Smith et al v. Wal-Mart Stores East, LP (PLR2)

Filing 90

Memorandum Opinion and Order; Before the Court are two motions filed by Plaintiff Smith. Smith had to file her motion to strike within 21 days of being served the Answer. Wal-Mart served its Answer on Smith on September 17, 2014. S mith filed her motion to strike on December 3, 2015 over a year late. For this reason, Smith's Motion to Strike is DENIED. Second is Smith's motion to amend her original complaint 14 . Smiths motion to amend is DENIED in part and GRANTED in part. The motion is denied insofar as Smith seeks to add body paragraphs 2022 and remedy paragraph 3 of the Proposed Amended Complaint. In all other respects the motion is granted. Signed by District Judge Pamela L Reeves on 10/11/16. (ADA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

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PAMELA JEAN SMITH,
Plaintiff,
v.
WAL-MART STORES EAST, LP,
Defendant.

No. 3:14-cv-424-PLR-CCS

Memorandum Opinion and Order
Before the Court are two motions filed by Plaintiff Smith. First is her motion to strike from
Defendant Wal-Mart’s Answer its affirmative defense of comparative fault. [D. 13]. This motion,
however, was untimely. Smith had to file her motion to strike within 21 days of being served the
Answer. FED. R. CIV. P. 12(f)(2). Wal-Mart served its Answer on Smith on September 17, 2014.
Smith filed her motion to strike on December 3, 2015—over a year late. For this reason, Smith’s
Motion to Strike is DENIED.
Second is Smith’s motion to amend her original complaint. [D. 14]. She seeks to add to her
complaint (1) further allegations of negligence by Defendant Wal-Mart; and (2) an allegation
that Wal-Mart has fabricated evidence in this case, entitling her to punitive damages. Wal-Mart
opposes the latter amendment on the basis that it would be futile.
The Proposed Amended Complaint to this slip-and-fall case alleges that Wal-Mart, prior to
photographing the accident scene, moved the “Wet Floor” cones to more conspicuous locations.
On this basis Smith seeks punitive damages. See TENN. CODE ANN. § 29-39-104. Tennessee law,
however, does not recognize a separate tort for fabrication of evidence. See Virginia L.H.

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Nesbitt, Note, A Thoughtless Act of a Single Day: Should Tennessee Recognize Spoliation of
Evidence as an Independent Tort?, 37 U. Mem. L. Rev. 555 (2007). Instead, the proper remedies
are an adverse inference at trial or sanctions. Tatham v. Bridgestone Americas Holding, Inc., 473
S.W.3d 734, 740–44 (Tenn. 2015). It would therefore be futile for Smith to amend her complaint
to add the paragraphs about punitive damages.
The same cannot be said for paragraph 19 of the Proposed Amended Complaint. That
paragraph simply adds new theories of negligence. And Wal-Mart does not contest the inclusion
of this paragraph. Accordingly, Smith’s motion to amend is DENIED in part and GRANTED
in part. The motion is denied insofar as Smith seeks to add body paragraphs 20–22 and remedy
paragraph 3 of the Proposed Amended Complaint. In all other respects the motion is granted.
IT IS SO ORDERED.

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