2018 WL 1096860

United States District Court, W.D. Oklahoma.
JAY PROVO, Plaintiff,
v.
BOLT EXPRESS, LLC, and ELIAS EL-CHAAR, Defendants.
Case No. CIV-17-57-D
|
Filed 02/26/2018
Opinion

ORDER
TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE
*1 Before the Court is Defendants’ Partial Motion for Summary Judgment [Doc. No. 41], filed pursuant to FED. R. CIV. P. 56. Plaintiff responded in opposition [Doc. No. 48], and Defendants replied [Doc. No. 49]. The matter is fully briefed and at issue.

BACKGROUND
This case stems from a motor vehicle accident on August 19, 2016, between Plaintiff and Defendant Elias El-Chaar (“El-Chaar”). On that date, Plaintiff, an employee of Regional Enterprises, LLC (“Regional Enterprises”), was hauling jet fuel in a tanker-trailer westbound on Interstate-40 in Crittenden County, Arkansas. El-Chaar, driving for Bolt Express, LLC (“Bolt Express”), rear-ended the trailer that Plaintiff was pulling. Plaintiff alleges that El-Chaar was negligent and was acting within the scope of his employment at the time of the accident. As part of his damages, Plaintiff asserts a lost wage claim1 of $200,000.002. See Joint Status Report [Doc. No. 13 at ¶ 4(a) ]. Defendants contend that Plaintiff’s assertion of lost wages is devoid of any evidentiary support. Plaintiff maintains that his testimony, his income information and the testimony of Willie Russell, owner of Regional Enterprises, supports his claim for lost wages.

STANDARD OF DECISION
Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Hiatt v. Colorado Seminary, 858 F.3d 1307, 1315 (10th Cir. 2017) (quoting FED. R. CIV. P. 56(a)). A dispute is genuine “if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way,” and it is material “if under the substantive law it is essential to the proper disposition of the claim.” Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013) (internal quotation marks omitted). At the summary judgment stage, the Court views the facts and all reasonable inferences in the light most favorable to the nonmoving party. Williams v. FedEx Corporate Services, 849 F.3d 889, 896 (10th Cir. 2017).

“The movant bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-671 (10th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the movant meets that burden, the nonmovant must “go beyond the pleadings and ‘set forth specific facts’ that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” Adler, 144 F.3d at 671; see also FED. R. CIV. P. 56(c)(1)(A). To accomplish this, the nonmovant must identify facts by reference to the pleadings, depositions, other discovery materials, exhibits or affidavits. Id. The Court is not limited to the cited materials, but rather may consider other materials in the record. FED. R. CIV. P. 56(c)(3). The Court’s inquiry is whether the facts and evidence of record present “a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252 (1986). Unsupported conclusory allegations are not sufficient to defeat summary judgment. Matthiesen v. Banc One Mortgage Corp., 173 F.3d 1242, 1247 (10th Cir. 1999).

UNDISPUTED AND MATERIAL FACTS3
*2 Plaintiff left Regional Enterprises because he no longer felt “safe” hauling jet fuel after the accident. Pl.’s Dep. [Doc. No. 41-1 at 17-19, 25-27].4 Consequently, he asserts (1) that he makes less money as a driver for YRC Freight than he did as a driver for Regional Enterprises; and (2) that he lost the potential to become an owner-operator for Regional Associates, Inc. (“Regional Associates”)5, a position he contends would have provided him with earnings of $150,000.00 a year. Id. at 28, 30.

A. Regional Associates and Regional Enterprises
Willie Russell founded Regional Associates in 1993. Ward’s Dep. [Doc. No. 41-3 at 7-8]; W. Russell’s Dep. [Doc. No. 41-4]. He later sold his share of the company to his son, Jason Russell. Ward’s Dep. [Doc. No. 41-3 at 7]. Regional Associates hauls fuel, primarily jet fuel, to military bases across the United States. J. Russell’s Dep. [Doc. No. 41-2 at 6-7]; Ward’s Dep. [Doc. No. 41-3 at 16, 34]. The company owns 38 trailers. J. Russell’s Dep. [Doc. No. 41-2 6]; Ward’s Dep. [Doc. No. 41-3 at 8]. Regional Associates does not have any tractor units to pull its trailers. Therefore, it enters lease agreements with other companies6 or individual owner-operators of tractor units. One such company is Regional Enterprises, which Willie Russell owns. J. Russell’s Dep. [Doc. No. 41-2 at 7]; W. Russell’s Dep. [Doc. No. 41-4 at 8]. Plaintiff drove as an independent contractor for Regional Enterprises. At the time of the accident, Plaintiff was driving a Regional Enterprises’ tractor pulling a Regional Associates’ trailer. J. Russell’s Dep. [Doc. No. 41-2 at 7].

*3 Regional Associates does not employ drivers but leases with companies who do employ drivers or leases with individual owner-operators of tractor units. W. Russell’s Dep. [doc. No. 41-4 at 10]. A person has to own his or her own truck to be an owner-operator. W. Russell’s Dep. [Doc. No. 41-4 at 10]; Ward’s Dep. [Doc. No. 41-3 at 19, 23]; J. Russell’s Dep. [Doc. No. 41-2 at 13].

B. Subject Accident
The motor vehicle accident at issue occurred on August 19, 2016, on Interstate-40 in Crittenden County, Arkansas. Plaintiff was driving a tractor unit owned by Regional Enterprises and was pulling a trailer owned by Regional Associates. J. Russell’s Dep. [Doc. No. 41-2 at 7]; Accident Report [Doc. No. 41-7]. Following the accident, Plaintiff left the disabled trailer in Arkansas and returned to Oklahoma City in the tractor unit owned by Regional Enterprises. Pl.’s Dep. [Doc. No. 41-1 at 24]. Plaintiff took one week off work after the accident. Id. He continued to drive for Regional Enterprises until late September or early October 2016. W. Russell’s Dep. [Doc. No. 41-4 at 25-26].

C. Plaintiff’s Resignation from Regional Enterprises
At some point in late September or early October 2016, while Plaintiff was pulling a trailer for Regional Associates, Plaintiff called Jason Russell and resigned. Pl.’s Dep. [Doc. No. 41-1 at 25, 64]. He made the decision to resign after he perceived that he was almost involved in a similar accident while hauling diesel fuel for Regional Associates. Id. at 25, 64. Plaintiff left Regional Enterprises because he no longer felt “safe” hauling fuel after the accident. Id. at 17-19. Plaintiff, Jason Russell, Willie Russell and Andrea Ward all testified that Plaintiff would be welcomed back at Regional Enterprises as a company/contract driver or Regional Associates as an owner-operator, if at any point he chose to return. Id. at 66; see also J. Russell’s Dep. [Doc. No. 41-2 at 27]; Ward’s Dep. [Doc. No. 41-3 at 23]; W. Russell’s Dep. [Doc. No. 41-4 at 9].

