2021 WL 4963523

United States District Court, E.D. Missouri, Eastern Division.
GARY GAYDOS, Plaintiff,
v.
GULLY TRANSPORTATION, INC., et al., Defendants.
Case No. 4:21-CV-388-SPM
|
10/26/2021

SHIRLEY PADMORE MENSAH, UNITED STATES MAGISTRATE JUDGE

MEMORANDUM AND ORDER
*1 This matter is before the Court on Defendants’ Motion to Strike Claim for Punitive Damages in Plaintiffs’ First Amended Complaint (Doc. 32). The motions have been fully briefed. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 22). For the following reasons, the motion will be denied.

I. FACTUAL BACKGROUND
On January 19, 2021, Gary Gaydos was operating a vehicle on Interstate 270 near West Florissant Road in St. Louis County, Missouri. First Amended Complaint (“FAC”), Doc. 25, ¶ 8. Defendant Stephen Johnson was driving a tractor-trailer owned by his employer, Defendant Gully Transportation, Inc. (“Defendant Gully”). Id. at ¶ 9. Johnson rear-ended Gaydos’s car, causing “severe, permanent and progressive physical injuries” to Gaydos. Id. at ¶¶ 15, 18. As a result of these injuries, Gaydos died on April 17, 2021. Id. at ¶ 18.

Shortly before his death, Gaydos filed the instant diversity action in this Court against both defendants. See generally Complaint, Doc. 1. After Gaydos passed away, his wife Betty Gaydos (“Plaintiff”) was substituted as plaintiff and filed the FAC under Missouri’s wrongful death statute. See generally FAC. In the FAC, Plaintiff alleges a claim of negligence against Defendant Johnson and claims of vicarious liability, statutory employment/logo/lease liability, negligence, negligent hiring and/or retention, negligent entrustment, negligent training, and negligent supervision against Defendant Gully.

In the instant motion, Defendants ask the Court to strike several paragraphs of the FAC, as well as Plaintiff’s prayer for aggravated damages, arguing that Plaintiff is improperly seeking punitive damages in an initial pleading, in violation of Missouri law.

II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(f) provides, “The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter,” either on its own or on a motion made by a party. “Judges enjoy liberal discretion to strike pleadings under Rule 12(f).” BJC Health Sys. v. Columbia Cas. Co., 478 F.3d 908, 917 (8th Cir. 2007). “Striking a party’s pleading, however, is an extreme and disfavored measure.” Id.

III. DISCUSSION
Defendants move to strike certain allegations in Plaintiff’s First Amended Complaint, arguing that they violate the recently-enacted Mo. Rev. Stat. § 510.261(5),1 which states, “No initial pleading in a civil action shall contain a claim for a punitive damage award. Any later pleading containing a claim for a punitive damage award may be filed only with leave of the court.” Defendants argue that Plaintiff may only assert a claim for punitive damage after obtaining the Court’s leave pursuant to the process set forth in Section 510.261(5). This process requires the claimant to file a written motion, “supported by affidavits, exhibits, or other discovery materials establishing a establishing a reasonable basis for recovery of punitive damages,” and permits the opponent to file evidence in response. Id. The statute further states, “If the trial court concludes, following its review of all materials submitted in connection with the motion, that based on the evidence to be admitted at trial a trier of fact could reasonably conclude, based on clear and convincing evidence, that the standards for a punitive damage award contained in [Section 510.261] have been met, the court shall grant leave to file the pleading seeking a punitive damage award.” Id. Defendant argues that the requirements of this statute are substantive, not procedural, and should apply to this diversity action.

*2 In her opposition, Plaintiff argues that Mo. Rev. Stat. § 510.261(5) creates a procedural hurdle that is in conflict with federal procedural rules, and that the federal rules must apply in this case. Specifically, Plaintiff argues that Federal Rule of Civil Procedure 8, which governs the requirements for pleadings in federal court, does not bar claims for punitive damages from being pleaded in a complaint. Rule 8(a) provides, in relevant part, “A pleading that states a claim for relief must contain…(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.” Plaintiff argues that the conflict between the federal rule and the state law must be resolved in favor of the federal law.

