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).
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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
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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.