D. Plaintiff’s Employment at YRC Freight
While still working for Regional Enterprises, Plaintiff applied for a commercial truck driver position with YRC Freight on September 8, 2016. Pl.’s Employment Application [Doc. No. 41-5 at 4]. In his application, Plaintiff indicated he was leaving “Regional”7 because “the salary changes from month to month and at this time [I’m] not working at all.” Id. at 2. He also indicated he was not receiving health insurance. Id. Plaintiff further indicated that he had once left “Regional Associates” on or about July 20, 2015, “To go work at Frontier for health insurance.” Id. at 4.

Andee Garst, YRC Talent Acquisition Coordinator, testified that YRC Freight provides “free health insurance to their employees” and that this “attracts candidates to YRC Freight.” Garst’s Dep. [Doc. No. 41-8 at 25]. During his phone interview with YRC Freight, Plaintiff indicated he was looking for a job with “[h]ealth insurance and somewhere stable to retire from” and that he disliked the fact that Regional Enterprises did not offer health insurance. YRC Freight Phone Interview Form [Doc. No. 41-9]. Nowhere in YRC Freight’s records does Plaintiff assert that he felt unsafe pulling certain types of loads. In fact, YRC Freight requires all job applicants to be HAZMAT certified. Glave’s Dep. [Doc. No. 41-10 at 19].

*4 The evidence of record indicates that Plaintiff has been employed with YRC Freight since October 8, 2016. See Defs.’ Partial Mot. for Summ. J. [Doc. No. 41 at ¶ 28]; YRC Freight Pay Records [Doc. No. 41-13].

E. Plaintiff’s Assertion of Lost Wages
Plaintiff asserts that he is earning less at YRC Freight than he did as a contract/company driver for Regional Enterprises. He also contends that he lost the opportunity to become an owner-operator for Regional Associates, a position he asserts has the earning capacity of $150,000.00 per year. Pl’s Dep. [Doc. No. 41-1 at 30, 38]. Plaintiff admits that he has no physical impairment that would preclude him from driving for Regional Enterprises or from pulling trailers for Regional Associates. Id. at 26, 93. He has not sought psychological or psychiatric care relating to his alleged mental issues with driving a tractor-trailer. Id. at 38. Defendants point out, and Plaintiff does not refute, that Plaintiff has not designated an expert to testify as to his mental or emotional capacity to pull trailers for Regional Associates.8 Defs.’ Partial Mot. for Summ. J. [Doc. No. 41 at ¶ 25]; see also Pl.’s Final Witness & Ex. List [Doc. No. 36-1].

Plaintiff was compensated $39,073.14 by Regional Enterprises between January and October 2016. Reg’l Enter. Pay Records [Doc. No. 41-11]. He was also paid $2,739.00 directly by Regional Associates and its sister company. Pl.’s 2016 W-2 [Doc. No. 41-12]. Between October 8, 2016, and October 7, 2017, Plaintiff earned $51,429.30 with YRC Freight. YRC Freight Pay Records [Doc. No. 41-13]. Owners of Regional Associates and Regional Enterprises testified that they could not estimate future earnings at either company because compensation fluctuates significantly. J. Russell’s Dep. [Doc. No. 41-2 at 33-34]; W. Russell’s Dep. [Doc. No. 41-4 at 16]. Plaintiff agreed. Pl.’s Dep. [Doc. No. 41-1 at 28]. Willie Russell testified in his deposition that he was aware of no owner-operator ever earning $150,000.00 in a year. W. Russell’s Dep. [Doc. No. 41-4 at 20].9

DISCUSSION AND ANALYSIS
A. Choice of Law
The parties do not dispute the applicable law governing Plaintiff’s negligence claim. “A federal court sitting in diversity … must apply the substantive law of the forum state, including its choice of law rules.” Otis Elevator Co. v. Midland Red Oak Realty, Inc., 483 F.3d 1095, 1101 (10th Cir. 2007). Thus, the Court looks to Oklahoma’s choice-of-law rules in determining what law to apply.

*5 Under Oklahoma’s choice-of-law rules, the Court must apply the tort law of the state with the most significant relationship to the occurrence and the parties. Hightower v. Kan. City S. Ry. Co., 70 P.3d 835, 842 (Okla. 2003). This test requires the consideration of four factors: (1) the place where the injury occurred; (2) the place where the conduct causing the injury occurred; (3) the domicile, residence, nationality, place of incorporation and place of business of the parties; and (4) the place where the relationship, if any, between the parties occurred. Id. (internal quotation marks omitted); see also Brickner v. Gooden, 525 P.2d 632, 637 (Okla. 1974).

The first, second and fourth factors all point to application of Arkansas law. The injury, conduct and the only interaction between Plaintiff and Defendants occurred in Arkansas. The third factor – place of domicile – is not determinative where, as here, multiple states are involved. Therefore, Arkansas law applies because it has the most significant relationship to the occurrence and the parties.

B. Plaintiff’s Assertion of Lost Wages
Plaintiff’s wage claim is comprised of two parts: (1) his assertion that he has and will continue to suffer lost wages and earn less as a commercial truck driver for YRC Freight; and (2) his contention that he had the potential to make up to $150,000.00 as an owner-operator at Regional Associates. Under Arkansas law, loss of earnings and loss of earning capacity are separate elements of damage. Cates v. Brown, 645 S.W.2d 658, 660 (Ark. 1983); see also Arkansas Model Jury Instructions, Civil AMI 2201, 2206 and 2207.
Briefly stated, damage resulting from loss of earning capacity is the loss of the ability to earn in the future. The impairment of the capacity to earn is the gravamen of the element. It is sometimes confused with permanency of the injury but is a separate element. However, an instruction on this element is normally given only in the event of a permanent injury.
Cates, 645 S.W.2d at 660 (internal citations omitted).

Although the evidence may support an award for either element, when both elements are included in the jury instructions, “there is a real danger of a double recovery.” Coleman v. Cathey, 565 S.W.2d 426, 428 (Ark. 1978); see also Note on Use to AMI 2206, 2207.

1) Loss of Earnings
An instruction on this element is appropriate where the plaintiff proves he “will lose wages in the future but has sustained no injury which will impair his earning capacity.” Cates, 645 S.W.2d at 660. Loss of earnings must be proven with reasonable certainty. Id. Evidence involving two factors is necessary: (1) the amount of wages lost for some determinable period; and (2) the future period over which wages will be lost. Id.

