Azad v. Goodyear Tire and Rubber Company, USA
Filing
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ORDER Granting 25 Motion for Summary Judgment. The Clerk of the Court enter Judgment for Defendant and against Plaintiff. Signed by Judge Kent J. Dawson on 2/14/2013. (Copies have been distributed pursuant to the NEF - SLR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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MOINUL I. AZAD,
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Plaintiff,
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v.
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Case No. 2:11-CV-00290-KJD-GWF
THE GOODYEAR TIRE & RUBBER
CO.,
ORDER
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Defendant.
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Presently before the Court is Defendant’s Motion for Summary Judgment (#25). Plaintiff
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filed a response in opposition (#27) to which Defendant replied (#28). Defendant also filed a
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Supplement (#30) to its reply.
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I. Facts
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Plaintiff was involved in an automobile accident on July 17, 2010. At the time of the
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accident, Plaintiff told police officers that the accident occurred because a tire blew out.
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Approximately three months later, on October 7, 2010, Plaintiff faxed a letter dated October 6, 2010,
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to Defendant notifying Defendant for the first time of the subject accident. On October 12, 2010,
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Defendant responded to Plaintiff’s fax and asked Plaintiff to produce the subject tires for
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examination. On October 28, 2010, Plaintiff sent a fax to Defendant with a number of documents.
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One of the documents attached to the fax was a Simple Promissory Note. That Note
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indicated that on July 20, 2010, Plaintiff surrendered title to the subject vehicle to Quality Towing.
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On November 8, 2010, Defendant sent a letter to Plaintiff stating, in part: “This will also confirm our
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telephone conversation today, wherein you advised that the subject tire(s) and vehicle are no longer
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available and in fact have been salvaged along with the subject vehicle.” On December 10, 2010,
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Plaintiff faxed a letter to Defendant stating, in part: “Regarding proof of your actual tires on my
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vehicle, it will remain up to Goodyear Tire to do their own search about my car and tires on it, with
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the towing company/junk yard as evidence per their documents already sent to you at my cost.”
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Plaintiff’s amended complaint alleges that while he was driving on I-15 southbound on June
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17, 2010, two tires on his vehicle blew out causing an accident. On March 19, 2012, Defendant
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properly served Plaintiff with a Request for Production of Tires Pursuant to Rule 34. That Request
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demanded that Plaintiff produce “[t]he four tires, including any tire pieces that were mounted on
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Plaintiff’s 2002 KIA Sportage on June 17, 2010 and involved in the accident that is the subject of
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Plaintiff’s Amended Complaint.” Plaintiff’s response to Defendant’s Rule 34 request was due on
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April 23, 2012. Plaintiff has not served a written response or produced the tires for inspection.
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Also on March 19, 2012, Defendant properly served Plaintiff with Defendant’s First Set of
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Interrogatories Directed to Plaintiff. Interrogatory Number 14 asked: “State whether you are in
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possession of the tires involved in the Accident. If not, state the last time you were in possession of
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said tires, the circumstances under which they left your possession, and their current custodian and
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location.” Plaintiff’s response to Interrogatory Number 14 provides: “No. I explained in detail in
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Goodyear Tire Co.” Exhibit I at 2, Defendant’s Motion for Summary Judgment (#25-9).
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On March 19, 2012, Defendant served a subpoena on South Strip Towing (which also
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operates as Quality Towing). By letter dated April 3, 2012, South Strip Towing stated, in part: “The
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referenced vehicle was sold to All Japanese Auto on or about August 2, 2010.” On April 3, 2012,
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undersigned counsel called All Japanese Auto Parts and spoke to an unidentified male. The male
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asked for the vehicle identification number and stated that “It’s probably re-bar by now.” On April
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5, 2012, Defendant served a subpoena on All Japanese Auto Parts. On April 19, 2012, All Japanese
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Auto Parts sent a fax to counsel attaching a “Vehicle Scrapping” document. According to the
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Vehicle Scrapping report, the vehicle involved in the subject accident was scrapped on October 4,
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2010, which was three days prior to Defendant’s first notice of the incident or claims. Additionally,
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Defendant’s Interrogatory Number 18 stated: “If you claim that the tire described in your amended
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Complaint was defectively designed or manufactured or that the labeling or warnings on, attached to
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or accompanying the tire were inadequate, misleading or insufficient, set forth all facts (not legal
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conclusions) in support of your contention(s).” Plaintiff’s response to Interrogatory Number 18
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states: “N/A.”
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Defendant has now moved for summary judgment on Plaintiff’s claims, asserting that
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Plaintiff can produce no admissible evidence of product defect or negligence. Additionally,
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Defendant argues that Plaintiff’s claims should be dismissed as a Rule 37 sanction, since Plaintiff
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does not deny that he did not preserve the most crucial evidence in this action.
