2019 WL 2119982

United States District Court, M.D. Pennsylvania.
JEFFREY WHITE AND LILLY WHITE, Plaintiffs
v.
TOMASZ TRYBALA and J & J TRUCKING ENTERPRISES, INC., Defendants
No. 3:19cv14
|
05/15/2019
Opinion

JUDGE JAMES M. MUNLEY, United States District Judge

*1 ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

MEMORANDUM
Before the court for disposition is a partial motion to dismiss plaintiffs’ complaint filed by Defendants Tomasz Trybala and J & J Trucking Enterprises, Inc., in this personal injury action. The parties have briefed the pending motion, and it is ripe for disposition.

Background
On June 1, 2017, Plaintiff Jeffrey White drove his Hyundai Elantra vehicle eastbound on Shaffer’s School House Road in Stroud Township, Monroe County, Pennsylvania. (Doc. 1, Compl. ¶ 6). At the same time, Defendant Tomasz Trybala drove a Volvo Tractor, which was trailing a semi-trailer, northbound on State Route 209. (Id. ¶ 11). Defendant J & J Trucking Enterprises, Inc. owned the tractor-trailer operated by Defendant Trybala. (Id. ¶ 14). Defendant J & J Trucking employed Defendant as an interstate truck driver. (Id. ¶ 4).

The plaintiffs allege that as Defendant Trybala approached the intersection of State Route 209 and Shaffer’s School House Road, Defendant Trybala failed to stop for a red traffic signal. (Id. ¶ 15). The defendant’s tractor-trailer subsequently collided with the plaintiff’s vehicle. (Id.) As a result, Plaintiff Jeffrey White alleges to have suffered serious and severe injuries. Plaintiff Lilly White alleges loss of consortium, care, companionship, and society of her husband Jeffrey White due to his serious injuries. (Id. ¶ 63).

On January 4, 2019, the plaintiffs filed a ten-count complaint in the Middle District of Pennsylvania against Tomasz Trybala and J & J Trucking Enterprises, Inc., alleging negligence, “outrageous, wanton, recklessness, gross indifference to the safety (sic) of Jeffrey White,” vicarious liability, negligent entrustment, negligent training, negligent hiring, supervision and retention, and loss of consortium. (Doc. 1). On January 25, 2019, the defendants filed the instant motion to partially dismiss plaintiffs’ complaint for failure to state a claim. (Doc. 5). The plaintiffs responded on March 18, 2019, (Doc. 11), bringing this case to its present posture.

Jurisdiction
This case is before us based upon diversity of citizenship. 28 U.S.C. § 1332(a). Cases are properly brought in federal district court under the diversity statute when the action involves citizens of different states and an amount in controversy, exclusive of interest and costs, in excess of $75,000.00. See 28 U.S.C. § 1332(a). Instantly, complete diversity exists and the amount in controversy exceeds $75,000. As a federal court sitting in diversity, the substantive law of Pennsylvania shall apply to the instant case. Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)).

Legal Standard
The defendants filed their motion to dismiss plaintiffs’ complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The court tests the sufficiency of the complaint’s allegations when considering a Rule 12(b)(6) motion. All well-pleaded allegations of the complaint must be viewed as true and in the light most favorable to the non-movant to determine whether, “ ‘under any reasonable reading of the pleadings, the plaintiff may be entitled to relief.’ “ Colburn v. Upper Darby Twp., 838 F.2d 663, 665–66 (3d Cir. 1988) (quoting Estate of Bailey by Oare v. Cnty. of York, 768 F.2d 503, 506 (3d Cir. 1985)). The plaintiff must describe “ ‘enough facts to raise a reasonable expectation that discovery will reveal evidence of’ [each] necessary element” of the claims alleged in the complaint. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Moreover, the plaintiff must allege facts that “justify moving the case beyond the pleadings to the next stage of litigation.” Id. at 234–35. In evaluating the sufficiency of a complaint the court may also consider “matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994) (citations omitted). The court does not have to accept legal conclusions or unwarranted factual inferences. See Curay–Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).