Thus, where there is proof that the plaintiff, at the time of the trial, is still unable to earn as much as he did before he was injured, an instruction on the loss of future earnings is proper. Check v. Meredith, 420 S.W.2d 866, 867 (Ark. 1967); see also Ishie v. Kelley, 788 S.W.2d 225, 226 (Ark. 1990) (reversing the trial court for giving AMI 2206 absent adequate evidence of lost past and future profits).

Plaintiff has not put forth sufficient evidence to support his claim that he has made or will make less money at YRC Freight. Plaintiff was compensated $39,073.14 by Regional Enterprises between January and October 2016. Reg’l Enter. Pay Records [Doc. No. 41-11]. He was also paid $2,739.00 directly by Regional Associates and its sister company. Pl.’s 2016 W-2 [Doc. No. 41-12].

*6 Between October 8, 2016, and October 7, 2017, Plaintiff earned $51,429.30 with YRC Freight. YRC Freight Pay Records [Doc. No. 41-13]. Thus, Plaintiff earned $9,600.00 more at YRC Freight than he did at Regional Enterprises and Regional Associates. Plaintiff resigned from Regional Enterprises as the business was approaching its slowest time of the year. W. Russell’s Dep. [Doc. No. 41-4 at 16].

Further, owners of Regional Associates and Regional Enterprises testified that they could not estimate future earnings at either company because compensation fluctuates significantly. J. Russell’s Dep. [Doc. No. 41-2 at 33-34]; W. Russell’s Dep. [Doc. No. 41-4 at 16]. Plaintiff agreed. Pl.’s Dep. [Doc. No. 41-1 at 28].

Willie Russell testified that the average earning capacity for an owner-operator would be $40,000.00 to $50,000.00 a year. W. Russell’s Dep. [Doc. No. 41-4 at 19]. In his first year at YRC Freight, Plaintiff earned what an owner-operator would earn in an average year. Although Plaintiff is not required to prove “precisely what he has lost,” as the non-moving party he must designate specific facts showing there is an issue for trial. Davis v. Davis, 856 S.W.2d 284, 287 (Ark. 1993); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (the nonmovant must “go beyond the pleadings and ‘set forth specific facts’ that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.”).

The party claiming damages has the burden of proof. Christmas v. Raley, 539 S.W.2d 405, 410 (Ark. 1976). Damages “must be shown with reasonable certainty” as to both their nature and cause. Jonesboro Coca-Cola Bottling Co. v. Young, 132 S.W.2d 382, 384 (Ark. 1939). Resorting to “speculation or conjecture” to determine causation is prohibited. Id. See also Christmas, 539 S.W.2d at 411. Unsupported conclusory allegations are not sufficient to defeat summary judgment. Matthiesen v. Banc One Mortgage Corp., 173 F.3d 1242, 1247 (10th Cir. 1999).

Plaintiff contends that he left Regional Enterprises because he no longer felt “safe” hauling fuel after the accident. Pl.’s Dep. [Doc. No. 41-1 at 17-19]. Although Defendants do not dispute this fact, they contend that the evidence controverts Plaintiff’s testimony. In his job application and phone interview with YRC Freight, Plaintiff stated that he was leaving Regional Enterprises/Regional Associates for health insurance, steady pay and retirement stability. Pl.’s Employment Application [Doc. No. 41-5 at 2]; YRC Freight Phone Interview Form [Doc. No. 41-9]. Nowhere in YRC Freight’s records does Plaintiff assert that he felt unsafe pulling certain types of loads. In fact, as a condition of Plaintiff’s employment with YRC Freight, he was required to be HAZMAT10 certified. Glave’s Dep. [Doc. No. 41-10 at 19]. Had Plaintiff expressed concerns to YRC Freight about his ability to haul HAZMAT materials, he may have been disqualified as an applicant.

*7 Further, Plaintiff admitted that he could “physically” perform the work as a driver for Regional Enterprises/Regional Associates. Pl.’s Dep. [Doc. No. 41-1 at 26, 93]. Moreover, Plaintiff never sought treatment from a health care provider relating to his alleged mental issues with driving a tractor-trailer hauling fuel. Id. at 38. Finally, Plaintiff has not designated an expert to testify as to his mental or emotional capacity to pull trailers for Regional Associates. Defs.’ Partial Mot. for Summ. J. [Doc. No. 41 at ¶ 25]; see also Pl.’s Final Witness & Ex. List [Doc. No. 36-1].

In an effort to avoid summary judgment, Plaintiff relies on Willie Russell’s testimony that owner-operators who “really want to drive” could earn $100,000.00 a year. W. Russell’s Dep. [Doc. No. 41-4 at 19]. Mr. Russell estimated that the top earning capacity for the “very best drivers” is around $100,000.00 a year. Id. The evidence of record, however, does not support Plaintiff’s assertion (1) that he missed the opportunity to become an owner-operator, or (2) that Plaintiff would earn $100,000.00 a year as an owner-operator.

Plaintiff, Jason Russell, Willie Russell and Andrea Ward all testified that Plaintiff would be welcomed back at Regional Enterprises as a company/contract driver or Regional Associates as an owner-operator, if at any point he chose to return. Pl.’s Dep. [Doc. No. 41-1 at 66]; J. Russell’s Dep. [Doc. No. 41-2 at 27]; Ward’s Dep. [Doc. No. 41-3 at 23]; W. Russell’s Dep. [Doc. No. 41-4 at 9]. Thus, the opportunity has not been lost.

At the same time, however, it does not appear that Plaintiff was ever an owner-operator for Regional Associates or that he had entered any agreement to become an owner-operator. There is no evidence of record that Plaintiff ever purchased or obtained financing to purchase a tractor unit. To become an owner-operator, he would have to purchase a tractor unit. If he left YRC Freight to become an owner-operator for Regional Associates, he would lose his health insurance. Simply put, Plaintiff has not demonstrated a triable issue regarding whether he would make $100,000.00 a year as an owner-operator.

2) Loss of Earning Capacity
Loss of earning capacity is recoverable only upon proof that an injury is permanent. Wheeler v. Bennett, 849 S.W.2d 952, 955 (Ark. 1993). “A permanent injury is one that deprives the plaintiff of his right to live his life in comfort and ease without added inconvenience or diminution of physical vigor.” Id. Although the existence of a permanent injury should not be left for the jury to speculate over, proof of this element does not require the same specificity or detail as proof of loss of future wages. Cates, 645 S.W.2d at 660. “The reason is that a jury can observe the appearance of the plaintiff, his age and the nature of the injuries which will impair his capacity to earn.” Id.

