The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
Plaintiffs Creigh and Brent Landis, individually, ("plaintiffs") allege spoliation of evidence under Count V of their complaint. Defendants Remington Arms Company, LLC, Sporting Goods Properties, Inc., and E.I. Du Pont De Nemours and Company (collectively "defendants") move to dismiss Count V of the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In their response, plaintiffs made a cross motion to amend the original complaint in favor of a claim of fraudulent concealment. Defendants replied and opposed the cross-motion. The motions were considered on submission.
The following facts, as alleged in the complaint, are taken as true. On November 23, 2008, Creigh Landis went for a walk in the woods behind her house, and brought with her a Remington M700 .308 caliber rifle. While walking home, she set the gun down to climb over a fallen tree. When she picked the rifle up again, it unexpectedly discharged with no manipulation of the trigger. The bullet traveled into her abdomen causing serious and permanent injury and scarring. Compl. ¶ 17.
Under federal diversity jurisdiction, plaintiffs Creigh and Brent Landis filed a five-count, product-liability action against defendants for their part in the design, manufacturing, distribution, and sale of the rifle. Plaintiffs allege that the accidental discharge of the rifle, which caused Creigh Landis's injuries, was the result of defendants' defective design and manufacturing. Therefore, according to plaintiffs, defendants should be held liable for plaintiffs' injuries and damages.
Plaintiffs' damages include past and future: medical expenses, physical pain and suffering, loss of earnings, impaired earning capacity, permanent disability, disfigurement, loss of consortium and companionship, and other general and special damages to be determined by the jury at trial. Id. ¶ 19. The five causes of action include: strict liability, strict liability failure to warn, negligent design and manufacture, negligent failure to warn, and spoliation of evidence.
Plaintiffs allege that defendants destroyed documents and other physical evidence relating to the rifle to avoid liability. Defendants contend that New York State does not recognize a separate cause of action for spoliation of evidence. However, plaintiffs, seeking leave to amend their complaint, assert that amending the spoliation of evidence count to one of fraudulent concealment would state a claim.
A. Jurisdiction and Applicable Law
Pursuant to 28 U.S.C. § 1332, jurisdiction exists. The amount in controversy exceeds seventy-five thousand dollars ($75,000) and the parties are wholly diverse. When a court sits in diversity jurisdiction, the laws of the State of New York will apply. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 822 (1938). Venue is proper in the Northern District of New York because the incident occurred in, and plaintiffs are residents of, Franklin County, New York. Neither side contests the jurisdiction or venue in this case.
B. Motion to Dismiss Count V
In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), all factual statements alleged in the complaint are accepted as true, and "all reasonable inferences" are drawn "in favor of the non-moving party." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). In order to survive a motion to dismiss for failure to state a claim upon which relief can be granted, a plaintiff is obligated "to provide the grounds of his entitlement to relief" by something more than "labels and conclusions." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007) (internal quotations omitted). If the plaintiff fails to plead a cause of action, the complaint is dismissed pursuant to the "failure to state a claim" language of Rule 12(b)(6). See Davis v. Passman, 442 U.S. 228, 244, 99 S. Ct. 2264, 2276 (1979).
New York State, in following the majority view, does not recognize spoliation of evidence as an actionable tort. Weigl v. Quincy Specialties Co., 158 Misc. 2d 753, 756 (N.Y. Sup. Ct. 1993); Pharr v. Cortese, 147 Misc. 2d 1078, 1080 (N.Y. Sup. Ct. 1990); see Fada Indus., ...