The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge
The parties have consented to have this case heard to judgment by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and the District Judge has referred the case to me. Now before the Court are the Motion to Dismiss Counts III, IV and V by Defendant Wal-Mart Stores, Inc. (Doc.#47); and the Motion to Strike by Plaintiff (Doc. #50). These motions are fully briefed and I have carefully considered the submissions and arguments of the parties. For the following reasons, the Motion to Dismiss is GRANTED IN PART AND DENIED IN PART; and the Motion to Strike is DENIED AS MOOT.
Plaintiff Jack Stoner is a resident of Henry County, Illinois. Defendant Wal-Mart Stores Inc. was incorporated in Delaware and has its principal place of business in Arkansas. Defendant Murphy Oil USA, Inc. is a Delaware corporation with its principal place of business in Arkansas. The amount in controversy exceeds $75,000. This Court therefore has jurisdiction over the subject matter of this case pursuant to 28 U.S.C. 1332.
Motions to dismiss generally In the Supreme Court's most recent articulation of the standards that govern motions to dismiss, the Court made it clear that notice pleading is still the rule. Bell Atlantic Corp. v. Twombly, -- U.S. --, 127 S.Ct. 1955, 1964-65 (2007). The Court emphasized, however, a plaintiff's obligation to plead more than "labels and conclusions, and a formulaic recitation of the elements of a cause of action." Id. at 1964. The complaint must include enough detailed factual allegations "to raise a right to relief above the speculative level." Id.. The Court went on to note that:
Rule 8(a)(2) still requires a 'showing,' rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only "fair notice" of the nature of the claim, but also "grounds" on which the claim rests.
The Seventh Circuit has "cautiously" applied Bell. Tamayo v. Blagojevich, 526 F.3d 1074, 1082 (7th Cir. 2008). While acknowledging that Bell had "retooled federal pleading standards", Killingsworth v. HSBC Bank Nevada, 507 F.3d 614, 615-19 (7th Cir. 2007), the Court of Appeals has also warned that Bell "must not be overread." Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 803 (7th Cir. 2008).
The First Amended Complaint in this case alleges the following: Wal-Mart operated a store in Kewanee, Illinois. Murphy Oil USA owned and operated a gas station in Kewanee, Illinois. Wal-Mart and/or Murphy Oil placed or allowed to be placed a Murphy Oil USA advertisement in a sidewalk sign stand in front of the entrance to the Wal-Mart store.
On January 10, 2006, Plaintiff Jack Stoner was approaching the entrance door to Wal-Mart. He tripped over one of the legs of the advertising sign located near the door, falling and sustaining serious injuries. Wal-Mart announced a "code white" over the in-store PA system, alerting its employees that an accident had occurred on the premises. Two Assistant Managers responded by going to the front of the store, where they observed Stoner sitting in a wheel chair and heard him complaining of his injuries. They were told by his wife that he had tripped over the leg of the sign.
The two Assistant Managers reviewed footage from a security camera that showed Stoner's fall. One of them secured and labeled the tape so it could be copied, and both filled out accident reports. Subsequently, Wal-Mart taped over the portions of the security videotape that depicted Stoner's fall. Before that was done, however, Wal-Mart copied only that portion of the tape that showed Stoner after the fall. Wal-Mart also failed to secure the sign, which is now lost.
The three counts that are the subjects of Wal-Mart's motion to dismiss are Count III for intentional spoliation of the videotape; Count IV for negligent spoliation of the videotape; ...