                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-1721



RICHARD WARREN KING; LAURA R. KING, each
individually and d/b/a K&R King, Incorporated;
K&R KING, INCORPORATED,

                                           Plaintiffs - Appellants,

           versus


AMERICAN POWER CONVERSION CORPORATION,

                                               Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (CA-03-704-5)


Argued:   March 14, 2006                      Decided:   May 17, 2006


Before LUTTIG,* WILLIAMS, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Charles McKinley Brittain, III, MITCHELL, BREWER,
RICHARDSON, ADAMS, BURGE & BOUGHMAN, Fayetteville, North Carolina,
for Appellants. Mary Hulett, RAGSDALE LIGGETT, L.L.C., Raleigh,
North Carolina, for Appellee. ON BRIEF: Ronnie M. Mitchell, Coy E.


     *
      Judge Luttig heard oral argument in this case but resigned
from the court prior to the time the decision was filed.     The
decision is filed by a quorum of the panel pursuant to 28 U.S.C.
§ 46(d).
Brewer, Jr., William O. Richardson, MITCHELL, BREWER, RICHARDSON,
ADAMS, BURGE & BOUGHMAN, Fayetteville, North Carolina, for
Appellants. Ashley Huffstetler, RAGSDALE LIGGETT, L.L.C., Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

     Richard Warren King, Laura R. King, and K & R King, Inc.

appeal an order of the district court dismissing their products

liability claims against American Power Conversion Corporation for

spoliation of the evidence.   We affirm.



                                I.

     Richard and Laura King, doing business under the corporate

name K & R King, Inc. (collectively “the Kings”), owned and

operated a store that doubled as a gas station and convenience

store in Fayetteville, North Carolina.      On April 23, 2001, the

store was damaged by a fire that destroyed most of the inventory

and rendered the facility temporarily inoperable.    The Kings, who

also owned the surrounding shopping center, relocated the business

to a vacant space and operated in the shopping center from May 2001

until September 2002, while repairs to the original store were

completed.

     The fire that damaged the Kings’ property was immediately

investigated by Steve Booth of the Cumberland County Arson Task

Force.    Booth concluded that the fire originated in the store’s

office where the Kings had installed an Uninterrupted Power Source

(“UPS”) unit to serve as a backup power supply in case of a power

outage.    The UPS was manufactured by American Power Conversion

Corporation (“American Power”).       Booth was unable, however, to


                                  3
determine   whether        the    UPS   caused    the   fire.     In   his    final

investigation report dated May 29, 2001, Booth stated that the

examination     of   the    UPS    unit   had    been   inconclusive    but       that

“[American Power] has been placed on notice and will test the unit

themselves.”     J.A. 344.

       Nationwide Insurance Company, the Kings’ insurance carrier,

retained two independent consultants to investigate the fire and to

determine its cause.         Christopher Elrod investigated the scene on

the day following the fire, but was unable to identify the cause of

the fire with certainty: “Although the exact source of ignition is

unknown in this loss, the probability of the ignition of ordinary

combustible materials due to an electrical malfunction at the

location of a battery backup power pac cannot be eliminated.” J.A.

364.     Mark   Kissel,      a     technical     consultant     employed     by   LWG

Consulting who assesses damage to machinery and equipment, focused

his investigation on the Kings’ UPS device and other possible

electrical causes of the fire.            Kissel was present during Elrod’s

fire scene investigation and took custody of the UPS unit for

further evaluation.              Although Kissel did not disassemble the

device, he concluded that “there was damage to the interior of the

UPS unit that did not appear to have been generated from an

exterior or outside source.”            J.A. 348-49.    Kissel observed damage

to the device that was consistent with “a fire that begins inside

a piece of equipment,” and thus concluded that “the April 23, 2001


                                          4
fire at issue probably began within the interior of the [American

Power] UPS device,” indicating “a defect within the piece of

equipment.” J.A. 349, 350.