The Eighth Circuit does not appear to have addressed the question of whether Mo. Rev. Stat. § 510.261(5) applies in federal court proceedings. However, district courts that have had occasion to decide the issue have consistently held that it does not. See Bartek v. Lawrence, No. 4:21-CV-01070, 2021 WL 4523075, at *1 (E.D. Mo. Oct. 1, 2021); Anderson v. R.J. Reynolds Tobacco Co., No. 4:20-CV-01610-MTS, 2021 WL 352165, at *7 (E.D. Mo. Aug. 11, 2021); Rardon v. Falcon Safety Prod., Inc., No. 20-6165-CV-SJ-BP, 2021 WL 2008923, at *13 (W.D. Mo. May 4, 2021); Kilburn v. Autosport Acquisitions, LLC, No. 1:20-CV-211, 2021 WL 307550, at *1-*2 (E.D. Mo. Jan. 29, 2021).

In Kilburn, the defendant moved to strike a claim for punitive damages because the plaintiff had not sought leave to file such a claim, as required by § 510.216(5). Kilburn, 2021 WL 307550, at *1. The court noted that in Shady Grove Orthopedic Associates., P.A. v. Allstate Insurance Company, 559 U.S. 393 (2010), the Supreme Court instructed that “[a] federal court exercising diversity jurisdiction should not apply a state law or rule if (1) a Federal Rule of Civil Procedure ‘answer[s] the same question’ as the state law or rule and (2) the Federal Rule does not violate the Rules Enabling Act.” Id. (quoting Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1333 (D.C. Cir. 2015)). The court further noted, “Courts need not ‘wade into Erie’s murky waters’ when the Federal Rule satisfies both requirements. Kilburn, 2021 WL 307550, at *2 (quoting Shady Grove, 559 U.S. at 398).

Addressing the first Shady Grove requirement the Kilburn court found that “Section 510.261(5) and Rule 8 answer the same question—may a punitive damages claim be included in an initial complaint?—in opposite ways: § 510.261(5) answers the question ‘no—never.’ Rule 8 answers the question ‘yes—always.’ ” Kilburn, 2021 WL 307550, at *2. Addressing the second requirement, the Kilburn court found that Rule 8 does not violate the Rules Enabling Act, stating:
There is a high bar to challenge a rule under the Rules Enabling Act, and the Supreme Court has rejected every challenge to a federal rule that has come before it. Shady Grove, 559 U.S. at 407. The Rules Enabling Act empowers the Supreme Court to “prescribe general rules of practice and procedure and rules of evidence” for the federal courts, 28 U.S.C. § 2072(a), but…such rules “shall not abridge, enlarge or modify any substantive right” id. § 2072(b). Id. A rule is properly categorized as procedural if it “really regulates procedure[.]” Sibbach v. Wilson & Co., 312 U.S. 1, 14 (1941). Here, Rule 8 governs the pleading standard and content of a complaint. As such, it regulates procedure, and is valid under the Rules Enabling Act.
Kilburn, 2021 WL 307550, at *2. The court then applied Rule 8 and denied the defendant’s motion to strike the claim for punitive damages. Id.

The other judges in this district to have considered the issue have adopted the reasoning of the Kilburn court and come to the same conclusion. See Anderson, 2021 WL 3525165, at *7 (“The Court agrees with Kilburn’s reasoning and likewise holds that under the Supreme Court’s test announced in Shady Grove it should not apply the Missouri statute’s prohibition on asserting a claim for punitive damages in an initial pleading, and Rule 8 instead governs the pleading requirements in this case.”); Bartek v. Lawrence, No. 4:21-CV-01070-JAR, 2021 WL 4523075, at *1 (E.D. Mo. Oct. 1, 2021) (adopting the reasoning of Anderson and Kilburn and concluding “that it should not apply the prohibition in § 510.261 on asserting a claim for punitive damages in an initial pleading”).

*3 After review of the parties’ briefs and the relevant law, the Court finds the reasoning of Kilburn, Anderson, and Bartek persuasive and will adopt the reasoning and conclusions of those courts.

The Court is not persuaded by Defendants’ contention that the Rule 8(a) and Mo. Rev. Stat. § 510.261(5) can “coexist and be applied without conflict.” See Def.’s Reply, Doc. 36, at 3. Under Rule 8(a), pleading that states a claim for relief in federal court “must contain…a demand for the relief sought.” In a case where the “relief sought” includes punitive damages, Rule 8 plainly authorizes the plaintiff to include a request for such damages in the pleading. In contrast, Mo. Rev. Stat. § 510.261(5) would preclude the same plaintiff from including a request for such damages in the pleading, at least unless and until the plaintiff follows a specific procedure and the Court grants leave. The rules are in conflict.

