McGhee v. Khalilov
United States District Court for the Western District of Missouri, Central Division
June 17, 2021, Decided; June 17, 2021, Filed
No. 2:21-CV-4048-WJE

Reporter
2021 U.S. Dist. LEXIS 113842 *; 2021 WL 2516086
KEVIN MCGHEE, et al., Plaintiffs, v. ZOKHIRKUL KHALILOV, et al., Defendants.

ORDER
Pending before the Court is Proposed Intervenor Missouri Employers Mutual Insurance Company’s (“MEM”) Motion to Intervene (Doc. 19) and Proposed Complaint (Doc. 19-1). Plaintiffs Kevin and Jenise McGhee (“McGhees”) and Defendants Zokhirkul Khalilov and Eco Trucking, LLC (“Eco Trucking”) have not responded and the time to do so has expired. The issues are now ripe and ready to be ruled upon. Because MEM has a right to do so, the Court will grant MEM’s Motion to Intervene and allow MEM leave to file its Proposed Complaint.1

I. BACKGROUND

A. Allegations [*2] in the First Amended Complaint
This case arises from the collision between a tractor-trailer operated by Mr. Khalilov, in the scope of his employment with Eco Trucking, and Mr. McGhee, a member of a construction crew who was working alongside the highway. (Doc. 8 at ¶¶ 1, 13). As a result of the collision, the McGhees allege that Mr. McGhee suffered severe and life-threatening injuries, including brain trauma, a broken leg, and collapsed lungs. (Id. at ¶ 28). The McGhees bring four counts in their First Amended Complaint. Specifically, Mr. McGhee alleges one count of negligence and negligence per se against Mr. Khalilov and Eco Trucking based on Mr. Khalilov’s operation of the tractor-trailer. (Id. at ¶¶ 29-47). Mr. McGhee also brings one count of negligence against Eco Trucking based on its hiring, retaining, supervising, and training of Mr. Khalilov, as well as its maintenance of the tractor-trailer. (Id. at ¶¶ 48-54). Finally, Ms. McGhee brings one count of loss of consortium against Mr. Khalilov and Eco Trucking. (Id. at ¶¶ 55-59).
For each of the negligence and negligence per se counts, Mr. McGhee states that he has “personally sustained and will continue to sustain actual damages [*3] including physical and mental injuries, lost wages and benefits, [and] emotional distress.” (Id. ¶¶ 35, 46, 53). Further, he maintains that he has “become indebted for reasonable and necessary medical care and treatment, which will continue in the future.” (Id.) In her loss of consortium claim, Ms. McGhee states that she has “personally sustained and will continue to sustain actual damages, including lost wages and benefits, and has become indebted for reasonable and necessary medical care and treatment rendered to her husband . . . and she shall incur additional such expenses in the future.” (Id. ¶ 58). In each of their counts, the McGhees seek damages “in excess of seventy-five thousand dollars,” costs of the litigation, pre-and post-judgment interest, and punitive damages. (Id. at 7, 9, 11-12).

B. Allegations in the Motion to Intervene and MEM’s Proposed Complaint
MEM, a Missouri corporation, and the entity which provides workers’ compensation insurance to Mr. McGhee’s employer, seeks to intervene as of right and, in the alternative, under a theory of permissive intervention. (Doc. 19 at 1-2). MEM alleges that it has provided and will likely continue to provide benefits to Mr. McGhee [*4] for the injuries he sustained. (Id. at ¶ 7). MEM states that under Missouri law it has a subrogation right to the funds Mr. McGhee may recover for his tort claims because it has provided him with workers’ compensation benefits. (Id. at ¶ 8). However, no subrogation right exists as to the funds that Ms. McGhee may recover for her loss of consortium claim. (Id. at ¶ 14). To protect its subrogation right, MEM seeks to bring the same counts against Mr. Khalilov and Eco Trucking that Mr. McGhee brings in his First Amended Complaint. (See Doc. 19 at ¶¶ 21, 37; compare Doc. 19-1, with Doc. 8).
MEM specifically alleges that intervention is necessary because
[t]he interests of . . . [the] McGhee[s] are not aligned in the prosecution of this Complaint because . . . [Mr.] McGhee must look out for the interests of MEM, while . . . [Ms.] McGhee has no obligation in regard to [the] same. Nevertheless, they are husband and wife, and therefore, they both stand to share in any recovery whether it be under a theory of loss of consortium on behalf of . . . [Ms.] McGhee or a general tort recovery on behalf of . . . [Mr.] McGhee.
(Doc. 19 at ¶ 21). Since MEM’s subrogation right exists only as to the funds [*5] recovered by Mr. McGhee, MEM states that its “interest is not adequately represented by the existing parties.” (Id. ¶ 23). MEM asserts that “[t]his is also especially true when it comes to negotiating a settlement.” (Id. ¶ 24). MEM states that it “only wishes to be made a Plaintiff to the case to prevent an unfair resolution that would forever close and bar MEM from pursuing any further action and protecting its interests.” (Id. ¶ 37).

