United States District Court, N.D. Indiana, Hammond Division
ARCELORMITTAL INDIANA HARBOR LLC and ARCELORMITTAL USA LLC, Plaintiffs,
AMEX NOOTER, LLC, Defendant.
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE
matter is before the Court on Amex Nooter, LLC's Motion
for Summary Judgment on its First Affirmative Defense [DE
139] and a Petition for Oral Argument [DE 141], both filed by
Defendant Amex Nooter, LLC (“Amex Nooter”) on
September 28, 2017. Plaintiffs ArcelorMittal Indiana Harbor
LLC and ArcelorMittal USA LLC (collectively
“ArcelorMittal”) filed a response on October 26,
2017, and Amex Nooter filed a reply on November 9, 2017. The
parties filed forms of consent to have this case assigned to
a United States Magistrate Judge to conduct all further
proceedings and to order the entry of a final judgment in
this case. Therefore, this Court has jurisdiction to decide
this case pursuant to 28 U.S.C. § 636(c).
April 3, 2013, a fire occurred at Blast Furnace No. 3, a part
of ArcelorMittal's Indiana Harbor Facility, while
employees of Amex Nooter were rebuilding the excess gas
bleeder pilot burner cabinets pursuant to a contract with
ArcelorMittal. In the Amended Complaint brought against Amex
Nooter based on theories of negligence and breach of
contract, ArcelorMittal seeks approximately $3.2 million in
property damage and excess fuel costs as a result of the
fire. In the instant motion, Amex Nooter seeks summary
judgment in its favor on its First Affirmative Defense titled
“ArcelorMittal's Spoliation of Evidence, ”
Following the April 3, 2013 incident, ArcelorMittal denied
Amex Nooter access to the work site that evening and did not
permit Amex Nooter access to the work site until
approximately noon the following day, at which time any
evidence and artifacts of the incident had been cleaned up
and disposed. ArcelorMittal had a duty to maintain evidence
and artifacts of the incident and failed to do so.
ArcelorMittal's failure to maintain any evidence of the
incident materially prejudiced Amex Nooter's ability to
fully investigate the April 3, 2013 incident and the basis of
ArcelorMittal's asserted claims. The cleanup and disposal
of physical evidence and artifacts, substantially and
materially, impaired and precluded Amex Nooter's ability
to fully and completely defend against any claims and
assertions made against it.
117, p. 28). In the instant motion, Amex Nooter argues that
it is unable to defend itself because ArcelorMittal
intentionally discarded evidence in violation of its duty to
preserve evidence and, therefore, ArcelorMittal's claims
should be dismissed with prejudice. In addition to addressing
the merits of Amex Nooter's spoliation argument,
ArcelorMittal also asserts that the instant motion should be
denied as procedurally improper because the relief sought
should be pursued in the context of requesting sanctions.
is not properly addressed as an affirmative defense but
rather should be addressed as an evidentiary and/or discovery
matter, such as through a motion for sanctions. Courts that
have considered whether spoliation is an affirmative defense
have consistently found that it is not. The Fourth Circuit
Court of Appeals explained that, “while the spoliation
of evidence may give rise to court imposed sanctions deriving
from [the court's] inherent power, the acts of spoliation
do not themselves give rise in civil cases to substantive
claims or defenses.” Silvestri v. Gen. Motors
Corp., 271 F.3d 583, 590 (4th Cir. 2001); see also
Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 155-56
(4th Cir. 1995) (“Even though application of the
[spoliation] rule could prove to be critical to a party's
recovery on a claim, it is not an affirmative defense, but a
rule of evidence, to be administered at the discretion of the
trial court. Consequently, a party need not indicate its
intent to invoke the spoliation rule in the
pleadings.”); BCOWW Holdings, LLC v. Collins,
SA-17-CA-379, 2017 WL 4082686, at *4 (W.D. Tex. Sept. 15,
2017) (citing Vodusek, 71 F.3d at 155-56);
Travelers Prop. Cas. Co. of Am. v. All Seasons Roofing
Inc., No. 4:15-CV-412, 2016 WL 8730570, at *1 (E.D. Ark.