*2 The federal rules require only that plaintiff provide “a short and plain statement of the claim establishing that the pleader is entitled to relief,” a standard which “does not require detailed factual allegations,” but a plaintiff must make “a showing, rather than a blanket assertion, of entitlement to relief that rises above the speculative level.” McTernan v. N.Y.C., 564 F.3d 636, 646 (3d Cir. 2009) (citations and internal quotations and quotation marks omitted).

Discussion
The defendants move to dismiss Counts III and IV of Plaintiff’s complaint, which each state a claim for “Outrageous, Wanton, Recklessness, Gross Indifference to the Saftey (sic) of Jeffrey White” against Defendant Trybala and Defendant J & J Trucking. The defendants also move to dismiss plaintiff’s allegations of reckless conduct, recklessness, gross negligence, reckless indifference, wanton conduct, and outrageous conduct, as well as plaintiffs’ request for punitive damages. We will begin with defendants’ motion to dismiss Counts III and IV.

I. Counts III and IV
As noted above, the defendants move to dismiss Counts III and IV of plaintiffs’ complaint, which assert one count against each defendant entitled “Outrageous, Wanton, Reckless, Gross Indifference to the Saftey (sic) of Jeffrey White.” (Doc. 1, Compl. at 12-15). The defendants contend that Pennsylvania law does not support an independent cause of action for such a claim. The defendants argue that instead, such a claim falls within a negligence cause of action, which the plaintiffs have already asserted elsewhere in the complaint. The plaintiffs agree that Pennsylvania law does not support a cause of action for such a claim but argue that it is too early in the proceedings to dismiss these claims.

Under Pennsylvania law there is indeed no distinction among varying degrees of negligence. Fialkowski v. Greenwich Home for Children, Inc., 921 F.2d 459 (3d Cir. 1990). Pennsylvania courts have long held that allegations of recklessness and similar allegations of the degrees of negligence as asserted by the plaintiffs do not give rise to a separate tort claim under Pennsylvania law. See Archibald v. Kemble, 971 A.2d 513 (Pa. Super. Ct. 2009). Because the plaintiffs have already raised negligence claims in Counts I and II of their complaint, the defendants’ motion to dismiss Counts III and IV will be granted to the extent those counts state separate causes of action for outrageous conduct, wanton conduct, recklessness, reckless indifference, or gross negligence.

II. Allegations of reckless conduct, recklessness, gross negligence, reckless indifference, wanton conduct, and outrageous conduct.
Next, the defendants move to dismiss plaintiffs’ allegations of reckless conduct, recklessness, gross negligence, reckless indifference, wanton conduct, and outrageous conduct. The defendants contend that because the allegations fail to support these assertions of the higher degrees of culpability, these allegations should be dismissed. We disagree.

As previously stated, in order to survive a motion to dismiss for failure to state a claim, the plaintiffs must describe “ ‘enough facts to raise a reasonable expectation that discovery will reveal evidence of’ [each] necessary element” of the claims alleged in the complaint. Phillips, 515 F.3d at 234. Allegations must be viewed as true and in the light most favorable to the non-moving party to determine whether the plaintiff may be entitled to relief. Colburn, 838 F.2d at 665–66. To determine whether the plaintiffs have met their burden in this case, we review the applicable Pennsylvania law.

*3 Pennsylvania courts define gross negligence as “a form of negligence where the facts support substantially more than ordinary carelessness, inadvertence, laxity, or indifference.” Albright v. Abington Memorial Hospital, 696 A.2d 1159, 1164 (Pa. 1997). The behavior of the defendant must be flagrant— grossly deviating from the ordinary standard of care. Id.

As for recklessness, a defendant acts recklessly1 when “his conduct creates an unreasonable risk of physical harm to another [and] such risk is substantially greater than that which is necessary to make his conduct negligent.” Phillips v. Cricket Lighters, 883 A.2d 439, 445 (Pa. 2005). An actor’s conduct is in reckless disregard of the safety of another if “he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.” Restatement (Second) of Torts § 500 (1965).