     On June 12, 2001, Kissel reported his findings to Nationwide,

opining only that the damage to the UPS unit “may indicate an

incendiary failure within the UPS.”                J.A. 359.    Significantly,

Kissel explained that “no determination or conclusions can be

reached with regard to the fire” without further examination which,

in turn, would “require at least partial destruction of the unit.”

J.A. 359.    Kissel recommended that American Power, as well as any

other interested parties, be invited to participate in a mutual

examination of the UPS unit.          Finally, Kissel indicated that the

unit had been packed for storage at his office until he received

further instruction.

     In December 2001, the Kings retained attorneys (“plaintiffs’

counsel”) to represent them in connection with damages caused by

the fire.    Plaintiffs’ counsel contacted Kissel and requested that

he be informed of any inspection scheduled by American Power so

that the Kings could send a representative.              This conversation was

reflected in a follow-up letter to Kissel dated January 9, 2002, in

which plaintiffs’ counsel also noted that, “[s]hould you wish to

remove the unit from your premises we would be happy to take

possession    and   store   it   at   a       secure   location.”   J.A.   457.

According to plaintiffs’ counsel, he reminded Kissel a number of


                                          5
times that plaintiffs needed to be notified of further testing of

the device. On April 15, 2002, plaintiffs’ counsel met with Kissel

in person to view and photograph the unit, and asked Kissel “to

contact our firm should an inspection be scheduled and also should

he wish to remove the units from his premises.”             J.A. 452.      In

February 2003, plaintiffs’ counsel reiterated to Kissel their offer

to safeguard the UPS device should Kissel decide he no longer

wanted to store it.

     On April 7, 2003, Sandra Bowden, an employee of LWG, sent a

letter to Nationwide seeking permission to dispose of the UPS

device.   After receiving Nationwide’s approval, Kissel disposed of

the item on April 10, 2003.         Neither the plaintiffs nor their

attorneys were notified of the decision to dispose of the UPS unit.

     Plaintiffs filed suit against American Power in July 2003, but

they did not learn that the evidence had been destroyed until

August 2003.     The Kings allege that the UPS unit was defective and

caused the fire that damaged their store, and they seek to hold

American Power liable for these damages on theories of negligence

and breach of express and implied warranties.              American Power

removed   this   action   to   federal   court,   and   moved   for   summary

judgment on the basis that the destruction of the UPS unit rendered

American Power unable to mount an effective defense and warranted

dismissal of the Kings’ complaint.          The district court agreed,

concluding that “[w]ithout the UPS, [American Power] has suffered


                                     6
irreparable      prejudice    in    attempting          to   defend     itself   against

plaintiffs’ claims, and a lesser sanction, such as excluding any

reports or testimony of the Nationwide consultants or plaintiffs’

expert, would totally destroy plaintiffs’ case.” J.A. 247-48. The

district court also concluded that, in light of the potential

litigation regarding the UPS unit, the failure of plaintiffs’

counsel    to    advise   American    Power        of    the    unit’s    location   was

negligent, at best. Thus, the district court decided that the only

appropriate remedy was dismissal.



                                          II.

     The    district      court’s    authority          to     impose    sanctions   for

spoliation of evidence “arises from a court’s inherent power to

control the judicial process.”            Silvestri v. General Motors Corp.,

271 F.3d 583, 590 (4th Cir. 2001).                 When a party destroys, alters

or fails to preserve property for use as evidence in reasonably

foreseeable litigation such that the judicial process is disrupted,

a trial court may use this power to determine an appropriate

sanction.       See Chambers v. NASCO, Inc., 501 U.S. 32, 45-46 (1991);

Silvestri,      271   F.3d   at    590.        A   district      court    enjoys   broad

discretion to select a fitting response, which should serve the

twin purposes of “leveling the evidentiary playing field and . . .

sanctioning the improper conduct.”                  Vodusek v. Bayliner Marine

Corp., 71 F.3d 148, 156 (4th Cir. 1995).                       The range of options


                                           7
available to a district court includes dismissal, but such a harsh

sanction should be imposed only if “a lesser sanction will [not]

perform the necessary function.”         Silvestri, 271 F.3d at 590.