Sept. 9, 2016) (holding that spoliation is not an affirmative
defense but rather an evidentiary doctrine that can be used
as a “spear” by seeking the sanction of dismissal
(citing Sherman v. Richem Co. Inc., 687 F.3d 996,
1006 (8th Cir. 2012)); Bonilla v. Rexon Indus.
Corp., 1:13-CV-1830, 2015 WL 10792026, at *10-11 (S.D.
Ind. Aug. 19, 2015) (recognizing that, although spoliation is
not an independent tort in Indiana, Indiana law allows courts
to fashion remedies for spoliation, including the
establishment of a factual inference that the spoliated
evidence would be unfavorable to the party responsible, but
not treating spoliation as an affirmative defense);
Griffin v. Acadia Healthcare Co., Inc.,
1:14-CV-1573, 2015 WL 11367927, at *3 (N.D.Ga. Apr. 28, 2015)
(finding, on a motion to add spoliation as an affirmative
defense, no support in Georgia law that spoliation is an
affirmative defense and noting that the several courts that
have addressed the issue have held that spoliation is not an
affirmative defense (citing Vodusek, 71 F.3d at
155-56; ABC Bus. Forms, Inc. v. Pridamor, Inc., No.
09 C 3222, 2009 WL 4679477, at *3 (N.D. Ill.Dec. 1, 2009)
(quoting Silvestri, 271 F.3d at 590); Flury v.
Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir.
2005))); Ross v. Kopocs, No. 1:14-CV-60, 2015 WL
926580, at *3 (E.D. Tenn. Mar. 4, 2015) (holding that
spoliation is not an affirmative defense but rather a rule of
evidence (citing Vodusek, 71 F.3d at 155-56; ABC
Bus. Forms, Inc., 2009 WL 4679477, at *3;
Silvestri, 271 F.3d at 590; Forest Labs, Inc. v.
Caraco Pharm. Labs, Ltd., No. 06-CV-13143, 2009 WL
998402, at *1 (E.D. Mich. Apr. 14, 2009) (quoting Hodge
v. Wal-Mart Stores, Inc., 360 F.3d 446, 450 (4th Cir.
2004)); Tenet Healthsystem Desert, Inc. v. Fortis Ins.
Co., Inc., 520 F.Supp.2d 1184, 1198 (C.D. Cal. 2007);
Donohoe v. Am. Isuzu Motors, Inc., 155 F.R.D. 515,
520 (M.D. Pa. 1994))); Allstate Ins. Co. v. Long Island
Power Auth., No. 14-CV-444, 2015 WL 867064, at *3
(E.D.N.Y. Feb. 27, 2015) (quoting Sparta Ins. Co. v.
Colareta, No. 13-CV-60579, 2013 WL 5588140, at *6 (S.D.
Fla. Oct. 10, 2013) (citing Donohoe, 155 F.R.D. at
520)); Sparta Ins. Co., 2013 WL 5588140, at *6;
Holley v. Evangelical Lutheran Good Samaritan
Soc'y, CIV 12-0320, 2012 WL 12903865, at *2-3
(D.N.M. Sept. 14, 2012) (declining to find spoliation to be
an affirmative defense under New Mexico law); ABC Bus.
Forms, Inc., 2009 WL 4679477, at *3 (quoting
Silvestri, 271 F.3d at 590); Berger v. Cleveland
Clinic Found., No. 1:05cv1508, 2007 WL 2902907, at *12
(N.D. Ohio Sept. 29, 2007) (“[S]poliation of evidence
is not an affirmative defense . . . .”); Tenet
Healthsystem Desert, Inc., 520 F.Supp.2d at 1198
(recognizing that, under California law, spoliation by a
party to an action is not a separate tort or claim and the
parties are limited to evidentiary and discovery remedies
(citing Cedars-Sinai Med. Ctr. v. Super. Ct., 954
P.2d 511 (1998); Hodge, 360 F.3d at 449-50).
decisions have denied a motion to strike an affirmative
defense or granted a motion to amend an answer involving
spoliation labeled as an affirmative defense but have done so
without directly addressing whether spoliation is in fact an
affirmative defense. See, e.g., Garrison v.
