ROTHENBERG et al v. TARGET CORPORATION et al

Filing 26

MEMORANDUM OPINION. Signed by Magistrate Judge Tonianne J. Bongiovanni on 4/10/2014. (gxh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
.BARBARA ROTHENBERG, et al.,

Civil Action No. 13-1972 (PGS)

Plaintiffs,
MEMORANDUM OPINION

v.
TARGET CORPORATION, et al.

f·~~CEIVED

APR 10 2014

Defendants.
~\T

BONGIOVANNI, Magistrate Judge

8:30

M

,lii,;_UAM T WALSH CLERK

Currently pending before the Court is Plaintiff Barbara Rothenberg's ("Plaintiff') motion
seeking leave to file a Second Amended Complaint in order to add a count for fraudulent
concealment of evidence and to pursue punitive damages in connection with that count. [Docket
Entry No. 22]. Defendant Target Corporation ("Defendant" or "Target") opposes Plaintiffs
motion. The Court has fully reviewed the papers submitted in support of and in opposition to
Plaintiffs motion. The Court considers Plaintiffs motion without oral argument pursuant to
L.Civ.R. 78.l(b). For the reasons set forth below, Plaintiffs motion is DENIED.

I.

Background and Procedural History
This matter arises out of the slip and fall of Plaintiff Barbara Rothenberg at the Target

store located at 4955 U.S. 9 in the Township of Howell, County of Monmouth, State ofNew
Jersey. The incident is alleged to have occurred on April 22, 2012. Plaintiff filed her initial
Complaint on March 28, 2013 [Docket No. 1]. Target filed its Answer on April 5, 2013 [Docket
No.4]. On April17, 2013, Plaintiff filed a First Motion to Amend [Docket No.5]; which was
granted. Plaintiff filed her Amended Complaint [Docket No.8] on May 14, 2013.
On February 3, 2014, Plaintiff filed the pending motion to amend [Docket Entry No. 22].
Through this motion, Plaintiff seeks to add one count for fraudulent concealment of evidence and

to pursue punitive damages in connection with that count based on the alleged failure of Target
to provide a complete copy of the store's surveillance tapes, in particular two hours before the
incident and two hours after the incident, as well as all views of surveillance concerning the
incident.
Plaintiff argues that Target was in exclusive control and custody of the surveillance tapes
she seeks, which would have displayed Plaintiffs fall as well as the conditions of the store
leading up to and after said fall. In addition, Plaintiff argues that Target had a legal obligation to
preserve the surveillance videotapes in their entirety as they existed on April 22, 2012 and to
disclose this evidence in connection with an existing or pending lawsuit. Plaintiff further argues
that the evidence it seeks, i.e., surveillance tapes for two hours before and two hours after the
incident, as well as all views of surveillance concerning the incident, is material to the
underlying litigation and that Target should not be allowed to determine what relevant evidence
is preserved.
Plaintiff claims that Target intentionally withheld, altered or destroyed said surveillance
tapes and alleges that Target did so with the purpose to disrupt this litigation. Plaintiff argues
that she has been damaged by Target's action because the destroyed footage would have depicted
"the manner in which the liquid got onto the floor, how long the liquid was present prior to
[Plaintiffs] fall, who placed the liquid on the floor, what persons were in the area prior to and
after the fall and what steps were taken by the defendant to remove the liquid following her

fall.~''

(Pl. Reply Br. at 4). Further, Plaintiff notes that she could not have reasonably obtained access
to the destroyed surveillance footage from any source other than Target. For these reasons,
Plaintiff argues that she has asserted a viable claim for fraudulent concealment and likewise

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..
asserts that she has satisfied the requirements ofthe Punitive Damages Act, N.J.S.A 2a:15-5.12
and is entitled to punitive damages for Target's intentional wrongdoing.
Target opposes Plaintiffs motion. Target acknowledges that Federal Rule of Civil
Procedure ("Rule") 15(a) governs amendments to the pleadings. Rule 15(a) provides that leave
to amend "shall be freely given when justice so requires." Target, however, also notes that leave
to amend is not automatic. Instead, the Third Circuit has recognized that a request for leave to
amend may be denied when the proposed amendment is futile. An amendment is futile if it '"is
frivolous or advances a claim or defense that is legally insufficient on its face."' {Target Opp.
Br. at 2 (quoting Harrison Beverage Co. v. Dribeck Impss. Inc., 133 F.R.D. 463, 468 (D.N.J.
1990) (citations omitted))). Target notes that in determining whether an amendment is
insufficient on its face, the Court utilizes the same standard as employed in determining motions
under Rule 12(b)(6). In addition, Target asserts that under Rule 12(b)(6), a plaintiff has an
obligation to provide more than labels and conclusions to provide the grounds for his entitlement
to relief as a formulaic recitation of the elements of the claim will not do. (!d. (citing Bell At!.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Further, Target argues that in cases alleging fraud or mistake, like that asserted in
Plaintiff's proposed fraudulent concealment claim, Rule 9 (b) imposes a heightened pleading
standard. In this regard, Target argues that in order for a plaintiff to adequately plead a
fraudulent act under Rule 9 (b), that plaintiff must allege "'the circumstances of the alleged fraud
with sufficient particularity to place the defendant on notice of the precise misconduct with
which it is charged."' (!d. (quoting Federico v. Home Depot, 507 F 3d 188, 200 (3d Cir. 2007))). ·
Target argues that it has provided Plaintiff with the surveillance that best depicts the
incident itself, i.e., the surveillance that shows the Plaintiffs fall. Target further contends that