     Because of the extreme nature of dismissal as a sanction for

spoliation, it is usually appropriate “only in circumstances of bad

faith or other ‘like action.’” Silvestri, 271 F.3d at 593 (quoting

Cole v. Keller Indus., Inc., 132 F.3d 1044, 1047 (4th Cir. 1998)).

However, bad faith conduct by the plaintiff may not be needed to

justify dismissal if the spoliation of evidence effectively renders

the defendant unable to defend its case.            See id. (“[S]ometimes

even the inadvertent, albeit negligent, loss of evidence will

justify dismissal because of the resulting unfairness . . . .”).

We have prescribed the following approach for district courts

considering   dismissal   as   a   sanction   for   a   given   instance   of

spoliation:   dismissal is appropriate only if “either (1) . . . the

spoliator’s conduct was so egregious as to amount to a forfeiture

of his claim, or (2) . . . the effect of the spoliator’s conduct

was so prejudicial that it substantially denied the defendant the

ability to defend the claim.”       Id.

     In this case, the district court determined that dismissal was

the only appropriate sanction based upon the court’s finding that

American Power would suffer irreparable prejudice if it were forced

to mount a defense without the UPS unit.            Although the district

court noted that the Kings were culpable at least to some degree,


                                     8
characterizing   as   negligent   “their   failure   to   directly   or

indirectly ensure that [American Power] had knowledge of the [UPS]

unit’s location and the possibility of [a] claim stemming from its

alleged failure,” J.A. 247, the district court concluded dismissal

was required because the claims at issue could not be litigated

without the UPS device. The district court explained that the only

evidence available to American Power relating to the allegedly

defective product was “conflicting and inconclusive” and failed to

afford American Power “an appropriate substitute for the ability to

conduct [its] own investigation and defense.”    J.A. 247.   As a less

severe alternative to dismissal, the district court considered but

rejected the exclusion of testimony from Kissel and Elrod and their

written investigation reports suggesting the UPS device may have

started the fire.

     On appeal, the Kings argue that their conduct and the conduct

of their attorneys was not sufficiently blameworthy to permit the

ultimate penalty of dismissal.        They also argue that the Kings

gathered sufficient evidence during their own investigation to

allow American Power to evaluate the allegedly defective UPS unit,

via documents and photos, and otherwise investigate the claim.

Finally, the Kings contend that the district court could have

imposed a lesser sanction, such as an adverse instruction to the

jury, that would have leveled the playing field, punished the




                                  9
conduct, but allowed the lawsuit to continue.              We address each

argument in turn.



                                      A.

     The Kings first argue that their conduct was not sufficiently

culpable to justify the imposition of dismissal as a sanction,

emphasizing that there was no intentional wrongdoing or bad faith

conduct involved in the destruction of the UPS unit. Indeed, there

is no evidence that either the Kings or their attorneys were aware

or should have been aware of the destruction of the UPS unit, much

less any evidence suggesting the Kings participated or acquiesced

in its destruction.

     The   fact   that    the   spoliator’s   conduct    does   not   involve

intentional destruction of evidence, however, does not necessarily

preclude the use of dismissal as a sanction.            Although a district

court must find some degree of fault before imposing sanctions--

especially if the penalty is dismissal--Silvestri makes clear that

the conduct need not be intentional if “it substantially denie[s]

the defendant the ability to defend the claim.”           271 F.3d at 593.

In Silvestri, we affirmed the sanction of dismissal even though it

was unclear from the record whether Silvestri’s failure to preserve

evidence   for    his    subsequent   products   liability      lawsuit   was

deliberate or merely negligent.        Because the unpreserved evidence

was “the only evidence from which [the defendant] could develop its


                                      10
defenses adequately,” we concluded that the defendant suffered

irreparable   prejudice   which   required   dismissal       of   Silvestri’s

action.   Id. at 594.

