The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
The Plaintiffs, passengers in an accident involving a Ford Excursion,
sued Defendants, Ford Motor Company, Inc. ("Ford") and Hertz Corporation,
Inc. ("Hertz"), for injuries resulting from the accident. Presently
before the Court is Hertz's Motion to Dismiss Count IV of Plaintiffs'
First Amended Complaint Pursuant to Rule 12(b)(6). For the foregoing
reasons, that motion is denied.
In reviewing a motion to dismiss, the court reviews all facts alleged
in the complaint and any reasonable inferences drawn therefrom in the
light most favorable to the plaintiff. See Marshall-Mosby v. Corporate
Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). A plaintiff is not
required to plead the facts or elements of a claim, with the exceptions
found in Federal Rules of Civil Procedure 9. See Swierkiewicz v. Sorema,
534 U.S. 506, 511 (2002); Walker v. Thompson, 288 F.3d 1005, 1007 (7th
Cir. 2002). Dismissal is warranted only if "it appears
beyond a doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46 (1957). The "suit should not be dismissed if it is
possible to hypothesize facts, consistent with the complaint, that would
make out a claim." Graehling v. Village of Lombard, Ill., 58 F.3d 295,
297 (7th Cir. 1995).
The pertinent facts, for the purposes of this motion, are taken as true
from Plaintiffs' Amended Complaint. Plaintiffs are all citizens of
Illinois. Hertz is incorporated in Delaware and does business in Cook
On August 20, 2000, Plaintiffs were passengers in a Ford Excursion that
allegedly rolled over because of a defective right-rear tire valve-stem.
After the accident, Hertz had the vehicle towed to the Hertz storage
facility in Kentucky for storage and safekeeping. The only persons with
day-to-day access to the vehicle were Hertz employees, agents, and
servants. Access to the vehicle by outsiders, including experts, was
allowed only after authorization by Hertz.
Shortly after Hertz took possession of the vehicle, Hertz employees
were told that the vehicle was subject to an internal "legal hold"
because of a pending legal action. Hertz was prohibited from altering,
removing, or disposing of the vehicle, including the right-rear
passenger-side tire, wheel, and valve-stem assembly.
In the early part of 2003, Hertz allowed its mechanic to install a new
valve-stem assembly in the right-rear passenger side of the vehicle.
Hertz did not seek court approval to make such an alteration nor did
Hertz inform Plaintiffs of the alteration. Because of the alteration of
the vehicle, Plaintiffs' tire experts' testimony regarding the precise
condition of the valve-stem and its involvement in the accident will be
Hertz asserts two bases for dismissing the negligent spoliation claim
in its motion. First, Hertz contends that Kentucky law applies to the
negligent spoilation claim and that Kentucky law does not recognize this
tort. Secondly, Hertz argues that Plaintiffs knew about the negligent
spoilation claim in April of 2003 and that Plaintiffs failed to amend
their complaint in a timely manner.
Kentucky law does not recognize a claim for negligent spoilation of
evidence. Monsanto Co. v. Reed, 950 S.W.2d 811, 815 (Ky. 1997).
Previously, it was determined by this Court that, except for one limited
issue, Illinois law will apply to this matter. See Johnson v. Ford Motor
Co., 2003 WL 22317425 (N.D. Ill. Oct. 9, 2003). However, as Plaintiffs
concede, that ruling did not address Plaintiffs' later claim for
negligent spoilation in the Amended Complaint.
In a diversity action, a district court applies the choice-of-law
principles of the state where it sits. Klaxon Co. v. Stentor Elec. Mfg,
Co., 313 U.S. 487, 496 (1941); Ruiz v. Blentech Corp., 89 F.3d 320, 323
(7th Cir. 1996). Illinois is governed by the choice-of-law principles in
the Restatement (Second) of Conflicts of Law ("Second Restatement").
Ingersoll v. Klein, 262 N.E, 2d 593, ...