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there is no indication in the record that it intentionally withheld, altered or destroyed evidence
with the purpose to disrupt this litigation. In addition, Target claims that Plaintiff has not shown
how she has been damaged in by having to rely on the surveillance produced as opposed to video
surveillance for two hours before and after the fall. As a result, Target argues that Plaintiffs
proposed amendments are futile and Plaintiffs motion should be denied.

II.

Analysis

According to Rule 15(a), leave to amend the pleadings is generally given freely. See

Foman v. Davis, 371 U.S. 178, 182 (1962); Alvin v. Suzuki, 227 F3d 107, 121 (3d Cir. 2000).
Nevertheless, the Court may deny a motion to amend where there is "undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, [or] futility of the amendment." !d. However, where there is an absence of undue
delay, bad faith, prejudice or futility, a motion for leave to amend a pleading should be liberally
granted. Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004).
A motion to amend is properly denied where the proposed amendment is futile. An
amendment is futile if it "is frivolous or advances a claim or defense that is legally insufficient
on its face." Harrison Beverage Co. v. Dribeck Imp.,Inc., 133 F.R.D. 463, 468 (D.N.J. 1990). In

determining whether an amendment is "insufficient on its face," the Court employs the Rule
12(b)( 6) motion to dismiss standard and considers only the pleading, exhibits attached to the
pleading, matters of public record and undisputedly authentic documents if the party's claims are
based upon same. Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000). When considering whether
a pleading would survive a Rule 12(b)( 6) motion, the Court must accept all facts alleged in the
pleading as true and draw all reasonable inferences in favor of the party asserting them. Lum v.

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Bank ofAm., 361 F.3d 217, 223 (3d Cir. 2004). "Dismissal is appropriate only if, accepting all
of the facts alleged in the pleadings as true, the party has failed to plead 'enough facts to state a
claim to relief that is plausible on its face."' Duran v. Equifirst Corp., Civil Action No. 2:09cv03856, 2010 WL 918444, *2 (D.N.J. March 12, 2010) (quoting Bell At!. Corp. v. Twombly,
550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In other words, the facts alleged
must be sufficient to "allow the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
While a pleading does not need to contain "detailed factual allegations," a party's
"obligation to provide the grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.
Twombly, 550 U.S. at 555. Thus, the "factual allegations must be enough to raise a right to relief
above the speculative level." /d. In addition, although the Court must, in assessing a motion to
dismiss, view the factual allegations contained in the pleading at issue as true, the Court is "not
compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions
disguised as factual allegations." Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007).
Under New Jersey law, a plaintiff asserting a claim for fraudulent concealment must
establish the following five elements:
(1) That defendant in the fraudulent concealment action had a legal
obligation to disclose evidence in connection with an existing
or pending litigation;
(2) That the evidence was material to the litigation;
(3) That plaintiff could not reasonably have obtained access to the
evidence from another source;
(4) That defendant intentionally withheld, altered or destroyed the
evidence with purpose to disrupt the litigation;
(5) That plaintiff was damaged in the underlying action by having
to rely on an evidential record that did not contain the evidence
defendant concealed.

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Rosenblit v. Zimmerman, 166 N.J. 391, 406-07 (2001). Additionally, case law clearly indicates
that "the tort of fraudulent concealment ... may be invoked as a remedy for spoliation where
those elements exist." !d. at 407.
In determining whether a civil complaint sufficiently states a claim for relief, such as
Plaintiffs proposed fraudulent concealment claim, the Court applies a two-part test. First the
Court must separate the factual and legal elements of a claim. While the Court must accept as
true "all of the complaint's well pleaded facts," the Court "may disregard any legal conclusions."
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009) (citing Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949 (2009). Second, the Court "must then determine whether the facts alleged in
the complaint are sufficient to show the plaintiff has a 'plausible claim for relief."' !d. at 211
(quoting Iqbal, 129 S.Ct. at 1950). Merely alleging an entitlement to relief is insufficient.
Instead the complaint "has to 'show' such entitlement with the facts." !d. (citation omitted). A
complaint will be dismissed unless it contains "sufficient factual matter, accepted as true, 'to
state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly,
127 S.Ct. at 1955).
Further because Plaintiffs proposed amendment involves claims of fraud, the proposed
amended pleading must also satisfy Rule 9(b ). Rule 9(b) states, "In alleging fraud or mistake, a
party must state with particularity the circumstances constituting fraud or mistake. Malice,
intent, knowledge, and other conditions of a person's mind may be alleged generally." Thus,
under Rule 9(b), plaintiffs must plead with particularity the circumstances of the alleged fraud.
They need not, however, plead "the date, place or time of the fraud, so long as they use an
alternative means of injecting precision and some measure of substantiation into their allegations
of fraud." Seville Indus. Machinery v. Southmost Machinery, 742 F.2d 786, 791 (3d Cir. 1984).

