O'Neal v. Remington Arms Company, LLC et al

Filing 36

ORDER granting 14 Motion to Dismiss Count V. Signed by Chief Judge Karen E. Schreier on 9/3/2012. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
CAROL O’NEAL, as Personal
Representative of the Estate of Lanny
O’Neal, Deceased,
Plaintiff,
vs.
REMINGTON ARMS COMPANY, LLC,
SPORTING GOODS PROPERTIES,
INC., and
E.I. DU PONT DE NEMOURS AND
COMPANY,
Defendants.

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CIV. 11-4182-KES
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) ORDER GRANTING DEFENDANTS’
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MOTION TO DISMISS
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COUNT V
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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.

BACKGROUND
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.
STANDARD OF REVIEW
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

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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).
DISCUSSION
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.

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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.’ ”

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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).1 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

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Later, the Supreme Court of California limited the scope of Smith’s
holding to rule that there is no tort remedy for intentional spoliation of
evidence by a party if “spoliation is or reasonably should have been discovered
before the trial or other decision on the merits of the underlying cause of
action.” Cedars-Sinai Med. Ctr. v. Superior Court, 74 Cal. Rptr. 2d 248, 250
(1998). Then, California extended the Cedars-Sinai holding to third-party
claims for spoliation. See Temple Cmty. Hosp. v. Superior Court, 976 P.2d 223
(Cal. 1999) (emphasizing the need for “finality of adjudication,” for the
spoliation tort would “require retrial of the first case in order to permit the
plaintiff to demonstrate in what respect the alleged spoliation altered the
outcome of the first trial”).
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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).2 The resolution of
the underlying claim, therefore, need not be determined before recognizing
spoliation. A separate cause of action for spoliation would avoid “needless
duplication of effort, two trials involving the same evidence, [and] time and
expense imposed on litigants and the judicial system.” Id. at 837. Additionally,
the jury would be uniquely equipped to determine how the plaintiff was
harmed. Id.
Most jurisdictions have not been persuaded by the Smith rationale and
do not recognize intentional spoliation as a tort. There are numerous reasons
that courts refuse do so. Primarily, “[s]peculation is a prime concern in the
context of a spoliation claim because . . . it is impossible to know what the
destroyed evidence would have shown.” Federated Mut. Ins. Co. v. Litchfield
Precision Components, Inc., 456 N.W.2d 434, 438 (Minn. 1990). The most

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Courts in favor of recognizing spoliation of evidence also have deemed
non-tort remedies, including discovery sanctions and the plaintiff’s ability to
request default judgment, “insufficient to compensate victims of spoliation and
to deter future spoliation when a first party defendant destroys evidence
intentionally with the purpose and effect of precluding a plaintiff from fulfilling
his burden of production in a pending or impending case.” Rizzuto v. Davidson
Ladders, Inc., 905 A.2d 1165, 1178 (Conn. 2006).
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difficult aspect of a spoliation claim is calculation of damages, for the tort
“does not allow for standard calculations of damages to the proper degree of
certainty.” Holmes v. Amerex Rent-A-Car, 710 A.2d 846, 852 (D.C. 1998).
Courts also have found that existing remedies can address adequately the
spoliation problem. Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005)
(employing sanctions during pending litigation to deter spoliation); Meyn v.
State, 594 N.W.2d 31, 34 (Iowa 1999) (declining to recognize negligent
spoliation as a tort cause of action because discovery sanctions for spoliation
already exist); Sharpnack v. Hoffinger Indus., Inc., 499 S.E.2d 363 (Ga. Ct. App.
1998) (recognizing spoliation as a “serious discovery abuse”).
For public policy reasons, courts have noted that recognizing intentional
spoliation of evidence might create undue burdens on litigants and flood the
courts with relitigation of issues. Meyn, 594 N.W.2d at 34 (holding that
recognizing spoliation of evidence is “inconsistent with the policy favoring final
judgment”); Koplin v. Rosel Well Perforators, Inc., 734 P.2d 1177, 1183 (Kan.
1987) (ruling that recognizing spoliation of evidence creates a “generation of
endless litigation” that is at odds with policy favoring final judgment). In
particular, the “incremental additional benefits a tort remedy might create” are
outweighed by “the indirect costs by causing persons or entities to take
extraordinary measures to preserve for an indefinite period documents and
things of no apparent value solely to avoid the possibility of spoliation liability

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if years later those items turn out to have some potential relevance to future
litigation.” Cedars-Sinai, 74 Cal. Rptr. 2d at 248. Creating this entirely new tort
would “only lead to duplicative litigation, encouraging inefficient relitigation of
issues better handled within the context of the core cause of action.” Trevino v.
Ortega, 969 S.W.2d 950, 951-52 (Tex. 1998). The majority of jurisdictions3 who

