Konopasek v. Ozark Kenworth, Inc.
United States District Court for the District of Kansas
April 11, 2018, Decided; April 11, 2018, Filed
CIVIL ACTION No. 17-2681-KHV

Reporter
2018 U.S. Dist. LEXIS 61285 *
DOUGLAS KONOPASEK, Plaintiff, v. OZARK KENWORTH, INC, et al., Defendants.

MEMORANDUM AND ORDER
On November 30, 2017, plaintiff Douglas Konopasek filed suit against defendants Ozark Kenworth, Inc. (“Ozark”), O’Donnell-Way Construction Company Inc. (“O’Donnell-Way”) and Seth Beckman. Plaintiff’s Complaint For Damages (Doc. #1). Plaintiff asserts that Ozark provided negligent maintenance of a motor vehicle (Count 1) and seeks recovery from O’Donnell-Way and Beckman for negligent operation of that vehicle (Count 2). Id., ¶¶ 5, 14-18, 20, 30-36, 40-42. This matter is before the Court on the Motion To Dismiss Of Defendants O’Donnell-Way Construction Company, Inc. And Seth Beckman, With Suggestions In Support (Doc. #11) filed January 19, 2018. For reasons below, the Court overrules defendants’ [*2] motion to dismiss.

Factual And Procedural Background
Highly summarized, plaintiff alleges the following. On December 8, 2014, he was driving a tractor-trailer southbound on Roe Avenue in Overland Park, Kansas. Complaint (Doc. #1), ¶ 19. At the same time, Beckman was driving a dump truck northbound on Roe Avenue. Id., ¶ 20. Beckman made a left turn, crossing into the southbound lanes directly in front of plaintiff. Id., ¶ 23. When plaintiff attempted to brake, he received a low air alert. Id., ¶ 27. The tractor-trailer did not stop, and it collided with the dump truck. Id., ¶ 28. As a result of the accident, plaintiff suffered injuries that required extensive medical treatment. Id., ¶ 29. Plaintiff’s employer apparently owned the tractor-trailer. Id., ¶¶ 16-19. Both plaintiff and Beckman were driving in the course of their employment. Id., ¶¶ 7-8. 17-19.
As stated, on November 30, 2017, plaintiff filed suit against Ozark — the company that performed maintenance on the tractor-trailer — plus Beckman and his employer O’Donnell-Way. Plaintiff asserts that Ozark provided negligent maintenance on the tractor-trailer by failing to service its brakes at an appointment before the accident (Count [*3] 1). Id., ¶¶ 5, 14-18, 30-36. Plaintiff also asserts that Beckman negligently operated a motor vehicle within the scope of his employment for O’Donnell-Way (Count 2). Id., ¶¶ 6-8, 20, 40-42. Plaintiff, a citizen of Oklahoma, alleges that the Court has diversity jurisdiction because he seeks more than $75,000 and sues residents of Missouri (Ozark) and Kansas (O’Donnell-Way and Beckman). Id., ¶ 9; 28 U.S.C. § 1332(a).