II. APPLICABLE LAW: FEDERAL RULE OF CIVIL PROCEDURE 24
Federal Rule of Civil Procedure 24 governs intervention both as of right and under a theory of permissive intervention in cases brought in federal court. The Court addresses the standard governing each type of intervention in turn.
As to intervention as of right, Rule 24 provides, in relevant part:
On timely motion, the court must permit anyone to intervene who: . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.
Fed. R. Civ. P. 24(a)(2). The United States Court of Appeals for the Eighth Circuit recognizes four requirements that must be met when a party seeks [*6] to intervene as of right:
(1) file[] a timely motion to intervene; (2) claim[] an interest relating to the property or transaction that is the subject of the action; (3) [be] situated so that disposing of the action may, as a practical matter, impair or impede the movant’s ability to protect that interest; and (4) . . . not [be] adequately represented by the existing parties.
Swinton v. SquareTrade, Inc., 960 F.3d 1001, 1004 (8th Cir. 2020) (internal quotation marks and citation omitted).2 In discussing intervention as of right, the Eighth Circuit stated that “Rule 24 should be construed liberally, with all doubts resolved in favor of the proposed intervenor.” Id. (internal quotation marks and citations omitted).
Rule 24 also governs when a party may intervene under a theory of permissive intervention. Rule 24(b) provides, in relevant part:
On timely motion, the court may permit anyone to intervene who: . . . has a claim or defense that shares with the main action a common question of law or fact. . . . In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.
Fed. R. Civ. P. 24(b)(1)(B), (b)(3). “The decision to grant or deny a motion for permissive intervention is wholly discretionary.” South Dakota ex rel Barnett v. United States Dep’t of Interior, 317 F.3d 783, 787 (8th Cir. 2003) (citations [*7] omitted). “The principle consideration in ruling on a Rule 24(b) motion is whether the proposed intervention would unduly delay or prejudice the adjudication of the parties’ rights.” Id. (citations omitted).

III. ANALYSIS
MEM seeks to intervene as of right and, alternatively, under a theory of permissive intervention in this action to protect its subrogation interest in the funds Mr. McGhee may recover for his tort claims. MEM states that its interests are not adequately protected because the McGhees may present the case in such a way that would allocate a larger portion of the recovery than is customary to Ms. McGhee’s loss of consortium claim because no subrogation interest applies to that claim. The Motion to Intervene stands before the Court unopposed because the McGhees, Mr. Khalilov, and Eco Trucking did not file a response. Although the Court concludes that MEM may intervene as of right under Rule 24(a), because two of the requirements present a close call, it also concludes that it would likely allow MEM to intervene under a theory of permissive intervention.