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The Court finds that, as written, Plaintiffs proposed fraudulent concealment claim fails
to state a claim for relief under Rule 12(b)(6) and, therefore, Plaintiffs proposed amendments
are futile. While all of Plaintiffs proposed amendments appear in the newly added Third Count
of her proposed Second Amended Complaint, the Court sets forth the entirety of the allegations
asserted by Plaintiff in her proposed pleading:
Plaintiffs, BARBARA ROTHENBERG AND ALLEN
ROTHENBERG, her husband, residing at 706 Salem Court in
the Township of Yardley, County of Bucks and State of
Pennsylvania, by way of complaint, state:
FIRST COUNT

1. That on or about April 22, 2012, the Plaintiff,
BARBARA ROTHENBERG, was lawfully upon the premises
known as Target, located at 4955 U.S. 9 in the Township of
Howell, County of Monmouth and State ofNew Jersey.
2. That on or about April22, 2012 the Defendant,
TARGET CORPORATION, owned, maintained and/or
controlled the premises known as 4955 U.S. 9 in the Township of
Howell, County of Monmouth and State ofNewJersey.
3. That on or about July 9, 2012, the Defendant, TARGET
CORPORATION, was doing and continues doing business
throughout the State of New Jersey, with locations in Middlesex
County;
4. That on or about April22, 2012, the defendants, JOHN
DOES 1-10 AND ABC CORP. 1-10 (fictitiously named store
owners) and JANE ROES 1-10 AND DEF CORP. 1-10)
(fictitiously named property owners) owned, maintained and/or
controlled the premises known as 4955 U.S. 9 in the Township of
Howell, County of Monmouth and State of New Jersey.
5. That on or about April22, 2012, the Defendant,
TONYA HEALY, STORE MANAGER, was entrusted to the
maintenance of the store known as TARGET, located at 4955 U.S.
9 in the Township of Howell, County of Monmouth and State of
New Jersey.

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6. That on or about April 22, 2012, TONYA HEALY,
STORE MANAGER, failed to ensure that the premises and in
particular, the floor was safe and free of hazards for its customers.
7. T~at on the aforementioned date, the Plaintiff,
BARBARA ROTHENBERG was caused to slip and fall as a
result of negligence of the defendants in the ownership,
maintenance and control of their property.
8. As a direct and proximate result of said accident, the
Plaintiff, BARBARA ROTHENBERG, was caused to suffer
injuries; has and will be incapacitated from her normal activities;
has incurred out-of-pocket expenses, including but not limited to
medical bills, lost wages and other out-of-pocket expenses; and has
suffered pain and will suffer in the future.
.
WHEREFORE, based upon the foregoing, the Plaintiff,
BARBARA ROTHENBERG, demands judgment against the
defendants for said sums that would reasonably and properly
compensate her in accordance with the laws of the State of New
Jersey together with interest and court costs.
SECOND COUNT

1. Plaintiffs repeat, reiterate and reallege each and every
allegation contained in the First Count as if the same were set forth
at length herein.
2. Plaintiff, ALLEN ROTHENBERG, is at all times
herein mentioned and was and still is the lawful husband of the
Plaintiff, BARBARA ROTHENBERG, has and will be deprived
of the services and consortium of his wife, BARBARA
ROTHENBERG, as a result of the injuries to his wife.
WHEREFORE, the plaintiff, ALLEN ROTHENBERG,
hereby demands Judgment on this Count for damages, together
with interest and court costs.
THIRD COUNT