I. District Court Of Johnson County, Kansas Proceedings
On March 31, 2017, approximately eight months before plaintiff filed suit in this Court, Farmland Mutual Insurance Company (“Farmland”) — which insured plaintiff’s employer — filed suit in the District Court of Johnson County, Kansas. Motion To Dismiss (Doc. #11), ¶¶ 4-14 (describing Farmland Mut. Ins. Co. v. Beckman, Case No. 17-CV-01890); see Petition For Damages (Doc. #11-1). In that suit, which remains pending, Farmland asserts that plaintiff’s employer owned the tractor-trailer and that O’Donnell-Way and Beckman negligently damaged it. See Petition For Damages (Doc. #11-1), ¶¶ 9-12 (Farmland paid for repair of tractor-trailer and seeks repair costs — not declaratory relief — from O’Donnell-Way and Beckman).
On May 15, 2017, O’Donnell-Way [*4] and Beckman filed a third-party complaint against plaintiff and his employer, claiming contributory negligence. See Separate Answer And Third-Party Petition Of Defendant O’Donnell-Way Construction Company, Inc. (Doc. #11-2). On August 16, 2017, plaintiff and his employer filed a joint answer to the third-party complaint. See Answer Of Third-Party Defendants Hampel Oil, Inc. And Doug Konopasek (Doc. #11-3). On December 8, 2017, eight days after plaintiff filed this instant suit, he amended his state court answer to include negligence counterclaims against O’Donnell-Way and Beckman and to add Ozark as a fourth-party defendant. See Amended Answer Of Third-Party Defendant Doug Konopasek, Counterclaim And Fourth Party Petition (Doc. #11-4) at 4-11.
On February 2, 2018, plaintiff filed a motion to dismiss the third-party complaint in Johnson County for insufficient service and expiration of the statute of limitations. Third-Party Defendant Doug Konopasek’s Motion To Dismiss Third-Party Petitioner And Suggestions In Support (Doc. #15-1). In particular, plaintiff claims that without his authorization, an attorney who represents Farmland and his employer filed an answer and amended answer in [*5] the state case. Id. at 2, ¶¶ 4-9. Plaintiff asserts that he had retained his own attorney to pursue his personal injury claims and did not learn of the Johnson County suit until December 7, 2017 — one week after he filed suit in this Court. Id. at 2, ¶ 9. On March 21, 2018, the Johnson County court heard argument on this motion. Plaintiff’s Opposition To Defendants O’Donnell-Way Construction Company, Inc. And Seth Beckman’s Motion To Dismiss (Doc. #15) filed February 2, 2018 at 2, ¶ 9. Because the parties have not indicated otherwise, the Court presumes that the motion remains pending.

II. Motion To Dismiss (Doc. #11)
On January 19, 2018, O’Donnell-Way and Beckman moved to dismiss Count 2 — the sole claim which plaintiff asserts against them in this suit — based on two arguments.1 Motion To Dismiss (Doc. #11) at 5-9. First, defendants argue that plaintiff cannot maintain Count 2 because he failed to raise negligence as a compulsory counterclaim in the Johnson County suit. Id. at 5-6. Second, defendants assert that the Court should dismiss Count 2 based on its “longstanding practice of declining jurisdiction in a second-filed action under the first-to-file rule.” Id. at 4, 6-8. In response, plaintiff asserts that the Court [*6] has diversity jurisdiction. Plaintiff’s Opposition (Doc. #15) at 2-4. Further, he argues that because he never received proper service of the third-party complaint in the Johnson County suit, the compulsory counterclaim rule cannot bar Count 2. Id. at 4-5.

Legal Standards
Defendants move to dismiss Count 2 under Rule 12(b)(1), Fed. R. Civ. P., for lack of subject matter jurisdiction. See Motion To Dismiss (Doc. #11) at 4. Federal courts must have a constitutional basis to exercise jurisdiction because they are courts of limited jurisdiction. Devon Energy Prod. Co., v. Mosaic Potash, 693 F.3d 1195, 1201 (10th Cir. 2012). The party seeking to invoke federal jurisdiction bears the burden of establishing that jurisdiction is proper. Id.
Generally, a Rule 12(b)(1) motion to dismiss takes one of two forms: a facial attack or a factual attack. Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). In a factual attack, the moving party does not attack the sufficiency of the complaint but asserts that the Court lacks subject matter jurisdiction based on facts outside of the pleadings. Id. at 1003. Here, defendants challenge the facts on which subject matter jurisdiction depend, i.e. whether the Court maintains jurisdiction in light of a prior-filed state court lawsuit. When reviewing a factual attack, the Court has wide discretion to consider affidavits, other documents and a limited [*7] evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). Id.