Plaintiff contends that his testimony alone is sufficient to present his lost earning capacity claim to the jury. “No hard and fast rule exists by which to test the permanency of injuries and to a degree each case must be examined on its own.” E. Tex. Motor Freight Lines, Inc. v. Freeman, 713 S.W.2d 456, 460 (Ark. 1986). Indeed, lay testimony without expert corroboration may be sufficient. Id. (citing Bailey v. Bradford, 423 S.W.2d 565, 567 (Ark. 1968)).

In Belford v. Humphrey, the Arkansas Supreme Court drew a distinction between subjective injuries and objective injuries. Belford v. Humphrey, 424 S.W.2d 526, 529 (Ark. 1968). The court held that a subjective injury, i.e., one that a nonprofessional could not with reasonable certainty testify would cause future pain and suffering, required expert testimony. Id. An objective injury, such as a severed limb, would not require expert testimony prior to submission of the issue of permanency to the jury. Id. “Between the two extremes are gray areas in which the issue of permanency becomes a matter of judgment.” Id. Ultimately, the court found that the evidence justified submission of the issue of permanency of injury to the jury. Id. The plaintiff’s injuries had persisted for 20 months, her personality had changed, and she was unable to perform certain movements without pain; she was also taking muscle relaxants at the time of trial. Id.

*8 In Freeman, the plaintiff’s injuries were more emotional than physical. Freeman, 713 S.W.2d at 460. The plaintiff’s daughter testified that since the accident her mother had avoided driving or allowing her grandchildren to ride with her.11 Id. She would make excuses to keep from driving and was a “total wreck” in the days leading up to a trip. Id. The daughter further testified that her mother was paranoid about 18-wheelers driving behind her. Id. The court found there was sufficient evidence of permanency to submit the issue to the jury. Id.

Likewise, in Coleman v. Cathey, the court found there was substantial evidence to support an award for loss of earning capacity. Coleman v. Cathey, 565 S.W.2d 426, 428 (Ark. 1978). There the plaintiff allegedly suffered severe injuries to his face, head and eyes of a permanent nature. Id. Further, the plaintiff testified that he went to college to become a coach and that he was unable to coach successfully because of the eye injury. Id. At the time of the trial, he was working for an insurance company. Id. His employment as a coach was terminated after the injury. Id. See also Wheeler v. Bennett, 849 S.W.2d 952, 956 (Ark. 1993) (evidence of a permanent back injury was provided by a physician); Honeycutt v. Walden, 743 S.W.2d 809, 811 (Ark. 1988) (an ear, nose and throat specialist and orthopedist testified the plaintiff suffered permanent nerve damage, which caused her to drool and slur her words, and that her neck and back problems interfered with her ability to lift, which her work required).

In stark contrast, here Plaintiff is employed as a commercial truck driver. He is still driving, and he is HAZMAT certified. See Defs.’ Partial Mot. for Summ. J. [Doc. No. 41 at ¶ 28]; YRC Freight Pay Records [Doc. No. 41-13]; Glave’s Dep. [Doc. No. 41-10 at 19]. Further, he has acknowledged that he has no physical impairment that would inhibit his ability to drive for Regional Associates/Regional Enterprises.12 Pl.’s Dep. [Doc. No. 41-1 at 26, 93]. He has never sought treatment for any psychological issues related to his ability to haul fuel. Pl’s Dep. [Doc. No. 41-1 at 38]. Further, there is no evidence his “fear” of hauling fuel will persist.

Accordingly, the Court concludes that Plaintiff has not presented sufficient evidence of a permanent injury to establish a triable issue and submit Plaintiff’s loss of earning capacity claim to the jury. Thus, summary judgment is appropriate.

CONCLUSION
IT IS THEREFORE ORDERED that Defendants’ Partial Motion for Summary Judgment [Doc. No. 41] is GRANTED.

IT IS SO ORDERED this 26th day of February 2018.

All Citations
Slip Copy, 2018 WL 1096860

Footnotes

1
In addition, Plaintiff asserts damages for past and future medical expenses, past and future pain and suffering, and emotional distress. Defendants’ motion only challenges the damages for lost wages.

2
Defendants do not dispute the $2,500.00 to $3,500.00 in earnings that Plaintiff lost the week following the accident. Defs.’ Partial Mot. for Summ. J. [Doc. No. 41 at n. 2].

3
Plaintiff’s brief in opposition does not comply with the Local Court Rules or FED. R. CIV. P. 56. LCvR 56.1(c) requires a brief in opposition to a motion for summary judgment to “begin with a section responding, by correspondingly numbered paragraph, to the facts that the movant contends are not in dispute and shall state any fact that is disputed.” LCvR 56.1(c) (emphasis in original). Plaintiff has made no effort to controvert Defendants’ statement of material facts. Pursuant to LCvR 56.1(e), all “material facts set forth in the statement of materials facts of the movant may be deemed admitted for the purpose of summary judgment unless specifically controverted by the nonmovant using the procedures set forth in this rule.” See also FED. R. CIV. P. 56(c)(1) and 56(e)(2). Thus, Defendants’ material facts, as supported by the evidence of record, are deemed admitted. Further, the three numbered paragraphs offered by Plaintiff as undisputed facts do not materially differ from the facts set forth by Defendants or the evidence of record.

4
After the accident, Plaintiff hauled diesel fuel one more time, but he asserts that he was almost rear-ended. He called Jason Russell the next day and resigned. Pl.’s Dep. [Doc. No. 41-1 at 25].

5
The Court notes some confusion in the record between Regional Enterprises and Regional Associates. Adding to the confusion, counsel and witnesses in their depositions refer to both companies as “Regional.” Plaintiff himself confused the two when he called Jason Russell to resign rather than Willie Russell, owner of Regional Enterprises. Andrea Ward, office manager for Regional Associates, testified in her deposition that drivers often confuse the two companies and also confuse New Dawn Trucking, the sister company for Regional Associates. Ward’s Dep. [Doc. No. 41-3 at 16]. Further complicating matters, in 2016, Regional Associates compensated Plaintiff directly, when the truck he was driving for Regional Enterprises was broken down. Ward’s Dep. [Doc. No. 41-3 at 14]. The Court has attempted to alleviate some of this confusion in the Facts section of this Order. As an owner-operator for Regional Associates, Plaintiff would no longer be employed by Regional Enterprises, but would purchase his own truck and individually enter a lease with Regional Associates to pull their trailers. J. Russell’s Dep. [Doc. No. 41-2 at 13]; Ward’s Dep. [Doc. No. 41-3 at 19, 23].

