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June 7, 2005.

TRAVELERS PROPERTY CASUALTY OF AMERICA, as Subrogee of the Estate of Irving Goldman Plaintiff,
PAVILION DRY CLEANERS, et al., Defendants.

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.


  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 Cleaners." Id.

  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; ...

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