Analysis
As noted, defendants argue that plaintiff cannot maintain Count 2, which asserts negligent operation of a motor vehicle, because he failed to raise negligence as a compulsory counterclaim in the Johnson County action. Motion To Dismiss (Doc. #11) at 6 (citing K.S.A. § 60-213(a)). This argument asserts a form of preclusion. The Supreme Court has noted that “preclusion . . . is not a jurisdictional matter.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293, 125 S. Ct. 1517, 161 L. Ed. 2d 454 (2005). Thus, this argument is not proper grounds for dismissal under Rule 12(b)(1). Alternatively, as shown below, this argument lacks merit.
Also, defendants move the Court to decline jurisdiction over Count 2 pursuant to the first-to-file rule. Motion To Dismiss (Doc. #11) at 6-8. This argument does not directly challenge subject matter jurisdiction, but parties may raise abstention arguments under Rule 12(b)(1). Hill v. Whetsel, No. Civ.-07-69-C, 2007 U.S. Dist. LEXIS 23306, 2007 WL 963216, at *1 n.1, (W.D. Okla. Mar. 28, 2007); see Beres v. Village of Huntley, 824 F. Supp. 763, 766 (N.D. Ill. 1992) (12(b)(1) “appropriate method” for raising issue of abstention); see Charles Alan Wright & Arthur R. Miller, 5B Federal Practice And Procedure § 1350 (3d ed. 2017) (“Rule 12(b)(1) is flexible”).

I. Compulsory Counterclaim
Defendants assert that plaintiff’s negligence claim was a compulsory counterclaim in the Johnson County [*8] suit because it arose out of the same transaction as the claims against plaintiff in that action. Motion To Dismiss (Doc. #11) at 5-6. Defendants argue that because plaintiff did not raise a negligence counterclaim in Johnson County, his claim in this instant suit should be barred. Id.
State law governs the preclusive effect of failure to raise a compulsory counterclaim in an earlier state court action. Glasgow v. Eagle Pac. Ins. Co., 45 F.3d 1401, 1402-03 (10th Cir. 1995); Pochiro v. Prudential Ins. Co., 827 F.2d 1246, 1253 (9th Cir. 1987). Under K.S.A. § 60-213(a)(1), the Kansas statute which governs compulsory counterclaims, a party must assert a counterclaim if it arises out of the transaction that is the subject matter of the opposing party’s claim and does not require joinder of a party who is not subject to the court’s jurisdiction. While K.S.A. § 60-213 does not explicitly provide that failure to plead a compulsory counterclaim precludes a party from asserting it in a subsequent action, Kansas courts have consistently applied the statute in that fashion. See, e.g., Loving v. Fed. Land Bank of Wichita, 766 P.2d 802, 804-05, 244 Kan. 96, 99-100 (1988); Mohr v. State Bank of Stanley, 734 P.2d 1071, 1079, 241 Kan. 42, 51 (1987); U.S. Fid. & Guar. Co. v. Maish, 908 P.2d 1329, 1334, 21 Kan. App. 2d 885, 890 (1995).
The record belies defendants’ assertion that plaintiff did not raise a negligence counterclaim in Johnson County. As noted, plaintiff asserted a negligence counterclaim against defendants in his amended answer to the third-party complaint. See Amended Answer Of Third Party Defendant [*9] Doug Konopasek (Doc. #11-4) at 5-7. In fact, defendants’ motion to dismiss acknowledges that “[Plaintiff] has now sought leave to file a [c]ounterclaim. That [c]ounterclaim also seeks to recover against O’Donnell-Way and Beckman for negligence from the motor vehicle accident on December 8, 2015.” Motion To Dismiss (Doc. #11) at 6 n.1. Because plaintiff asserted a negligence counterclaim against defendants in Johnson County, K.S.A. § 60-213(a) does not bar Count 2 in this instant suit. Accordingly, the Court overrules defendants’ motion to dismiss on this ground.2

