The opinion of the court was delivered by: JOHN HUGHES, Magistrate Judge
This matter comes before the Court on Plaintiff's, Travelers
Property Casualty Company of America, as Subrogee of the Estate
of Irving Goldman ("Plaintiff"), Motion for Sanctions for
Defendants', Pavilion Dry Cleaners, John In and Hannah In,
Jointly and Severally, d/b/a Pavilion Dry Cleaners
("Defendants"), alleged spoliation of evidence [Docket Entry No.
14], returnable May 16, 2005. Defendants oppose the Motion. The
Court has reviewed the written submissions of the parties and
considered the matter pursuant to Federal Rule of Civil Procedure
Rule 78. For the reasons that follow, Plaintiff's motion for
sanctions is denied in part and denied without prejudice in part.
I. BACKGROUND AND PROCEDURAL HISTORY
The underlying matter arises out of Plaintiff's subrogation
action to recover damages sustained during a July 4, 2001 fire
which originated within a shopping center, known as the
"Pavilion," in Brick, New Jersey. Plaintiff is the insurer of the
estate of Irving Goldman, the shopping center's owner. Pl.[`s]
Br. at 9. Defendants rented space within the shopping center and operated a dry cleaning establishment, the "Pavilion Dry
Plaintiff alleged that the fire was caused by a malfunction
within the sign outside Defendants' establishment. Id.
Furthermore, Plaintiff argues that Defendants were responsible
for the repair and maintenance of the sign and that the fire was
caused by Defendants' failure to maintain it. Id.
The fire was investigated by Brick Township fire inspector,
Bruce Clayton, who concluded that it originated from the "front
mansard above the Pavilion Dry Cleaners" but recommended that "a
more complete examination of the electric lighting system of
[the] building [be conducted] to determine [its] exact cause and
origin. Defs.[`] Br., Ex. B; see also Def's[`] Br., Ex. A,
Bruce Clayton dep., N.T. 38, L. 4-12.
A. Plaintiff's Motion for Sanctions Based on Defendants'
Spoliation of Evidence.
Plaintiff contends that after it notified Defendants of its
pursuit of subrogation and of its intent to inspect the sign,
Plaintiff was informed by Defendants' representative, Joseph
Argabright, that "he would be securing the sign so that all
interested parties could inspect [it]." Pl.[`s] Br. at 10.
Plaintiff further argues that it relied on Mr. Argabright's
assurance and, thus, did not take further action to secure the
sign. Id. Mr. Argabright did not secure the sign, however, and
it is now missing. Id.
Plaintiff submits this motion for sanctions alleging that it
has "been severely prejudiced due to the spoliation of [the]
evidence." Id. Plaintiff argues that, without the sign, they
are unable to prove the cause of the fire and, consequently,
establish Defendants' negligence. Id. While Plaintiff is
careful not to allege intentional alteration or destruction,
Plaintiff argues that the sign is now missing because Defendants'
representative failed to secure it, despite his prior representations that he would do so. Id. at 12. Plaintiff
submits that the sign "is the most crucial piece of evidence, and
is readily apparent that the sign was discoverable." Id.
Plaintiff requests that sanctions be imposed and, specifically,
that "the jury be informed that due to the spoliation inference,
the jury must find that the fire was caused by the
[D]efendant[s'] failure to maintain the subject sign." Pl.[`s]
Br. at 5. Lastly, Plaintiff contends that there are no lesser
sanctions that "could avoid substantial unfairness to the
opposing party than what the plaintiff is requesting." Id. at 12.
B. Defendants' Opposition to the Motion
Defendants deny any responsibility for the loss of the sign and
further deny that Mr. Argabright was Defendants' representative.
Defs.[`] Br. at 8. Rather, Defendants submit that Mr. Argabright
was a local insurance adjuster who was retained by National Fire
and Indemnity Exchange ("NIE") on Defendants' claim for coverage
under Defendants' insurance policy from NIE. Defs.[`] Reply Br.
at 1-2. Defendants argue that Plaintiff has not offered any
evidence to establish that Mr. Argabright had actual or apparent
authority to make representations for them. Defs.[`] Br. at 4.
Defendants also refer to the testimony of fire inspector Bruce
Clayton indicating that the sign was turned over to Plaintiff's
on-site representative, Paramount Realty, who had assumed
responsibility for the shopping center at the time of the fire.
Id.; see also Clayton dep. N.T. 26-27, L21-18; N.T. 32-35,
L8-8. They further refer to Mr. Clayton's testimony wherein "he
observed the sign in a sprinkler system utility room at the
[P]laintiff's shopping center well after the fire." Defs.[`] Br.
at 5. They contend that the utility room was within Plaintiff's
exclusive possession and control at all times relevant to this
matter. Id. In addition, Defendants argue that "[P]laintiff fail[ed] to
establish that [D]efendants ever had possession or control of the
sign." Id. They submit that Mr. Argabright's statement that "he
would secure the sign can not be reasonably construed as
asserting actual control over the sign when there is no evidence
of a chain of custody showing the sign ever left the
[P]laintiff's control." Id. Lastly, Defendants argue that the
evidence only shows that it was the Plaintiff, and not the
Defendants, who maintained control of the sign prior to it being
missing. Id. at 8. Thus, Defendants assert that sanctions are
not warranted in this case where there is no evidence to
establish their responsibility for the loss of the sign. Id.
Spoliation is "the destruction or significant alteration of
evidence, or the failure to preserve property for another's use
as evidence in pending or reasonably foreseeable litigation."
Mosaid Technologies, Inc. v. Samsung Electronics Co., LTD.,
348 F. Supp. 2d 332, 335 (D.N.J. 2004). A showing of spoliation may
give rise to sanctions, which could include the following:
"dismissal of a claim or granting judgment in favor of a
prejudiced party; suppression of evidence; ...