
    Carol NAPIER, Plaintiff, v. CINEMARK USA, INC., Defendant.
    No. 08-CV-0706-CVE-PJC.
    United States District Court, N.D. Oklahoma.
    April 13, 2009.
    
      Richard Andrew Shallcross, Richard A. Shallcross & Assoc., Tulsa, OK, for Plaintiff.
    Thayla Painter Bohn, Feldman Franden Woodard & Farris, Tulsa, OK, for Defendant.
   OPINION AND ORDER

CLAIRE V. EAGAN, Chief Judge.

Now before the Court is plaintiffs timely objection (Dkt.# 20) to the March 17, 2009 report and recommendation (Dkt.# 19) of the magistrate judge, wherein he recommended that defendant’s motion to dismiss plaintiffs claim for spoliation of evidence (Dkt.# 5) be granted.

I.

Plaintiff, Carol Napier, filed this action in the Tulsa County District Court on May 6, 2008. She seeks to recover damages for personal injuries sustained as a result of Cinemark’s alleged negligence in maintaining the premises of its theater at 6808 South Memorial Avenue in Tulsa, Oklahoma. Dkt. # 2-2. Plaintiff further asserts a claim for “tortious spoliation of evidence” on the grounds that Cinemark remodeled the walkways and lighting at the theater before she was able to take photographs, but after the state court ordered Cinemark to allow plaintiff on to the premises to do so. Id. Cinemark now moves to dismiss plaintiffs claim for spoliation of evidence (Dkt.# 5).

II.

Without consent of the parties, the Court may refer any pretrial matter dis-positive of a claim to a magistrate judge for a report and recommendation. However, the parties may object to the magistrate judge’s recommendation within 10 days of service of the recommendation. Schrader v. Fred A. Ray, M.D., P.C., 296 F.3d 968, 975 (10th Cir.2002); Vega v. Suthers, 195 F.3d 573, 579 (10th Cir.1999). The Court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). De novo review requires the Court to “consider the actual testimony or other evidence in the record and not merely [to] review the magistrate’s report and recommendations.” Northington v. Marin, 102 F.3d 1564, 1570 (10th Cir.1996). The Court may accept, reject, or modify the report and recommendation of the magistrate judge in whole or in part. Fed.R.Civ.P. 72(b).

III.

A motion to dismiss is properly granted when a complaint or counterclaim provides no “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). In considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a court must determine whether the claimant has stated a claim upon which relief may be granted. A complaint must contain enough “facts to state a claim to relief that is plausible on its face” and the factual allegations “must be enough to raise a right to relief above the speculative level.” Id. at 1965, 1974 (citations omitted). “Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Id. at 1969. For purposes of making the dismissal determination, a court must accept all the well-pleaded allegations of the complaint as true, even if doubtful in fact, and must construe the allegations in the light most favorable to the claimant. Id. at 1965; Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir.2007); Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1231 (10th Cir.2002). However, a court need not accept as true those allegations that are conclusory in nature. Erikson v. Pawnee County Bd. of County Comm’rs, 263 F.3d 1151, 1154-55 (10th Cir.2001) (citations omitted). “[C]onclusory allegations without supporting factual averments are insufficient to state a claim [or counterclaim] upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1109-10 (10th Cir.1991).

Defendant moves to dismiss plaintiffs claim for tortious spoliation of evidence on the ground that it is not a recognized tort in Oklahoma. Plaintiff concedes that there is no Oklahoma case law recognizing tortious spoliation of evidence, but argues that, if given the chance, the Oklahoma Supreme Court would likely recognize the tort. Thus, plaintiff argues that the question should be certified to the Oklahoma Supreme Court. A federal court sitting in diversity must apply the substantive law of the forum state. See Sapone v. Grand Targhee, Inc., 308 F.3d 1096, 1100 (10th Cir.2002). Where the highest court of the forum state has not ruled on an issue, the Court must predict how that court would decide the question. See Vanover v. Cook, 260 F.3d 1182, 1186 (10th Cir.2001); see also Carl v. City of Overland Park, 65 F.3d 866, 872 (10th Cir.1995). The Court may consider dicta from the highest court of the forum state in predicting how that court would decide the question. See Lamb v. Rizzo, 391 F.3d 1133, 1138 (10th Cir.2004).