II. First-To-File
Defendants assert that the Court should stay or dismiss this suit pursuant to the first-to-file rule. Motion To Dismiss (Doc. #11) at 6-8. The first-to-file rule “permits a district court to decline jurisdiction where a complaint raising the same issues against the same parties has previously been filed in another district court.” Buzas Baseball, Inc. v. Board of Regents, 189 F.3d 477 (Table), [published in full-text format at 1999 U.S. App. LEXIS 21630], 1999 WL 682883, at *2 (10th Cir. Sept. 2, 1999). The rule prevents federal district courts from interfering with each other’s affairs. Id.; Universal Premium Acceptance Corp. v. Oxford Bank & Trust, No. 02-2448-KHV, 2002 U.S. Dist. LEXIS 24915, 2002 WL 31898217, at *1 (D. Kan. Dec. 10, 2002). This policy avoids the waste of duplication, rulings which may intrude [*10] on the authority of sister courts and piecemeal resolution of issues that call for a uniform result. Buzas Baseball, 1999 U.S. App. LEXIS 21630, 1999 WL 682883, at *2 (citing Sutter Corp. v. P & P Indus., 125 F.3d 914, 917 (5th Cir. 1997)); see also Lipari v. US Bancorp NA, 345 F. App’x 315 (Table), 2009 WL 2055125, at *1 (10th Cir. July 16, 2009) (first-to-file rule applies where two district courts have jurisdiction over same controversy); Wallace B. Roderick Revocable Living Trust v. XTO Energy, Inc., 679 F. Supp. 2d 1287, 1296 (D. Kan. 2010) (Tenth Circuit applies first-to-file rule where complaints raise same issues against substantially similar parties previously filed in another district court).
Defendants overlook a basic principle of the first-to-file rule, i.e. it applies only to suits in coordinate federal district courts. See Buzas Baseball, Inc., 1999 U.S. App. LEXIS 21630, 1999 WL 682883, at *2 (first-to-file rule applies to federal courts of “coordinate jurisdiction and equal rank”); see Mid-Continent Cas. Co. v. Vill. at Deer Creek Homeowners Ass’n, Inc., 685 F.3d 977, 985 (10th Cir. 2012) (first-to-file rule not directly applicable to parallel state and federal proceedings); Mid-Continent Cas. Co. v. Greater Midwest Builders, Ltd., No. 09-2066-EFM, 2011 U.S. Dist. LEXIS 132989, 2011 WL 5597329, at *4 (D. Kan. Nov. 17, 2011) (first-to-file rule does not apply when parallel actions in state and federal court); contra CZ-USA, Inc. v. Timber Valley Assocs., Inc., No. 12-2173-RDR, 2012 U.S. Dist. LEXIS 113953, 2012 WL 3442105, at *3 (D. Kan. Aug. 14, 2012) (acknowledging first-to-file applies to federal courts, but applying it to parallel state and federal court suits). Because defendants seek dismissal based on a prior-filed state court action, the first-to-file rule does not apply. The Court overrules defendants’ motion on this [*11] ground.
Federal courts commonly dismiss or stay proceedings under the Colorado River doctrine, which governs whether a federal court should stay or dismiss a suit pending resolution of a parallel state court proceeding. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817-19, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976); see also Rienhardt v. Kelly, 164 F.3d 1296, 1302 (10th Cir. 1999). In briefing their motion, defendants do not invoke or cite the Colorado River doctrine. The Court declines to construct arguments for defendants and does not address whether to dismiss or stay on those grounds.
IT IS THEREFORE ORDERED that the Motion To Dismiss Of Defendants O’Donnell-Way Construction Company, Inc. And Seth Beckman, With Suggestions In Support (Doc. #11) filed January 19, 2018 is OVERRULED.
Dated this 11th day of April, 2018 at Kansas City, Kansas.
/s/ Kathyrn H. Vratil
KATHRYN H. VRATIL
United States District Judge

2018 WL 1545588

United States District Court, M.D. Pennsylvania.
MICHAEL LANE, Plaintiff,
v.
TROY MCLEAN, et al., Defendants.
3:17-CV-428
|
Filed 03/29/2018
Opinion

MEMORANDUM OPINION
Robert D. Mariani United States District Judge

I. INTRODUCTION AND PROCEDURAL HISTORY
*1 On March 8, 2017, Plaintiff Michael R. Lane filed a Complaint in the above-captioned action against Troy S. McLean and TransAm Trucking, Inc., wherein he alleged Negligence (Counts I, II) and Negligent Entrustment (Count III) against the Defendants as the result of a tractor-trailer motor vehicle collision that occurred on January 24, 2017. (Doc. 1). Defendants thereafter filed a Motion to Strike Pursuant to Fed. R. Civ. P. 12(f) (Doc. 7) and a supporting brief (Doc. 8), requesting that the Court “dismiss part of, or in the entirety,” 12 paragraphs in Plaintiffs 51 paragraph Complaint. Plaintiff filed a brief in opposition to Defendants’ motion (Doc. 10), to which Defendants replied (Doc. 13).