At this stage, viewing the allegations in the light most favorable to the plaintiffs, we find that the plaintiffs have alleged “enough facts to raise a reasonable expectation that discovery will reveal evidence of” reckless conduct, recklessness, gross negligence, reckless indifference, wanton conduct, and outrageous conduct. Phillips, 515 at 234 (quoting Twombly, 550 U.S. at 556). The plaintiffs have alleged that Defendant Tomasz failed to stop for a red traffic signal at the intersection of State Route 209 and Shaffer’s School House Road. (Doc. 1, Compl. ¶ 15). According to the plaintiffs, the Defendant Tomasz was driving a tractor-trailer, owned by Defendant J & J Trucking, in an endangering fashion when Defendant Tomasz violently struck Plaintiff Jerry White’s vehicle, causing it to change direction on the state road. (Id. ¶ 15, 37).

As such, although we will dismiss Counts III and IV to the extent those counts state separate causes of action for outrageous conduct, wanton conduct, recklessness, reckless indifference, or gross negligence, we will deny the defendants’ motion to dismiss the allegations of such conduct.

III. Punitive Damages
Finally, the defendants move to dismiss the plaintiffs’ punitive damages claim the basis that the plaintiffs have failed to allege specific facts that demonstrate that punitive damages would be warranted.

Pennsylvania law provides that punitive damages may be awarded in cases where the defendant has engaged conduct that is outrageous because of the defendant’s evil motive or reckless indifference to the rights of others. Rizzo v. Haines, 555 A.2d 58, 69 (Pa. 1989). The Supreme Court of Pennsylvania has explained the punitive damages standard as follows:
The standard governing the award of punitive damages in Pennsylvania is settled. “Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 747 (1984) (quoting Restatement (Second) of Torts § 908(2) (1979)); see also Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355, 358 (1963). As the name suggests, punitive damages are penal in nature and are proper only in cases where the defendant’s actions are so outrageous as to demonstrate willful, wanton or reckless conduct. See SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 587 A.2d 702, 704 (1991); Feld, 485 A.2d at 747– 48; Chambers, 192 A.2d at 358. See also Restatement (Second) of Torts § 908, comment b. The purpose of punitive damages is to punish a tortfeasor for outrageous conduct and to deter him or others like him from similar conduct. Kirkbride v. Lisbon Contractors, Inc., 521 Pa. 97, 555 A.2d 800, 803 (1989); Restatement (Second) of Torts § 908(1) (“Punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.”). Additionally, this Court has stressed that, when assessing the propriety of the imposition of punitive damages, “[t]he state of mind of the actor is vital. The act, or the failure to act, must be intentional, reckless or malicious.” See Feld, 485 A.2d at 748; see also Martin v. Johns–Manville Corp., 508 Pa. 154, 494 A.2d 1088, 1097 n. 12 (1985) (plurality opinion).
*4 Hutchinson ex rel. Hutchinson v. Luddy, 870 A.2d 766, 770–71 (Pa.2005) (footnote omitted).

At this stage in the litigation, in light of the previously mentioned allegations contained within plaintiff’s complaint, we find that the plaintiffs have pled sufficient facts to withstand a motion to dismiss their request for punitive damages.

Conclusion
For the foregoing reasons, Counts III and IV of plaintiffs’ complaint will be dismissed to the extent that those counts allege separate and independent causes of action for outrageous, wanton, reckless, or gross indifference to the safety of the plaintiff. The defendants’ motion to dismiss the allegations, however, of reckless conduct, recklessness, gross negligence, reckless indifference, wanton conduct, and outrageous conduct, as well as the plaintiffs’ request for punitive damages, will be denied. The plaintiffs will be afforded an opportunity to amend their complaint to clearly plead the remaining claims.
BY THE COURT:
Date: May 15, 2019 s/ James M. Munley_______

JUDGE JAMES M. MUNLEY

United States District Judge
All Citations
Slip Copy, 2019 WL 2119982

Footnotes

1
The terms “malicious,” “wanton,” “reckless,” and “willfull” are used interchangeably by the Supreme Court of Pennsylvania to warrant the recovery of punitive damages. See Moran v. G. & W.H. Corson, Inc., 586 A.2d 416, 423 (Pa. Super. Ct. 1991).