“Spoliation is defined as ‘[t]he destruction of evidence ... The destruction, or the significant and meaningful alteration of a document or instrument.’ Spoliation occurs when evidence relevant to prospective civil litigation is destroyed, adversely affecting the ability of a litigant to prove his or her claim.” Patel v. OMH Medical Center, Inc., 987 P.2d 1185, 1202 (Okla.1999) (citing Black’s Law Dictionary 1257 (5th ed.1979)). In Patel, the Oklahoma Supreme Court stated in dicta that “neither spoliation of evidence nor prima facie tort (for acts constituting spoliation of evidence) has ever been recognized by this court as actionable.” Id. Plaintiff argues that, if given the chance, the Oklahoma Supreme Court would likely recognize the tort of spoliation of evidence. In support of that argument, plaintiff relies on the court’s statement that it “need not consider today whether [the tort of spoliation of evidence] should be recognized as a viable cause of action” because the “conduct complained of in [Patel] does not present a case of spoliation of evidence.” Id. However, the Oklahoma Supreme Court acknowledged that “most of the courts which have considered the issue have refused to recognize spoliation as an independent cause of action in tort.” Id. There is nothing in the Patel opinion, nor in any other Oklahoma Supreme Court opinion, to suggest that it would be inclined to recognize the tort of spoliation. Moreover, the Tenth Circuit has stated that the dicta in Patel reflects that Oklahoma Supreme Court’s view with respect to the tort of spoliation of evidence. Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 862 (10th Cir.2005) (citing Patel and upholding the district court’s rejection of plaintiffs claim of spoliation of evidence because “spoliation is not a recognized tort in Oklahoma.”). There is no cognizable claim for spoliation of evidence in Oklahoma and no reason to certify the question to the Oklahoma Supreme Court. Accordingly, plaintiff cannot state a claim for spoliation of evidence upon which relief may be granted. The Court finds that the report and recommendation of the magistrate judge should be accepted as entered.

IT IS THEREFORE ORDERED that the magistrate judge’s March 17, 2009 report and recommendation (Dkt.# 19) is accepted, and the motion dismiss the claim for spoliation of evidence (Count 2) (Dkt.# 5) is granted.

IT IS FURTHER ORDERED that the objection (Dkt.# 20) is hereby denied.

REPORT AND RECOMMENDATION

PAUL J. CLEARY, United States Magistrate Judge.

Before the Court for Report and Recommendation is the Motion of Defendant Cinemark USA, Inc. (“Cinemark”) to Dismiss Claim for Spoliation (Dkt.# 5). Cinemark moves to dismiss Plaintiff Carol Napier’s (“Napier”) claim for spoliation pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The undersigned recommends that the motion be GRANTED.

Napier originally filed this action in the District Court in and for Tulsa County, Oklahoma on May 6, 2008 seeking damages for personal injuries sustained as a result of Cinemark’s alleged negligence in maintaining its premises and for “tortious spoliation of evidence.” Napier alleges that she fell due to a “poorly lit and inadequately marked concrete step” in the Screen 2 theater at Cinemark’s 6808 South Memorial Avenue location in Tulsa on May 6, 2006 and that Cinemark was aware of this condition due to other trip-and-falls yet had failed to remedy the known hazard. She further alleges a claim of spoliation as Cinemark remodeled its walkways and lighting throughout the movie theater after the state court ordered Cinemark to allow Napier to photograph its premises on October 8, 2007 but before October 29, 2007, when Napier was scheduled for the photo-shoot.

Standard of Review

A motion to dismiss pursuant to Rule 12(b)(6) is properly granted when it appears beyond doubt that plaintiff can prove no set of facts entitling him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Calderon v. Kansas Dept. of Social & Rehabilitation Servs., 181 F.3d 1180, 1183 (10th Cir.1999). In making this determination, the Court must “accept as true all well-pleaded facts, as distinguished from conclusory allegations, and view those facts in light most favorable to the nonmoving party.” Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir.1998); see also Dill v. City of Edmond, 155 F.3d 1193, 1201 (10th Cir.1998). Granting a motion to dismiss “is a harsh remedy which must be cautiously studied ... to protect the interests of justice.” Bangerter v. Orem City Corp., 46 F.3d 1491, 1502 (10th Cir.1995). A motion to dismiss for failure to state a claim “is viewed with disfavor, and is rarely granted.” Lone Star Ind., Inc. v. Horman Family Trust, 960 F.2d 917, 920 (10th Cir.1992). However, if the plaintiff cannot prevail on his claim as a matter of law, dismissal is appropriate. Gillihan v. Shillinger, 872 F.2d 935, 938 (10th Cir.1989).

