Ortiz v. Porte Reve' Transportation, Inc. et al

Filing 12

MEMORANDUM re Dft's MOTION to Dismiss and to Strike 5 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 07/06/15. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DARLENE ORTIZ, Administratrix
of the Estate of AMY LORRAINE
JOYCE, Deceased,

:
:
:
:
Plaintiff
:
:
v.
:
:
PORTE REVE TRANSPORTATION, :
INC. AND ROBERT D. MORRIS,
:
:
Defendants
:

Civil No. 1:15-CV-0958

Judge Sylvia H. Rambo

MEMORANDUM
In this wrongful death action, Plaintiff brings claims on behalf of the
estate of her deceased daughter arising out of an automobile accident with a tractor
trailer that resulted in her daughter’s death. Plaintiff alleges that the driver of the
tractor trailer was negligent and reckless in operating the tractor trailer, and that the
driver’s employer was negligent and reckless in both failing to properly train the
driver as well as allowing an untrained driver to operate a tractor trailer it owned.
Presently before the court is Defendants’ motion to strike references to “grossly
reckless conduct” and dismiss Plaintiff’s claims for punitive damages from the
complaint. (Doc. 5.) For the reasons stated herein, the motion will be granted in part
and denied in part.
I.

Background
“As a general matter, a district court ruling on a motion to dismiss may

not consider matters extraneous to the pleadings.” In re Burlington Coat Factory
Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). Thus, for purposes of the motion

sub judice, the court only considers the allegations contained in the complaint (Doc.
3-2), and will accept as true all well-pleaded factual allegations contained therein.1
See Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts, Inc., 140 F.3d 478, 483
(3d Cir. 1998) (citing Warth v. Seldin, 422 U.S. 490, 501 (1975)).
A.

Facts

In the early morning hours of June 9, 2013, Plaintiff’s daughter, Amy
Lorraine Joyce (“Joyce”), was driving southbound on Interstate-81 within the Middle
District of Pennsylvania. (Doc. 3-2, ¶ 10.) Defendant Robert D. Morris (“Defendant
Morris”) was operating a tractor trailer at the direction of, and owned by, his
employer, Defendant Port Reve Transportation, Inc. (“Defendant Port Reve” and,
together with Defendant Morris, “Defendants”). (Id. ¶¶ 7-9.) At approximately 3:35
a.m., Defendant Morris caused the tractor trailer to collide with Joyce’s vehicle,
forcing the vehicle off of the road and up an embankment. (Id. ¶ 13.) The collision
caused fatal injuries to Joyce, who died the same day. (Id. ¶¶ 2, 16.)
B.

Procedural History

Joyce’s mother, Darlene Ortiz (“Plaintiff”), initiated this action by filing
a complaint in the Court of Common Pleas of Luzerne County, Pennsylvania on
April 17, 2015, pursuant to Pennsylvania’s Wrongful Death Act, 42 Pa. Cons. Stat. §
8301, and Survival Statute, 42 Pa. Cons. Stat. § 8302. (Doc. 3-2.) In her complaint,
Plaintiff claims that Defendants’ negligent and reckless conduct wrongfully caused
her daughter’s death. (Id., ¶ 16.) Defendants removed the case to the Middle
District of Pennsylvania on May 15, 2015 (Doc. 1), and filed the instant motion to
1

In her brief in opposition to the instant motion, Plaintiff includes new facts that were not
included in the complaint. (Doc. 9, pp. 12-13 of 14.) The court cannot, and does not, consider these
facts in its determination of the instant motion. Burlington, 114 F.3d at 1426.
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dismiss and strike the claims for punitive damages, as well as a brief in support
thereof, on May 18, 2015 (Docs. 5 & 6).
Plaintiff filed its opposition on June 11, 2015 (Doc. 9),2 and Defendants
filed a reply on June 23, 2015 (Doc. 10). Thus, this matter has been fully briefed and
is ripe for consideration.
II.

