United States District Court, E.D. North Carolina, Southern Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
matter is before the court on plaintiff's motions to
strike several defenses raised in answers to complaint (DE
62, 64). The motions have been fully briefed, and, in this
posture, the issues raised are ripe for ruling. For the
following reasons, the court denies plaintiff's motion to
strike directed against the fifth defense raised by defendant
Norfolk Dredging Company (“Norfolk”), and grants
in part and denies in part plaintiff's motion directed
against the third and sixth defenses raised by defendant
Lawrence R. Wyman (“Wyman”).
OF THE CASE
commenced this action in Brunswick County Superior Court on
October 15, 2018, seeking damages for alleged personal
injuries arising from a motor vehicle accident that occurred
on or about April 7, 2017. Plaintiff alleges defendant Wyman
was negligent in failing to operate his motor vehicle safely,
thereby hitting and injuring plaintiff, and that defendant
Wyman's actions were done in the course and scope of his
employment with defendant Norfolk. Defendants removed the
action to this court on December 3, 2018.
filed amended complaint on January 8, 2019, and later sought
leave to amend his amended complaint on March 28, 2019. On
May 24, 2019, the court granted in part and denied in part
plaintiff's motion, directing plaintiff to strike from
his proposed second amended complaint 1) allegations in
support of the application of maritime law to this case and
2) claims of fraud and negligent supervision against
defendant Norfolk. Plaintiff filed the operative second
amended complaint, upon extension granted with leave of
court, on June 4, 2019. Defendant Wyman filed his answer July
29, 2019, and defendant Norfolk filed its answer the
August 13, 2019, plaintiff filed the instant motion to strike
to defendant Norfolk's fifth defense, contributory
negligence, asserting it was insufficiently pleaded. In
response, defendant Norfolk argues that affirmative defenses
are not subject to the same pleading standards that apply to
complaints. On August 15, 2019, plaintiff filed the instant
motion to strike defendant Wyman's third defense,
contributory negligence, and his sixth defense, that any
award of punitive damages in this case would be illegal.
Defendant Wyman responded on September 4, 2019, arguing that
he adequately pleaded his third defense.
court incorporates by reference the statement of facts set
forth in its May 24, 2019, order:
On or about April 7, 2017, plaintiff was working at Military
Ocean Terminal Sunny Point (“MOTSU”), refueling
vessels. Plaintiff alleges that he “was working on a
pier over navigable waters and engaged in maritime employment
as defined by 33 [U.S.C.§] 912(4)” and
“[suit] was filed in state court who have concurrent
jurisdiction with this court over maritime claims under the
Savings to Suitors Act 28 [U.S.C. §] 1331(1).”
(Prop. second am. compl. (DE 35-2) ¶ 5).
At or around 8:00 a.m., defendant Wyman was traveling to or
from his vessel in a motor vehicle when he struck plaintiff
on the pier as plaintiff was exiting his refueling truck.
Defendant Wyman attempted to drive between two parked
vehicles and had less than two inches of clearance between
Plaintiff alleges defendant Wyman should have seen plaintiff
opening the door of his fuel truck. Defendant Wyman admitted
the accident was his fault to the accident investigator.
Plaintiff suffered serious and permanent injury to his ankle,
lost time from work, and remains in pain, unable to function
or exercise as he had previously.
Defendant Wyman admitted to investigating officer Kevin Tatum
(“Tatum”) that he experienced medical symptoms
which defendant Wyman believed caused the accident. Plaintiff
alleges that after the accident, defendant Wyman also
admitted to Tatum that he was impaired at the time of the
accident due to his reactions to Lasix and Rapalfo, and
defendant Wyman allegedly provided a statement from his
doctor to explain this reaction.
On the day in question, defendant Wyman was working for
defendant Norfolk, and at the time of the accident, defendant
Wyman was traveling on federal property, on the north wharf,
as part of his job duties. MOTSU is a limited access facility
operated by the Army and does not allow visitors or other
people who are not acting in the course of employment.
Defendant Wyman gained access to the facility by representing
that he was an employee of defendant Norfolk and that he
needed to be on the property as part of his job duties.
Plaintiff alleges that “with the consent and knowledge
of Norfolk, ” defendant Wyman obtained a security badge
to get access to MOTSU and “[a] condition of this
access was that Norfolk employees were only allowed on base
as part of the job duties, ” as opposed to
“sightseeing, joy-riding or running personal
errands.” (Prop. second am. compl. (DE 35-2) ¶
26). Plaintiff further alleges defendant Wyman gained access
to MOTSU by falsely representing that he was engaged in
work-related matters, that “[a]ccess would have been
denied had he been honest and explained that he was not
acting in the court ...