Hackethal v. Harbor Freight Tools USA, Inc.

Filing 15

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that Defendant Harbor Freight Inc.'s Motion to Strike Allegations that it failed to recall or retrofit is GRANTED IN PART and DENIED IN Part. 5 IT IS FURTHER ORDERED that Plaintiff&# 039;s allegations Harbor Freight violated a duty by failing to recall or retrofit the product at issue, specifically 36 (f), shall be stricken from the Plaintiffs petition. IT IS FURTHER ORDERED that Plaintiff's allegations Harbor Freight is subject to punitive damages on the basis of a failure to recall or retrofit the product at issue, specifically 83, and 86 shall be DENIED. Signed by District Judge E. Richard Webber on 2/22/16. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LARRY HACKETHAL,
Plaintiff,
v.
HARBOR FREIGHT TOOLS USA, INC.,
Defendant.

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No. 4:15CV01398 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Defendant Harbor Freight Tools USA, Inc.’s
(Harbor Freight) Motion to Strike Allegations that it failed to Recall or Retrofit [ECF No. 5].
I.

BACKGROUND
Plaintiff’s petition alleges damages from injuries suffered using an allegedly defective

blow gun product manufactured by Defendant. [ECF No. 1-1]. Defendant moved to strike
allegations in the petition Harbor Freight was negligent for failure to recall the product, and
allegations that a failure to recall may be the basis of an award for punitive damages because no
such duty exists under Missouri law. [ECF No. 5]. Specifically, Defendant wishes to strike
paragraph 36(f) of Plaintiff’s complaint, alleging Defendant was negligent for failure to recall the
product, and paragraphs 83 and 86 for alleging a failure to recall may be the basis for punitive
damages. [ECF No. 1 – 1, ¶¶ 36(f), 83, 86]. Plaintiff did not file a timely response to Defendant’s
motion, and upon the Court entering a show cause order why the pending motion should not be
granted [ECF No. 13], Plaintiff’s response conceded there is no common law duty to recall or
retrofit, absent a mandated recall from a government agency, although Plaintiffs sought
additional time to allow discovery on this issue. [ECF No. 14].

II. Standard
Under Federal Rule of Civil Procedure 12(f), a Court may “strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R.
Civ. P. 12. However, motions to strike are generally disfavored and infrequently granted.
Lunsford v. United States, 570 F.2d 221, 229 (8th Cir. 1977). Nonetheless, the resolution of a
motion to strike is within the discretion of the district court. Johnson v. Metro. Sewer Dist., 926
F. Supp. 874, 875 (E.D. Mo. 1996). A prayer for relief not available under the applicable law, or
a prayer asserting a damage claim in excess of the maximum recovery, is properly subject to a
motion to strike. Johnson, 926 F. Supp. At 875. However, the Court should “refrain from
deciding new or close questions of law on a motion to strike to avoid the risk of offering an
advisory opinion.” Airstructures Worldwide, Ltd. v. Air Structures Am. Techs., Inc., No.
4:09CV10 CDP, 2009 WL 792542, at *1 (E.D. Mo. Mar. 23, 2009) (citing Lunsford, 570 F.2d at
229-30).
III. Discussion
A. Allegations of a Failure to Recall or Retrofit for a Claim of Negligence
Defendant moves to strike allegations they were negligent because of a failure to recall or
retrofit the product at issue, as no such duty exists under well-recognized Missouri Law. [ECF
No. 5]. “Generally, under Missouri law, to establish a case of actionable negligence, plaintiff
must demonstrate defendant owed a duty to the plaintiff, that the defendant breached the duty,
through act or omission, and that plaintiff was thereby proximately injured.” Smith v. Firestone
Tire & Rubber Co., 755 F.2d 129, 135 (8th Cir. 1985). Furthermore, the Court must determine a
duty existed, and there is no common law duty to recall, under Missouri Law, absent a mandated
recall by a government agency. Horstmyer v. Black & Decker, (U.S.), Inc., 151 F.3d 765, 773–