The Court is also not persuaded by Defendants’ suggestion that this Court follow the reasoning of Kuehn v. Shelcore, Inc., 686 F. Supp. 233, 233 (D. Minn. 1988), in which the court held that a Minnesota statute addressing the standard for motions for leave to amend claims for punitive damages, rather than Federal Rule of Civil Procedure 15, applied in federal court. Contrary to Defendants’ assertion that this approach is “well-established,” in more recent cases, courts have rejected this approach in light of the Supreme Court’s decision in Shady Grove. Indeed, in one of the cases cited by Defendant, the court recognized this, stating:
[C]ourts have recently taken another look at the practice [of applying Minn. Stat. § 549.191, rather than Rule 15, in diversity cases] and analyzed whether Rule 15 or Minn. Stat. § 549.191 should be applied in view of the 2010 United States Supreme Court’s decision in Shady Grove Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010). The large majority of these courts now apply Rule 15 instead of Minn. Stat. § 549.191 when considering motions to add punitive damage claims.
Xiaolin Li v. Franchoice, Inc., No. 19-CV-1267 (MJD/ECW), 2020 WL 2192325, at *3 (D. Minn. May 6, 2020) (collecting cases). This Court declines to follow the holdouts. Accord Bartek, 2021 WL 4523075, at *1 (rejecting the same argument and noting “the questionable precedential value” of Kuehn).

IV. CONCLUSION
For all of the above reasons, the Court finds that the pleading requirements in this case are governed by Federal Rule of Civil Procedure 8 and not by Mo. Rev. Stat. § 510.261(5). Accordingly,

IT IS HEREBY ORDERED that Defendants’ Motion to Strike Claim for Punitive Damages in Plaintiffs’ First Amended Complaint (Doc. 32) is DENIED.

SHIRLEY PADMORE MENSAH

UNITED STATES MAGISTRATE JUDGE
Dated this 26th day of October, 2021.

All Citations
Slip Copy, 2021 WL 4963523

Footnotes

1
The parties do not dispute that Missouri’s substantive law governs this diversity case. See Erie R. Co. v. Tompkins, 304 U.S. 64, 79–80 (1938); Keller Farms, Inc. v. McGarity Flying Serv., LLC, 944 F.3d 975, 979 (8th Cir. 2019).)

2021 WL 5298679

United States District Court, E.D. Missouri, Eastern Division.
BETTY GAYDOS, Plaintiff,
v.
GULLY TRANSPORTATION, INC., et al., Defendants.
Case No. 4:21-CV-388-SPM
|
11/15/2021

MEMORANDUM AND ORDER
*1 This matter is before the Court on Defendant Gully Transportation, Inc.’s Motion to Dismiss Counts II, IV, V, VI, VII and VIII of Plaintiff’s Amended Complaint (Doc. 30). The motion has been fully briefed. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 22). For the following reasons, the motion will be granted in part and denied in part.

I. FACTUAL BACKGROUND
On January 19, 2021, Gary Gaydos was operating a vehicle on Interstate 270 near West Florissant Road in St. Louis County, Missouri. First Amended Complaint (“FAC”), Doc. 25, ¶ 8. Defendant Stephen Johnson was driving a tractor-trailer owned by his employer, Defendant Gully Transportation, Inc. (“Defendant Gully”). Id. at ¶ 9. Johnson rear-ended Mr. Gaydos’s car, causing “severe, permanent and progressive physical injuries” to Mr. Gaydos. Id. at ¶¶ 15, 18. As a result of these injuries, Mr. Gaydos died on April 17, 2021. Id. at ¶ 18.

Shortly before his death, Mr. Gaydos filed the instant diversity action in this Court against both defendants. See generally Complaint, Doc. 1. After Mr. Gaydos passed away, his wife Betty Gaydos (“Plaintiff”) was substituted as plaintiff and filed the FAC pursuant to Missouri’s wrongful death statute. See generally FAC. In the FAC, Plaintiff alleges a claim of negligence against Defendant Johnson (Count I) and claims of respondeat superior liability, statutory employment/logo/lease liability, negligence, negligent hiring and/or retention, negligent entrustment, negligent training, and negligent supervision against Defendant Gully (Counts II– VIII, respectively). Plaintiff seeks actual damages and aggravated/punitive damages in each count.1 Both defendants have admitted that “Defendant Johnson was acting in the course and scope of his employment with Defendant Gully at all times relevant.” Gully Answer, Doc. 28, ¶ 9; Johnson Answer, Doc. 29, ¶ 9.

In the instant motion, Defendant Gully has moved to dismiss Counts II, IV, V, VI, VII, and VIII under Rule 12(b)(6). Plaintiff agrees that Count II should be dismissed, Doc. 35 at 3 n.1, but otherwise opposes the motion.