Defendants’ Motion to Strike Pursuant to Fed. R. Civ. P. 12(f) (Doc. 7) having been fully briefed, it is now ripe for resolution. For the reasons that follow, the Court will deny Defendants’ motion in its entirety.

II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12 provides that a “court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f).
District courts are afforded considerable discretion when addressing a motion to strike. Generally, motions to strike are not favored and usually will be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties, or if the allegations confuse the issues.
Yellow Book Sales & Distrib. Co., Inc. v. White, 2011 WL 830520, at *4 (E.D. Pa. 2011) (internal citations and quotation marks omitted). See also, N. Penn Transfer, Inc. v. Victaulic Co. of Am., 859 F.Supp. 154, 158 (E.D. Pa. 1994). “Indeed, striking a pleading ‘is a drastic remedy to be resorted to only when required for the purposes of justice’ and should be used ‘sparingly.’ ” DeLa Cruz v. Piccari Press, 521 F.Supp.2d 424, 428 (E.D. Pa. 2007) (quoting N. Penn Transfer, Inc., 859 F.Supp. at 158); see also Pozarlik v. Camelback Assocs., Inc., 2011 WL 6003841, at *3 (M.D. Pa. 2011) (“[T]he standard for striking portions of a plaintiffs complaint ‘is strict and only allegations that are so unrelated to the plaintiffs’ claims as to be unworthy of any consideration should be stricken’ ”) (quoting Johnson v. Anhorn, 334 F.Supp.2d 802, 809 (E.D. Pa. 2004)) (internal alterations omitted).

III. ANALYSIS
Defendants request that the Court “dismiss part of, or in the entirety, paragraphs 1, 8, 24, 25, 26, 27, 28, 30, 31, 32, 34, and 46 of Plaintiff’s Complaint.” (Doc. 7, at 1). In support of this request, Defendants, in their Memorandum of Law in Support of their Motion to Strike, divide their argument into five sections with each section addressing specific paragraphs which Defendants contend should be stricken and set forth their reasons for so arguing. Specifically, Defendants argue the following:
1. References to Defendant McLean having been charged with a criminal violation of the Pennsylvania Motor Vehicle Code, being “in blatant violation of Pennsylvania Motor Vehicle Code at section 3742”, and being apprehended by the Pennsylvania State Police are all scandalous and immaterial matters and thus those allegations within paragraphs 1 and 46 of the Complaint should be stricken and paragraph 34 should be stricken in its entirety. (Doc. 8, at 3).
*2 2. Plaintiffs inclusion of TransAm’s website address and certain language contained on the website in its “About TransAm” section are irrelevant, immaterial, and have no essential or important relationship to the claim for relief and therefore paragraph 8 of the Complaint should be stricken in its entirety. (Id. at 4).
3. References to Defendant McLean failing to render aid to Plaintiff after the accident at issue are scandalous, immaterial, prejudicial, and have no essential or important relationship to the claims of relief and thus paragraphs 24, 30, and 31 of the Complaint should be stricken in their entirety. (Id.).
4. References to Defendant McLean failing to report an accident are scandalous, immaterial, prejudicial, and have no essential or important relationship to the claims of relief and thus paragraphs 25 and 32 of the Complaint should be stricken in their entirety. (Id. at 4-5).
5. References to Defendant McLean’s alleged failure to acknowledge a third party witness are scandalous and immaterial and have no essential or important relationship to the claims of relief and thus paragraphs 26, 27, and 28 should be stricken in their entirety.1 (Id. at 5).

The Court will address the defendants’ arguments in the order in which those arguments were raised in Defendants’ brief.

First, Defendants seek to strike as “scandalous and immaterial matters” the allegations within paragraphs 1 and 46 of the Complaint with respect to Defendant McLean having been charged with a criminal violation of the Pennsylvania Motor Vehicle Code, being “in blatant violation of Pennsylvania Motor Vehicle Code at Section 3742”, and being apprehended by the Pennsylvania State Police. Defendants also argue that paragraph 34 should be stricken in its entirety in connection with the aforementioned assertions.

