John Laschkewitsch as Administrator for the Estate of Ben Lachkewitsch v. The Lincoln National Life Insurance Company

Filing 29

ORDER DENYING 10 Plaintiff's Motion to Dismiss for Lack of Jurisdiction, and GRANTING IN PART AND DENYING IN PART 21 Defendant's Motion to Strike. Signed by District Judge Terrence W. Boyle on 10/25/2013. The parties are directed to read Order in its entirety for critical information. Copy mailed to pro se plaintiff via US Mail. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-315-BO
JOHN LASCHKEWITSCH as
administrator for the Estate of Ben
Laschkewitsch,
Plaintiff,
v.
LINCOLN LIFE AND ANNUITY
DISTRIBUTORS, INC., d/b/a LINCOLN
FINANCIAL GROUP, INC.
Defendant.

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ORDER

This cause comes before the Court on plaintiffs pro se motion for lack of personal
jurisdiction and improper venue and defendant's motion to strike. For the reasons discussed
below, plaintiffs motion is denied and defendant's motion to strike is granted in part and denied
in part.
BACKGROUND
Plaintiff filed this breach of contract action in Cumberland County Superior Court.
Defendant timely removed the action to this Court on the basis of its diversity jurisdiction. 28
U.S.C. §§ 1441; 1332. The matter relates to a life insurance policy issued to Ben Laschkewitsch,
now deceased; plaintiff is the administrator of the estate. Plaintiff contends that defendant has
refused to pay his claim for the life insurance proceeds in the amount of $800,000.
DISCUSSION

I.

PLAINTIFF'S MOTION FOR LACK OF PERSONAL JURISDICTION

Plaintiffs motion for lack of personal jurisdiction, construed liberally as he is proceeding

prose, appears to be a motion to remand. In his motion, plaintiff contends that defendant's
principal place of business is in Greensboro, North Carolina, and that diversity jurisdiction does
therefore not exist. A corporation is considered a citizen of any state by which it has been
incorporated as well as the state in which it maintains its principal place of business. 28 U.S.C.
section 1332. A corporation's principal place ofbusiness is located at its "nerve center", where "a
corporation's officers direct, control, and coordinate the corporation's activities." Hertz Corp. v.

Friend, 559 U.S. 77, 92-93 (2010). The nerve center is normally the corporation's headquarters.

!d. at 93.
Defendant is incorporated in Indiana and maintains its headquarters in Radnor,
Pennsylvania. Phillips Aff. 1. Defendant's Radnor, Pennsylvania headquarters is where seven of
eight executive officers are located, where corporate policy is set, and where the executive
management team directs, controls, and coordinates defendant's activities. Phillips Aff. 1-2.
Defendant is therefore a citizen of Indiana and Pennsylvania for the purposes of diversity
jurisdiction; that basis of plaintiffs argument- where defendant conducted "its affairs at issue"is not germane to this inquiry.
Venue is also proper in this Court as an action properly removed under 28 U.S.C. § 1441
shall be removed to the district court of the United States for the district and division within
which the state court action was pending; Cumberland County lies within this Court's geographic
boundaries. Finally, the Court maintains subject matter and personal jurisdiction over defendant's
counterclaims against plaintiff. First, as defendant's counterclaims arise out of the same
transaction or occurrence that is the subject of plaintiffs claims, the life insurance policy issued to
the deceased, they are compulsory counterclaims and are considered part of the same case or

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controversy. 28 U.S.C. § 1367(a); Painter v. Harvey, 863 F.2d 329, 331 (4th Cir. 1988). Second,
plaintiff, who admitted that he is domiciled in Cumberland County, North Carolina is well-within
the reach ofNorth Carolina's long-arm statute, N.C. Gen. Stat.§ 1-75.4(1)(b), and, more
importantly, by filing suit plaintiff has waived any objection to personal jurisdiction with respect
to any compulsory counterclaims by defendant. See e.g. Leman v. Krentler-Arnold Hinge Last

Co., 284 U.S. 448,451 (1932) ("When the [plaintiff] brought suit ... [he] submitted [him]selfto
the jurisdiction of the court with respect to all the issues embraced in the suit, including those
pertaining to the counterclaim of defendant[] .... "). Plaintiffs motion for lack of personal
jurisdiction and improper venue is therefore denied.

