Sims v. Euclid-Hitachi et al
Filing
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ORDER GRANTING 90 Motion for Leave to File Second Amended Complaint filed by Hitachi Construction Truck Manufacturing Ltd. Defendant/Third-Party Plaintiff shall file its Second Amended Third-Party Complaint consistent with this Order by 8/23/2011. Signed by Magistrate Judge Donald G. Wilkerson on 8/15/11. (alg)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DONALD SIMS,
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Plaintiff,
v.
HITACHI CONSTRUCTION
TRUCK MANUFACTURING,
LTD.
Defendant/Third-Party Plaintiff,
v.
PEABODY MIDWEST MINING, LLC,
Third-Party Defendant.
Case No. 09-cv-00734-JPG-DGW
ORDER
Currently pending before the Court is a Motion for Leave to File a Second Amended
Third-Party Complaint (Doc. 90) filed by Defendant/Third-Party Plaintiff Hitachi Construction
Truck Manufacturing, Ltd. (“Hitachi”). Third-Party Defendant Peabody Midwest Mining, LLC
(“Peabody”) filed a Response (Doc. 90) and Hitachi filed a Reply (Doc. 97). For the reasons set
forth below, Plaintiff’s Motion is GRANTED.
Background
On December 4, 2009, Plaintiff Donald Sims filed his Second Amended Complaint
against Hitachi for injuries allegedly sustained on July 21, 2007, while attempting to escape a
fire that ignited while he was operating an R190 Euclid-Hitachi Rigid Frame Truck (“R190
Truck”) at a mine owned and operated by Third-Party Defendant Peabody (Docs. 14, 90). At the
time of the accident, Plaintiff was employed as an end dump driver with Third-Party Defendant
Peabody, and he operated the R190 Truck during the course of his employment with Peabody.
Id.
On November 11, 2010, Defendant Hitachi filed a Third-Party Complaint for
Contribution against Peabody claiming that Peabody maintained control and possession of the
R190 Truck that Plaintiff was operating at the time of his accident (Doc. 60).
On July 13, 2011, Hitachi filed a Motion for Leave to File a Second Amended ThirdParty Complaint for contribution against Peabody (Doc. 90). The proposed amended third-party
complaint seeks to add a new claim for negligent spoliation of evidence. Id. Hitachi claims that
Peabody had a duty to preserve the R190 Truck and its component parts. Hitachi alleges that
Peabody breached its duty by permitting removal, modification, alteration and destruction of the
R190 Truck and its component parts and permitting the continued use of the R190 Truck by its
employees after modifications and repairs were made. As a result of Peabody’s alleged conduct,
Hitachi argues, it is unable to properly defend the underlying lawsuit which necessarily entitles it
to punitive damages and attorney’s fees.
Peabody challenges the proposed third-party amended complaint for four reasons (Doc.
93). First, Peabody argues that Hitachi’s claim for negligent spoliation of evidence fails as a
matter of law because it did not breach any duty to preserve evidence. Second, Peabody
contends that any claim for intentional spoliation of evidence should be stricken because Illinois
does not recognize such a cause of action. Third, Peabody contends that Hitachi cannot establish
that it is entitled to punitive damages. Fourth, Peabody argues that there is no justification for an
award of attorney’s fees. In other words, Peabody argues that Hitachi’s Motion to Amend
should be denied because it is futile.
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Standard
Federal Rule of Civil Procedure 15(a) instructs district courts to freely grant parties leave
to amend when justice so requires. “Although the rule reflects a liberal attitude towards the
amendment of pleadings, courts in their sound discretion may deny a proposed amendment if the
moving party has unduly delayed in filing the motion, if the opposing party would suffer undue
prejudice, of if the pleading is futile.” Soltys v. Costello, 520 F.3d 737, 747 (7th Cir. 2008)
(quoting Campania Mgmt. Co. v. Rooks, Pitts & Poust, 290 F.3d 843, 848-849 (7th Cir. 2002)).
If an amended claim would not survive a motion to dismiss, the amendment is futile. Sound of
Music Co. v. Minnesota Mining & Mfg. Co., 477 F.3d 910, 922 (7th Cir. 2007). To state a claim
upon which relief may be granted, a plaintiff must provide only “enough detail to give the
defendant fair notice of what the claim is and the grounds upon which it rests, and, through his
allegation, show that it is plausible, rather than merely speculative, that he is entitled to relief.”
Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008) (citations omitted). In making this
assessment, the court accepts as true all well-pled factual allegations and draws all reasonable
inferences in plaintiff’s favor. Rujawitz v. Martin, 561 F.3d 685, 688 (7th Cir. 2009).