Analysis

Cinemark moves to dismiss Napier’s claim of “tortious spoliation of evidence” as it is not a tort recognized under Oklahoma law. Napier concedes there is no published Oklahoma case which recognizes this tort, but contends it is likely that Oklahoma would follow several other states which do recognize the claim and this Court should so conclude. Alternatively, Napier invites the Court to certify the question to the Oklahoma Supreme Court pursuant to Okla.Stat, tit. 20, § 1601 et seq. The Court declines to do so as the Court finds that the claim is not actionable under Oklahoma law.

The Court, sitting in diversity, must apply the substantive law that would be applied by the Oklahoma Supreme Court in this context. See Blanke v. Alexander, 152 F.3d 1224, 1228 (10th Cir.1998) (A federal court in a diversity case must apply the substantive law of the forum state.). When the Oklahoma Supreme Court has not ruled on the issue, the Court must predict how that court would decide the question. Blackhawk-Central City Sanitation Dist. v. American Guarantee and Liability Ins. Co., 214 F.3d 1183, 1188 (10th Cir.2000). Although the Oklahoma Supreme Court has not ruled on the question, it has stated the following in dicta:

Patel also claims damages for spoliation of evidence, denominating her claim either spoliation of evidence or prima facie tort. Neither spoliation of evidence nor prima facie tort (for acts constituting spoliation of evidence) has ever been recognized by this court as actionable. Because the conduct complained of in this action does not present a case of spoliation of evidence, we need not consider today whether that tort should be recognized as a viable cause of action in this state.
Spoliation is defined as “[t]he destruction of evidence.... The destruction, or the significant and meaningful alteration of a document or instrument.” Spoliation occurs when evidence relevant to prospective civil litigation is destroyed, adversely affecting the ability of a litigant to prove his or her claim. Although a few jurisdictions have adopted the tort of spoliation, most of the courts which have considered the issue have refused to recognize spoliation as an independent cause of action in tort.

Patel v. OMH Medical Center, Inc., 1999 OK 33 ¶¶ 45-46, 987 P.2d 1185, 1202 (emphasis added, footnotes omitted).

The Court can consider the above dicta in Patel in predicting the Oklahoma Supreme Court’s decision on the issue. See Carl v. City of Overland Park, Kansas, 65 F.3d 866, 872 (10th Cir.1995) (“Kansas Supreme Court dicta, which represents that court’s own comment on the development of Kansas law, is an appropriate source from which this prediction may be made.”); Pack v. Damon Corp., 434 F.3d 810, 818 (6th Cir.2006) (The court “may consider applicable dicta of the state’s highest court” in ascertaining how that court would decide the issue.). Indeed, the Tenth Circuit in Estate of Trentadue ex re. Aguilar v. United States, 397 F.3d 840 (10th Cir.2005) has done so in citing the dicta in Patel, as well as the absence of any subsequent Oklahoma Supreme Court decision on the matter and the majority view of other courts that no independent cause of action for spoliation exists in holding that “spoliation is not a recognized tort in Oklahoma”; thus affirming the trial court’s rejection of the spoliation claim. Id. at 862. No Oklahoma Supreme Court decision since the Tenth Circuit’s decision in Trentadue has been handed down and therefore the Court likewise concludes that spoliation is not actionable under Oklahoma law. In re Eurospark Ind., Inc., 288 B.R. 177, 182-183 (Bkrtcy.E.D.N.Y.2003) (“[I]f a higher federal court within the same circuit has ruled on the relevant state law issues, that ruling is binding on a lower federal court.”); 17A James Wm. Moore et al., Moore’s Federal Practice ¶ 124.22[4] (3d ed. 1997) (“When a higher federal court has ruled on a particular point of state law, a lower court must ordinarily follow that decision in the absence of an intervening, authoritative state decision.”).

Accordingly, the Court recommends that Cinemark’s motion to dismiss Napier’s spoliation claim be GRANTED for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

Objections

The District Judge assigned to this case will conduct a de novo review of the record and determine whether to adopt or revise this Report and Recommendation or whether to recommit the matter to the undersigned. As part of her review of the record, the District Judge will consider the parties’ written objections to this Report and Recommendation. A party wishing to file objections to this Report and Recommendation must do so within ten days after being served with a copy of this Report and Recommendation. See 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). The failure to file written objections to this Report and Recommendation may bar the party failing to object from appealing any of the factual or legal findings in this Report and Recommendation that are accepted or adopted by the District Court. See Moore v. United States, 950 F.2d 656 (10th Cir.1991); Wirsching v. Colorado, 360 F.3d 1191, 1197 (10th Cir.2004) and Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir.1996).

March 17, 2009.  