2019 WL 1995328

United States District Court, E.D. North Carolina,
Western Division.
Michael James WILLIAMSON, Plaintiff,
v.
J.B. HUNT TRANSPORT, INC., and James Michael Pratt, Defendants.
NO. 5:18-CV-548-FL
|
Signed 05/06/2019
Attorneys and Law Firms
Matthew David Ballew, Zaytoun Law Firm, PLLC, Raleigh, NC, for Plaintiff.
Michelle Prendergast, Shannon Strickland Frankel, Young, Moore & Henderson, P.A., Raleigh, NC, for Defendants.

ORDER
LOUISE W. FLANAGAN, United States District Judge
*1 This matter is before the court on defendants’ motion to dismiss plaintiff’s punitive damages claim against defendant J.B. Hunt Transport, Inc. (“J.B. Hunt”), pursuant to Federal Rule of Civil Procedure 12(b)(6), and defendants’ motion to strike certain allegations in plaintiff’s complaint, pursuant to Federal Rule of Civil Procedure 12(f) (DE 14). The issues raised have been fully briefed by the parties. For the following reasons, defendants’ motion to dismiss is denied as moot and defendants’ motion to strike is denied.

BACKGROUND
Plaintiff commenced this action on October 8, 2018, in Wake County Superior Court, alleging defendants negligently caused him injuries arising from a motor vehicle collision. Defendants removed the case on November 14, 2018. Following removal, defendants filed the instant motions, together with their answer. Defendants seek dismissal of plaintiff’s purported claim for punitive damages against defendant J.B. Hunt. Defendants also ask the court to strike allegations of criminal charges against defendant James Michael Pratt (“Pratt”), and allegations involving trucking safety rules. Plaintiffs responded in opposition to both of the motions.

The facts alleged in the complaint may be summarized as follows. On September 19, 2018, plaintiff drove his Ford automobile down Interstate 85 South (“I-85”). (Compl. ¶ 11). The weather was sunny, and road conditions were dry and visible. (Id. ¶¶ 12, 13). As plaintiff proceeded down the road, he noticed traffic ahead of him had stopped. (Id. ¶ 14). In turn, plaintiff came to a complete stop behind the traffic. (Id.).

Defendant Pratt was also traveling south on the same stretch of roadway, many lengths behind plaintiff in the same lane of travel. (Id. ¶ 16). Defendant Pratt was driving a tractor-trailer owned, maintained, and utilized by defendant J.B. Hunt. (Id. ¶¶ 17, 18). Before defendant Pratt approached the area of stopped traffic ahead of him, he passed a roadway sign warning motorists of the upcoming congestion. (Id. ¶ 20). Defendant Pratt failed to notice the sign, and was using a cell phone or mobile device instead of keeping a proper lookout on the roadway ahead. (Id. ¶¶ 20, 35-38). Pratt collided with the rear of plaintiff’s vehicle at approximately 50 miles-per-hour, causing plaintiff to hit the guardrail along I-85 and the rear of another tractor-trailer. (Id. ¶¶ 23-30).

COURT’S DISCUSSION

A. Standard of Review
“To survive a motion to dismiss” under Rule 12(b)(6), “a complaint 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, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In evaluating whether a claim is stated, “[the] court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff,” but does not consider “legal conclusions, elements of a cause of action, … bare assertions devoid of further factual enhancement[,] … unwarranted inferences, unreasonable conclusions, or arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted).