Paragraph 1 of Plaintiffs Complaint can be fairly characterized as a concise statement of the plaintiff’s allegations as to the events of January 24, 2017. Plaintiff alleges that the motor vehicle accident at issue occurred as a result of the negligent conduct of Defendant McLean, whose trailer struck Plaintiffs vehicle, causing it to veer off the roadway and roll “multiple times down an embankment.” As a consequence, the plaintiff’s vehicle “sustained disabling damage” and the plaintiff himself sustained “serious life-threatening injuries.” (Doc. 1, at ¶ 1). Plaintiff has also alleged, however, that Defendant McLean “failed to stop his tractor trailer subsequent to the collision, and was subsequently charged with criminal violation of the Pennsylvania Motor Vehicle Code as a result of his involvement in this motor vehicle collision.” (Id.). The Court views the allegations of paragraph 1 as tightly related to one another and relevant to McLean’s conduct not only in operating his tractor trailer but also in his actions immediately thereafter in failing to stop subsequent to the collision. To suggest that the plaintiff’s post-collision allegations do not contain the basis for the introduction of relevant evidence at trial as to the collision as well as to the damages suffered by the plaintiff is unreasonable. The allegations are neither scandalous nor immaterial. Likewise, the allegation that McLean was “subsequently charged with criminal violation of the Pennsylvania Motor Vehicle Code as a result of his involvement in the motor vehicle collision”, presents a legitimate, threshold assertion of facts which, on their face, are relevant to this claim.

*3 In the same vein, the defendants’ assertion that paragraph 46 contains scandalous and immaterial allegations is without merit. Paragraph 46 alleges that Defendant McLean’s actions “in fleeing the scene of the collision and leaving the Plaintiff, Michael R. Lane, behind without providing any aid or assistance, in blatant violation of the Pennsylvania Motor Vehicle Code at section 3742 were reckless, and further jeopardized the health and safety of the Plaintiff, Michael R. Lane.” (Doc. 1, at ¶ 46). As to this, Plaintiff explains in his Brief in Opposition to the Motion to Strike (Doc. 10):
Plaintiff, Michael R. Lane, is not alleging that the crash in which he was injured was caused by the Defendant, Troy S. McLean, failing to stop and failing to render aid and notify authorities; rather, Plaintiff has alleged that the harms and losses he sustained were made worse as a direct result of the conduct of the Defendant, Troy S. McLean, subsequent to the crash that he caused.
(Id. at 9). The plaintiff argues that he was unable to extricate himself from the vehicle after the collision and that the act of McLean leaving the scene of the collision “potentially enhanced” Lane’s physical injuries, and caused him to suffer “anxiety and emotional distress as he sat in his vehicle waiting to be rescued.” (Id. at 8). Thus, Lane argues that “[i]n this case, the post-collision conduct of the Defendant, Troy S. McLean, is directly relevant to the Plaintiff’s claims of physical and mental damages,” and that the post-collision conduct of McLean was the “proximate cause of additional injuries and significant emotional suffering sustained by the Plaintiff,” who was allegedly in need of immediate assistance after his vehicle rolled down the embankment adjacent to the highway – assistance that he alleges he was deprived of by McLean’s failure to stop at the scene of the accident. (Id. at 8-9).

The Court agrees with these arguments by Plaintiff for the relevance of paragraph 46. While proof of such conduct by McLean must obviously be adduced at trial and will be subject to such objection under Federal Rule of Evidence 403 as the defendants may make, these trial and evidentiary issues do not afford a basis for this Court to strike as scandalous, impertinent, or immaterial the allegations of paragraph 46 or any part thereof.

With respect to paragraph 34, the allegations set forth therein state no more than that the Pennsylvania State Police apprehended Defendant McLean based on eyewitness reports regarding the collision and the information provided by a third-party, Bryan Funk. These allegations are, again, part and parcel of the plaintiff’s account of the events of January 24, 2017, and present facially relevant information whose admissibility and probative value under Federal Rules of Evidence 401 and 403 will be determined if offered as evidence at trial.

Defendants next contend that paragraph 8 of the Complaint should be stricken in its entirety. That paragraph seeks to provide something in the nature of a “corporate face” for defendant, Trans-Am Trucking, alleging that it “bills itself as the ‘premier carrier in the temperature-controlled freight industry,’ ” and “operates a fleet of over 1,000 tractors and over 1,900 trailers out of its headquarters in Olathe, Kansas.” (Doc. 1, at ¶ 8). The Defendants assert that these allegations have no essential or important relationship to the claim for relief and thus should be stricken in their entirety.