6
New Dawn Trucking, a sister company of Regional Associates, also provides tractor units to haul Regional Associates’ trailers. Plaintiff has worked as a driver for New Dawn Trucking in the past. Ward’s Dep. [Doc. No. 41-3 at 8]. It does not appear, however, that Plaintiff has ever been an owner-operator for Regional Associates or that he had entered any agreement to become an owner-operator. Further, there is no evidence of record that Plaintiff ever purchased or obtained financing to purchase a tractor unit.

7
Plaintiff consistently lists Regional Associates as his employer or past employer and Jason Russell as his supervisor. He does not list New Dawn Trucking or Regional Enterprises. Based on the other evidence of record, including deposition testimony and Defendants’ motion, this appears to be in error.

8
Although Plaintiff has designated Sean Lively, a licensed chiropractor, as an expert, Plaintiff has conceded that his testimony will be limited to the medical records already provided to Defendants. [Doc. Nos. 35, 39-2]. Thus, Defendants’ Motion to Strike Plaintiff’s Proposed Expert List [Doc. No. 39] will be granted by a separate order.

9
Plaintiff contends that owner-operators can earn $100,000.00 a year at Regional Enterprises. Pl.’s Resp. [Doc. No. 48 at ¶ 1]. Willie Russell, owner of Regional Enterprises, offered testimony in his deposition on the earning capacity of an owner-operator. He indicated that owner-operators who “really want to drive” could earn $100,000.00 a year. W. Russell’s Dep. [Doc. No. 41-4 at 19]. He estimated that the top earning capacity – that is for the “very best drivers” – is around $100,000.00 a year. Id. He estimated that the average earning capacity for an owner-operator would be $40,000.000 to $50,000.00 a year. Id. He was not aware of any owner-operator ever earning $150,000.00 in a year. Id. at 20.

10
The United States Department of Transportation identifies nine classes of hazardous materials. U.S. Dep’t of Transportation & Federal Motor Carrier Safety Administration, https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/Nine_Classes_of_Hazardous_ Materials-4-2013_508CLN.pdf (last visited Feb. 26, 2018). Although Plaintiff asserted in his deposition that after the accident he no longer felt comfortable hauling liquid HAZMAT, he hauls “all kinds of commodities” at YRC Freight and is HAZMAT certified. Pl.’s Dep. [Doc. No. 41-1 at 18]; see also Glave’s Dep. [Doc. No. 41-10 at 19]. Further, Eric Glave, line haul manager at YRC Freight, identified hazardous materials hauled by YRC Freight drivers, including fireworks, oxygen and corrosives. Id.

11
The plaintiff’s car was struck from behind by a tractor-trailer. At the time of the accident, the plaintiff was driving and her daughter and grandson were passengers. Freeman, 713 S.W.2d at 458.

12
The other cases relied upon by Plaintiff and by the Arkansas Supreme Court in Coleman concerned verifiable injuries. See Riddel v. Lyon, 213 P. 487 (Wash. 1923) (the plaintiff was on foot crossing the street when he was struck by a car); Miss. Power & Light Co. v. McCormick, 166 So. 534, 535 (Miss. 1936) (the appellee suffered severe burns that required months of treatment and permanent injuries to her eyes and hands; at the time of the injury, the plaintiff was an accomplished pianist, a piano teacher, and a radio and convention entertainer); Missouri Pac. R.R. Co. v. Gilbert, 178 S.W.2d 73 (Ark. 1944) (an action to recover for the death of the plaintiff’s husband).

United States District Court, W.D. Pennsylvania.

Ahmed I. ELMI, Plaintiff,

v.

Maksym KORNILENKO, S&T Transport Inc., and Die Heimat Transportation Inc., Defendants.

Case No. 3:17-CV-177

|

Signed 03/02/2018

Attorneys and Law Firms

Andrew R. Rehmeyer, Rehmeyer & Allatt, State College, PA, for Plaintiff.

Mark R. Lane, Dell, Moser, Lane & Loughney, Pittsburgh, PA, for Defendants.

Opinion

 

MEMORANDUM OPINION

KIM R. GIBSON, UNITED STATES DISTRICT JUDGE

 

1. Introduction

*1 Pending before this Court is the Motion for Partial Dismissal of Plaintiff’s Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) and Motion to Strike Allegations of Plaintiff’s Complaint Pursuant to Federal Rule of Civil Procedure 12(f) filed by Defendants. (See ECF No. 9.) Defendants’ Motion has been fully briefed (see ECF Nos. 10, 12) and is ripe for disposition.

 

This case arises from an alleged vehicular collision on Interstate 80 between a tractor trailer truck in which Defendant Maksym Kornilenko (“Kornilenko”) was a passenger and a tractor trailer truck driven by Plaintiff Ahmed I. Elmi (“Elmi”). In the instant Motion, Defendants ask this Court to dismiss Elmi’s claims for punitive damages and to strike the allegations of “reckless, willful[,] wanton, and/or outrageous conduct” from paragraphs 28, 29, and 46 of the Complaint. (See ECF No. 10 at 2-3.)

 

For the reasons that follow, this Court will GRANT IN PART and DENY IN PART Defendants’ Motion. Specifically, Elmi’s claims for punitive damages are dismissed. Otherwise, Defendants’ Motion is denied.

 

 

1. Jurisdiction

According to the allegations of the Complaint, Elmi is a citizen of Ohio and all Defendants are citizens of Illinois. (See ECF No. 1 ¶¶ 1-5.) The Complaint also alleges damages in an amount in excess of $75,000. (See id. at 6, 12.) Thus, this Court has subject matter jurisdiction over the instant matter pursuant to 28 U.S.C. § 1332(a)(1) because the Complaint alleges complete diversity between Plaintiff and all Defendants and alleges that the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332(a)(1).

 

Venue is proper under 28 U.S.C. § 1391(b)(2) because a substantial portion of the alleged events giving rise to Plaintiff’s claims occurred in the Western District of Pennsylvania. See 28 U.S.C. § 1391(b)(2).

 

 

III. Relevant Procedural History

Elmi initiated the present lawsuit against Kornilenko and Kornilenko’s employers, S&T Transport Inc. and Die Heimat Transportation Inc., by filing his Complaint with this Court on October 2, 2017. (ECF No. 1.) Elmi’s Complaint is organized into two counts: (1) a claim for negligence against all Defendants in Count I and (2) a claim for various negligence-related causes of action against S&T Transport Inc. and Die Heimat Transportation Inc. in Count II. (See generally id.) Elmi requests compensatory damages, punitive damages, interests, and costs for both counts. (Id. at 6, 12.)

 

On December 8, 2017, Defendants filed the instant Motion for Partial Dismissal of Plaintiff’s Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) and Motion to Strike Allegations of Plaintiff’s Complaint Pursuant to Federal Rule of Civil Procedure 12(f) and their accompanying Brief in Support thereof. (ECF Nos. 9, 10.) Elmi filed his Response in Opposition on December 27, 2017. (ECF No. 12.)