Legal Standard
Defendants’ motion challenges Plaintiff’s complaint pursuant to Federal

Rules of Civil Procedure 12(b)(6) and 12(f). A Rule 12(b)(6) motion tests the
sufficiency of the complaint against the pleading requirements of Rule 8(a), which
requires that a complaint contain a short and plain statement of the claim showing
that the pleader is entitled to relief “in order to ‘give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S 41, 47 (1957)). While
a complaint need not contain detailed factual allegations, it “must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
570).
Thus, when adjudicating a motion to dismiss for failure to state a claim,
the court must view all of the allegations and facts in the complaint in the light most
favorable to the plaintiff, and must grant the plaintiff the benefit of all reasonable
2

Plaintiff’s opposition was originally due on June 8, 2015. On June 9, 2015, the court
issued a rule to show cause as to why the opposition had not been timely filed. (Doc. 8.) Plaintiff
provided a satisfactory explanation for the brief delay, and filed its opposition two days later, on June
11, 2015. Defendants have not argued that they were prejudiced in any way by the delay, and, therefore,
the court will treat Plaintiff’s opposition as timely.
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inferences that can be derived therefrom. Kanter v. Barella, 489 F.3d 170, 177 (3d
Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). However,
the court need not accept inferences or conclusory allegations that are unsupported
by the facts set forth in the complaint. See Reuben v. U.S. Airways, Inc., 500 F.
App’x 103, 104 (3d Cir. 2012) (quoting Iqbal, 556 U.S. at 678); Fowler v. UPMC
Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (stating that district courts “must
accept all of the complaint’s well-pleaded facts as true, but may disregard any legal
conclusions”).
Ultimately, the court must determine whether the facts alleged in the
complaint are sufficient to show that the plaintiff has a “plausible claim for relief.”
Iqbal, 556 U.S. at 679; see also Pension Benefit Guar. Corp. v. White Consol. Indus.,
Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The “plausibility standard” requires “more
than a sheer possibility” that a defendant is liable for the alleged misconduct.
Reuben, 500 F. App’x at 104 (citing Iqbal, 556 U.S. at 678). Rather, the complaint
must show the plaintiff’s entitlement to relief with its facts. Steedley v. McBride,
446 F. App’x 424, 425 (3d Cir. 2011) (citing Fowler, 578 F.3d at 211). “[W]here the
well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is
entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2))
(alterations in original). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. at 678 (citing
Twombly, 550 U.S. at 555).
To evaluate whether allegations in a complaint survive a Rule 12(b)(6)
motion, the district court must initially “tak[e] note of the elements a plaintiff must
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plead to state a claim.” Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir.
2010) (alteration in original) (citation omitted). Next, the court should identify
allegations that “are no more than conclusions” and thus, “not entitled to the
assumption of truth.” Id. Lastly, “where there are well-pleaded factual allegations,
the court should assume their veracity and then determine whether they plausibly
give rise to an entitlement for relief.” Id.
A complaint “may not be dismissed merely because it appears unlikely
that the plaintiff can prove those facts or will ultimately prevail on the merits.”
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (citing Twombly,
550 U.S. at 588 n.8). Rule 8 “‘does not impose a probability requirement at the
pleading stage,’ but instead ‘simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of’ the necessary element[s].” Id. at
234 (quoting Twombly, 550 U.S. at 545).
Rule 12(f), on the other hand, allows a court to “strike from a pleading
any insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” Fed. R. Civ. P. 12(f). While the court “posess[es] ‘considerable discretion
in disposing of a motion to strike under Rule 12(f),’ such motions are ‘not favored
and usually will be denied unless the allegations have no possible relation to the
controversy and may cause prejudice to one of the parties, or if the allegations
confuse the issues.’” Hanselman v. Olsen, Civ. No. 4:05-cv-1834, 2006 WL 47655,
*1 (M.D. Pa. Jan. 9, 2006) (citing Krisa v. Equitable Life Assurance Soc., 109 F.
Supp. 2d 316 (M.D. Pa. 2000)) (citations omitted). In essence, the striking of a
pleading under Rule 12(f) is “a drastic remedy to be resorted to only when required
for the purpose of justice.” U.S. v. Consol. Coal Co., Civ No. 89-2124, 1991 WL
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333694, *1 (W.D. Pa. July 5, 1991). As with a motion to dismiss, a motion to strike
is “to be decided ‘on the basis of the pleadings alone.’” North Penn Transfer, Inc. v.
Victaulic Co. of Am., 859 F. Supp. 154, 159 (E.D. Pa. 1994) (quoting Total
Containment, Inc. v. Environ Prods. Inc., Civ. No. 91-7911, 1992 WL 208981, *1
(E.D. Pa. Aug. 19, 1992)).
III.