A. The Court Will Allow MEM to Intervene as of Right
The Court begins with an analysis of intervention as of right. Since MEM meets each of [*8] the four requirements, the Court will allow MEM to intervene under Rule 24(a)(2).
First, MEM timely filed the Motion to Intervene. In determining whether a party has timely filed a motion to intervene, the Court must consider “all the circumstances of the case,” including three elements in particular: (1) “the reason for any delay by the proposed intervenor in seeking intervention,” (2) “how far the litigation has progressed before the motion to intervene is filed,” and (3) “how much prejudice the delay in seeking intervention may cause to other parties if intervention is allowed.” United States v. Union Elec. Co., 64 F.3d 1152, 1159 (8th Cir. 1995) (citation omitted). The instant litigation is in its early stages and no deadlines set forth in the Court’s Scheduling Order have passed. (See Doc. 16). MEM filed the Motion to Intervene approximately two months after the McGhees filed their First Amended Complaint. (Compare Doc. 8, with Doc. 19). Further, because no party filed a response to the Motion to Intervene, the Court presumes that no party would suffer prejudice by allowing MEM to intervene. After considering all the circumstances of the case, the Court concludes that MEM timely filed the Motion to Intervene and meets the first requirement to intervene as of [*9] right.
Second, MEM “claims an interest relating to the property or transaction that is the subject of the action” in that it claims a subrogation interest in the amount that Mr. McGhee may recover for his tort claims. Swinton, 960 F.3d at 1004. “Under Missouri law, an employee who sues and recovers damages from a third-party tortfeasor for injuries to the employee holds the amount due to the employer in trust so as to ensure that the employer’s right of subrogation is protected pursuant to § 287.150” of the Revised Statutes of Missouri. Henderson v. Black & Decker, No. 1:20cv173ACL, 2021 U.S. Dist. LEXIS 75730, 2021 WL 1546139, at *2 (E.D. Mo. Apr. 20, 2021) (citing Schumacher v. Leslie, 360 Mo. 1238, 232 S.W.2d 913, 919 (1950)). Because MEM has a subrogation interest in the funds that Mr. McGhee may recover, it has an interest in the subject of the action and meets the second requirement to intervene as of right.
Third, MEM must show that it “is situated so that disposing of the action may, as a practical matter, impair or impede [MEM’s] . . . ability to protect that interest.” Swinton, 960 F.3d at 1004. This requirement is a closer call. In deciding a motion to intervene pursuant to Missouri Supreme Court Rule 52.12, the Missouri Court of Appeals for the Western District recognized that
the fact that a Missouri employer is not a party to an injured employee’s suit against a third-party tortfeasor does not forfeit or limit the employer’s right to seek reimbursement [*10] for Missouri workers’ compensation benefits paid to the employee. This is because employers in Missouri who have paid workers’ compensation benefits to an injured employee have a multitude of options available to recoup the benefits from a third-party tortfeasor, and are not limited to intervention in the underlying suit.
Kinney v. Schneider Nat’l Carriers, Inc., 200 S.W.3d 607, 612 (Mo. Ct. App. 2006). However, the Eighth Circuit has recognized that Rule 24 “does not require . . . [that a party] demonstrate to a certainty that [its] interests will be impaired in the ongoing action. It requires only that [it] show that the disposition of the action may as a practical matter impair [its] interests.” Union Elec. Co., 64 F.3d at 1162 (emphasis in original, internal quotation marks and citations omitted). Further, the Eighth Circuit instructed that “the interest test is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process.” Id. (internal alterations, quotation marks, and citations omitted). In considering whether a district court properly allowed a party to intervene as of right, the Eighth Circuit has stated in dicta that “[i]t has been held that where the state workmen’s compensation law permits subrogation [*11] of a compensation carrier, the carrier is entitled to intervene as . . . of right.” Curtis v. Sears, Roebuck & Co., 754 F.2d 781, 784 (8th Cir. 1985) (quoting Smith Petroleum Serv., Inc. v. Monsanto Chem. Co., 420 F.2d 1103, 1114-15 (5th Cir.1970)).
MEM alleges that its interests may be impaired if it cannot intervene in the current litigation because the McGhees may litigate this matter in such a way that most of the recovery is devoted to Ms. McGhee’s loss of consortium claim, to which no subrogation right exists, as opposed to Mr. McGhee’s tort claims. Based on these allegations, MEM has shown that its subrogation rights “may as a practical matter” be impaired if it is not allowed to intervene in this action. See Union Elec. Co., 64 F.3d at 1162; see also Fahnestock v. E. All. Ins. Co., No. 1:13cv2417, 2016 U.S. Dist. LEXIS 176394, 2016 WL 7384138, at *3 (M.D. Pa. Dec. 21, 2016) (citations omitted) (concluding based on a similar argument that the workers’ compensation insurer’s subrogation interest was “indeed under threat of impairment”). Because “Rule 24 should be construed liberally, with all doubts resolved in favor of the proposed intervenor,” the Court concludes that MEM meets the third requirement to intervene as of right. Swinton, 960 F.3d at 1004.
Fourth and finally, the Court must determine whether MEM’s interests are “adequately represented by the existing parties.” Swinton, 960 F.3d at 1004. The Eighth Circuit has recognized that “[a]lthough the burden to show inadequate representation is generally minimal . . . the applicant for [*12] intervention bears a heavier burden on this factor when a party in the suit has an obligation to represent the interests of the party seeking to intervene.” Id. at 1005 (internal quotation marks and citations omitted). However, this “may be rebutted by a showing that the applicant’s interest cannot be subsumed within the shared interest” of the party currently involved in the litigation. Union Elec. Co., 64 F.3d at 1169 (citations omitted). Under Missouri law “an employee who sues and recovers damages from a third-party tortfeasor for injuries to the employee holds the amount due to the employer in trust so as to ensure that the employer’s right of subrogation is protected pursuant to” § 287.150. Kinney, 200 S.W.3d at 613-14 (citations omitted).
The fourth requirement also is a closer call. Mr. McGhee would hold any funds that he receives for his tort claims in trust for MEM based on MEM’s workers’ compensation payments to him. Id. Therefore, MEM faces a “heavier burden” in meeting the fourth requirement to intervene as of right. Swinton, 960 F.3d at 1005. However, based on the specific allegations contained in the Motion to Intervene, MEM has rebutted that burden by showing that its interest cannot be subsumed by the McGhees.3 Specifically, Mr. McGhee, as Ms. McGhee’s husband, would likely [*13] share in any recovery Ms. McGhee receives for her loss of consortium claim, which may affect his ability to adequately represent MEM’s interests. Construing Rule 24 liberally and in favor of intervention, the Court concludes that MEM meets the fourth and final requirement to intervene as of right. Id. at 1004.
Since MEM has shown that it meets each of the four requirements to intervene as of right, the Court will grant the Motion to Intervene and allow MEM to file its Proposed Complaint.

