The opinion of the court was delivered by: GERALDINE SOAT BROWN, Magistrate Judge
MEMORANDUM OPINION AND ORDER
In 2002, Plaintiffs Daniel Denton, Randi Kremian and Doris Marie
Granat-Monteil filed this lawsuit alleging that, on or after July 2000,
they became ill because of unknown molds, fungi and/or bacteria in their
workplace, the corporate offices of Defendant Northeast Illinois Regional
Commuter Railroad Corporation (commonly known as METRA). [Dkt 1.]*fn1
Plaintiffs have now moved for leave to amend their complaint against
METRA to add a Count IV alleging a claim of spoliation of evidence. [Dkt
20.] Specifically, Plaintiffs claim that they learned in discovery that
on two occasions between December 2000 and February 2001, METRA's
industrial hygiene engineer, Ronald Bachus, took samples or swabs of a
"greenish black oily substance" that was present on office equipment and
furniture, and that METRA negligently failed to maintain or analyze the
substances collected. (Pls.' Mot., Ex. 2, First Am. Compl. Ct. IV, ¶¶
11, 13, 20.) For the reasons set forth below, Plaintiffs' motion is
denied. Leave to amend should be freely granted when justice so requires. See
Fed.R. Civ. P, 15(a). However, the district court need not allow an
amendment when there is undue delay, bad faith, dilatory motive, undue
prejudice to the opposing party, or when the amendment would be fufile.
Bethany Pharmacal Co., Inc. v. QVC, Inc., 241 F.3d 854, 861 (7th Cir.
2001) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). Defendant argues
that Plaintiffs' motion should be denied because it is fufile, untimely
and prejudicial. (Def.'s Resp. at 1.)
A proposed amendment is fufile if it could not withstand a Rule
12(b)(6) motion to dismiss. General Elec. Capital Corp. v. Lease
Resolution Corp., 128 F.3d 1074, 1085 (7th Cir. 1997); see also Peoples
v. Sebring Capital Corp., 209 F.R.D. 428, 430 (N.D. Ill. 2002); Krippelz
v. Ford Motor Co., No. 98 C 2361, 2003 WL 466109 at *5 (N.D. Ill. Feb.
24, 2003) (Zagel, J.). When considering a motion to dismiss, the court
must assume the truth of all facts alleged in the complaint, construing
the allegations liberally and viewing them in the light most favorable to
the plaintiff. Wilson v. Formigoni, 42 F.3d 1060, 1062 (7th Cir. 1994);
Harrell v. Cook, 169 F.3d 428, 431 (7th Cir. 1999). Dismissal is properly
granted if "it is clear that no relief could be granted under any set of
facts that could be proved consistent with the allegations," Cushing v.
City of Chicago, 3 F.3d 1156, 1159 (7th Cir. 1993) (quotation omitted).
"In other words, if it is possible to hypothesize a set of facts,
consistent with the complaint, that would entitle the plaintiff to
relief, dismissal under Rule 12(b)(6) is inappropriate." Veazey v.
Communications & Cable of Chicago, Inc., 194 F.3d 850, 854 (7th Cir.
The Illinois Supreme Court set forth the elements necessary for a
spoliation of evidence claim in Boyd v. Travelers Ins. Co., 652 N.E.2d 267
(Ill. 1995). In Boyd, a heater allegedly allowed propane gas to escape,
resulting in an explosion that caused the plaintiffs injury. 652 N.E.2d
at 269. The insurance adjuster who was investigating the plaintiff's worker's
compensation claim took custody of the heater and placed the heater in a
closet from which it disappeared. Id. The Illinois Supreme Court declined
to recognize an independent tort for negligent spoliation of evidence but
held that relief is available if a claim can be stated under ordinary
negligence theories. Id. at 269-70. Accordingly, in a spoliation of
evidence claim, the plaintiff must plead the existence of a duty, a
breach of that duty, an injury proximately caused by the breach, and
damages. Id. at 270. METRA argues that Plaintiffs have failed to allege
the existence of a duty or that an injury was proximately caused by the
alleged breach. (Def.'s Resp. at 6-7.)