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74 (8th Cir.1998); see, Efting v. Tokai Corp, 75 F.Supp.2d 1006, 1010-11 (W.D. Mo. 1999)
(where defendant was aware butane could escape from a lighter if the trigger were pulled while
held in the off position, the Court held there was no duty to recall or retrofit lighters after it
became aware of a defect). The Court finds there is no duty under Missouri Law to recall or
retrofit, absent a mandated recall from a government agency, and Plaintiff concedes this in their
response to the Court’s show cause order. [ECF No. 14]. Plaintiff’s petition does not assert any
recall by a government agency, and therefore allegations asserting liability for failure to recall
will be stricken, because a claim for relief is not available under the applicable law.
B. Allegations of a Failure to Recall for the Basis for a Claim of Punitive Damages
Defendant moves to strike allegations Plaintiff is entitled to an award of punitive
damages because of Defendant’s failure to recall or retrofit the product at issue, as no such duty
exists under Missouri law. Defendant recognizes in Letz v. Turbomecca Engine Corp., 975
S.W.2d 155, 170-3 (Mo. App. 1997), the Missouri Court of Appeals for the Western District
discussed evidence of a failure to recall the product at issue, when discussing punitive damages
determining cost savings evidence related to a failure to recall was directly related to aggravating
circumstances evidence of plaintiff’s death. Defendant provided the Court extensive case law
showing there is no common law duty to recall or retrofit, in an attempt to show the Court, Letz
is an outlier and does not represent the law. Simon v. Select Comfort Retail Corp., No. 4:14-CV1136 JAR, 2014 WL 5849243, at *3 (E.D. Mo. Nov. 12, 2014); see also Horstmyer, 151 F.3d at
774; see also Efting, 75 F. Supp. 2d at 1011. Horstmyer discusses Letz, but only discusses
whether a failure to recall was a cause of action, and does not address if it is appropriate as a
basis for punitive damages. Horstmyer, 151 F.3d at 773 n. 10. However, Defendant does not

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present, nor can the Court find, case law since Letz, holding failure to recall or retrofit is not
appropriate on the issue of punitive damages.
As previously stated, motions to strike are viewed with disfavor and infrequently granted.
Lunsford, 570 F.2d at 229. Plaintiff can argue using Letz, a failure to recall may be a basis for a
claim of punitive damages. These allegations are prayers for relief available at law, and
Defendant attempts to argue a new or close point of law, neither of which is appropriate for a
motion to strike. Therefore, the Court will deny Defendant’s motion to strike with respect to
allegations regarding a failure to recall or retrofit as the basis for punitive damages.
IV. Conclusion
The Court’s analysis of a motion to strike begins with the premise that motions to strike
are disfavored. However, motions to strike are allowed where prayers for relief are not available
at law. Plaintiff’s allegations of negligence for a breach of duty for failing to recall or retrofit the
product must be struck as there is no duty under Missouri or Federal Common Law to do so.
However, Plaintiff’s allegations of a failure to recall for the basis on a claim of punitive damages
will not be dismissed at this stage of the case in view of the cited authority in support of such
claim. As such, the Court will deny Defendant’s Motion to Strike Plaintiff’s allegations of a
failure to recall for the basis for a claim of punitive damages.
Accordingly,
IT IS HEREBY ORDERED that Defendant Harbor Freight Inc.’s Motion to Strike
Allegations that it failed to recall or retrofit is GRANTED IN PART and DENIED IN Part.
IT IS FURTHER ORDERED that Plaintiff’s allegations Harbor Freight violated a duty
by failing to recall or retrofit the product at issue, specifically ¶36(f), shall be stricken from the
Plaintiff’s petition.

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IT IS FURTHER ORDERED that Plaintiff’s allegations Harbor Freight is subject to
punitive damages on the basis of a failure to recall or retrofit the product at issue, specifically
¶83, and ¶86 shall be DENIED.

Dated this 22nd Day of February, 2016.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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