B. The Court Likely Would Allow MEM to Intervene Under a Theory of Permissive Intervention
Although the Court has concluded that MEM may intervene as of right, because the third and fourth requirements are closer calls, the Court also addresses MEM’s alternative request to intervene under a theory of permissive intervention pursuant to Rule 24(b). The Court would likely grant the Motion to Intervene under Rule 24(b)(1)(B) as well.
The decision whether to grant a motion to intervene under Rule 24(b) is “wholly discretionary.” South Dakota ex rel Barnett, 317 F.3d at 787. “The principle consideration in ruling on a Rule 24(b) motion is whether the proposed intervention would unduly delay or prejudice the adjudication of the parties’ rights.” Id.
In its Proposed Complaint, MEM seeks to bring the same tort claims [*14] that Mr. McGhee raises in the First Amended Complaint. Therefore, it is beyond dispute that the Court may allow MEM to intervene under Rule 24(b)(1)(B). As discussed above, based on Ms. McGhee’s loss of consortium claim, MEM’s subrogation interest may be impaired if it is not allowed to intervene. Given that the McGhees, Mr. Khalilov, and Eco Trucking failed to oppose the Motion to Intervene, the Court concludes that they will not suffer prejudice if the Court allows MEM to intervene. Additionally, no deadline in the Court’s Scheduling Order has passed, so it does not appear that allowing MEM to intervene would “unduly delay” this matter. See id.
Therefore, the Court would likely permit MEM to intervene under a theory of permissive intervention as well.

IV. CONCLUSION
Accordingly, it is hereby ORDERED that MEM’s Motion to Intervene (Doc. 19) is GRANTED. No later than June 25, 2021, MEM shall file its Proposed Complaint. (Doc. 19-1).
Dated this 17th day of June, 2021, at Jefferson City, Missouri.
/s/ Willie J. Epps, Jr.
Willie J. Epps, Jr.
United States Magistrate Judge

2021 WL 2290811

United States District Court, M.D. Pennsylvania.
PAMELA CALABRESE, Plaintiff
v.
JOSEPH EDWARD GRAHAM and NEW ERA TRANSPORTATION, LLC, Defendants
CIVIL ACTION NO. 1:20-CV-1331
|
06/04/2021

Christopher C. Conner, United States District Judge

MEMORANDUM
*1 Plaintiff Pamela Calabrese brings claims of negligence for damages due to a motor vehicle accident against defendants Joseph Edward Graham and his employer, New Era Transportation, LLC (“New Era”). Defendants move to dismiss the punitive damages portion of Calabrese’s claim pursuant to Federal Rule of Civil Procedure 12(b)(6), to strike certain allegations from the complaint under Rule 12(f), and for a more definite statement under Rule 12(e). We will grant in part and deny in part defendants’ motion.

I. Factual Background & Procedural History
According to the complaint, Calabrese and Graham were involved in a motor vehicle accident in May 2019 in the southbound lanes of Route 222. (See Doc. 1 ¶ 6). Calabrese was a passenger in a vehicle that needed to slow down as “traffic became congested due to a constructive project.” (See id. ¶¶ 7-8). Graham, driving a tractor trailer for New Era in the same direction, collided with the vehicle in which Calabrese was travelling, hitting the vehicle from behind. (See id. ¶¶ 9-10). The crash caused Calabrese’s vehicle to roll onto its roof and caused Graham’s tractor trailer to “burst into flames.” (See id. ¶¶ 11-13). Calabrese “suffered serious injuries to her head, neck, back[,] and shoulders.” (See id. ¶ 14). Calabrese alleges that Graham’s driving amounts to “negligence, carelessness[,] and/or recklessness.” (See id. ¶ 17). She claims Graham was “distracted” as he drove, “consciously [chose]” to exceed the speed limit as he approached a construction zone, and understood “he was creating an increased risk of crashing his tractor trailer.” (Id. ¶¶ 10, 17).