It is important to note that in Boyd and in the other Illinois cases
cited herein the plaintiffs' claims for spoliation of evidence were
evaluated under the fact-pleading approach of the Illinois courts. In
this case, however, Plaintiffs' claim for spoliation of evidence must be
evaluated under the notice-pleading system used in the federal courts.
See, e.g., Veazey, 194 F.3d at 854 (noting that, in contrast to
fact-pleading, the federal rules follow the notice-pleading approach,
which requires only a short and plain statement of the claim showing that
the pleader is entitled to relief).
In general, there is no duty to preserve evidence; however, a duty may
arise through an agreement, a contract, a statute, or other special
circumstances such as the assumption of a duty by affirmative conduct.
Boyd, 652 N.E.2d at 270-71. If one of those circumstances exists, then a
defendant "owes a duty of due care to preserve evidence if a reasonable
person in the defendant's position should have foreseen that the evidence
was material to a potential civil action." Id. at 271. One Illinois court
has described this as a two-prong test for the existence of a duty to
preserve evidence: (1) the relationship prong; and (2) the foreseeability prong.
Andersen v. MackTrucks, Inc., 793 N.E.2d 962, 967 (Ill. App. 2nd Dist.
2003). Unless both prongs are satisfied, there is no duty to preserve
In this case, Plaintiffs first allege that as employees of METRA, their
only remedy for workplace illness or injury is through the Federal
Employers' Liability Act, 45 U.S.C. § 51 et seq. (First. Am. Compl. Ct.
IV, ¶ 15.) Plaintiffs then allege that METRA owed them "a duty to
preserve all evidence relating to the source of plaintiffs' injuries
during the course of their employment with [METRA]." (Id. Ct. IV, ¶ 16.)
Presumably, this allegation is to intended to satisfy the relationship
prong of the test, although Plaintiffs' Motion and Reply cite no authority
to support the existence or parameters of such a legal duty. Plaintiffs
then allege that METRA had a specific duty to preserve the samples taken
by the industrial hygienist which was "voluntarily created by its
affirmative conduct," in that "defendant took a collection of samples of
substances that were unnaturally accumulating in areas of the office
space occupied by employees in response to their complaints." (Id. Ct.
IV, ¶ 18(a); Pls.' Reply at 4.) Plaintiffs allege that METRA knew or
should have known that preservation and analysis of the greenish black
oily substance was material to potential civil claims of its employees
because the samples were taken partially as a result of complaints by
METRA's employees, including Plaintiffs, of building related illnesses.
(First Am. Compl. Ct. IV, ¶ 18.) Plaintiffs allege that during the
months of December 2000 and January and February 2001, several METRA
employees working on the same floor as Plaintiffs complained of illness
or showed physical signs of ill-being. (Id. Ct. IV, ¶ 14). The samples
were allegedly taken during that same time period. (Id. Ct. IV, ¶ 12.)
Significantly, Plaintiffs fail to allege that any claims were threatened
or asserted until the filing of this lawsuit in March 2002, and fail to
allege any basis for METRA to foresee a civil claim or that the samples would be material evidence in such
Plaintiffs' allegations are not sufficient to establish a duty to
preserve evidence under Illinois law. Under Plaintiffs' theory, the act of
taking samples in response to employee complaints would give rise to a
duty to preserve the samples indefinitely although no claims were
asserted or threatened at the time the samples were taken. Plaintiffs
cite no authority to support that theory. Reviewing Illinois cases
discussing claims of spoliation, it is unlikely that Illinois courts
would find a duty exists based on those facts alone,*fn2
Andersen, 793 N.E.2d at 969 (specifically declining to hold that a
request to preserve evidence is sufficient to impose a duty in the
absence of some further special relationship); compare Jackson v. Michael
Reese Hasp. & Med. Ctr., 689 N.E.2d 205, 208, 212, 214, 217 (Ill.App.