1. Plaintiffs repeat, reiterate and reallege each and every
allegation contained in the First and Second Counts as if the same
were set forth at length herein.
2. That between April22, 2012 to the present, Defendant,
TARGET CORPORATION, was in exclusive control and
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custody of surveillance videotapes in their store, specifically two
hours before the incident and two hours after the incident, as well
as additional surveillance recordings located throughout the store
which displayed Plaintiffs fall.
3. That between April 22, 2012 to the present, Defendant,
TARGET CORPORATION, had a legal obligation to preserve
the surveillance videotapes in their entirety as they existed on April
22, 2012 and disclose this evidence in connection with an existing
or pending litigation. This evidence was material to the underlying
litigation. Plaintiff, BARBARA ROTHENBERG, could not have
reasonably obtained access tot his [sic] evidence from any other
source. Defendant, TARGET CORPORATION, intentionally
withheld, altered or destroyed the evidence with the purpose to
disrupt this litigation and Plaintiff Rothenberg has been damaged
in her underlying action by having to rely on an evidential record
that did not contain the evidence Defendant concealed.
4. Pursuant to the Punitive Damage Act, N.J.S.A. 2a:155 .12, Plaintiff, BARBARA ROTHENBERG, has satisfied the
requirements of this Act and will be pursuing punitive damages for
intentional wrongdoing on behalf of the Defendants.
WHEREFORE, Plaintiff, BARBARA ROTHENBERG,
demands judgment against Defendant, Target Corporation, jointly,
severally or in the alternative in the amount of her damages and
cost of suit.
(Certification of Counsel, Ex. A, Plaintiffs Second Amended Complaint and Jury Demand;
Docket Entry No. 22).
The Court finds that after separating the well pleaded facts from the legal elements of
Plaintiffs claim for fraudulent concealment, the allegations in Plaintiffs proposed Second
Amended Complaint fail to establish a plausible claim for relief. Instead, as drafted, Plaintiffs
fraudulent concealment claim essentially boils down to a mere allegation that relief is warranted
without sufficient factual matter to show an entitlement to same. Indeed, as asserted, Plaintiffs
fraudulent concealment claim largely represents the "formulaic recitation of the elements of a
cause of action" that Twombly specifically held "will not do." 550 U.S. at 555. Of particular

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'

...

concern are Plaintiffs proposed allegations that Target intentionally withheld, altered or
destroyed the surveillance footage at issue with the purpose of disrupting this litigation.
Plaintiffs damages allegations are also problematic.
While Plaintiff need not plead intent with specificity (see Rule 9(b )), Plaintiff does need
to assert facts to support her claim that Target intentionally withheld, altered or destroyed its
surveillance footage with the purpose of disrupting this matter. Plaintiffs proposed Second
Amended Complaint, however, is devoid of any such facts. The same can essentially be said
about Plaintiffs claim that she has been damaged by Target's alleged concealment of the
surveillance footage she seeks. While Plaintiffs briefing on this motion contains additional
information not included in her proposed Second Amended Complaint, including, but not limited
to, the fact that Plaintiffs children requested that Target maintain a full copy of the surveillance
prior to this litigation being instituted and that the destroyed footage would have shown how the
liquid Plaintiff slipped on got onto the floor, 1 how long the liquid was on the floor prior to
Plaintiffs fall, what persons were in the immediate area of Plaintiffs fall prior to and after same
and what steps were taken by Target to clear away the liquid after Plaintiffs fall, none of these
facts are set forth in the proposed Second Amended Complaint. As such, the Court cannot
consider same in determining the sufficiency of the proposed pleading.
Under these circumstances, the Court finds that Plaintiffs proposed fraudulent
concealment claim and related request for punitive damages are futile. Consequently, Plaintiffs
motion is denied. Nevertheless, because it appears that Plaintiff may be able to state a claim for
fraudulent concealment under the liberal pleading standards set forth in Rule 15(a) if the
additional facts contained in her briefing are actually asserted in the pleading, the Court shall
1

The Court notes that neither Plaintiffs Amended Complaint nor her proposed Second Amended
Complaint even contain any allegations regarding the fact that Plaintiff allegedly slipped and fell on
liquid in the Target store at issue.
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permit Plaintiff to file a Second Amended Complaint, albeit not in the form attached to the
instant moti~n. To the extent Plaintiff intends on pursuing her fraudulent concealment claim and
request for punitive damages and believes she is in a position to address the Court's concerns at
this time, Plaintiff is directed to file a Second Amended Complaint asserting said claim no later
than April25, 2014. If more appropriate, Plaintiff may seek permission to file such an amended
pleading at later date if further discovery warrants same. If Plaintiff files a Second Amended
Complaint on or before April25, 2014, Target shall respond to Plaintiffs pleading in any matter
it deems appropriate in accordance with the timeline set forth in Rule 15(a)(3).

III.

Conclusion
For the reasons set forth above, Plaintiffs motion seeking leave to file a Second

Amended Complaint is DENIED. Plaintiff may, however, file a Second Amended Complaint in
accordance with this Opinion. An appropriate Order follows.

s/ Tonianne J. Bongiovanni
TONIANNE J. BONGIOVANNI
United States Magistrate Judge

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