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II. Standard for Summary Judgment
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Summary judgment may be granted if the pleadings, depositions, answers to interrogatories,
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and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any
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material fact and that the moving party is entitled to a judgment as a matter of law. See Fed. R. Civ.
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P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the
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initial burden of showing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at
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323. The burden then shifts to the nonmoving party to set forth specific facts demonstrating a
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genuine factual issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
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587 (1986).
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All justifiable inferences must be viewed in the light must favorable to the nonmoving party.
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See Matsushita, 475 U.S. at 587. However, the nonmoving party may not rest upon the mere
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allegations or denials of his or her pleadings, but he or she must produce specific facts, by affidavit
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or other evidentiary materials as provided by Rule 56(e), showing there is a genuine issue for trial.
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See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The court need only resolve factual
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issues of controversy in favor of the non-moving party where the facts specifically averred by that
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party contradict facts specifically averred by the movant. See Lujan v. Nat’l Wildlife Fed’n, 497
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U.S. 871, 888 (1990); see also Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 345
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(9th Cir. 1995) (stating that conclusory or speculative testimony is insufficient to raise a genuine
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issue of fact to defeat summary judgment). Evidence must be concrete and cannot rely on “mere
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speculation, conjecture, or fantasy. O.S.C. Corp. v. Apple Computer, Inc., 792 F.2d 1464, 1467 (9th
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Cir. 1986). “[U]ncorroborated and self-serving testimony,” without more, will not create a “genuine
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issue” of material fact precluding summary judgment. Villiarimo v. Aloha Island Air, Inc., 281 F.3d
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1054, 1061 (9th Cir. 2002).
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Summary judgment shall be entered “against a party who fails to make a showing sufficient
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to establish the existence of an element essential to that party’s case, and on which that party will
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bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Summary judgment shall not be granted
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if a reasonable jury could return a verdict for the nonmoving party. See Anderson, 477 U.S. at 248.
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III. Analysis
Construing Plaintiff’s pro se complaint liberally, it appears that Plaintiff is attempting to
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bring tort and product liability claims against Defendant based on the alleged failure of Goodyear
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tires.
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A. Strict Products Liability Claim
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To state a claim for strict product liability under Nevada law, a plaintiff is required to prove:
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“(1) the product had a defect which rendered it unreasonably dangerous, (2) the defect existed at the
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time the product left the manufacturer, and (3) the defect caused the plaintiff’s injury.” Rivera v.
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Phillip Morris, 209 P.3d 271, 275 (Nev. 2009) (citing Fyssakis v. Knight Equip. Corp., 108 Nev.
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212, 214, 826 P.2d 570, 571 (1992)). “In strict product liability cases, the plaintiff carries both the
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burden of production and the burden of persuasion.” Id. (citing Shoshone Coca-Cola v. Dolinski, 82
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Nev. 439, 443, 420 P.2d 855, 857-58 (1966)). To prove proximate cause in a strict products liability
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action in Nevada, "the plaintiff must show that the design defect in the product was a substantial
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factor in causing his injury.” Price v. Blaine Kern Artista, Inc., 111 Nev. 515, 893 P.2d 367, 370
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(Nev. 1995).
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Here, Plaintiff has not identified any evidence from which a reasonable trier of fact could
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conclude by a preponderance of the evidence that the product had a defect which rendered it
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unreasonably dangerous and that it existed at the time the tires left the manufacturer. With the
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absence of the tires, there is no evidence, other than Plaintiff’s own statement, that the accident was
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even caused by a “blow out” of the tire as argued by Plaintiff. Other courts have held that “[f]ailure
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of a tire is not such an unusual event that a defect can be inferred solely from the fact that the
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accident occurred.” Clement v. Griffin, 634 So. 2d 412, 429-30 (La. App. 4th Cir. 1994); In re
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Bridgestone/Firestone Inc., 2003 WL 430491, *3-4 (S.D. Ind. Feb. 11, 2003)(in a similar case where
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tires were sold for salvage and were unavailable for production or inspection, the court concluded
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that plaintiff had not identified sufficient evidence from which a jury could reasonably conclude that
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the alleged defect caused the accident).
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Plaintiff has not opposed Defendant’s motion for summary judgment by setting forth any
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specific facts demonstrating a genuine factual issue for trial. Therefore, the Court grants Defendant’s
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motion for summary judgment on Plaintiff’s strict products liability claim.
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B. Negligence
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To state a claim for negligence under Nevada law, a plaintiff must establish: (1) the defendant
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owed a duty of care to the plaintiff; (2) the defendant breached that duty; (3) the breach was the legal
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cause of the plaintiff's injuries; and (4) plaintiff suffered damages. See Scialabba v. Brandise Constr.
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Co., 921 P.2d 928, 930, 112 Nev. 965, 968 (Nev. 1996).