1st. Dist. 1997) (affirming dismissal of a claim for spoliation where the
plaintiffs alleged that their malpractice action against a doctor had to
be non-suited because the hospital had failed to retain relevant x-rays,
but allowing an opportunity to replead where, inter alia, the record
indicated that the hospital had notice of the malpractice lawsuit and had
segregated the x-rays into a litigation file) with Boyd, 652 N.E.2d at
271 (the worker's compensation insurance adjuster took custody of the
heater two days after an explosion in order to investigate plaintiff's
worker's compensation claim),
2. Injury Proximately Caused by the Breach
In Boyd, the court stated that to plead causation "a plaintiff
must allege sufficient facts to support a claim that the loss or destruction of the evidence caused the
plaintiff to be unable to prove an underlying lawsuit." Id.*fn3
A plaintiff need not show that, but for the loss or
destruction of the evidence, the plaintiff would have
prevailed in the underlying action. This is too
difficult a burden, as it may be impossible to know
what the missing evidence would have shown.
A plaintiff must demonstrate, however, that but for
the defendant's loss or destruction of the evidence,
the plaintiff had a reasonable probability of
succeeding in the underlying suit. In other words, if
the plaintiff could not prevail in the underlying
action even with the lost or destroyed evidence, then
the defendant's conduct is not the cause of the loss
of the lawsuit. This requirement prevents a plaintiff
from recovering where it can be shown that the
underlying action was meritless.
Id. at 271 n. 2 (emphasis added). See also Farrar v. Yamin,
261 F. Supp.2d 987, 994-95 (N.D. Ill. 2003) (applying Illinois law). In
other words, "a plaintiff must be able to prove with sufficient facts
that the loss or destruction of the evidence hindered its ability to
maintain or defend a suit." China Ocean Shipping Co. v. Simone Metals
Inc., No. 97 C 2694, 1999 WL 966477 at *3 (N.D. Ill. Oct. 1, 1999)
(Holderman, J.) (applying Illinois law).
Here, Plaintiffs have failed to allege that but for the loss or
destruction of the alleged samples they would have had a reasonable
probability of succeeding in the underlying suit. The only allegation
relating to causation in Plaintiffs' proposed amended complaint is
incomplete: "As a direct and proximate result of defendant's negligence in destroying evidence,
specifically the samples collected by Mr. Bachus, plaintiffs' ability to
ascertain the toxicity of the greenish black oily substances." (First
Am. Compl. Ct. IV, ¶ 21.) Furthermore, Plaintiffs have not indicated
that the loss or destruction of the alleged samples will hinder or
prevent them from proving their FELA claims. See. e.g., Jackson, 689
N.E.2d at 214 (trial court was correct in finding the complaint deficient
for failing to show how the missing x-rays would have impacted on
plaintiffs' ability to prove the underlying lawsuit). In cases where
spoliation claims have not been dismissed, the unavailable evidence was,
in the words of the court in Boyd, "the key piece of evidence." 652
N.E.2d at 271. See, e.g., Boyd, 652 N.E.2d at 269 (missing heater in
products liability action); Williams v. General Motors Corp., No. 93 C
6661, 1996 WL 420273 at * 1 (N.D. Ill. July 25, 1996) (Grady, J.)
(missing front right tire, bent tie rod and removed passenger door of van
involved in single vehicle traffic accident).
Plaintiffs filed the underlying lawsuit prior to knowing or learning
that any alleged samples or swabs had been taken by Mr. Bachus.
Presumably, Plaintiffs believed at that time that they could succeed
on their FELA claims without such evidence. Plaintiffs have provided no
explanation why circumstances have changed and the alleged samples or
swabs are now paramount or key evidence to its underlying case. See Clark
v. City of Chicago, No. 97 C 4820, 2000 WL 875422 at * 13 (N.D. Ill. June
28, 2000) (Plunkett, J.) (granting defendant's motion for summary
judgment on spoliation of evidence claim because, although the evidence
that was destroyed "might have contained additional relevant
information, such information would not make or break [plaintiffs]
claim;" it was not the "linchpin" of the case).
Moreover, Plaintiffs state that the witness' description of the oily
substance that was sampled matches the description of harmful molds which experts attribute to "sick
building syndrome." (Pls.' Reply at 5.) That argument suggests that, even
without the samples, there is sufficient evidence to allow an expert to
opine within a reasonable degree of certainty as to the cause of
Plaintiffs' injuries. In contrast, in Boyd, the plaintiff's injury
resulted from the fact that without an examination of ...