Discussion
As a federal court sitting in diversity, the court will apply the laws of

the forum state. See Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938). In
Pennsylvania, “[w]rongful death and survival actions are not substantive causes of
action; rather, they provide a vehicle through which plaintiffs can recover for
unlawful conduct that results in death.” Williams v. City of Scranton, Civ. No. 3:10cv-388, 2013 WL 1339027, *13 n.7 (M.D. Pa. Apr. 1, 2013) (quoting Sullivan v.
Warminster Twp., 765 F. Supp. 2d 687, 707 (E.D. Pa. 2011)).
In this wrongful death and survival action, Plaintiff asserts that
Defendants’ negligent and reckless conduct resulted in her daughter’s death and
seeks both compensatory and punitive damages. (See Doc. 3-2, ¶ 16.) In the instant
motion, Defendants argue that Plaintiff has failed to allege sufficient facts in her
complaint to demonstrate grossly reckless conduct, and, therefore, the court should
dismiss Plaintiff’s claims for punitive damages and strike all references to “grossly
reckless” conduct from the complaint. (Doc. 6, pp. 3-7 of 9.) In the alternative,
Defendants contend that Plaintiff’s claims for punitive damages sought pursuant to
Pennsylvania’s Wrongful Death Act should be dismissed as contrary to law. (Id. at
pp. 7-8 of 9.) The court will address these arguments in turn.
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A.

Allegations of “Grossly Reckless” Conduct and Requests for
Punitive Damages

Plaintiff’s complaint avers that Defendants exhibited “grossly reckless”
conduct and consequently seeks punitive damages. (See Doc. 3-2.) Defendants
argue that the allegations set forth in the complaint fail to demonstrate that any
conduct, acts, or omissions by Defendants rose to a level that could be considered
grossly reckless, but rather merely demonstrate a claim for negligence. (Doc. 6, p. 6
of 8.) As such, Defendants move the court to dismiss Plaintiff’s claims for punitive
damages and to strike all references to “grossly reckless” conduct from the
complaint.
As stated above, Rules 8(a) and 12(b)(6), in conjunction, impose on
Plaintiff the burden to plead enough facts to create a reasonable expectation that
discovery will reveal evidence of the elements of Plaintiff’s claim. Phillips, 515
F.3d at 234 (quoting Twombly, 550 U.S. at 545). To support a claim for punitive
damages, a plaintiff must show that “the defendant's actions are so outrageous as to
demonstrate willful, wanton or reckless conduct.” Hutchinson v. Luddy, 870 A.2d
766, 770 (Pa. 2005). In Pennsylvania, reckless indifference is sufficient to support a
claim for punitive damages, and occurs when an “‘actor knows, or has reason to
know, ... of facts which create a high degree of risk of physical harm to another, and
deliberately proceeds to act, or to fail to act, in conscious disregard of, or
indifference to, that risk.’” Arias v. Decker Transp., Civ. No. 3:06-cv-638, 2008 WL
450435, *3 (M.D. Pa. Feb. 14, 2008) (quoting SHV Coal v. Cont’l Grain Co., 587
A.2d 702, 704 (Pa. 1991) (citation omitted). Because the actor must appreciate the
risk of harm to another, a showing of mere negligence, or even gross negligence, will

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not suffice to support an award of punitive damages. Phillips v. Cricket Lighters,
883 A.2d 439, 445 (Pa. 2005).
In her complaint, Plaintiff alleged that Defendant Morris drove the
tractor trailer at an excess speed, failed to keep a lookout for hazards and other
vehicles on the road, failed to adequately warn Joyce before colliding with her car,
and that the unreasonableness of Defendant Morris’s actions is exacerbated because
they occurred at night. (Doc. 3-2, ¶ 20a-f.) Courts in this District have repeatedly
held that a driver of a tractor trailer could be found to have consciously appreciated
the risk he created by driving in the manner he did that caused a plaintiff’s injuries.
See, e.g., Burke v. TransAm Trucking, Inc., 605 F. Supp. 2d 647, 652-53 (M.D. Pa.
2009); Sabo v. Suarez, Civ. No. 08-cv-1889, 2009 WL 2365969, *2-3 (M.D. Pa July
31, 2009); Gregory v. Sewell, Civ. No. 04-cv-2438, 2006 WL 2707405, *12-13
(M.D. Pa. Sept. 19, 2006). Likewise, here, the court finds these facts sufficient to
allege that Defendant Morris operated the tractor trailer with a reckless indifference
for the rights and safety of others. Although Defendants argue that these allegations
support, at most, a claim for negligence, where the Plaintiff has pleaded sufficient
facts to support a claim of recklessness, the motion to dismiss stage is not the
appropriate time to differentiate between negligent and reckless conduct. As the
court has previously held:
[C]laims sounding in negligence can qualify for punitive
damages if the conduct engaged in is outrageous enough.
Although the facts may later prove at most that
[D]efendants were merely negligent, discovery is necessary
to help make this determination. Dismissing [P]laintiffs'
punitive damages claim now at the pleading stage would be
premature.