Calabrese filed the instant complaint in July 2020, alleging one count of negligence against Graham individually, and one count of negligence against New Era on a vicarious-liability theory. Calabrese also seeks punitive damages against both parties due to Graham’s alleged recklessness.

II. Legal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief may be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). In addition to reviewing the facts contained in the complaint, the court may also consider “exhibits attached to the complaint, matters of public record, [and] undisputedly authentic documents if the complainant’s claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).

Federal notice and pleading rules require the complaint to provide “the defendant fair notice of what the…claim is and the grounds upon which it rests.” Phillips, 515 F.3d at 232 (alteration in original) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint, the court conducts a three-step inquiry. See Santiago v. Warminster Township, 629 F.3d 121, 130-31 (3d Cir. 2010). In the first step, “the court must ’tak[e] note of the elements a plaintiff must plead to state a claim.’ ” Id. at 130 (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next, the factual and legal elements of a claim must be separated; well-pleaded facts are accepted as true, while mere legal conclusions may be disregarded. Id. at 131-32; see Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Once the court isolates the well-pleaded factual allegations, it must determine whether they are sufficient to show a “plausible claim for relief.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556); Twombly, 550 U.S. at 556. A claim is facially plausible when the plaintiff pleads facts “that allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

III. Discussion
*2 Graham and New Era move to dismiss Calabrese’s request for punitive damages under Rule 12(b)(6) and, relatedly, to strike references to “recklessness” and “conscious disregard” under Rule 12(f) as immaterial. Defendants also move for a more definite statement regarding certain allegations in the complaint under Rule 12(e).

At the outset, we will grant defendants’ motion to the extent it seeks a more definite statement. (See Doc. 9 ¶ 3). Defendants take issue with the phrase “but is not limited to” in paragraphs 17 and 27 of plaintiff’s complaint, and they claim subparagraphs 17(i), 17(n), 17(o), 27(i), 27(n), and 27(o) are “vague and ambiguous.” (See id.) Defendants seek to have this language pled with more specificity or stricken from the complaint. (See id.; Doc. 10 at 14). In her opposition brief, Calabrese “agrees to strike those averments” and declares this portion of the motion “moot.” (See Doc. 12 at 3 n.1). We therefore will grant defendants’ motion to the extent that we will strike the challenged aspects of paragraphs 17 and 27 from plaintiff’s complaint.

A. Motion to Dismiss: Punitive Damages
Under Pennsylvania law, “punitive damages are an ’extreme remedy’ available in only the most exceptional matters.” Phillips v. Cricket Lighters, 883 A.2d 439, 445 (Pa. 2005) (quoting Martin v. Johns-Manville Corp., 494 A.2d 1088, 1098 n.14. (Pa. 1985), rev’d on other grounds sub nom., Kirkbride v. Lisbon Contractors, Inc., 555 A.2d 800 (Pa. 1989)). Unlike compensatory damages, which seek to make a plaintiff whole, punitive damages serve a “penal and deterrent purpose.” See Brand Mktg. Grp. LLC v. Intertek Testing Servs., N.A., 801 F.3d 347, 358 (3d Cir. 2015) (quoting Hutchison v. Luddy, 870 A.2d 766, 772 (Pa. 2005)). In Pennsylvania, “[p]unitive 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.” See Feld v. Merriam, 485 A.2d 742, 747 (Pa. 1984) (quoting RESTATEMENT (SECOND) OF TORTS § 908(2) (AM. L. INST. 1979)); In re Lemington Home for the Aged, 777 F.3d 620, 633 (3d Cir. 2015) (quoting Feld, 485 A.2d at 747). The Pennsylvania Supreme Court has adopted the Restatement definition for recklessness:
The 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.
See Hutchison, 870 A.2d at 772 (quoting RESTATEMENT (SECOND) OF TORTS § 500 (AM. L. INST. 1965)); Rung v. Pittsburgh Assocs., LP, 515 F. App’x 136, 138 (3d Cir. 2013) (nonprecedential) (citing Archibald v. Kemble, 971 A.2d 513, 519 (Pa. Super. Ct. 2009)); see also Moran v. G. & W.H. Corson, Inc., 586 A.2d 416, 423 (Pa. Super. Ct. 1991) (noting that Pennsylvania uses variety of terms, including “malicious,” “wanton,” “reckless,” and “willful” to allow recovery of punitive damages).