 

 

1. Factual Allegations Set Forth in the Complaint

The following facts, which the Court accepts as true for the purposes of deciding Defendants’ Motion, are alleged in the Complaint. (ECF No. 1.)

 

*2 On December 2, 2016, Elmi was a passenger in a 2006 blue freightliner tractor trailer in the eastbound right lane of Interstate 80 at mile marker 103.2 in Union Township, Clearfield County, Pennsylvania. (Id. ¶ 12.) At this same time and place, Kornilenko was operating a 2006 red Volvo tractor trailer in the eastbound right lane. (Id. ¶ 13.)

 

At approximately 2:30 p.m. on this clear Friday afternoon, Kornilenko “approached the 2006 blue freightliner tractor trailer at highway speed and attempted to pass the blue 2006 freightliner tractor trailer with reckless indifference and crashed into the rear driver side of the blue 2006 freightliner trailer that Plaintiff was occupying.” (Id. ¶¶ 12, 14.) In attempting to pass this blue 2006 freightliner trailer, Kornilenko allegedly did not comply with the applicable state and federal safety regulations because he failed to practice proper visual search, space management, and hazard perception methods, as set forth in the commercial driver’s license manual and the Federal Motor Carrier Safety Regulations. (Id. ¶¶ 15, 16.) Elmi suffered “serious bodily injuries and damages” as a result. (Id. ¶ 14.)

 

Throughout these alleged events, Kornilenko was an authorized driver for S&T Transport Inc. and Die Heimat Transportation Inc. (Id. ¶ 15.)

 

 

1. Discussion
2. Defendants’ Partial Motion to Dismiss
3. Standard of Review

A complaint may be dismissed under Federal Rule of Civil Rule 12(b)(6) for “failure to state a claim upon which relief can be granted.” Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016). But, detailed pleading is not generally required. Id. The Rules demand only “a short and plain statement of the claim showing that the pleader is entitled to relief” to give the defendant fair notice of what the claim is and the grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2)).

 

Under the pleading regime established by Twombly and Iqbal, a court reviewing the sufficiency of a complaint must take three steps.2 First, the court must “tak[e] note of the elements [the] plaintiff must plead to state a claim.” Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009). Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679; see also Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011) (“Mere restatements of the elements of a claim are not entitled to the assumption of truth.”) (citation omitted). Finally, “[w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679. “A claim has facial plausibility 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.; see also Connelly, 809 F.3d at 786. Ultimately, the plausibility determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

 

 

2. The Court Will Dismiss Elmi’s Claims for Punitive Damages Because the Complaint Fails to Allege Sufficiently Outrageous Conduct

*3 In their instant Motion and accompanying Brief in Support, Defendants contend that the claims for punitive damages contained in Elmi’s Complaint are conclusory in nature and, thus, should be dismissed. (ECF No. 10 at 8-9.) Defendants suggest that “Plaintiff only alleged that he was involved in an accident with a vehicle owned and maintained by Defendant Heimat and driven by Defendant Kornilenko, without explaining as to how the Defendants’ conduct was outrageous, extreme, willful, wanton, and reckless.” (Id. at 9). In short, Defendants argue that Elmi has not alleged sufficient facts to state a claim for punitive damages. The Court agrees.

 

“In a diversity action [ ] the propriety of an award of punitive damages for the conduct in question, and the factors the jury may consider in determining their amount, are questions of state law.” Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 278 (1989). Therefore, as the alleged events underlying Elmi’s claims occurred in Pennsylvania and this Court sits in Pennsylvania, the substantive law of the Commonwealth of Pennsylvania governs Elmi’s requests for punitive damages. See id.

 

Under Pennsylvania law, “[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.” Hutchison ex rel. Hutchison v. Luddy, 870 A.2d 766, 770 (2005) (citing Feld v. Merriam, 485 A.2d 742, 747 (Pa. 1984)). “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.” Id. (citing SHV Coal, Inc. v. Continental Grain Co., 587 A.2d 702, 704 (Pa. 1991)).

 

“[W]hen assessing the propriety of the imposition of punitive damages, ‘[t]he state of mind of the actor is vital.’ ” Id. at 770 (quoting Feld, 485 A.2d at 748). “[A] punitive damages claim must be supported by evidence sufficient to establish 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.” Id. at 770; see also Scott v. Burke, No. 2:13-CV-278, 2013 WL 4648402, at *3 (W.D. Pa. Aug. 29, 2013).

 

Here, Elmi’s punitive damages claims are based solely on Kornilenko’s failed attempt to pass another tractor trailer without proper visual search, space management, and hazard perception. (ECF No. 1, at ¶¶ 10-18.) Such basic allegations of negligence do not state a cognizable claim for punitive damages. See discussion infra.

 

Elmi argues that “crashing into a moving vehicle that is directly in front of you while operating a 80,000 lb. tractor trailer at seventy (70) miles per hour is reckless.” (ECF No. 12 at 7.) However, Pennsylvania law on punitive damages does not support Plaintiff’s conclusion, especially to the extent Elmi suggests that any vehicular accident involving a tractor trailer truck traveling seventy miles per hour warrants punitive damages.4

 

For example, in Smith v. Brown, 423 A.2d 743 (Pa. Super. Ct. 1980), Shirley Bass Smith (“Smith”) filed a lawsuit on behalf of her daughter for injuries suffered as a result of a car accident. Id. at 744-45. Smith alleged that the defendant was driving too fast for conditions, failed to have her car under proper and adequate control, failed to have due regard for the point and position of the appellant, violated traffic laws, and failed to exercise due care under the circumstances. Id. at 745. On appeal, the Pennsylvania Superior Court held that the alleged conduct was not sufficiently outrageous to support a punitive damages claim. Id. at 746. Likewise, in the instant case, Elmi’s Complaint features allegations of similar severity to those made by Smith, and, as in Smith, those allegations are insufficient to state a claims for punitive damages.