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Christian v. Kenneth Chandler Constr. Co., 658 So. 2d 408, 413 (Ala.
1995) (declining to recognize intentional spoliation of evidence as a new cause
of action); Lips v. Scottsdale Healthcare Corp., 229 P.3d 1008, 1009 (Ariz. 2010)
(citing other courts’ refusal to create a distinct cause of action for first-party,
intentional spoliation as a reason to forgo recognizing spoliation); Goff v. Harold
Ives Trucking Co., 27 S.W.3d 387, 391 (Ark. 2000) (ruling that “the plaintiff can
ask for discovery sanctions” instead of creating a “new tort out of whole cloth to
provide a party with a remedy”); Cedars-Sinai, 74 Cal. Rpt. 2d at 250 (citing
that the costs of developing or reconstructing destroyed evidence “is not
enough to justify creating tort liability for such conduct”); Lucas v. Christiana
Skating Ctr., Ltd., 722 A.2d 1247, 1249 (Del. 1998) (emphasizing Delaware’s
anti-tampering statute and concluding that “it would be repetitive for the Court
to recognize new tort-based causes of action” for intentional spoliation);
Martino, 908 So. 2d at 347 (Fla. 205) (declining to recognize a cause of action
for first-party spoliation of evidence); Butler v. Turner, 555 S.E.2d 427, 432 (Ga.
2001) (noting that Georgia does not recognize any independent causes of action
caused by spoliation of evidence); Boyd v. Travelers Ins. Co., 652 N.E.2d 267,
270 (Ill. 1995) (rejecting tort status for intentional spoliation of evidence as a
new tort); Gribben, 824 N.E.2d at 355 (“Indiana does not recognize a claim for
first-party negligent or intentional spoliation of evidence.”) (quotations omitted);
Meyn, 594 N.W.2d at 34 (Iowa 1999); Superior Boiler Works, Inc. v. Kimball, 259
P.3d 676, 690 (Kan. 2011) (listing several policy concerns, including “endless
litigation,” for refusing to recognize intentional spoliation of evidence);
Monsanto v. Reed, 950 S.W.2d 811, 815 (Ky. 1997) (declining to create a new
tort for spoliation because “remedy for the problem before [the court] is well
within the realm of existing tort law”); Miller v. Montgomery Cnty., 494 A.2d
761, 767-68 (Md. 1985) (ruling that there is no separate cause of action for
spoliation); Fletcher v. Dorchester Mut. Ins. Co., 773 N.E.2d 420, 424 (Mass.
2002) (“To date, we have not recognized a cause of action for spoliation of
evidence”); Teel v. Meredith, 774 N.W.2d 527, 532 (Mich. 2009) (declining to
announce spoliation, “an as-yet unrecognized cause of action,” as a remedy);
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Federated Mut. Ins. Co., 456 N.W.2d at 437 (Minn. 1990) (noting that
“[s]peculation is a prime concern in the context of a spoliation claim because it
is impossible to know what the destroyed evidence would have shown.”);
Richardson v. Sara Lee Corp., 847 So. 2d 821, 823 (Miss. 2003) (listing
“infringement on the rights of property owners, endless litigation, and
uncertainty of the fact of harm” as reasons for refusing to recognize spoliation
of evidence); Fisher v. Bauer Corp., 239 S.W.3d 693, 704 (Mo. App. E.D. 2007)
(“No Missouri court has recognized intentional or negligent spoliation as a
tort.”); Timber Tech. v. The Home Ins. Co., 55 P.3d 952 (Nev. 2002) (finding that
“potentially endless litigation over a speculative loss, and . . . the cost to society
of promoting onerous record and evidence retention policies” outweigh the
usefulness of recognizing spoliation); Rosenbilt v. Zimmerman, 766 A.2d 749,
757 (N.J. 2001) (noting that spoliation can be addressed under the tort of
fraudulent concealment); Mohammed v. Delta Airlines, Inc., Civ. No. 08-1405,
2011 WL 5554269, at *2 (E.D.N.Y. Nov. 15, 2011) (holding that while New York
state law recognizes that fraudulent misrepresentation and concealment may
be based on intentional spoliation of evidence, New York does not recognize
intentional or negligent spoliation of evidence); Grant v. High Point Reg’l Health
Sys., 645 S.E.2d 851, 856-57 (N.C. Ct. App. 2007) (declining to extend a case
regarding spoliation of will to tort claims of spoliation because the plaintiff
already has a “cause of action for common law obstruction of justice”); Patel v.
OMH Med. Ctr., Inc., 987 P.2d 1185, 1202 (Okla. 1999) (“Neither spoliation of
evidence nor prima facie tort (for acts constituting spoliation of evidence) has
ever been recognized by this court as actionable.”); Elias v. Lancaster General
Hosp., 710 A.2d 65, 68 (Pa. Super. Ct. 1998) (holding Pennsylvania does not
recognize a separate tort action for spoliation of evidence); Malinou v. Miriam
Hosp., 24 A.3d 497, 511 (R.I. 2011) (recognizing spoliation as an evidentiary
matter that may warrant a jury instruction, “but not as giving rise to an
independent cause of action”); Cole Vision Corp. v. Hobbs, 714 S.E.2d 537, 541
(S.C. 2011) (“South Carolina does not recognize an independent tort for the
negligent spoliation of evidence, third-party or otherwise.”); Trevino, 969 S.W.2d
at 951 (“Because we determine that spoliation does not give rise to independent
damages, and because it is better remedied within the lawsuit affected by
spoliation, we decline to recognize spoliation as a tort cause of action.”); Hills v.
United Parcel Serv., Inc., 232 P.3d 1049, 1058 (Utah 2010) (refusing to adopt an
independent tort of spoliation of evidence, but declining to rule on whether
intentional third-party spoliation as an independent cause of action should be
adopted); Austin v. Consolidation Coal Co., 501 S.E.2d 161, 163 (Va. 1998)
(holding that in a case of first impression there is no cause of action for “any
so-called tort of intentional or negligent spoliation of evidence”); and Estate of
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have discussed the issue of intentional spoliation of evidence refused to
recognize it as a cause of action. Only seven state high courts have recognized
intentional spoliation of evidence as an independent, cognizable tort claim.4
After considering the case law on both sides of the issue, this court
predicts that the South Dakota Supreme Court would adopt the reasoning of
the majority of courts and would decline to recognize an independent tort for