The relevance of the allegations in paragraph 8 present matters that are more dimly perceivable as relevant to this case at this juncture. Indeed, Plaintiff himself makes little argument in support of his inclusion of paragraph 8 in the Complaint, arguing summarily that paragraph 8 “simply describes the Defendant, Trans-Am Trucking, and provides context for its operations” (Doc. 10, at 11). Plaintiff argues in the alternative that the language does not need to be stricken but may be treated as “mere surplusage” and ignored. (Id. at 12).

*4 In resolving this issue, the Court notes, first, that the Complaint seeks punitive damages in its prayer for relief in Counts One, Two, and Three. Should this matter be tried and the jury find that the conduct of one or both defendants was outrageous, a jury is entitled to award punitive damages in order to punish that defendant for the conduct and to deter that defendant and others from committing similar acts. (Pa. S.S.J.I. (Civ.), § 8.00)). A defendant’s wealth is a proper element for the jury to consider in determining what will be an amount sufficient to punish and deter the defendant from committing similar acts. (Id. at § 8.20, sub. comm. note). See also, Sprague v. Walter, 656 A.2d. 890, 920 (Pa. Super. Ct. 1995), app. denied, 673 A. 2d. 336 (Pa. 1996)) (a defendant’s net worth is a “valid measure of its wealth” for purposes of punitive damages). Thus, Plaintiff’s allegations in paragraph 8 contain the potential for relevance should this matter be tried and punitive damages awarded. While this statement should not be understood by the parties as any indication by this Court as to whether punitive damages should or will be awarded in this case or, for that matter, whether liability should be assessed against one or both of the defendants, paragraph 8 still presents allegations that cannot be deemed irrelevant, scandalous, immaterial, or impertinent.

Next, Defendants move to strike paragraphs 24, 30, and 31 of the Complaint. Paragraph 24 alleges that Defendant McLean continued driving his tractor trailer northbound on Interstate 81 “leaving the Plaintiff, Michael R. Lane, to suffer on the side of the road without any assistance from the Defendant, Troy S. McLean.” Paragraph 30 sets forth the allegation that as a result of McLean “fleeing the scene of the collision, there were two fewer individuals, namely, the Defendant, Troy S. McLean, and the eyewitness, Bryan Funk, who were available at the scene” to free Lane and provide aid and comfort to him. Paragraph 31 alleges that McLean “failed to immediately stop his tractor trailer at the scene of the accident” and “failed to return to the scene and remain there until he had fulfilled his duty to give information and render aid” to Lane.

Plaintiff argues that the allegations in paragraphs 24, 30, and 31, “directly support Plaintiffs claims for physical and mental damages, and the emotional trauma the Plaintiff has suffered as a result of this collision caused by the Defendant, Troy S. McLean.” (Doc. 10, at 13). While any duty that Defendant McLean may owe Plaintiff to assist in the moving of Plaintiffs vehicle in order to free him as well as to offer aid and comfort to Plaintiff may well be the subject of dispute between Plaintiff and Defendants, this Court cannot say that these allegations are so unrelated to the plaintiff’s claims as to be unworthy of any consideration and thus should be stricken. See Johnson v. Anhorn, supra, at 809. A motion to strike a pleading may not serve as a preemptive attempt at summary judgment as appears to be the defendants’ intention here. Thus, the Court will deny Defendants’ motion to strike paragraphs 24, 30, and 31 of Plaintiffs Complaint for the reasons set forth above.

Next, Defendants move to strike as scandalous and immaterial the allegations in paragraphs 25 and 32 of the Complaint. Paragraph 25 alleges that Defendant McLean “failed to report the collision to the authorities.” Paragraph 32 presents an amplification of paragraph 25, alleging that Defendant McLean did not call 911 to report the crash or “call any first responder to help ensure that emergency medical assistance was provided to the Plaintiff, Michael R. Lane, in a timely manner.” Plaintiff further alleges that as a result of this delay, a delay created by Defendant McLean, the plaintiff’s pain, suffering, physical injuries and emotional trauma were “greatly enhanced.”