II. LEGAL STANDARD
Under Rule 8(d)(3), “[a] party may state as many separate claims…as it has, regardless of consistency.” Fed. R. Civ. P. 8(d)(3). However, for any given claim 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, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim satisfies the plausibility standard “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. When ruling on a Rule 12(b)(6) motion to dismiss, the Court must accept as true all of the factual allegations in the complaint, though it need not accept the legal conclusions. Id. Additionally, “[w]here the allegations show on the face of the complaint there is some insuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate.” Benton v. Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir. 2008) (citing Parnes v. Gateway 2000, Inc., 122 F.3d 539, 546 (8th Cir. 1997)).

III. DISCUSSION
*2 Defendant Gully has moved to dismiss Counts II, IV, V, VI, VII, and VIII under Rule 12(b)(6). First, Defendant argues that all of these claims should be dismissed, because once an employer has admitted respondeat superior liability (as Defendant Gully has here), it is improper to allow a plaintiff to proceed against the employer on any other theory of imputed liability. Second, Defendant Gully argues that Count II should be dismissed because Plaintiff has not alleged sufficient facts to state a claim under any of those doctrines. The Court will address each argument below.

A. COUNT II: STATUTORY EMPLOYMENT/LOGO/LEASE LIABILITY
Defendant argues that Count II should be dismissed because Plaintiff has not alleged facts sufficient to state a claim for logo liability, statutory employment, or lease liability. In her response, Plaintiff offers no counter-argument and seeks leave to dismiss Count II without prejudice because Defendants have admitted that Defendant Johnson was an employee of Defendant Gully at the time of the collision. The Court will grant Defendants’ motion to dismiss Count II and will dismiss the claim without prejudice.

B. COUNTS IV, V, VI, VII, AND VIII
The Court next considers the argument that Counts IV, V, VI, VII, and VIII should be dismissed because Defendant Gully has admitted respondeat superior liability. Defendant Gully relies principally on McHaffie ex rel. McHaffie v. Bunch, 891 S.W.2d 822 (Mo. 1995). In McHaffie, a plaintiff injured in an accident sued the driver of a vehicle and the driver’s employer, alleging a claim of negligence against the driver, a claim of vicarious liability against the employer, and claims of negligent hiring and supervision against the employer. Id. at 824. The jury returned a verdict allocating a percentage of fault to the employer based on vicarious liability for the driver’s negligence and a separate percentage of fault to the employer based on negligent hiring. Id. at 825. The Missouri Supreme Court held that “once the agency relationship was admitted, it was error to permit a separate assessment of fault to defendant [employer] based upon the ‘negligent entrustment’ or ‘negligent hiring’ theories of liability”; it also held that it was error to admit evidence on those theories. Id. at 827. The Missouri Supreme Court reasoned as follows:
If all of the theories for attaching liability to one person for the negligence of another were recognized and all pleaded in one case where the imputation of negligence is admitted, the evidence laboriously submitted to establish other theories serves no real purpose. The energy and time of courts and litigants is unnecessarily expended. In addition, potentially inflammatory evidence comes into the record which is irrelevant to any contested issue in the case. Once vicarious liability for negligence is admitted under respondeat superior, the person to whom negligence is imputed becomes strictly liable to the third party for damages attributable to the conduct of the person from whom negligence is imputed. The liability of the employer is fixed by the amount of liability of the employee. This is true regardless of the “percentage of fault” as between the party whose negligence directly caused the injury and the one whose liability for negligence is derivative.
Id. at 826 (internal citations omitted). The McHaffie court suggested in dicta that there might be some situations in which this general rule might not apply, noting as one example that it is “possible that an employer or an entrustor may be liable for punitive damages which would not be assessed against the employee/entrustee.” Id. However, the court did not decide whether any such exceptions to the general rule existed. Id.

