Wilhelm Reuss GMBH & Co. v. E. Coast Warehouse & Distribution Corp., Civil Action No. 16-4370 (ES) (MAH)

• Decision Date: 06 December 2017
• Docket Number: Civil Action No. 16-4370 (ES) (MAH)
• Citation: Wilhelm Reuss GmbH & Co. v. E. Coast Warehouse & Distribution Corp., Civil Action No. 16-4370 (ES) (MAH) (D. N.J. Dec 06, 2017)
• Parties: WILHELM REUSS GmbH & Co KG, LEBENSMITTEL WERK, KRUGER NORTH AMERICA, INC., and GAEDE & GLAUERDT ASSECURADEUR GmbH & CO. KG, Plaintiffs, v. EAST COAST WAREHOUSE & DISTRIBUTION CORP., Defendant.
• Court: U.S. District Court — District of New Jersey

WILHELM REUSS GmbH & Co KG, LEBENSMITTEL WERK, KRUGERNORTH AMERICA, INC., andGAEDE & GLAUERDT ASSECURADEUR GmbH & CO. KG, Plaintiffs, v. EAST COAST WAREHOUSE & DISTRIBUTION CORP., Defendant.

Civil Action No. 16-4370 (ES) (MAH)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

December 6, 2017

NOT FOR PUBLICATION

OPINION

HAMMER, United States Magistrate Judge

I.Introduction

This matter comes before the Court on the Defendant, East Coast Warehouse and Distribution Corp.'s ("East Coast Warehouse")motion for leave to file a Third-Party Complaint against Aldi, Inc.("Aldi")[D.E. 50].The Court has considered the motion, opposition, reply, and applicable law.¹Pursuant to Federal Rule of Civil Procedure 78, the Undersigned did nothear oral argument and has considered this matter on the papers.For the reasons below, the Court will deny Defendant's motion.

II.Background

This litigation arises out of alleged damage caused to jars of hazelnut spread (the "Cargo") produced by Plaintiff, Wilhelm Reuss GmbH & Co KG, Lebensmittel Werk("Wilhelm"), and shipped from Hamburg, Germany to East Coast Warehouse's facility.SeeComplaint, D.E. 1, at ¶ 1.Plaintiff Wilhelm is a manufacturer of chocolate hazelnut spreads, chocolate fillings and desserts, and produced the Cargo in question.Id.at ¶ 3.Wilhelm's customers included Kruger North America, Inc.("Kruger").In October 2013, Kruger hired Defendant East Coast Warehouse to store the Cargo being shipped from Germany in a warehouse located in Elizabeth, New Jersey.Id.at ¶ 11.

Plaintiffs allege that the Cargo was "in good order and condition" when it was shipped from Germany.Id.at ¶ 13.However, Plaintiffs contend that the Cargo became infested with mice while being stored in East Coast Warehouse's facility, rendering the Cargo "unfit for human consumption."Id.at ¶ 15.Plaintiffs Wilhelm, Kruger, and Gaede & Glauerdt Assecuradeur GmbH & Co.KG ("Gaede") brought this action against East Coast Warehouse, alleging breach of a bailment contract and damages sustained to the Cargo.Seegenerally, Complaint, D.E. 1.

East Coast Warehouse now seeks to file a Third-Party Complaint against Aldi for their alleged destruction of the Cargo in its possession.SeeProposed Third-Party Complaint, D.E. 50-2.In the proposed Third-Party Complaint, East Coast Warehouse alleges that Aldi entered into an agreement with Kruger and/or Wilhelm to purchase a portion of the Cargo for resale.Id.at ¶ 9.From September to December, 2014, 465,192 jars of the Cargo were shipped from theEast Coast Warehouse facility to twelve different warehouses that Aldi owns throughout the United States.Id.at ¶ 10.According to the proposed Third-Party Complaint, "[o]n or about January 12, 2015, Kruger informed [East Coast Warehouse] that Aldi reported alleged contamination on some part of the Cargo."Id.at ¶ 11.After reporting the alleged contamination, East Coast Warehouse claims that Aldi and Kruger discussed the Cargo, East Coast Warehouse's involvement, and "Plaintiffs' actual and/or potential claim" against East Coast Warehouse.Id.at ¶ 12.East Coast Warehouse alleges that, despite having "actual and/or constructive knowledge" of an actual or potential dispute between Plaintiffs and East Coast Warehouse, "on or about January 22, 2015, Aldi destroyed or arranged for the destruction of all 177,629 jars of the Cargo in its possession. . ."Id.at ¶ 19.East Coast Warehouse's Proposed Third-Party Complaint contains one count for "negligent destruction of evidence."Id.at ¶¶ 21-28.

III.Discussion

Federal Rule of Civil Procedure 14(a) governs motions for leave to file third-party complaints.Rule 14(a)(1) states that:

A defending party may, as third-partyplaintiff, serve a summons and complaint to a nonparty who is or may be liable to it for all or part of the claim against it.But the third-partyplaintiff must, by motion, obtain the court's leave if it files the third-party complaint more than 14 days after serving its original answer.

Here, East Coast Warehouse filed its Answer on October 27, 2016[D.E. 21] and filed this motion on August 22, 2017[D.E. 50], and therefore past the 14 day deadline.