*2 On motion or its own initiative, “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Whether to grant a motion to strike is within the discretion of the district court. See United States v. Ancient Coin Collectors Guild, 899 F.3d 295, 324 (4th Cir. 2018). “The purpose of the motion to strike is to avoid the waste of time and money that arises from litigating unnecessary issues.” Godfredson v. JBC Legal Group, P.C., 387 F. Supp. 2d 543, 547 (E.D.N.C. 2005) (quotations omitted). However, motions to strike are “generally viewed with disfavor because striking a portion of a pleading is a drastic remedy.” Waste Management Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001). “[T]he court is required to view the pleading under attack in a light most favorable to the pleader.” Kelly v. United States, 809 F. Supp. 2d 429, 433 (E.D.N.C. 2011) (internal citation omitted).

B. Analysis

1. Defendants’ Motion to Dismiss Punitive Damages Claim
Defendants move to dismiss any claim for punitive damages against defendant J.B. Hunt. Defendants’ motion is unnecessary, because plaintiff alleges no punitive damages claim against defendant J.B. Hunt.

“Punitive damages shall not be awarded against a person solely on the basis of vicarious liability for the acts or omissions of another.” N.C. Gen. Stat. § 1D-15(c). Punitive damages claims lie against a corporate defendant where “the officers, directors, or managers of the corporation participated in or condoned the conduct constituting the aggravating factor giving rise to punitive damages.” Id. § 1D-15(c). “A demand for punitive damages shall be specifically stated, except for the amount, and the aggravating factor that supports the award of punitive damages shall be averred with particularity….” N.C. Gen. Stat. 1A-1, Rule 9(k).

Plaintiff alleges defendant Pratt willfully and wantonly operated his tractor-trailer based on several different alleged actions, and specifically requests punitive damages. (Compl. ¶¶ 73, 75). In contrast, plaintiff does not specifically plead for punitive damages from defendant J.B. Hunt. (See Compl. ¶¶ 76-84). Plaintiff alleges that defendant J.B. Hunt is liable for defendant Pratt’s conduct under a theory of vicarious liability, and seeks punitive damages “as allowable under N.C. Gen. Stat. 1D-1 et seq.” (Compl. ¶ 81, at 14 (emphasis added)). As noted above, punitive damages are not allowable based on vicarious liability. Plaintiff represents that he “has not asserted, and did not intend to assert in the [c]omplaint, a claim of punitive damages against [d]efendant J.B. Hunt. Instead, plaintiff has only asserted a claim of punitive damages against defendant Pratt individually.” (Resp. Opp. (DE 21) at 3).

For these reasons, where plaintiff does not seek punitive damages from defendant J.B. Hunt, defendants’ motion to dismiss is denied as moot.

2. Defendants’ Motion to Strike Paragraphs 34, 49-55, and 67 of Plaintiff’s Complaint
Defendants move to strike two different sets of allegations from plaintiff’s complaint. First, defendants move the court strike plaintiff’s allegations regarding pending criminal charges against defendant Pratt after the collision with plaintiff and other vehicles on scene. (Compl. ¶ 34).

Plaintiff notes the charges in the criminal proceeding arising from the collision are still pending. (Id.). Since the criminal charges allegedly arise out of the same conduct by defendant Pratt, subsequent statements made in proceedings connected to the pending criminal charges may be relevant to this proceeding. See, e.g., McCarthy v. United States, 394 U.S. 459, 466 (1969) (“[A] guilty plea is an admission of all the elements of a formal criminal charge….”); United States v. Ayala, 601 F.3d 256, 269, 271 (4th Cir. 2010) (upholding the district court’s decision to admit a guilty plea as an admission by party opponent); cf. Godfredson, 387 F. Supp. 2d at 557 (discussing allegations of criminal behavior that had “utterly no relevance to the causes of action at issue”). Viewing the pleading in light most favorable to plaintiff, such allegations are not impertinent or immaterial.

*3 Defendants argue that allegations of criminal charges should be stricken because they are not relevant, confuse the issues in this case, and prejudice defendants. (Def. Mem. (DE 16) at 4). While such arguments certainly have some force under the Federal Rules of Evidence, the court is not called on to resolve an evidentiary dispute at this juncture. Should the issue arise in the context of a dispositive motion or at trial, defendants may assert objection as they deem appropriate and the court will take up the issue at that time.

