Taylor v. Caesars Entertainment Operating Company, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

YOLANDA TAYLOR, )

)

Plaintiff, )

)

v. ) Case No. 4:23CV758 HEA

)

CAESARS ENTERETAINMENT )

OPERATING COMPANY, INC., d/b/a )

HORSESHOE ST. LOUIS, f/k/a )

LUMIERE PLACE CASINO, )

)

Defendant. )

OPINION, MEMORANDUM AND ORDER

This matter is before the Court on Defendant’s Motion to Dismiss Count IV,

[Doc. No. 10]. Plaintiff opposes the Motion. For the reasons set forth below, the

motion will be granted.1

Facts and Background

Plaintiff claims she was injured at Defendant’s casino in August, 2021 when

a glass or plexiglass topper fell from a slot machine onto her. Plaintiff sent a

preservation letter to Defendant five days after the alleged injury. Six months after

1 “Any party or the court may, at any time, raise the issue of subject matter jurisdiction.” Great

River Ent., LLC v. Zurich Am. Ins. Co., 81 F.4th 1261, 1263 (8th Cir. 2023) (quoting GMAC

Com. Credit LLC v. Dillard Dep't Stores, Inc., 357 F.3d 827, 828 (8th Cir. 2004)). See also, Dick

v. Disc. Auto Parts, LLC, No. 4:23-CV-00494-SEP, 2024 WL 358305, at *1 (E.D. Mo. Jan. 31,

2024)(remanding matter on the Court’s own motion.)

the injury and letter, Plaintiff’s attorney requested to examine the topper. He was

told by Defendant’s agent that the topper was gone.

Plaintiff’s Petition2 attempts to allege a separate claim for Intentional

Spoliation of Evidence in Count IV. Defendant moves to dismiss this count,

arguing spoliation of evidence is not a separate cause of action recognized in

Missouri law.

Standard of Review

In order “[t]o survive a motion to dismiss, a complaint must plead sufficient

factual matter to ‘state a claim to relief that is plausible on its face.’” Edwards v.

City of Florissant, 58 F.4th 372, 376 (8th Cir. 2023) (quoting Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009)). “A claim is facially plausible if the plaintiff pleads facts that

allow the court to draw the reasonable inference that the Defendant is liable for the

misconduct alleged.” Ahern Rentals, Inc. v. EquipmentShare.com, Inc., 59 F.4th

948, 953 (8th Cir. 2023) (internal quotation marks and alteration omitted) (quoting

Iqbal, 556 U.S. at 678)). “If, on the other hand, the plaintiff pleads facts that are

merely consistent with a Defendant’s liability, the complaint stops short of the line

between possibility and plausibility of entitlement to relief.” Id. (internal quotation

marks and citation omitted); accord Edwards, 58 F.4th at 377 (“[W]here the well-

2 Plain�ff filed suit in the Circuit Court for the City of St. Louis, Missouri. Defendant removed it to this Court based

on the Court’s diversity of ci�zenship jurisdic�on, hence Plain�ff’s ini�al pleading was a Pe��on rather than a

Complaint.

pleaded facts do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged—but it has not shown—that the pleader is

entitled to relief.” Id. (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937)).

In deciding whether a complaint satisfies the plausibility test, the Court must

“accept ‘as true the complaint's factual allegations and grant[ ] all reasonable

inferences to the non-moving party.’” Park Irmat Drug Corp. v. Express Scripts

Holding Co., 911 F.3d 505, 512 (8th Cir. 2018) (alteration in original) (quoting

Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 591 (8th Cir. 2009)). This rule “is

inapplicable to legal conclusions,” which the Court may disregard. Iqbal, 556 U.S.

at 678. Likewise, “‘naked assertions devoid of further factual enhancement,’ do not

suffice, nor do ‘[t]hreadbare recitals of the elements of a cause of action, supported

by mere conclusory statements.’” Roberson v. Dakota Boys & Girls Ranch, 42

F.4th 924, 928 (8th Cir. 2022) (quoting Iqbal, 556 U.S. at 678). With few

exceptions, the Rule 12(b)(6) analysis is constrained to factual matter alleged in the

complaint. See Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 (8th

Cir. 2012) (“[T]he court generally must ignore materials outside the pleadings, but

it may consider some materials that are part of the public record or do not

contradict the complaint, as well as materials that are necessarily embraced by the

pleadings.” (citations omitted)).

Discussion

Both parties agree that no Missouri court has recognized a separate cause of

action for spoliation of evidence. Plaintiff argues, however that the Missouri courts

have not done so because the courts have not had the necessary elements before the

courts for the claim either because the elements were not alleged or could not be

proven in any cases before them. Plaintiff invites this Court to predict that the

Missouri courts would recognize a claim for intentional spoliation of evidence

under the facts and circumstances of this case.

The Court declines the invitation. The issue is not as “nuanced” as Plaintiff

claims. In Marmaduke v. CBL & Associates Management, Inc., 521 S.W.3d 257,

270 (Mo.App. 2017), a case Plaintiff fails to discuss, the Court discussed a separate

claim for spoliation:

Several jurisdictions have recognized a cause of action for the intentional

spoliation of evidence, though a greater number of jurisdictions do not.

Pikey, 203 S.W.3d at 822-23; Brown, 856 S.W.2d at 56 (citing John F.

Medler, Jr., Spoliation Of Evidence In Civil Cases, 39 St. Louis B.J. 14, 20-

21 (1993); Thomas G. Fischer, Intentional Spoliation of Evidence,

Interfering with Prospective Civil Action, As Actionable, 70 A.L.R.4th 984

(1989)). Missouri has remained in the majority of states that have not

recognized an independent cause of action based on the spoliation of

evidence. Fisher, 239 S.W.3d at 701; Pikey, 203 S.W.3d at 825; Brown, 856

S.W.2d at 56-57; Baugher v. Gates Rubber Co., Inc., 863 S.W.2d 905, 907-

14 (Mo.App.E.D, 1993). Instead, Missouri has opted to allow the trial court

to address the issue by impacting the evidence the jury may hear regarding

the subject matter of the spoliated evidence. In doing so, courts have been

cautioned to tailor the remedy to the problem, and to “take pains neither to

use an elephant gun to slay a mouse nor to wield a cardboard sword if a

dragon looms.” Anderson v. Beatrice Foods Co., 900 F.2d 388, 395 (1st Cir.

1990).

Marmaduke v. CBL & Assocs. Memt., Inc., 521 S.W.3d 257, 270 (Mo. Ct. App.

2017).

Marmaduke clearly sets out the Missouri law regarding spoliation. With this

background of case law, this Court believes it immutable that the Missouri

Supreme Court would also conclude that a separate cause of action does not exist

for intentional spoliation of evidence. As such, the Court declines Plaintiff’s

invitation to find otherwise and conclude that a separate cause of action for

intentional spoliation does not exist in Missouri. Therefore, such a claim, based on

Missouri law, cannot survive in this Court.

Conclusion

In light of the foregoing analysis, the Court finds Plaintiff's claim for

intentional spoliation of evidence inevitably must be dismissed.

Accordingly,

IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss Count [V

is granted.

IT IS FURTHER ORDERED that Count IV is dismissed from this action.

Dated this 16" day of February 2024.

UNITED STATES DISTRICT JUDGE