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Here, Plaintiff’s negligence claim against Defendant must fail for the same reasons as his
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product liability claim. Specifically, Plaintiff cannot produce the subject tires and therefore cannot
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establish that they were defective. See, e.g., Trition Energy Corp. v. Page Airport Servs., 68 F.3d
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1216, 1218 n.1 (9th Cir. 1995) (“Continental argues that the district court erred by granting summary
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judgment solely on the basis of strict liability without resolving the breach of warranties and
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negligence claims. Because we find that the plaintiffs failed to establish that a defect existed at the
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time the circuit breaker passed to the hands of Square D, an element which is essential to both the
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breach of warranties and negligence claims, it is unnecessary to address these claims specifically.”).
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Therefore, the Court grants Defendant’s motion for summary judgment on Plaintiff’s claim for
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negligence.
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C. Sanctions for Spoliation
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Even if Plaintiff had produced enough evidence to survive the motion for summary judgment,
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the Court would still dismiss Plaintiff’s complaint. Litigants owe an “uncompromising duty to
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preserve” what they know or should know will be relevant evidence in a lawsuit even though no
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discovery requests have been made and no order to preserve evidence has been entered. Kronisch v.
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United States, 150 F.3d 112, 130 (2nd Cir. 1998); Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590
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(4th Cir. 2001); Sensonics, Inc. v. Aerosonic Corp., 81 F.3d 1566, 1575 (Fed. Cir. 1996); United
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Factory Furniture Corp. v. Alterwitz, 2012 WL 1155741, *3 (D. Nev. Apr. 6, 2012). “Under the
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court’s inherent power to manage its own affairs, the court may impose severe sanctions against a
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party that engages in the spoilation of evidence.” Alterwitz, 2012 WL 1155741 at *3.
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Before dismissing a case, the district court should consider the following factors: “(1) the
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public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its dockets; (3)
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the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases
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on their merits; and (5) the availability of less drastic sanctions.” Leon v. IDX Sys. Corp., 464 F.3d
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951, 958 (9th Cir. 2006). “While the district court need not make explicit findings regarding each of
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these factors, a finding of willfulness, fault, or bad faith is required for dismissal to be proper.” Id.
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Additionally, the district court must consider “less severe alternatives” than outright dismissal. Id.
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Here, dismissal of Plaintiff’s lawsuit is the only reasonable alternative to cure the
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insurmountable prejudice that Plaintiff has inflicted on Defendant through Plaintiff’s spoliation of
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the subject tires. There can be no dispute that Plaintiff’s spoliation of the tires was “willful” and
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“deliberate.” As evidenced by the Promissory Note attached as Exhibit D to Defendant’s Motion for
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Summary Judgment (#25), Plaintiff voluntarily sold the vehicle and tires to a third party, thereby
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ignoring his duty to preserve that evidence. In fact, the tires and vehicle involved in the July 17,
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2010 incident were scrapped on October 4, 2010, which was three days before Plaintiff placed
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Defendant on notice of this incident or claim.
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Moreover, an analysis of the Leon court’s five factor test strongly favors dismissing
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Plaintiff’s complaint. While the first, second and fourth factors are not at issue here, the third factor
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– the risk of prejudice to the party seeking sanctions – strongly favors dismissal. Plaintiff spoliated
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the central pieces of evidence in this case. It is difficult to think of an instance whereby a defendant
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could be more prejudiced than where it is forced to defend against a product defect claim without
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being able to examine the product. The primary manner in which defendants defend against product
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defect claims is by retaining experts to examine the product and opine on whether it is, in fact,
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defective. Plaintiff’s spoliation has deprived Defendant of seeking such evidence thereby
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depriving Defendant of its primary and best defense.
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The fifth Leon court factor also strongly favors dismissal because there is no less severe
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sanction that can cure the prejudice wrought by Plaintiff’s conduct. While the Court could bar
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Plaintiff from offering direct and circumstantial evidence regarding a product defect or instruct the
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jury on an adverse inference, such remedies are inadequate. As noted, Defendant has been denied its
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primary and best means of defending against Plaintiff’s claims. An adverse inference does not cure
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that problem. Further, barring all direct and circumstantial evidence of a product defect would result
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in the same outcome because Plaintiff’s complaint would have to be dismissed for lack of evidence.
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See Fire Ins. Exch. v. Zenith Radio Corp., 747 P.2d 911 (Nev. 1987). Therefore, the Court would
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dismiss Plaintiff’s complaint as a sanction for spoliation of evidence, if it had not already granted
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Defendant’s motion for summary judgment on the claims.
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IV. Conclusion
Accordingly, IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment
(#25) is GRANTED;
IT IS FURTHER ORDERED that the Clerk of the Court enter JUDGMENT for Defendant
and against Plaintiff.
DATED this 14th day of February 2013.
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_____________________________
Kent J. Dawson
United States District Judge
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