United States District Court, D. Kansas
ORDER DENYING MOTION TO AMEND COMPLAINT
Kenneth G. Gale, United States Magistrate Judge.
the Court is the Plaintiff's Motion to Amend Complaint
(Doc. 89) to add a tort claim based on the theory of
spoliation. Because the proposed amendment would be futile,
the motion is DENIED.
action arises out of the employment and discharge of
Plaintiff by the Defendant, PSI. The actions currently plead
under the Amended Complaint (Doc. 16) are violations of the
fair labor standards act, a failure to pay overtime wages,
sexual harassment in violation of Title VII (42 U.S.C.
§§2000e), retaliatory discharge (whistleblowing),
defamation, and violations of the Family and Medical Leave
Defendant asserts a counter-claim against Plaintiff alleging
misappropriation of company funds. (Doc. 18.) Causes of
action in the Counterclaim include unjust enrichment for
money had and received, conversion, breach of fiduciary duty,
misrepresentation, mail fraud and civil conspiracy.
to this case, a criminal action was filed against Plaintiff
by the State of Kansas based on PSI's claims of
embezzlement. That case proceeded to trial in October of
2017. Part of the defense at that trial included a claim by
Plaintiff, supported by expert testimony, that data on a
computer hard drive which was destroyed by PSI would have
established a defense to the criminal claims. Plaintiff was
found guilty at trial on several counts. Plaintiff states in
her reply that the conviction is currently being appealed.
proposed Second Amended Complaint (Doc. 89-1, Count VI)
purports to allege a cause of action for “Spoliation of
Evidence.” It alleges that Defendant has a duty to
preserve evidence for the criminal case under K.S.A. §
21-5905, which prohibits destruction of evidence in a
criminal case. There was also a letter request for the
preservation of evidence in this civil case. Plaintiff
alleges that the Defendant “caused” the computer
hard-drive data to be destroyed. Plaintiff alleges that, as a
result, she was “unable to defend all the criminal
embezzlement charges against her.” She requests
damages, apparently for being convicted of the criminal
charges. In her reply, Plaintiff suggests her claim may
include her failure to defend the current counter claims.
Standard for Consideration of the Motion
Rule 15(a) provides, in pertinent part, that “a party
may amend its pleading only with the opposing party's
written consent or the court's leave.” In the
absence of any apparent or declared reason, such as undue
delay, undue prejudice to the opposing party, bad faith or
dilatory motive, failure to cure deficiencies by amendments
previously allowed, or futility of amendment, leave to amend
should be freely given, as required by the federal rule.
Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227,
230, 9 L.Ed.2d 222 (1962); Frank v. U.S. West, Inc.,
3 F.3d 1357, 1365 (10th Cir.1993).
is justified in denying a motion to amend as futile if the
proposed amendment could not withstand a motion to dismiss or
otherwise fails to state a claim. Ketchum v. Cruz,
961 F.2d 916, 920 (10th Cir.1992); see 6 Wright,
Miller & Kane, FEDERAL PRACTICE AND PROCEDURE § 1487
at 642 (1990).
Kansas Does Not Recognize a Tort of Spoliation Independent of
an Underlying Cause of Action
Court has previously rejected the recognition of an
independent tort of spoliation. Nkemakolam v. St.
John's Military School, 890 F.Supp.2d 1260 (2012),
based on guidance from the Kansas Supreme Court in
Superior Boiler Works, Inc. v. Kimball,
et al, 292 Kan.885, 259 P.2d 676 (2011) and
Koplin v. Rosel Well Perforators, Inc., 241 Kan.
206, 734 P.2d 1177 (1987). See also Foster v.
Lawrence Memorial Hospital, 809 F.Supp. 831 (D. Kan.
1992). Some exception in cases in which there is a special
relationship between the parties which would create a
separate duty in either tort or contract to preserve
information. This Court is doubtful that such an action
exists. Even if available, however, it would not be
cognizable under these facts.
the principal of spoliation of evidence recognizes a
procedural remedy in civil cases in which an opposing party
has failed to preserve or has destroyed evidence. See
generally Oldenkamp v. United American Ins. Co., 619
F.3d 1243 (10th Cir. 2010). This is based on the general duty
of a party to preserve evidence or follows a specific demand
to preserve evidence. Not a separate cause of action,
spoliation of evidence may result in a procedural remedy
within the litigation as a sanction. Depending on the nature
of the violation ...