*3 In 2013, the Missouri Court of Appeals held that the general rule set forth in McHaffie does not apply where punitive damages are sought against the employer, stating:
The rationale for the Court’s holding in McHaffie was that, where vicarious liability was admitted and none of the direct liability theories could prevail in the absence of proof of the employee’s negligence, the employer’s liability was necessarily fixed by the negligence of the employee. McHaffie, 891 S.W.2d at 826. Thus, any additional evidence supporting direct liability claims could serve only to waste time and possibly prejudice the defendants. Id.
The same cannot be said, however, when a claim for punitive damages based upon the direct liability theories is raised. If an employer’s hiring, training, supervision, or entrustment practices can be characterized as demonstrating complete indifference or a conscious disregard for the safety of others, then the plaintiff would be required to present additional evidence, above and beyond demonstrating the employee’s negligence, to support a claim for punitive damages. Unlike in the McHaffie scenario, this evidence would have a relevant, non-prejudicial purpose. And because the primary concern in McHaffie was the introduction of extraneous, potentially prejudicial evidence, we believe that the rule announced in McHaffie does not apply where punitive damages are claimed against the employer, thus making the additional evidence both relevant and material.
Wilson v. Image Flooring, LLC, 400 S.W.3d 386, 393 (Mo. Ct. App. 2013).

Federal courts in Missouri consistently followed Wilson and have held that where an employer might be liable for punitive damages under theories of liability other than respondeat superior, a plaintiff may assert alternative theories of liability against the employer even where the employer has admitted respondeat superior liability. See Sanford v. K&B Transp., Inc., No. 1:20 CV 180 ACL, 2021 WL 4552206, at *3 (E.D. Mo. Oct. 5, 2021) (denying a negligent driver’s employer’s motion for judgment on the pleadings on claims of direct negligence, negligent hiring/retention, negligent supervision/retention, and negligent training claims; relying on Wilson and stating, “Because Defendant may be liable for punitive damages, Defendant’s admission of vicarious liability does not necessarily require dismissal [of the counts against the employer] under McHaffie); Monroe v. Freight All Kinds, Inc., et al., No. 18-CV-03238-SRB, 2020 WL 6589000, at *2-*3 (W.D. Mo. Nov. 10, 2020) (rejecting an employer’s argument that it was entitled to summary judgment on claims of negligence and negligent hiring/training/supervision/entrustment because it had admitted vicarious liability for its employee’s negligence; reasoning that the plaintiff sought punitive damages on each claim and that “Missouri courts have…held that there is a punitive damages exception to McHaffie’s general rule”); Kyles v. Celadon Trucking Servs., Inc., No. 6:15–CV–03193–MDH, 2015 WL 6143953, at *4 (W.D. Mo. Oct. 19, 2015) (relying on Wilson and denying a defendant employer’s McHaffie-based motion to dismiss the claims against it; reasoning that the employer “may be liable for punitive damages that would not be assessed against [the employee] and that would require the presentation of evidence above and beyond demonstrating [the employee’s] negligence”).

*4 This Court finds the reasoning of Wilson and the above cases persuasive and will follow those cases. In the Amended Complaint, Plaintiff seeks punitive damages against Defendant Gully Transportation Company. Plaintiff may need to obtain discovery (and eventually present evidence) in support of the claims for punitive damages that goes above and beyond demonstrating Defendant Johnson’s negligence. Thus, as in the above cases, McHaffie does not require dismissal of Counts IV, V, VI, VII, or VIII, and Defendant’s motion to dismiss will be denied with respect to those claims.2

IV. CONCLUSION
For all of the above reasons,

IT HIS HEREBY ORDERED that Defendant Gully Transportation, Inc.’s Motion to Dismiss Counts II, IV, V, VI, VII and VIII of Plaintiff’s Amended Complaint (Doc. 30) is GRANTED IN PART and DENIED IN PART. With respect to Count II, the motion is GRANTED. With respect to Counts IV, V, VI, VII, and VIII, the motion is DENIED.

SHIRLEY PADMORE MENSAH

UNITED STATES MAGISTRATE JUDGE
Dated this 15th day of November, 2021.

All Citations
Slip Copy, 2021 WL 5298679

Footnotes

1
Defendants moved to strike the allegations related to punitive damages and the requests for punitive damages from the Amended Complaint, but the Court denied that motion. (Doc. 43).

2
In its reply brief, Defendant Gully also suggests that Plaintiff has not alleged sufficient facts to support a claim for punitive damages. The Court will not consider this argument, which was raised for the first time in Defendant’s reply brief. See Green v. Missouri, 734 F. Supp. 2d 814, 848 (E.D. Mo. 2010) (“As a general rule, courts will not consider arguments raised for the first time in a reply.” (citing Barham v. Reliance Standard Life Ins. Co., 441 F.3d 581, 584 (8th Cir.2006)); Monroe, 2020 WL 6589000, at *3 (rejecting the defendant employer’s McHaffie-based motion for summary judgment on direct negligence claims; declining to consider the employer’s alternative argument that there was insufficient evidence to support a claim for punitive damages, because that argument was raised for the first time in the defendant’s reply brief).