United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK SENIOR U.S. DISTRICT JUDGE
October 14, 2016, Ms. Joy VanMeter (Plaintiff) met Mr.
Michael Briggs (Defendant) at his home for drinks. Plaintiff
contends that Defendant drugged and sexually assaulted her.
Defendant denies that he drugged Plaintiff and maintains that
the entire interaction was consensual.
filed reports with the Albuquerque Police Department (APD)
and with the parties' employer, the University of New
Mexico (UNM). She later filed a civil lawsuit in state court,
which Defendant removed. Defendant has filed an answer and
counterclaim, and Plaintiff moves to dismiss his claims for
spoliation of evidence and prima facie tort. Having
considered the parties' arguments and relevant law, the
Court will deny Plaintiff's motion to dismiss the
spoliation claim and grant the motion to dismiss the prima
facie tort claim.
heart of this lawsuit is Plaintiff's allegation that
Defendant drugged and sexually assaulted her at his home on
October 14, 2016. (See Doc. 1-1 (Compl.)
¶¶ 5, 8, 39-78.) Plaintiff later underwent an
examination with a Sexual Assault Nurse Examiner (SANE) nurse
(see Id. ¶ 110; see also Doc. 3
(Countercl.) ¶ 34), reported the alleged assault to APD
(see Compl. ¶ 113; Countercl. ¶ 34), and
filed a report with UNM, Defendant's employer
(see Countercl. ¶ 34).
Counterclaim, Defendant contends that Plaintiff intentionally
deleted “exculpatory” text messages between her
and her husband and knowingly withheld their existence from
investigators because they would have helped Defendant defend
himself from the allegations. (See Id. ¶¶
35-38.) Defendant asserts that “APD [unsuccessfully]
attempted to recover these deleted texts from Ms.
VanMeter's phone, ” and her husband also shared the
content of some of the messages with the APD investigator.
(Id. ¶ 36.)
brings counterclaims against Plaintiff for (I) defamation,
(II) malicious abuse of process, (III) spoliation of evidence
(regarding the deleted text messages), (IV) intentional
interference with prospective business relations, (V)
intentional infliction of emotional distress, and (VI) prima
facie tort. (See Id. ¶¶ 40-90.) Plaintiff
moves to dismiss the spoliation and prima facie tort claims.
reviewing a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the Court “must accept all the well-pleaded allegations
of the [counterclaim] as true and must construe them in the
light most favorable to the [counterclaimant].” In
re Gold Res. Corp. Sec. Litig., 776 F.3d 1103, 1108
(10th Cir. 2015) (citation omitted). “To survive a
motion to dismiss, ” the counterclaim does not need to
contain “detailed factual allegations, ” but it
“must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 570 (2007)).
Defendant has pled facts sufficient to state a plausible
claim to relief for spoliation.
state a claim for intentional spoliation, Defendant must
(1) the existence of a potential lawsuit; (2) the
defendant's knowledge of the potential lawsuit; (3) the
destruction, mutilation, or significant alteration of
potential evidence; (4) intent on part of the defendant to
disrupt or defeat the lawsuit; (5) a causal relationship
between the act of spoliation and the inability to prove the
lawsuit; and (6) damages.
Coleman v. Eddy Potash, Inc., 905 P.2d 185, 189
(N.M. 1995), overruled on other grounds byDelgado v. Phelps Dodge Chino, Inc., 34 P.3d 1148
(N.M. 2001) (citations omitted). Here, Defendant asserts
facts to show that Plaintiff filed reports with APD and UNM,
and therefore knowingly “created the existence of a
potential lawsuit and other legal action[, ]”
satisfying the first two elements. (Countercl. ¶¶
60-61.) He alleges that Plaintiff intentionally deleted text
messages from her cell phone related to events described in
the lawsuit, sent between herself and others (including her
husband), thereby destroying potential evidence and
satisfying the third element. (See Id. ¶¶
30-31, 35, 62.) He asserts that Plaintiff deleted the
messages “to prevent investigators from becoming ...