Touchberry v. Coyote MS Mall LLC, et al

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1 The district court had jurisdiction over the case, as do
we, pursuant to Title 28 U.S.C. § 1332. The defendants removed
this case to federal court alleging that Holbrook, a Mississippi
resident, was fraudulently joined to defeat diversity
jurisdiction. Touchberry did not contest removal or the federal
court’s jurisdiction.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60779
Summary Calendar
DOROTHY L. TOUCHBERRY,
Plaintiff-Appellant,
versus
COYOTE MISSISSIPPI MALL, LLC, Etc., ET AL.
Defendants,
COYOTE MISSISSIPPI MALL, LLC, ET AL. d/b/a Metrocenter Mall; NINA
HOLBROOK,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
(Jackson Division)
(3:00-cv-109)
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May 13, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Dorothy L. Touchberry appeals the grant of
summary judgment in favor of Defendants-Appellees Coyote
Mississippi Mall, LLC d/b/a Metrocenter Mall (“Coyote”) and Nina
Holbrook, the general manager of Metrocenter Mall.1 Our de novo

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2 We have also considered and rejected Touchberry’s argument
on appeal, casting the destruction of the surveillance camera
tape as spoliation of evidence, and insisting that she was
entitled to a presumption that the evidence would have been
unfavorable to Coyote’s case. We have previously stated that the
adverse inference to be drawn from destruction of evidence is
predicated on bad conduct of the defendant, Vick v. Texas
Employment Commission, 514 F.2d 734, 737 (5th Cir. 1975), and
have declined to employ the adverse presumption when “[t]here was
indication ... that the records were destroyed under routine
procedures without bad faith.” Id. Touchberry offers no
evidence to support her assertion that the surveillance tape was
destroyed with fraudulent intent, rather than pursuant to the
security company’s standard procedure of erasing and recycling
tapes that showed nothing noteworthy after they had been held for
seven days. We therefore refuse to apply the presumption in the
instant case. Accord Washington v. State, 478 So.2d 1028, 1032
(Miss. 1985) (explaining that the negative presumption does not
arise “where the destruction was a matter of routine with no
fraudulent intent”).
2
review of the district court’s thorough opinion satisfies us that
the court correctly concluded that Touchberry failed to create a
genuine issue of material fact as to two essential elements of her
negligence claim against Coyote and Holbrook, to wit: breach of a
duty and proximate causation.2 For the reasons given by the
district court, whose opinion we incorporate by reference, we
affirm that court’s grant of Appellees’ motion for summary judgment
dismissing Touchberry’s action.
AFFIRMED.

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