The decision to grant leave to file a third-party complaint is left with the sound discretion of the court.SeeSomportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F. 2d 435, 439(3d Cir.1971), cert.denied, 405 U.S. 1017(1972).However, "[a] third-party claim may be asserted under Rule 14(a) only when the third-party's liability is in some way dependent on the outcomeof the main claim or when the third-party is secondarily liable to defendant."F.D.I.C. v. Bathgate, 27 F. 3d 850, 873(3d Cir.1994).While a third-party claim does not need to be based on the same theory as the main claim, third-party claims must be brought under some theory of secondary liability such as indemnification, contribution, or some other theory of derivative liability recognized by relevant substantive law.SeeToberman v. Copas, 800 F. Supp. 1239, 1242(M.D. Pa.1992).Accordingly, "[c]ourts have stringently followed the rule that a third-party complaint may not set forth a claim of the third party defendant's liability to the plaintiff" and it is clear that a "theory that another party is the correct defendant is not appropriate for a third party complaint."Slater v. Skyhawk Transportation, Inc., 187 F.R.D. 185, 203(D.N.J.1999)(quotingTobermanat 1242)."A third-party complaint that does not make a facial showing of secondary liability will not be entertained by the court."Ronson v. Talesnick, 33 F. Supp. 2d 347, 358(D.N.J.1999)(superseded on other grounds by statute).Importantly, a Third-Party Complaint is only proper under R. 14(a) when a right to relief exists under substantive law.

East Coast Warehouse asserts a claim of "negligent destruction of evidence" against Aldi because Aldi "knew or should have known Plaintiffs had an actual and/or potential legal claim against [East Coast Warehouse]."Proposed Third-Party Complaint, D.E. 50-2, at ¶ 22.Therefore, this Court first must consider whether New Jersey law recognizes a right to relief for negligent destruction of evidence, also known as negligent spoliation, by a third party.East Coast Warehouse argues that "[u]nder New Jersey law, a 'defendant who has been deprived of the ability to defend an action brought by a plaintiff because a third party has destroyed evidence' has a cause of action for damages against the third party."Movant's Brief, D.E. 50-1, at 8(citingHewitt v. Allen Canning Co., 321 N.J. Super. 178, 184(App. Div.1999)).East Coast Warehouse contends that if it is somehow found liable to Plaintiffs, it "likely can establish thatAldi negligently destroyed materially necessary evidence which negatively impacted [East Coast Warehouse's] ability to defend itself against Plaintiffs' claims."Movant's Br., D.E. 50-1, at 8.East Coast Warehouse states that Aldi was "keenly aware of an actual and/or potential dispute between Plaintiffs and [East Coast Warehouse]," pointing to the fact that Aldi first notified Kruger of the alleged contamination, then discussed East Coast Warehouse's involvement with Kruger, and finally, sent an inspector to East Coast Warehouse's facility in Elizabeth to take pictures.Id. at 9.East Coast Warehouse argues that Aldi's destruction of a portion of the Cargo "handcuffs" East Coast Warehouse's defense because it is "unware of the scope, size or extent of the alleged damage to the Cargo Aldi destroyed."Id.Accordingly, East Coast Warehouse argues that it is entitled to implead Aldi because it may have a claim of spoliation against Aldi and is entitled to seek damages from Aldi, should East Coast Warehouse be found liable for the Cargo that Aldi negligently destroyed.Id. at 9-10.

Plaintiffs argue that East Coast Warehouse has not plead a viable claim.Plaintiffs contend that New Jersey law does not recognize a cause of action for negligent destruction of evidence.According to Plaintiff, New Jersey law recognizes only a claim for fraudulent concealment of evidence.

"[T]he existence of an affirmative cause of action for spoliation of evidence is a matter of state law" and "must be guided by the decisions of New Jersey's highest court."Gares v. Willingboro Township, 90 F. 3d 720, 725(3d Cir.1996).The New Jersey Supreme Court has not formally recognized the tort of negligent spoliation.Some decisions within this district have declined to recognize the tort of negligent spoliation of evidence, particularly as against a third party, because New Jersey appellate-level courts have not recognized it.Saksa-Mydlowski v. Ford Motor Co., Civ. No. 02-2950 (AET), 2006 WL 931611(D.N.J.Apr. 10, 2006)(in product-liability action arising from vehicle rollover, dismissing defendant automobile manufacturer's claim against third-party insurer for negligent spoliation, and holding that "Ford cites no authority indicating that the New Jersey appellate courts or New Jersey Supreme Court would permit any tort defendant to bring a claim of negligent destruction of evidence against a third party.");Kolanovic v. Gida, 77 F. Supp. 2d 595, 606(D.N.J.1999)("As the New Jersey Appellate Division has not yet recognized the tort of negligent spoliation of evidence, and because the New Jersey Supreme Court declined, even in dicta, to recognize the tort in Hewitt, this Court concludes that the New Jersey Supreme Court would not recognize the tort of negligent spoliation of evidence at this time.").

Some New Jersey courts have analyzed claims of negligent spoliation against third parties under traditional negligence principles instead of considering the negligent spoliation as a distinct tort.For example, in Gilleski v. Community Medical Center, 336 N.J. Super. 646(App. Div.2001), Appellate Division held that the defendant had no duty to preserve the evidence.In that case, the plaintiff was injured while accompanying her young niece at...