Punitive damages do not comprise a standalone claim—they are a component of damages that must be proved as part of the plaintiff’s negligence claim. See Kirkbride, 555 A.2d at 802; White v. Trybala, No. 3:19-CV-14, 2019 WL 2119982, at *2 (M.D. Pa. May 15, 2019). A negligence plaintiff may recover punitive damages by proving “that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk.” See Hutchison, 870 A.2d at 772. When considering whether punitive damages are warranted, “the state of mind of the actor is vital.” See Brand Mktg., 801 F.3d at 360 (quoting Feld, 485 A.2d at 748).

*3 In the matter sub judice, Calabrese alleges that Graham (and vicariously, New Era) behaved recklessly in the moments before the accident, warranting punitive damages. (See Doc. 1 ¶¶ 17, 18). At the pleading stage, we accept as true Calabrese’s allegations that Graham violated the law by speeding, drove while distracted, and consciously chose to speed into an active construction zone. (See id. ¶¶ 10, 17). Whether these actions prove that Graham’s state of mind rose to the level of “recklessness” is not a matter to be decided on a motion to dismiss. Cf. Brand Mktg., 801 F.3d at 360. It is enough that Calabrese alleges Graham (1) understood the risk to which he was exposing Calabrese and (2) acted in conscious disregard of that risk. See Hutchison, 870 A.2d at 772.

Defendants attempt to minimize the accident, characterizing it as a “standard, run-of-the-mill rear-end collision.” (See Doc. 10 at 13). But defendants’ characterization of the accident as standard does not make it so—a flipped vehicle and a tractor trailer engulfed in flames hardly constitute a routine motor vehicle accident. (See Doc. 1 ¶¶ 11-13). Furthermore, defendants cite no per se rule precluding punitive damages in rear-end collision cases. In fact, the Hutchison court’s pronouncement that nothing “in law or logic” prevents a negligence plaintiff from proving outrageous conduct suggests that punitive damages may be available. See Hutchison, 870 A.2d at 772. We also note that Pennsylvania codifies reckless driving as a summary criminal offense. See 75 PA. CONS. STAT. § 3736(a) (“Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.”); see also Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa. Super. Ct. 2003). This suggests the “penal and deterrent purpose” of punitive damages through civil liability may be warranted when reckless driving is involved. Cf. Brand Mktg., 801 F.3d at 358. We will deny defendants’ motion to dismiss Calabrese’s punitive damages claims.

B. Motion to Strike: Recklessness & Conscious Disregard
Under Federal Rule of Civil Procedure 12(f), district courts have broad discretion to strike “any redundant, immaterial, impertinent, or scandalous matter.” FED. R. CIV. P. 12(f); see also Krisa v. Equitable Life Assurance Soc’y, 109 F. Supp. 2d 316, 319 (M.D. Pa. 2000) (quoting N. Penn. Transfer, Inc. v. Victaulic Co. of Am., 859 F. Supp. 154, 158 (E.D. Pa. 1994)). Rule 12(f) motions, however, are customarily denied unless the challenged allegations are severely prejudicial to one of the parties and unrelated to the plaintiff’s claims. Id.; see also 5C CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 1382 (3d ed. 2021).

We will deny defendants’ request to strike certain allegations regarding Graham’s recklessness and conscious disregard. Calabrese adequately pleads claims for punitive damages against both defendants. Recklessness and conscious disregard are relevant to punitive damages theories. See Hutchison, 870 A.2d at 772. These allegations are therefore material to her claims, and defendants do not argue that the allegations “are severely prejudicial” or “unrelated” to Calabrese’s claims. See Krisa, 109 F. Supp. 2d at 319. Accordingly, we decline to strike these portions of the complaint.

IV. Conclusion
We will grant defendants’ motion for a more definite statement to the extent it is unopposed by Calabrese. (See Doc. 12 at 3 n.1). We will deny defendants’ motion (Doc. 9) to dismiss and to strike. An appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner

United States District Judge

Middle District of Pennsylvania

Dated: June 4, 2021
All Citations
Slip Copy, 2021 WL 2290811