Plaintiff’s allegations in the Complaint are supported by Plaintiff’s argument in his brief in opposition to Defendants’ motion, that McLean’s conduct “was the proximate cause of additional injuries and significant emotional suffering sustained by the Plaintiff, Michael R. Lane, who was in need of immediate assistance after his vehicle rolled down the embankment adjacent to the highway; he was deprived of assistance that could have been provided at the scene by Defendant, Troy S. McLean, and the motorist who followed the Defendant to get him to stop his tractor trailer.” (Doc. 10 at 8-9). Plaintiff emphasizes that he is not alleging that the crash in which he was injured was caused by Defendant McLean’s failing to stop and failing to render aid and notify authorities. Rather, Plaintiff argues that the harms and losses he sustained were made worse as a result of the conduct of McLean subsequent to the crash that he allegedly caused. (Id. at 9).

*5 Plaintiff’s arguments present claims directly arising out of and intimately related to the collision which Plaintiff alleges was caused by Defendant McLean’s negligence. They also present a claim of an additional cause of Lane’s injuries in the nature of an exacerbation of such injuries as were suffered by him in the collision. As such, the allegations are clearly relevant and are neither scandalous nor impertinent and accordingly, Defendant’s motion to strike paragraphs 25 and 32 will be denied.

Lastly, Defendants seek to strike in their entirety paragraphs 26, 27, and 28. These paragraphs make reference to Defendant McLean’s alleged failure to acknowledge a third-party witness, more specifically, that McLean, after allegedly fleeing the scene of the crash, was followed by Bryan Funk in an attempt by Funk to obtain McLean’s license number and to urge McLean to pull over. Paragraph 27 alleges that Funk attempted to contact McLean via CB radio without success and paragraph 28 sets forth the allegation that Funk, as an eyewitness to the collision, attempted to get McLean to “acknowledge him as they continued to drive northbound on Interstate 81, but the Defendant, Troy S. McLean, failed to acknowledge Mr. Funk.” The difficulty with Defendants’ argument with respect to these paragraphs is simply that the paragraphs are foundational allegations for the allegations of paragraphs 29, 34, and 36 of the Complaint. Paragraph 29 alleges that Funk, the eyewitness, contacted the Pennsylvania State Police “to report the hit and run collision caused by the Defendant, Troy S. McLean.” Paragraph 34 then alleges that the Pennsylvania State Police “were able to apprehend the Defendant, Troy S. McLean, upon confirmation of eyewitness reports regarding the collision, and in particular, upon information provided by Bryan Funk.” Then, paragraph 36 recites that as a result of the collision, Defendant McLean was charged with five violations of the Pennsylvania Motor Vehicle Code including: 75 P.S. § 3742(a) – Accidents Involving Death or Personal Injury; 75 P.S. § 3309(1) – Disregard Traffic Lanes; 75 P.S. § 3361 – Driving at Safe Speed; 75 P.S. § 3744(a) – Failure to Stop and Give Information/Render Aid; and 75 P.S. § 3746(a)(1) – Failure to Notify Police of Accident Involving Injury/Death.

Clearly the paragraphs challenged as scandalous and impertinent, i.e. paragraphs 26, 27, and 28, should not be stricken in light of their integral relation to other paragraphs, specifically paragraphs 29 and 36, which the defendants have made no attempt to strike.

IV. CONCLUSION
For the aforementioned reasons, Defendants’ Motion to Strike Pursuant to Fed. R. Civ. P. 12(f) (Doc. 7) will be denied in its entirety. A separate Order follows.

All Citations
Slip Copy, 2018 WL 1545588

Footnotes

1
Defendants’ argument with respect to McLean’s alleged failure to respond to a third party witness requests that “paragraphs 26, 27, and 32 of the Complaint” be stricken in their entirety. (See Doc. 8, at 5). However, an earlier reference in this subsection of Defendants’ brief, as well as a review of Plaintiff’s Complaint, reveal that Defendants’ reference to paragraph 32 is a typographical error and Defendants are requesting that paragraphs 26, 27, and 28 be stricken.