 

*4 Similarly, in Keifer v. Reinhart Foodservice, LLC, Civil Action No. 09-1558, 2013 WL 2558004 (W.D. Pa. June 11, 2013) (Conti, C.J.), this Court dismissed a claim for punitive damages when the allegations of the complaint did not rise to the level of outrageous conduct. Id. at *24. The plaintiffs in Keifer alleged that the defendant, a truck driver, was pulling two fully loaded double tractor trailers and had a radar detector in his truck when he rear-ended an illuminated tractor trailer at the maximum legal speed limit. Id. at *20. This Court held that there were insufficient facts from which a jury could find that the defendant had a “subjective appreciation of the risk of harm caused by his actions and that he acted in conscious disregard of that risk.” Id. at 24. Likewise, in the present case, the Complaint fails to allege facts to establish that Defendants “had a subjective appreciation of the risk of harm to which [Elmi] was exposed and that [Defendants] acted, or failed to act, as the case may be, in conscious disregard of that risk.” Hutchison, 870 A.2d at 770; Scott, 2013 WL 4648402, at *3. Even when the veracity of Elmi’s allegations are presumed and all reasonable inferences are made in his favor, see Iqbal, 556 U.S. at 679; Connelly, 809 F.3d at 786, Elmi’s allegations amount to nothing more than negligence.

 

Unsurprisingly, many Pennsylvania and federal cases permit punitive damages to be awarded in cases involving vehicular collisions. However, these cases are easily distinguishable from the facts alleged in Elmi’s Complaint. For example, in Dillow v. Myers, 916 A.2d 698 (Pa. Super. Ct. 2007), a truck driver loaded his truck unevenly, exceeded the speed limit, drove with limited visibility due to an obscured side mirror, and, then, proceeded to change lanes. Id. at 702. The Pennsylvania Superior Court held that these allegations were sufficient to show the outrageous conduct necessary to support a claim for punitive damages. Id. However, unlike the plaintiff in Dillow, Elmi has not alleged that Defendants’ tractor trailer was overloaded or suffered from any defects. Nor does Elmi even allege that Kornilenko was driving at an unlawful speed.

 

This Court’s decision in Darden-Munsell v. Dutch Maid Logistics, C.A. No. 10-13, 2011 WL 3325863 (W.D. Pa. July 13, 2011), is another readily distinguishable case that allowed claims for punitive damages to proceed beyond the pleading stage. In Darden, the defendant truck driver caused a collision that killed the plaintiff’s husband. Id. at *1. The plaintiff sued both the truck driver and his employer. Id. Her complaint alleged that the truck driver improperly operated an overloaded tractor trailer while (1) in a state of great fatigue, (2) intoxicated, (3) on the phone, and (4) driving in dangerous weather conditions. Id. at *3. Moreover, the plaintiff in Darden alleged that the employer failed to properly train its employee, permitted him to drive despite inadequate training, and permitted him to continue driving despite knowing the driver was driving in excess of the applicable hours of service. Id.

 

The allegations in Darden, unlike the present case, go far beyond mere negligence. Here, Elmi’s Complaint does not allege defects in the Defendants’ truck, dangerous weather conditions, intoxication, the use of a phone, fatigue, or any other aggravating circumstances. Unlike in Darden, the allegations of Elmi’s Complaint fail to rise above mere negligence and cannot support his claims for punitive damages.

 

Other federal district courts within the Third Circuit have also considered the degree of culpability required to permit an award of punitive damages. See, e.g., Sabo v. Suarez, Civil Action No. 3:CV-08-1189, 2009 WL 2365969, *2-3 (M.D. Pa., July 31, 2009) (holding that a truck driver could be subject to punitive damages for ignoring various road signs in an area he was unfamiliar with and driving through an intersection with limited visibility due to wet and foggy conditions); Burke v. TransAm Trucking, Inc., 605 F. Supp. 2d 647, 655 (M.D. Pa. 2009) (holding that a jury could find that an experienced and trained truck driver acted outrageously when he drove around a curve at fifty-five miles per hour where the speed limit was thirty-five mile per hour); Logue v. Logano Trucking Co., 921 F. Supp. 1425, 1428 (E.D. Pa. 1996) (holding that the plaintiff had sufficiently alleged that the defendant, a truck driver who had worked more hours than permitted by law and operated an overloaded tractor trailer with improperly adjusted brakes at an excessive and unreasonable speed such that he could not stop for a red light).

 

*5 The common theme in all of these cases is that Pennsylvania law requires “something more” than negligence. The inclusion of simple allegations that a truck driver did not comply with the law or violated regulations does not, by itself, satisfy the requirements of Pennsylvania law for awarding punitive damages. Elmi’s Complaint, alleging nothing more than a failure to safely pass another tractor trailer, lacks the “something more” necessary to state a claim for punitive damages.

 

Additionally, the Court rejects the overly broad nature of Elmi’s position on the appropriateness of punitive damages in this case. If this Court accepted Elmi’s argument, all truck drivers who attempt to pass other vehicles at seventy miles per hour and collide with another vehicle on the highway will automatically be subject to punitive damages. Such a per se rule clearly contradicts the approach to punitive damages articulated by Pennsylvania courts and runs counter to the underlying policies behind punitive damages of punishing and deterring outrageous and ill-intended behavior. See supra.

 

Even though Elmi’s Complaint includes conclusory allegations that label Kornilenko’s conduct as reckless, Elmi’s non-conclusory, plausible allegations allege only that Kornilenko was negligent in his attempt to pass another tractor trailer. Iqbal, 556 U.S. at 679 (stating that mere conclusions are “not entitled to the assumption of truth.”); Burtch, 662 F.3d at 224 (“Mere restatements of the elements of a claim are not entitled to the assumption of truth.”). Accordingly, this Court concludes that the Complaint has not alleged sufficient facts to plead punitive damages claims that are plausible on their face. See Iqbal,556 U.S. at 679; Connelly, 809 F.3d at 786.

 

Furthermore, beyond Elmi’s claims against Kornilenko, the claims for punitive damages against S&T Transport Inc. and Die Heimat Transportation Inc. are likewise improper. Because the Complaint’s allegations are “insufficient to allow an award of punitive damages against [Kornilenko], it follows that no punitive damages can be awarded vicariously against [his employer].” Burke v. Maassen, 904 F.2d 178, 184 (3d Cir. 1990); see also Keifer, 2013 WL 2558004, at *24 (holding that the company could not be vicariously subjected to punitive damages since its truck driver’s conduct was not outrageous).

 

Therefore, this Court grants Defendants’ request to dismiss all of Elmi’s claims for punitive damages against all Defendants.

 

 

1. The Court Will Deny Defendants’ Motion to Strike

Under Federal Rule of Civil Procedure 12(f), courts may “strike from a pleading … any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f); see Berezansky v. CBN Bank, Case No. 3:17-cv-105, 2018 WL 461245, at *2 (W.D. Pa. Jan. 17, 2018) (Gibson, J.) (citing Nelson v. Bender, No. 3:15-64, 2015 WL 8207490, at *4 (W.D. Pa. Dec. 7, 2015)). The purpose of a motion to strike “is to clean up the pleadings, streamline litigation, and avoid unnecessary forays into immaterial matters.” Hay v. Somerset Area Sch. Dist., No. 3:16-CV-229, 2017 WL 2829700, at *3 (W.D. Pa, June 29, 2017) (Gibson, J.) (quoting Tennis v. Ford Motor Co., 730 F. Supp. 2d 437, 443 (W.D. Pa. 2010)); see also Brugh v. Mount Aloysius College, Case No. 3:17-cv-71, 2017 WL 5634984, at *9 (W.D. Pa. Nov. 21, 2017) (Gibson, J.).