     The Kings contend that Silvestri does not control because,

unlike the plaintiff’s attorneys in that case, counsel for the

Kings reasonably believed American Power had been notified of the

fire based on an unsubstantiated statement contained in the written

report of the county investigator.       There is no dispute, however,

that no effort was made by the Kings or their attorneys to contact

American Power or verify that it had received notice.                See id.

(finding negligence where “neither Silvestri nor his attorneys

notified General Motors of Silvestri’s claim until almost three

years after the accident, by which time the evidence had been

destroyed”). Accordingly, the Kings failed to discharge their duty

to afford American Power sufficient notice.          See id. at 591 (“If a

party cannot fulfill this duty to preserve [evidence] . . ., he

still has an obligation to give the opposing party notice of access

to the evidence or of the possible destruction of the evidence if

the party anticipates litigation involving that evidence.”).

     We   also   reject   the   Kings’   assertion    that    dismissal   is

inappropriate because, unlike the plaintiffs in Silvestri, they

took affirmative steps to preserve the evidence by maintaining

contact with the consultant who had custody of the UPS device and

requesting that counsel be notified before the item was removed


                                    11
from the premises. Dismissal is not fair, argue the Kings, because

“the spoliation was the result of the actions of an independent

third party . . . who is not a party to this action.”                Brief of

Appellant at 18. In Silvestri, however, we concluded dismissal was

proper even though the evidence was not in the possession of or

controlled by the plaintiff or his attorneys:          “If a party cannot

fulfill this duty to preserve because he does not own or control

the evidence, he still has an obligation to give the opposing party

notice     of   access    to   the    evidence    or   of   the      possible

destruction. . . .”       Silvestri, 271 F.3d at 591 (emphasis added).

      In sum, the district court concluded that the Kings were at

least negligent in failing to take steps to ensure American Power

received sufficient notice about the possibility of a claim that

its product caused the fire or information regarding the location

of the allegedly defective product.         As in Silvestri, the Kings’

conduct,    although     perhaps   insufficient   by   itself   to    justify

dismissal, does not preclude dismissal because it is of sufficient

culpability in light of the severity of the prejudice to American

Power’s ability to defend.         Accordingly, we reject the argument

that the Kings’ conduct prevents dismissal.



                                     B.

     The Kings also challenge the conclusion of the district court

that American Power suffered irreparable prejudice without access


                                     12
to the UPS unit.        The Kings suggest that American Power is

adequately positioned to mount a defense by having its own experts

review the written reports of Kissel, Elrod, and Booth, and by

deposing these individuals.     American Power also has available

evidence developed by the Kings for their case, including items

such as photographs.

     We cannot agree.    Unquestionably, the UPS unit is absolutely

central to the claim by the Kings that the American Power UPS unit

overheated and caused the fire that destroyed the Kings’ store and

its contents. American Power is left without any physical evidence

and must rely primarily on Kissel’s report which itself indicated

that further testing was required before any definitive conclusion

could be formed.   These facts are strikingly similar to those in

Silvestri, where the defendant manufacturer was faced, in the

absence of physical evidence, with having to rely upon inconclusive

findings derived from evidence gathered by the plaintiff’s experts.

American Power has no adequate means to defend against the claims

at issue.

     Accordingly, the only remaining issue is whether the district

court could have imposed a lesser sanction.   As the district court

noted, the exclusion of the investigatory reports or testimony from

the consultants was not an option as the Kings would be rendered

unable to prove their case.    On appeal, the Kings argue that the

district court could have issued “an adverse inference instruction


                                 13
to the jury.”   Brief of Appellant at 26.   The Kings fail to suggest

specific language that would have protected American Power, and we

cannot conceive of how such an instruction would adequately level

the playing field under the circumstances of this case.         More

importantly, we cannot conclude that the district court’s selection

of dismissal as a sanction, as opposed to a limiting instruction,

amounted to an abuse of the district court’s broad discretion.



                                III.

     For the reasons set forth above, we affirm the decision of the

district court.

                                                            AFFIRMED




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