Foster Poultry Farms Inc., CV-16-280, 2016 WL 3753529,
at *1 (D. Ar. July 14, 2016) (motion to strike); Foster
v. Bridgestone Ams., Inc., Civ. Action No. 11-175, 2012
WL 266479, at *2 (S.D. Ala. Jan. 30, 2012) (motion to amend
answer); QBE Ins. Corp. v. Jorda Enters., Inc., 277
F.R.D. 676, 696 (S.D. Fla. 2012) (finding 30(b)(6) deposition
testimony relevant to the “affirmative defense
advocating a spoliation theory”); Schmidt v.
Pentair, Inc., No. C08-4589, 2010 WL 4607412, at *1
(N.D. Cal. Nov. 4, 2010) (motion to strike). And, in some
jurisdictions, courts have ruled on a plaintiff's motion
for summary judgment on a defendant's affirmative defense
of spoliation, again without directly considering whether
spoliation is an affirmative defense but rather by discussing
spoliation in the context of sanctions and/or adverse
inferences. See, e.g., Constr. Sys., Inc. v.
Gen. Cas. Co. of Wis., Civ. No. 09-3697, 2011 WL
3625066, at *15 (D. Minn. Aug. 17, 2011) (citing Hoffman
v. Ford Motor Co., 587 N.W.2d 66, 71 (Minn.Ct.App. 1998)
(noting a court may impose sanctions for spoliation based
upon the prejudice caused to the opposing party)); Morris
v. Mitsubishi Motors N. Am., Inc., 782 F.Supp.2d 1149,
1162 (E.D. Wash. 2011); Longview Fibre Co. v. CSX
Transp., Inc., 526 F.Supp.2d 332, 340 (N.D.N.Y. 2007).
instant diversity action, the legal and factual sufficiency
of an affirmative defense is examined with reference to
Indiana state law. See Williams v. Jader Fuel Co.,
Inc., 944 F.2d 1388, 1400 (7th Cir. 1991). There does
not appear to be any published decision from an Indiana state
court addressing whether spoliation can be pleaded as an
affirmative defense. However, the Indiana Supreme Court
decision in Gribben v. Wal-Mart Stores, Inc., 824
N.E.2d 349 (Ind. 2005), is instructive. In Gribben,
the Indiana Supreme Court considered the question, certified
from the United States District Court for the Southern
District of Indiana, of whether “Indiana law recognizes
a claim for ‘first-party' spoliation of evidence;
that is, if an alleged tortfeasor negligently or
intentionally destroys or discards evidence that is relevant
to a tort action, does the plaintiff in the tort action have
an additional cognizable claim against the tortfeasor for
spoliation of evidence?” 824 N.E.2d at 350. The Indiana
Supreme Court answered the question in the negative.
Id. at 355.
holding that there is no “first party” liability
for spoliation, the court noted that “important
sanctions” already exist under Indiana law that provide
both a remedy to persons aggrieved as well as deterrence.
Id. at 351. The court explained, “It is
well-established in Indiana law that intentional first-party
spoliation of evidence may be used to establish an inference
that the spoliated evidence was unfavorable to the party
responsible.” Id. (citing Cahoon v.