Neumann ex rel. Rodli v. Neumann, 626 N.W.2d 821, 841 (Wis. Ct. App. 2001)
(noting that no Wisconsin court has recognized an independent tort for
spoliation of evidence, but courts have used other sanctions to address
intentional and negligent spoliation of evidence).
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These seven jurisdictions include: Alaska, Nichols v. State Farm Fire &
Cas. Co., 6 P.3d 300, 304 (Alaska 2000) (acknowledging that while first-party
and third-party intentional spoliation are tort claims, negligent spoliations are
not); Connecticut, Rizzuto, 905 A.2d at 1178 (“[R]ecognition of an independent
cause of action for intentional spoliation of evidence is necessary to fulfill
public policy goals of the tort compensation system.”); Idaho, Yoakum v.
Hartford Fire Ins. Co., 923 P.2d 416, 422 (Idaho 1996) (noting that spoliation is
an intentional tort and may by alternatively identified as “ ‘the intentional
interference with prospective civil action by spoliation of evidence’ ” (citation
omitted)); Louisiana, Desselle v. Jefferson Parish Hosp. Dist. No. 2 d/b/a East
Jefferson Gen. Hosp., 887 So. 2d 524, 534 (La. Ct. App. 2004) (recognizing a
state law tort claim for intentional spoliation of evidence, which refers to “an
intentional destruction of evidence for purpose of depriving opposing parties of
its use); New Mexico, Coleman v. Eddy Potash, Inc., 905 P.2d 185, 189 (N.M.
1995) (“[W]e will recognize intentional spoliation of evidence as a distinct
category of tort liability.”); Ohio, Davis v. Wal-Mart Stores, Inc., 756 N.E.2d 657,
660 (Ohio 2001) (“[S]poliation of evidence may be brought after the primary
action has been concluded only when evidence of spoliation is not discovered
until after the conclusion of the primary action.”); West Virginia, Hannah v.
Heeter, 584 S.E.2d 560 (W. Va. 2003) (granting stand-alone tort status for
intentional spoliation and third-party negligent spoliation, but requiring that
the spoliator “overcome the rebuttable presumption” that “but for the fact of
the spoliation of evidence, the party injured by the spoliation would have
prevailed in the pending or potential litigation”).
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spoliation of evidence. Sufficient remedies exist for spoliation of evidence;
South Dakota adequately addresses discovery abuses through sanctions.
South Dakota courts look at factors similar to the ones for intentional
spoliation of evidence when imposing sanctions for discovery, including
whether the party’s “failure to cooperate in discovery was attributable to
willfulness, bad faith, or the fault of the client.” Dudley v. Huizenga, 667
N.W.2d 644, 649 (S.D. 2003). Further, a trial judge has inherent power and
broad latitude in penalizing a party who has failed to comply with discovery
orders. Haberer v. Radio Shack, 555 N.W.2d 606, 610 (S.D. 1996). This court
agrees with the Iowa Supreme Court’s summary of the dangers that arise from
allowing spoliation of evidence as a separate tort action:
First, it creates a generation of endless litigation and is
inconsistent with the policy favoring final judgment. Second, it
would be very difficult to define the limits of a duty imposed on a
stranger to the litigation to preserve evidence. Third, the
speculative nature of the theory contains inherent problems.
Meyn, 594 N.W.2d at 34 (internal citations omitted). Because this court
predicts that the South Dakota Supreme Court would follow the majority rule,
even viewing O’Neal’s facts alleged in the complaint as true, O’Neal has failed
to state a claim upon which relief can be granted because spoliation is not a
separate cause of action.

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CONCLUSION
Because an intentional spoliation of evidence tort would not be
recognized in South Dakota, O’Neal has failed to state a claim upon which
relief can be granted. Accordingly, it is
ORDERED that defendants’ motion to dismiss (Docket 14) is granted.
Dated September 4, 2012.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

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