 

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 in the case.’ ” Hay, 2017 WL 2829700, at *3 (quoting Tennis, 730 F. Supp. 2d at 443) (internal citations omitted); see Bender, 2015 WL 8207490, at *9 (“The standard for striking under Rule 12(f) is strict and only allegations that are so unrelated to plaintiff’s claims as to be unworthy of any consideration should be stricken. Striking a pleading is a drastic remedy to be resorted to only when required for the purposes of justice.”) (quoting Johnson v. Anhorn, 334 F. Supp. 2d 802, 809 (E.D. Pa. 2004)) (internal quotations and citations omitted).

 

*6 Defendants’ Motion to Strike is based on language contained in paragraphs 28, 29, and 46 of Elmi’s Complaint. (See ECF No. 10 at 11). Specifically, Defendants ask this Court to strike references to “reckless, willful, wanton[,] and outrageous” conduct by Defendants from the Complaint. (Id.) In support of its request to strike these allegations from Elmi’s Complaint, Defendants assert that these aforementioned terms are pertinent only to Elmi’s claims for punitive damages and that these terms are “impertinent and scandalous.” (Id.)

 

However, this Court disagrees with both Defendants’ articulation and application of the appropriate standard for deciding a motion to strike. See supra. Consequently, the Court finds that Defendants are not entitled to the “drastic remedy” of striking the aforementioned content from the Complaint. See Bender, 2015 WL 8207490, at *9.

 

As discussed supra, the Court agrees with Defendants that Elmi has failed to state a claim upon which relief can be granted in regard to punitive damages. The Court also agrees with Defendants that the references in the Complaint to “reckless, willful, wanton[,] and outrageous” conduct by Defendants are likely focused primarily on the now-dismissed claims for punitive damages. However, the Court does not agree that these highlighted terms are only material to Elmi’s claims for punitive damages or that these terms are otherwise scandalous, impertinent, confusing, or prejudicial to Defendants.

 

While the challenged references to “reckless, willful, wanton[,] and outrageous” conduct by Defendants may not feature the particularity or degree of materiality that Defendants desire, the Federal Rules of Civil Procedure do not require detailed or perfect pleadings, see Connelly, 809 F.3d at 786, nor do the Federal Rules permit paragraphs 28, 29, and 46 to be stricken. See Rowles v. GGNSC Altoona Hillview LP, Case No. 3:17-cv-22, 2018 WL 559160, at *6 (W.D. Pa. Jan. 24, 2018) (Gibson, J.). The precise terminology used in paragraphs 28, 29, and 46 may very well have been included in the Complaint in an effort to support Elmi’s claims for punitive damages, but that does not preclude these allegations from also bearing at least some materiality to Elmi’s non-punitive negligence claims.

 

Defendants have failed to identify any prejudice caused by the presence of these allegations in the Complaint, any confusion of the issues in the case caused by these allegations, or that these allegations are “scandalous.” Fed. R. Civ. P. 12(f). Furthermore, as the punitive damages claims have been dismissed, this Court fails to see how the inclusion of these references to “reckless, willful, wanton[,] and outrageous” conduct in the Complaint would hinder the prompt progression of this litigation or cause “unnecessary forays into immaterial matters.” Rowles, 2018 WL 559160, at *6; Hay, 2017 WL 2829700, at *3 (quoting Tennis v. Ford Motor Co., 730 F. Supp. 2d 437, 443).

 

Defendants may certainly challenge whether Elmi can produce evidence to support these allegations and dispute the weight and credibility of these allegations at the summary judgment and trial stage. Rowles, 2018 WL 559160, at *6. However, as stated supra, 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 in the case.’ ” Id. (quoting Hay, 2017 WL 2829700, at *3). Here, Defendants suffer no unfair prejudice from the allegations contained in paragraphs in question, the allegations sufficiently relate to the Elmi’s negligence-based claims, and the allegations do not confuse the issues. See id.; Hay, 2017 WL 2829700, at *3 (quoting Tennis, 730 F. Supp. 2d at 443). Thus, the Court will not take the “drastic” action of striking the challenged terms in paragraphs 28, 29, and 46 from the Complaint. Bender, 2015 WL 8207490, at *9 (quoting Johnson, 334 F. Supp. 2d at 809).

 

 

1. CONCLUSION

*7 For the reasons set forth above, Defendants’ Motion for Partial Dismissal of Plaintiff’s Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) and Motion to Strike Allegations of Plaintiff’s Complaint Pursuant to Federal Rule of Civil Procedure 12(f) (ECF No. 9) is GRANTED IN PART and DENIED IN PART.

 

In sum, Elmi’s claims for punitive damages are dismissed because the Complaint failed to alleged anything more than negligence. However, the Court will not strike the language contained in paragraphs 28, 29, and 46 of the Complaint because this language is not “redundant, immaterial, impertinent, or scandalous matter” under the standard provided by Federal Rule Civil Procedure 12(f) and pertinent case law.

 

A corresponding order follows.

 

 

ORDER

NOW, this 2nd day of March 2018, upon consideration of Defendants’ Motion for Partial Dismissal of Plaintiff’s Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) and Motion to Strike Allegations of Plaintiff’s Complaint Pursuant to Federal Rule of Civil Procedure 12(f) (ECF No. 9), and for the reasons set forth in the accompanying Memorandum Opinion, IT IS HEREBY ORDERED that Defendants’ Motion (ECF No. 9) is GRANTED IN PART and DENIED IN PART.

 

Defendants’ Motion is GRANTED to the extent that Plaintiff’s claims for punitive damages are DISMISSED.

 

Defendants’ Motion is DENIED in all other regards.

 

All Citations

Slip Copy, 2018 WL 1157996

Footnotes

2

Although Iqbal described the process as a “two-pronged approach,” Iqbal, 556 U.S. at 679, the Supreme Court noted the elements of the pertinent claim before proceeding with that approach, id. at 675–79. Thus, the Third Circuit has described the process as a three-step approach. See Connelly, 809 F.3d at 787; Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 n.4 (3d Cir. 2011) (citing Santiago v. Warminster Township, 629 F.3d 121, 130 (3d Cir. 2010)).2

4

The Court observes that the Complaint fails to allege the posted speed limit at the site of the collision.