II.

DEFENDANT'S MOTION TO STRIKE

Rule 7(a)(7) ofthe Federal Rules of Civil Procedure provides that a reply to an answer
may be filed only where the court has ordered one. The Court has not ordered plaintiff to reply to
defendant's answer, and thus defendant's motion to strike those portions of defendant's reply at
docket entry number twelve that pertain only to defendant's answer and affirmative defenses is
allowed. See e.g. Nunley v. Kloehn, 158 F.R.D. 614, 620 (E.D.Wis. 1994).
Rule 12(f) ofthe Federal Rules of Civil Procedure permits a court to strike a from a
pleading "an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter." Motions to strike are generally disfavored in this circuit, however, "because striking a
portion of a pleading is a drastic remedy and because it is often sought by the movant simply as a
dilatory tactic." Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001). In
considering whether to allow a motion to strike an affirmative defense, the Court applies the same
pleading requirements as those applied to a complaint; in other words, the Court considers
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whether the claims or defenses pled contain "more than labels and conclusions" or "a formulaic
recitation of the cause of action." See Racick v. Dominion Law Assoc., 270 F.R.D. 228, 233-34
(E.D.N.C. 201 0) (following the majority of courts in this circuit that mandate the same pleading
requirements for complaints as for affirmative defenses) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)).
As noted above, because plaintiff is now proceeding prose, the Court must liberally
construe his pleadings. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Though it is not specifically
denominated in the rules, courts having considered the issue have concluded that a compulsory
counterclaim may be asserted in a reply to a counterclaim. See Baker v. Borg Warner Morse Tee,

Inc., Civil Action No. 3:11-505,2012 WL 195011 *2 (S.D.W.V. January 23, 2012). While
plaintiffs counterclaims contained in his reply are not well-denominated, the Court declines to
strike each of these claims in light of the disfavor of such a remedy. Defendant is clearly on
notice of the additional claims raised by plaintiff, and as they also arise out of the same
transaction or occurrence they are deemed to be compulsory.
Construing plaintiffs claims in his reply liberally, the Court finds that only the following
claim has been sufficiently pled and is plausible enough to survive the motion to strike: plaintiffs
claim under N.C. Gen. Stat. 58, Article 63-15(11) for unfair settlement practices. [DE 12,
Eleventh Affirmative Defense]. Plaintiffs claim for unfair and deceptive trade practices under
N.C. Gen Stat.§ 75-1.1 and claim for punitive damages under N.C. Gen. Stat 1D are not
sufficiently plead and are therefore stricken. The Court declines to strike the portions of
plaintiffs twelfth affirmative defense identified by defendant as they are not sufficiently
scandalous or impertinent to warrant such drastic remedy.

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CONCLUSION
For the foregoing reasons, plaintiffs motion for lack of subject matter jurisdiction [DE 10]
is DENIED and defendant's motion to strike [DE 21] is GRANTED IN PART AND DENIED IN
PART. Plaintiffs responses to defendant's affirmative defenses contained in his reply to
defendant's answer are STRICKEN, as are plaintiffs counterclaims for unfair and deceptive trade
practices and punitive damages. Only plaintiffs claim for unfair settlement practices under N.C.
Gen. Stat. 58, Article 63-15(11) survives as a properly pled counterclaim in reply to defendant's
counterclaim. Should plaintiff wish to make a showing that any other claims he purportedly
included in his reply should be considered properly before the Court, he may seek leave to amend
his pleading pursuant to Rule 15 of the Federal Rules of Civil Procedure.

SO ORDERED, this _Mday of October, 2013.

T RRENCE W. BOYLE
UNITED STATES DISTRICT

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