Cummings, 734 N.E.2d 535, 545 (Ind. 2000); Underwood
v. Gale Tschuor Co., Inc., 799 N.E.2d 1122, 1134
(Ind.Ct.App. 2003); Porter v. Irvin's Interstate
Brick & Block Co., Inc., 691 N.E.2d 1363, 1364
(Ind.Ct.App.1998); Doug Cressler, Spoliation of Evidence, 36
Res Gestae 510 (1993)). The court also recognized the
discovery sanctions available under Indiana Trial Rule 37,
including dismissal of an action or default judgment. The
court reasoned, “Notwithstanding the important
considerations favoring the recognition of an independent
tort of spoliation by parties to litigation, we are persuaded
that these are minimized by existing remedies and outweighed
by the attendant disadvantages.” Id. at 355
(relying, in part, on the reasoning of the California Supreme
Court in Cedars-Sinai Med. Ctr., 954 P.2d at 515).
case, although Amex Nooter is not asserting a claim (or
rather a counterclaim) of spoliation, Amex Nooter's
invocation of spoliation falls within the category of
“first party” spoliation because ArcelorMittal is
a party to this litigation; “third party”
spoliation refers to “spoliation by a non-party.”
Gribben, 824 N.E.2d at 350; see also Howard
Reg'l Health Sys. v. Gordon, 952 N.E.2d 182, 188
(2011). And, even though Amex Nooter is in the role of a
tortfeasor attempting to use spoliation as a sword through an
affirmative defense rather than a plaintiff attempting to use
spoliation as a claim against the tortfeasor like in
Gribben, the reasoning in Gribben applies
with equal force in that existing remedies through the use of
sanctions, ranging from limiting instructions to dismissal,
are sufficient to address the harm of spoliation by a
plaintiff. Like Indiana Trial Rule 37, Federal Rule of Civil
Procedure 37 makes available various sanctions as does the
Court's inherent authority.
only case cited by Amex Nooter to support its assertion that
spoliation is an affirmative defense is Wilson v.
Tariq, 2:15-CV-321, 2016 WL 5956410 (N.D. Ind. Oct. 13,
2016), which denied a Rule 12(f) motion to strike a
spoliation affirmative defense. However, the court in
Wilson was faced with a motion to strike in the
early stages of the proceedings, not a motion for summary
judgment. And, citing Gribben, the court in
Wilson discussed spoliation in terms of it being
“well-established in Indiana law that intentional
first-party spoliation of evidence may be used to establish
an inference that the spoliated evidence was unfavorable to
the party responsible.” Id. at *4. That the
affirmative defense was not stricken under those
circumstances in Wilson does not change this
Court's analysis on the instant motion.
substantive portion of its brief addressing the merits of the
spoliation argument, Amex Nooter cites two Indiana state law
cases in which the issue of spoliation was raised in
litigation with ArcelorMittal. In both instances, spoliation
was addressed in the context of a motion for sanctions and a
motion to preserve evidence and not as an affirmative
defense. See WESCO Distrib., Inc. v. ArcelorMittal
Indiana Harbor LLC, 23 N.E.2d 682, 701-06 (Ind.Ct.App.
2014) (considering the plaintiff's motion for sanctions
brought under Indiana Trial Rule 37, including a request for
the sanction of dismissal, and affirming both the trial
court's decision declining to impose a discovery sanction
upon a finding of no intentional conduct by ArcelorMittal
that amounted to spoliation and the trial court's
decision not to give an adverse inference instruction);
Haraburda v. ArcelorMittal, No. 2:11-CV-93, 2011 WL
2600756 (N.D. Ind. June 28, 2011).
the Court denies the instant motion solely on the basis that
Amex Nooter has filed a motion for summary judgment on an
affirmative defense of spoliation rather than seeking
sanctions for the alleged spoliation. In the instant motion,
Amex Nooter explicitly states that it is not “seeking a
discovery sanction in this Motion” and “reserves
the right to seek appropriate sanctions, adverse jury
instruction(s), or otherwise move in limine.”
(ECF 140, p. 13, p. 13 n.12). In light of Amex Nooter's
representation and to afford Amex Nooter the opportunity to
make all arguments related to a request for sanctions based
on spoliation in one ...