Analysis
Negligent Spoliation of Evidence Claim
Peabody argues that Hitachi cannot state a claim for negligent spoliation of evidence
because it did not breach a duty to preserve evidence. However, a claim will be dismissed “only
if it is clear that no relief could be granted under any set of facts that could be proved consistent
with the allegations in the complaint,” as a “liberal notice pleading philosophy . . . underlies the
Federal Rules of Civil Procedure.” Cook v. Winfrey, 141 F.3d 322, 327 (7th Cir. 1998) (internal
quotes omitted). In its proposed amended third-party complaint, Hitachi alleges that Peabody
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maintained control and possession of the R190 truck and its component parts, and following the
June 21, 2007 accident, it performed an inspection and investigation of the truck and its
component parts to discover possible causes of the incident.
After the completion of its
investigation, Hitachi claims that Peabody secured and segregated the R190 truck and its
component parts and assumed a duty to preserve the critical evidence when it knew or should of
known that the truck and its component parts would be subjection to litigation and/or
investigation by state and federal agencies. As a result of Peabody’s failure to maintain the R190
truck and its component parts, Hitachi alleges that it was unable to inspect the truck after the
accident and before the component parts were removed, altered or destroyed which renders it
unable to properly defend itself in the lawsuit.
In light of the liberal notice pleading philosophy of the Federal Rules of Civil Procedure,
the Court finds that Hitachi sufficiently plead the claim of negligent spoliation of evidence. See
Dardeen v. Kuehling, 821 N.E.2d 227, 231 (Ill. 2004) (to sufficiently plead a negligent spoliation
claim, plaintiff must allege the standard negligence elements: defendant owed a duty, the
defendant breached that duty, and the defendant’s breach proximately caused plaintiff’s
damages); Boyd v. Travelers Ins. Co., 652 N.E.2d 267, 270-271 (Ill. 1995) (same).
Intentional Spoliation of Evidence Claim
Hitachi does not assert a separate claim for intentional spoliation of evidence. Rather,
Hitachi makes several references to Peabody’s alleged “intentional acts of spoliation” in
paragraphs 22, 25 and 30 in Count II (Negligent Spoliation of Evidence) of its proposed
amended third-party complaint. In Borsellino v. Goldman Sachs Group, Inc., 477 F.3d 502 (7th
Cir. 2007), the Seventh Circuit emphasized that Illinois does not recognize a tort of intentional
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spoliation of evidence. See also Boyd, 652 N.E.2d at 269-270. Therefore, Hitachi claims for
intentional spoliation of evidence fail as a matter of law.
Prayer for Punitive Damages
Peabody also contends that Hitachi is not entitled to punitive damages because Hitachi
has not alleged any conduct that would permit it to recover punitive damages. Whether punitive
damages can be awarded for a particular cause of action is a question of law, but whether a
defendant’s conduct was sufficiently willful or wanton to justify the imposition of punitive
damages is a fact question for the jury to decide. Medow v. Flavin, 782 N.E.2d 733, 746 (Ill.
App. Ct. 2002). An award of punitive damages is appropriate where the underlying tort is
accompanied by aggravated circumstances such as wantonness, willfulness, malice, fraud, or
oppression, or when the defendant acts with such gross negligence as to indicate a wanton
disregard for the rights of others. In re Estate of Hoellen, 854 N.E.2d 774, 786 (Ill. Ct. App.
2006) (internal citations omitted).
Hitachi’s proposed amended third-party complaint alleges that Peabody acted in
“complete and reckless disregard” of the critical nature of the R190 Truck and its component
parts when it carelessly committed numerous acts of spoliation when it knew or should have
known of potential litigation and investigations relating to the July 12, 2007 incident. When the
record is more complete, revealing details as to the specific actions of Peabody with regard to the
control and maintenance of the R190 Truck and its component parts, it may be evident that
punitive damages are not recoverable. But at this stage in the litigation (discovery is permitted
through April 27, 2012) and in the context of the pending motion, the Court cannot declare that
the punitive damage prayer is futile.
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Request for Attorney’s Fees
“Illinois follows the ‘American Rule’ of litigation, under which successful parties are
generally responsible for their own attorney’s fees unless a statute or contract provides
otherwise.” Rexam Beverage Can Co. v. Bolger, 620 F.3d 718, 734 (7th Cir. 2010). Hitachi has
not pointed to any statute or contract that would warrant an award of attorney’s fees against
Peabody. Therefore, Hitachi’s request for attorney’s fees fail.
Conclusion
For the reasons stated above, Hitachi’s Motion for Leave to File Second Amended ThirdParty Complaint (Doc. 90) is GRANTED. The Second Amended Third-Party Complaint shall
not contain allegations of intentional spoliation of evidence or a request for attorney’s fees.
Plaintiff shall file its Second Amended Third-Party Complaint consistent with this Order by
August 23, 2011.
IT IS SO ORDERED.
DATED: August 15, 2011
___________________________
DONALD G. WILKERSON
United States Magistrate Judge
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