United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on the plaintiffs' motion and
amended motions to strike affirmative defenses, or
alternatively, for partial judgment on the pleadings,
Filing Nos. 20, Filing No. 22, and
Filing No. 24. This is an action for damages for
breach of contract, negligence, and gross negligence in
connection with engineering design services. Jurisdiction is
based on diversity of citizenship under 28 U.S.C. Â§ 1332.
GGA-PC (“GGA”) is an architectural firm, and
plaintiff Beazley Insurance Company (“Beazley”)
is its insurer. Defendant Performance Engineering, Inc.,
(“Performance”) is an engineering firm and
defendant Robert Allen Whorley, P.E. (“Whorley”)
is an engineer with the firm. The plaintiffs allege that
Seward County, Nebraska hired GGA to design a Law Enforcement
Center and to provide construction documents for the project.
GGA then entered into a contract with defendant Performance
that required Performance to provide the structural
engineering design for the Project and to prepare structural
documents. Performance subsequently submitted the documents
to GGA, sealed with defendant Robert Allen Whorley's
professional engineer seal. The plaintiffs allege that
structural design services the defendants provided and the
structural documents they prepared were inadequate and
improper. They allege that as a result of the defendants'
inadequate and improper structural design, extra work had to
be performed on the project, including strengthening beams,
reinforcing structural connections, modifying footings,
performing additional surveying, levelling concrete floors
installing an additional supports, columns, vapor barriers,
roof drains and roof insulation.
result of the defendant's breach of contract and
negligence, plaintiff GGA alleges it has suffered damages in
the amount of approximately $82, 000 in employee costs,
independent engineering fees and attorney fees for responding
to change order proposals and to claims for the extra work.
Plaintiff Beazley issued an insurance policy to GGA, and
alleges it has been damaged in the amount of $183, 766 for
payments in performance to its obligations to GGA under the
policy. See Filing No. 1, Complaint.
their Answer, the defendants admit that Performance entered
into a contract with GGA, but deny liability under any
theory. They deny that the documents submitted by Performance
contained structural defects, or that the plaintiffs suffered
damages as a result of those defects. The defendants raise
the defense of lack of subject matter jurisdiction asserting
that because “GGA agreed to limit the liability of
Defendants to $50, 000” under the terms of the
parties' contract, the plaintiffs cannot meet the amount
in controversy required for the court's exercise of
diversity jurisdiction. Defendants also assert as an
affirmative defense that the plaintiffs are bound by the
limitation of liability clause contained in the contract and
the defendants are thus not liable for any damages beyond
$50, 000. See Filing No. 17, Answer. The limitation
of liability clause in the contract is set forth in the
defendants' Answer as follows:
Limitation of Liability: In order for the client to obtain
the benefits of a fee which includes a lesser allowance for
risk funding, the client agrees to limit PE's
[Performance] liability arising from PE's professional
acts, errors or omissions, such that the total aggregate
liability of PE shall not exceed PE's total fee for the
services rendered on this project, or the amount of fifty
thousand dollars ($50, 000.00), whichever is less.
Filing No. 17, Answer at 7-8.
plaintiffs move to strike the defendants' affirmative
defenses of lack of subject matter jurisdiction and the
limitation of their liability and, alternatively, seek a
judgment on the pleadings with respect to the issues. The
plaintiffs argue the defendants' affirmative defenses
fail as a matter of law because the limitation of liability
provision on which the defendant rely is void and
unenforceable under Nebraska law. Neither party has submitted
a copy of the contract at issue.
Fed. R. Civ. P. 12(f), courts may strike “from
a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”
Fed. R. Civ. P. 12(f). Courts enjoy liberal
discretion to strike pleadings under this provision. BJC
Health System v. Columbia Cas. Co., 478 F.3d 908, 917
(8th Cir. 2007). Striking a party's pleading, however, is
an extreme and disfavored measure. Id.A motion to
strike an affirmative defense may be granted where the
defense has no basis in law, is insufficient as a matter of
law, and the moving party will suffer prejudice in the
absence of the court granting its motion to strike.
See United States v. Dico, Inc., 266 F.3d
864, 880 (8th Cir. 2001).
general rule, a motion for judgment on the pleadings under
Federal Rule of Civil Procedure 12(c) is reviewed
under the same standard as a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6).
Ginsburg v. InBev NV/SA, 623 F.3d 1229, 1233 n.3
(8th Cir. 2010). When reviewing a Rule 12(c) motion,
the Court must view all facts pleaded by the nonmoving party
as true and grant all reasonable inferences in favor of that
party. Poehl v. Countrywide Home Loans, Inc., 528
F.3d 1093, 1096 (8th Cir. 2008). Judgment on the
pleadings is appropriate when there is no dispute as to any
material facts and the moving party is entitled to judgment
as a matter of law. Ashley Cty. v. Pfizer, Inc., 552
F.3d 659, 665 (8th Cir. 2009); Poehl, 528 F.3d at
federal court has jurisdiction over a case where the parties
are citizens of different states and the amount in
controversy, excluding interest and costs, is greater than
$75, 000. 28 U.S.C. § 1332(a). “The objection that
a federal court lacks subject-matter jurisdiction . . . may
be raised by a party, or by a court on its own initiative, at
any stage in the litigation, even after trial and the entry
of judgment.” Arbaugh v. Y & H Corp., 546
U.S. 500, 506 (2006)); see also James Neff
Kramper Family Farm P'ship v. IBP, Inc., 393 F.3d
828, 834 (8th Cir. 2005) (noting court's obligation to
raise the issue sua sponte).
complaint can be challenged for lack of subject matter
jurisdiction under Fed. R. Civ. P. 12(b)(1) either
“on its face or on the factual truthfulness of its
averments.” Titus v. Sullivan, 4 F.3d 590, 593 (8th
Cir. 1993). “In a facial challenge to
jurisdiction, all of the factual allegations concerning
jurisdiction are presumed to be true and the motion is
successful if the plaintiff fails to allege an element
necessary for subject matter jurisdiction.”
Id.In a factual attack on the jurisdictional
allegations of the complaint, however, the court can consider
competent evidence such as affidavits, deposition testimony,
and the like in order to determine the factual dispute.
Id.;see Osborn v. United States, 918 F.2d
724, 729 n. 6 (8th Cir. 1990) (stating “the non-moving
party receives the same protections [for facial attacks under
Rule 12(b)(1)] as it would defending against a motion brought
under Rule 12(b)(6)”) (citation omitted); Brown v.
Green Tree Servicing LLC,820 F.3d 371, 373 (8th Cir.
2016) (noting that the court may generally consider documents
attached to a ...