result, the court was acting wholly within the

scope of its discretion, and we will not disturb its ruling.




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                            III. Conclusion


For the reasons stated above, we affirm the court’s order.


AFFIRMED




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