Pardy v. Alabama Farmers, et al

2010 DNH 086

• Court: District Court, D. New Hampshire
• Decided: May 24, 2010
• Docket: 09-CV-192-SM
• Status: Published

Opinion

Case 1:09-cv-00192-SM Document 74 Filed 05/24/10 Page 1 of 3

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Estate of Robert Pardy, through its administrators Kyley Gobin and Sara Pardy; and Estate of Cody Pardy, through its administrator Dorothy Ferland, Plaintiffs

v. Civil N o . 09-cv-192-SM Opinion N o . 2010 DNH 086 Alabama Farmers Cooperative, Inc. d/b/a Bonnie Plant Farm; and Highlands Fuel Delivery, LLC; and Johnson & Dix Fuel Corporation, Defendants

O R D E R

Defendant Alabama Farmers Cooperative (“AFC”) moves to

dismiss two of the three cross-claims brought against it by

defendant Highlands Fuel Delivery: intentional spoliation of

evidence (count one) and negligent spoliation of evidence (count

two). That motion is granted.

Highland’s spoliation cross-claims fail for at least two

reasons. First, the New Hampshire Supreme Court has yet to

recognize a common law tort claim for spoliation of evidence.

See Rodriguez v . Webb, 141 N.H. 177, 179 (1996). See also Cavadi

v . Bank of America, N.A., N o . 07-cv-224-PB, 2008 DNH 066 at *3

(D.N.H. April 1 , 2008). Case 1:09-cv-00192-SM Document 74 Filed 05/24/10 Page 2 of 3

Second, even if New Hampshire did recognize such a cause of

action, Highlands alleges that AFC allowed the loss, theft, or

destruction of irrelevant evidence (i.e., the furnace’s burner

unit). Plaintiffs claim that their decedents died as a result of

carbon monoxide poisoning, caused by “an extremely rusted and

corroded exhaust pipe from the furnace [to the chimney, which]

had collapsed and fallen” to the floor. Amended complaint

(document n o . 15) at para. 2 7 . There is no suggestion that the

now-missing burner played any role in the decedents’ deaths

(other than by performing its intended function of igniting fuel

and, as a byproduct, producing carbon monoxide). And, Highland

has failed to articulate how the loss of that burner (and

Highland’s inability to subject it to inspection and/or testing)

in any way hinders its ability to defend this litigation.

Alabama Farmer’s Cooperative’s motion to dismiss counts one

and two of Highlands’ cross-claims (document n o . 47) is granted.

SO ORDERED.

May 2 4 , 2010

2 Case 1:09-cv-00192-SM Document 74 Filed 05/24/10 Page 3 of 3

cc: Arend R. Tensen, Esq. Stephen J. Schulthess, Esq. Debbie L. Makris, Esq. Eric D. Jones, Esq. John A . Hobson, Esq. Marc B . Heath, Esq. David P. Cullenberg, Esq. Randy J. Creswell, Esq. R. Matthew Cairns, Esq.