Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Williams v. Averitt Express

United States District Court, D. Nebraska

February 11, 2016

ZACHARY R. WILLIAMS, Plaintiff,
v.
AVERITT EXPRESS, VERNA BAZILE, and RUSSELL STOVER CANDIES, LLC, Defendants.

ORDER

Thomas D. Thalken, United States Magistrate Judge.

This matter is before the court on the defendants Averitt Express and Verna Bazile’s Motion to Strike (Filing No. 6). The moving defendants filed a brief (Filing No. 7) in support of their motion. The moving defendants seek to have the court strike paragraphs eighteen through thirty-five of the plaintiff’s Complaint (Filing No. 2 p. 1-8). See Filing No. 6 - Motion p. 1. The moving defendants contend these paragraphs contain redundant, immaterial, impertinent, and/or argumentative or conclusory statements. Id. The plaintiff did not oppose the motion and the defendant Russell Stover Candies, LLC did not participate in briefing.

BACKGROUND

The plaintiff filed this action alleging he sustained injuries when Verna Bazile backed a semi-tractor and trailer owned by Averitt Express toward a loading platform at the rear of a retail store operated by Russell Stover Candies, LLC. See Filing No. 2 -Complaint ¶¶ 36, 38-46. The moving defendants removed this action from the District Court of Douglas County, Nebraska. See Filing No. 1. They have not yet filed an answer. Instead these defendants filed a motion to strike pursuant to “[Federal Rule of Civil Procedure] 12(f) and the pleading standards set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009).” Filing No. 7 - Brief p. 1, 3-4 (noting those standards apply to a motion under Rule 12(b)(6)); see Filing No. 6 -Motion p. 1.

The moving defendants’ motion to strike has two parts. See Filing No. 6. First, the moving defendants seek to strike five allegations contained in the plaintiff’s Complaint under the heading “Scope of Liability” contained in paragraphs eighteen through twenty-two. Id.; Filing No. 2 - Complaint p. 2-4. These paragraphs state:

18. Performing this process is difficult for any tractor-trailer driver.
19. Performing this process is much more difficult for a driver who is tired, at the end of a long day.
20. If the driver performing this process is not precise and careful that driver can push his trailer into anyone or anything around him.
21. If the driver performing this process is not precise and careful that driver can damage or destroy property.
22. If the driver performing this process is not precise and careful that driver can injure or kill anyone nearby.

Filing No. 2 - Complaint p. 4.

The moving defendants also seek to strike all of the allegations in the plaintiff’s Complaint under the heading of “Breach.” See Filing No. 6 - Motion p. 1; Filing No. 2 - Complaint p. 5. Each of these allegations names either Averitt Express or Verna Bazile, or both. See Filing No. 2 - Complaint p. 5. Nevertheless, the moving defendants argue the allegations are generic, conclusory, and could refer to any trucking accident. See Filing No. 7 - Brief p. 3. For example, the Complaint alleges, “Averitt Express did not reasonably investigate the driving qualifications and safety record of Verna Bazile.” Filing No. 2 - Complaint ¶ 23. The moving defendants contend the allegations are speculative, without factual support, and even contradictory. See Filing No. 7 - Brief p. 4. For example the Complaint alleges, “Averitt Express did not have reasonable safety rules . . . .” (Filing No. 2 - Complaint ¶¶ 24, 26, 28), then it “did not follow its own safety rules . . . .” (Id. ¶¶ 25, 27, 29), and finally “Verna Bazile did not know Averitt Express’ safety rules. . . .” (Id. ¶ 33). The moving defendants contend the plaintiff’s allegations are insufficient “to raise a right to relief above the speculative level.” See Filing No. 7 - Brief p. 3-4 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009)).

ANALYSIS

The Federal Rules of Civil Procedure provide a mechanism for the court to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” See Fed.R.Civ.P. 12(f). A court possesses liberal discretion when ruling on motions to strike under Rule 12(f). BJC Health Sys. v. Columbia Cas. Co., 478 F.3d 908, 917 (8th Cir. 2007). However, courts view motions to strike with disfavor because striking is an extreme measure and the motion may only serve to delay proceedings. See id.; Stanbury Law Firm v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000). In fact, “[t]he rule’s purpose is to conserve time and resources by avoiding litigation of issues which will not affect the outcome of a case.” Big Cats of Serenity Springs, Inc. v. Vilsack, 84 F.Supp. 3d 1179, 1198 (D. Colo. 2015) (citation omitted). Accordingly, a motion to strike will be denied if the content sought to be stricken “is sufficient as a matter of law or if it fairly presents a question of law or fact which the court ought to hear.” Lunsford v. United States, 570 F.2d 221, 229 (8th Cir. 1977) (quotation omitted). Similarly, “the Eighth Circuit Court of Appeals has ruled that even matters that are not ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.