Henderson v. Armstrong International, Inc. et al

Filing 147

ORDER: the Court GRANTS Plaintiffs Motions to Dismiss Counts IV and V without prejudice (Doc. 146). Defendant Armstrongs Motion to Dismiss (Doc. 141) is DENIED as Moot. Signed by Judge Staci M. Yandle on 12-19-14. (cmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ERICA
HERNDERSON
as
Special
Administrator of the Estate of DAVID
HENDERSON, and ERICA HENDERSON,
Individually,
Case No. 14-cv-00555-SMY-DGW
Plaintiff,
vs.
ARMSTRONG INTERNATIONAL INC., et
al.,
Defendants.

MEMORANDUM AND ORDER
This matter comes before the Court on defendant Armstrong International, Inc.’s Motion
to Dismiss Counts IV & V of Plaintff’s Complaint (Doc. 141) and Plaintiff’s Motion to
Voluntarily Dismiss Counts IV and V against Armstrong (Doc. 146).
The plaintiff filed his initial complaint in the Third Judicial Circuit, Madison County,
Illinois. (Doc. 2). The plaintiff alleges that the defendants, including Armstrong International,
caused or contributed to an asbestos injury and that they negligently (Count IV) and/or willfully
and wantonly (Count V)spoiled evidence. (Doc. 2). Armstrong International filed its Motion to
Dismiss Counts IV & V of Plaintff’s Complaint (Doc. 141) on November 7, 2014. And Plaintiff,
rather than filing a response, filed a Motion to Voluntarily Dismiss Counts IV and V against
Armstrong (Doc. 146). Armstrong has asked that the counts be dismissed with prejudice while
Plaintiff has asked that the counts be dismissed without prejudice.
“T]he decision to dismiss with or without prejudice is left to the sound discretion of the
court.” Sherrod v. Lingle, 223 F.3d 605, 614 (7th Cir.2000).

In this case, dismissal with

prejudice is not warranted. If the Plaintiff can develop evidence in the course of discovery that
defendants could anticipate lawsuits and that they should have preserved evidence, it may be
appropriate to file a motion for leave to amend in order to reinstate the claim. As to the claims
for willful and wanton spoliation, Illinois law has never recognized this claim. However, should
the Illinois Supreme Court recognize the claim during the pendency of the case or should
Plaintiff present evidence that would place the claim squarely in a forum that does recognize the
claim, Plaintiff may appropriately seek leave to amend.
For the foregoing reasons, the Court GRANTS Plaintiff’s Motions to Dismiss Counts IV
and V without prejudice (Doc. 146). Defendant Armstrong’s Motion to Dismiss (Doc. 141) is
DENIED as Moot.
IT IS SO ORDERED.

DATED: December 19, 2014
_/s/_Staci M. Yandle___
STACI M. YANDLE
DISTRICT JUDGE

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