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Carol O'neal, As Personal Representative of the v. Count V Remington Arms Company

September 4, 2012


The opinion of the court was delivered by: Karen E. Schreier Chief Judge


Defendants, Remington Arms Company, LLC, Sporting Goods Properties, Inc. (SGPI), and E.I. du Pont de Nemours (DuPont), move to dismiss Count V of plaintiff's complaint, which alleges an independent cause of action for spoliation of evidence. Defendants argue that a stand-alone tort for spoliation of evidence is not a cognizable claim, and thus, plaintiff has failed to state a claim upon which relief can be granted. Docket 14 at 1. Carol O'Neal, as Personal Representative of the Estate of Lanny O'Neal, Deceased, plaintiff, opposes the motion. Docket 21 at 2. For the following reasons, defendants' motion to dismiss Count V is granted.


This litigation stems from Lanny O'Neal's accidental death, allegedly caused by a bullet that was fired from a Remington Model 700, a bolt action rifle that Remington designed, manufactured, sold, and distributed. Docket 1 ¶ 13. O'Neal alleges in her complaint that defendants are liable based on claims of strict liability, negligent design and manufacture, negligent failure to warn, strict liability failure to warn, and spoliation of evidence. Docket 1.


A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) requires the court to review only the pleadings to determine whether the plaintiff has stated a claim upon which relief can be granted. The facts alleged in the complaint must be considered true, and all inferences must be viewed in favor of the nonmoving party. Strand v. Diversified Collection Serv., Inc., 380 F.3d 316, 317 (8th Cir. 2004) (citing Stone Motor Co. v. Gen. Motors Corp., 293 F.3d 456, 465 (8th Cir. 2002)). The Supreme Court has recently emphasized that "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Id. at 678 (citations omitted). Further, the Supreme Court stated that "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679. "The plausibility standard . . . asks for more than a sheer possibility that defendant has acted unlawfully." Id. at 678.

To meet the Iqbal standard, a plaintiff must allege a claim that is facially plausible, not merely plausible. 556 U.S. at 663. "A complaint states a plausible claim for relief if its 'factual content . . . allows the court to draw the reasonable inference that the defendant is liable for the conduct misalleged.' " Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)(citing Iqbal, 556 U.S. at 678)). Nonetheless, the "fundamental tenet of Rule 12(b)(6) practice" that "inferences are to be drawn in favor of the non-moving party" has not changed. Id. at 595 (citations omitted).


O'Neal alleges that Remington destroyed documentary and physical evidence relating to the Model 700 rifle to "avoid liability" in this case and future litigation and pleads an independent cause of action for spoliation of evidence. Docket 1 ¶ 53. Remington argues that the complaint must be dismissed because there is not an independent cause of action for spoliation of evidence in South Dakota. O'Neal responds that although South Dakota courts have not addressed this precise issue, the cause of action is plausible and well-pleaded, and many other jurisdictions have accepted spoliation of evidence as a cause of action. Docket 21 at 2.

The question of spoliation here is limited to "first party" spoliation, which is spoliation of evidence by a party to the principal litigation, as opposed to "third party spoliation," which refers to spoliation by a non-party. Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349, 350 (Ind. 2005). Further, the spoliation at issue here is alleged to be intentional, not negligent. Docket 1 ¶ 53.

The South Dakota Supreme Court has not addressed whether it would recognize a cause of action for either intentional or negligent spoliation of evidence. "When a state's highest court has not addressed the precise question of state law that is at issue, a federal court must decide what the highest state court would probably hold were it called upon to decide the issue." Lenhardt v. Basic Inst. of Tech., Inc., 55 F.3d 377, 379 (8th Cir. 1995) (quotations omitted).

In South Dakota, proof of spoliation, or intentional destruction of evidence, gives rise to a spoliation inference. Thyen v. Hubbard Feeds, Inc., 804 N.W.2d 435, 439 (S.D. 2011). This inference creates the presumption that the destroyed evidence would have been unfavorable to the party who destroyed the evidence. Id. "Spoliation is established along with an unfavorable inference against the spoliator 'when substantial evidence exists to support a conclusion that the evidence was in existence, that it was in the possession or under the control of the party against whom the inference may be drawn, that the evidence would have been admissible at trial, and that the party responsible for destroying the evidence did so intentionally and in bad faith.' "

Id. (quoting State v. Engesser, 661 N.W.2d 739, 755 (S.D. 2003)). While spoliation has been recognized in South Dakota as creating an evidentiary inference, the South Dakota Supreme Court has not addressed whether intentional spoliation is a separate and independent tort.

The tort of intentional spoliation was first recognized in Smith v. Superior Court, 198 Cal. Rpt. 829 (1984).*fn1 A California appellate court declared that "the primary function of the tort of intentional spoliation is to compensate for the destruction of evidence even though the probative value of the evidence is not known, because the accuracy of the facts related to the evidence will never be restored." Smith, 198 Cal. Rpt. at 832. The Smith court analogized that spoliation of evidence was like the tort of interference with prospective business advantage. "[A] prospective civil action in a product liability case is a valuable 'probable expectancy' that the court must protect from the kind of interference alleged herein." Id. at 837. Later, courts agreed that the underlying premise for recognizing intentional spoliation is that "a victim of spoliation may recover compensatory and even punitive damages for the loss of a prospective lawsuit." Hirsch v. Gen. Motors Corp., 628 A.2d 1108, 1126 (N.J. 1993). Although the amount of damages is speculative, the " 'tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty.' " Smith, 198 Cal. Rpt. at 835 (citation omitted).*fn2 The resolution of the underlying claim, therefore, need not be determined ...

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