Defendants also move to exclude paragraphs 49-55 and 67 of plaintiff’s complaint. These allegations discuss issues affecting the safe operation of commercial motor vehicles, as well as certain information that drivers of a commercial motor vehicle should be aware of when operating such vehicles. (Compl. ¶¶ 51-53). For example, plaintiff notes certain “industry standards” for safe truck driving, such as “look[ing] 12 to 15 seconds ahead to avoid having to stop too quickly or make quick lane changes” and “properly shift[ing] his attention back and forth, near and far while driving, while keeping a lookout ahead.” (Id. ¶ 53). Plaintiff then states that each of these allegations constitutes a “duty” which defendant Pratt breached. (Id. ¶¶ 54, 67).

The law imposes a duty on motorists to “maintain a lookout” and “exercise reasonable care under the circumstances.” Ward v. Carmona, 368 N.C. 35, 38 (2015) (internal citations omitted); Boykin v. Bissette, 260 N.C. 295, 299 (1963). Stripped of any legal conclusions regarding what duties are owed to motorists,1 plaintiff’s allegations articulate various ways defendant Pratt behaved unreasonably. (See Compl. ¶¶ 53, 54). Similarly, plaintiff’s contentions about what defendant Pratt should have known about operating his automobile at the time of the collision go to whether defendant Pratt exercised reasonable care under the circumstances. (Id. ¶¶ 51, 52). Therefore, the allegations are neither immaterial nor impertinent.

Defendants first argue that the allegations fail to satisfy pleading requirements by going “far beyond the notice pleading envisioned by the Federal Rules.” (Def. Mem. (DE 16) at 6). As noted above, plaintiff’s allegations set forth in detail why defendant Pratt’s behavior was unreasonable. The court rejects defendants’ argument that it should strike portions of plaintiff’s complaint merely because defense counsel must read through plaintiff’s allegations and might risk “an improper response to an allegation.” (Def. Mem. (DE 16) at 6). It is incumbent upon defendants to avert such risk, not plaintiff.

Defendants argue that plaintiff alleges a higher standard of care not supported by North Carolina law. (Def. Mem. (DE 16) at 6-8). The court is not convinced. Even so, the question before the court is whether plaintiff’s allegations in paragraphs 49-55 and 67 should be stricken from the complaint. Plaintiff may assert legal conclusions, and the court is not bound to follow such conclusions. The court rejects defendants’ argument.

Finally, defendants argue alleging particular trucking safety rules and policy considerations impermissibly relies on “reptile” arguments.2 (Def. Mem. (DE 16) at 8-10). Here again, defendants ask the court to rule on an evidentiary issue long before any evidence has been offered by plaintiff. Making such argument in the context of a motion to strike, rather than a motion in limine, is precisely the type of “dilatory tactic” specifically discouraged in considering Rule 12(f) motions. See Waste Mgmt. Holdings, 252 F.3d at 347. The court denies defendants’ motion to strike.

CONCLUSION
*4 Based on the foregoing, defendants’ motion to dismiss for failure to state a claim (DE 14) is DENIED AS MOOT, and defendants’ motion to strike (DE 14) is DENIED. Within 14 days of this order, defendants are DIRECTED to file amended answer responding to any allegation previously subject of the motion to strike and removing reference to the motion to strike.

SO ORDERED, this the 6th day of May, 2019.

All Citations
Slip Copy, 2019 WL 1995328

Footnotes

1
The court is not required to credit the legal conclusions contained in a complaint. See Nemet Chevrolet, 591 F.3d at 255.

2
A “reptile” argument is an appeal to emotion where a plaintiff argues a defendant’s conduct is a threat to personal safety or community safety. See Turner v. Salem, No. 3:14-CV-289-DCK, 2016 WL 4083225, at *2 (W.D.N.C. July 29, 2016). According to defendants, the term “reptile” argument is derived from a relatively recent book for plaintiff’s attorneys on litigation strategy. See David Ball & Don Keenan, Reptile: The 2009 Manual of the Plaintiff’s Revolution (2009).