UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________

No. 99-40636 Summary Calendar ____________________

MARINA PATEL; HAGAI PATEL,

Plaintiffs-Appellants, versus

PRIME FITNESS INC., Etc.; ET AL,

Defendants,

PRIME FITNESS INC., doing business as Larry North Total Fitness, doing business as Larry North Fitness Center,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas (4:97-CV-221) _________________________________________________________________ February 29, 2000

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

Marina Patel, injured in January 1996 while using a leg-press

machine at Prime Fitness, Inc., and Hagai Patel, her husband, contest

the evidentiary rulings prohibiting them from introducing evidence of

spoliation of documents, some of which were Marina Patel’s “workout

card”, machine maintenance records, and an incident report; and

allowing evidence of their alien status.

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. In May 1997, Prime Fitness closed and divested itself of its

assets; that July, the Patels brought this negligence action. In

February 1998, when they requested the documents at issue, Prime

Fitness responded that they could not be located.

The Patels contend they were prohibited from introducing any

evidence regarding the absence and/or existence of the records,

hindering their ability to cross-examine and impeach Prime Fitness’

witnesses; and that they should have been allowed to raise the

inference that the records were unfavorable to Prime Fitness, because

they had informed it of a potential claim two months after Marina

Patel’s injury, and Prime Fitness failed to preserve them.

Evidentiary rulings are reviewed for abuse of discretion, we will not

reverse unless a party’s substantial rights are affected. See, e.g.,

FED. R. EVID. 103; Caparotta v. Entergy Corp.,

, 755-56

(5th Cir. 1999).

Contrary to the Patels’ assertion, the court ruled that they

could ask questions at trial about the absence of the records. Its

finding that the Patels had not produced sufficient evidence to

warrant a spoliation instruction was not an abuse of discretion; and

its prohibiting them from “referencing any allegations of spoliation

against [Prime Fitness]”, without first showing bad conduct on its

part, was consistent with our case law. See Vick v. Texas Employment

Comm’n,

(5th Cir. 1975) (“[t]he adverse inference

to be drawn from destruction of records is predicated on bad conduct

of the defendant”).

- 2 - For the other issue, the court denied the Patels’ motion in

limine to prohibit evidence regarding their alien status (Prime

Fitness contends the evidence was relevant to Marina Patel’s lost

earning capacity claim). But, because the Patels failed at trial to

object to the introduction of this evidence (as trial strategy, they

introduced evidence regarding their status), we review only for plain

error. See, e.g., United States v. Olano,

(1993)

(to warrant reversal, error must be clear, “affect[] substantial

rights”, and “‘seriously affect the fairness, integrity, or public

reputation of judicial proceedings.’”) (citation omitted); see also

Marceaux v. Conoco, Inc.,

(5th Cir. 1997) (“‘an

overruled motion in limine does not preserve error on appeal’”)

(citation omitted). The requisite prejudice is lacking.

AFFIRMED

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