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Young v. Westfall, Civ. No. 4:06-cv-2325, 2007 WL 675182, *2 (M.D. Pa. Mar. 1,
2007); see also Hutchison, 870 A.2d at 770. Therefore, the court concludes that
Plaintiff may have a cognizable claim for punitive damages against Defendant
Morris, and will deny Defendants’ motion in this regard.
Plaintiff has also pleaded sufficient facts to support her claim for
punitive damages against Defendant Morris’s employer, Defendant Port Reve. In the
complaint, Plaintiff alleged that Defendant Port Reve was reckless in failing to
adequately train, supervise, and instruct Defendant Morris to properly and safely
operate a tractor trailer, and that Defendant Port Reve knowingly permitted
Defendant Morris to operate its tractor trailer without adequate training. (Doc. 3-2, ¶
18a-c.) Plaintiff further alleged that Defendant Port Reve failed to follow its own
policies to appropriately limit the amount of hours and distances its drivers were
allowed to be on the road, and failed to follow Department of Transportation safety
regulations and procedures. (Id., ¶ 18d-f.) The court finds that these allegations are
sufficient to support a claim for punitive damages against Defendant Port Reve.
Even if the court did not find these facts sufficient, however, the claim for punitive
damages against Defendant Port Reve would still be viable because Pennsylvania
law permits the imposition of punitive damages against an employer based solely on
an employee's conduct, even where there is no direct evidence of misconduct by the
employer. Shiner v. Moriarty, 706 A.2d 1228, 1240 (Pa. Super. Ct. 1998). Imposing
punitive damages on an employer based strictly on the employee’s conduct,
however, requires that a plaintiff show that the employee's actions were clearly
outrageous, occurred within the scope of his employment, and were done to further
the employer’s interests rather than to satisfy a personal motive of the employee.
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Arias, 2008 WL 450435, *4 (citing Delahanty v. First Pennsylvania Bank, N.A., 464
A.2d 1243, 1264-65 (Pa. Super. Ct. 1983)). Therefore, Plaintiff’s claim for punitive
damages against Defendant Port Reve will not be dismissed.
Because the court has found that Plaintiff’s complaint alleges sufficient
facts to support her allegations of reckless conduct and punitive damages, references
in the complaint to “grossly reckless” conduct are not redundant, immaterial,
impertinent, or scandalous, and do not prejudice Defendants or confuse the issues.
See Hanselman, 2006 WL 47655, at *1. Therefore, the court will likewise deny
Defendants’ motion insofar as it seeks to have the court strike any references to such
conduct pursuant to Rule 12(f).
B.

Punitive Damages Under Wrongful Death Act

Count III of the complaint seeks punitive damages and incorporates all
prior paragraphs, including the claim brought pursuant to the Pennsylvania Wrongful
Death Act. (See generally Doc. 3-2.) It is well-settled that punitive damages are not
recoverable in wrongful death actions under Pennsylvania law. Burke v. Glanton,
2012 WL 6052020, *2 (M.D. Pa. Dec. 5, 2012); Harvey v. Hassinger, 461 A.2d 814,
817 (Pa. Super. Ct. 1983). Plaintiff concedes this point in her opposition brief.
Because claims for punitive damages are precluded under Pennsylvania’s Wrongful
Death Act, Plaintiff’s claim for punitive damages will be dismissed to the extent it is
brought pursuant to this act.
IV.

Conclusion
In conclusion, the court finds that Plaintiff has sufficiently supported

her allegations that Defendants acted recklessly, and such recklessness leaves open
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the possibility of recovery of punitive damages in a survival action. Therefore, the
court will deny Defendants’ motion to dismiss Plaintiff’s claim for punitive damages
pursuant to Federal Rule of Civil Procedure 12(b)(6). The court will likewise deny
Defendants’ motion to strike all references to “grossly reckless” conduct from the
complaint. However, the court will grant Defendants’ motion insofar as Plaintiff
seeks punitive damages pursuant to the Pennsylvania Wrongful Death Act.
An appropriate order will issue.

s/Sylvia H. Rambo
United States District Judge
Dated: July 6, 2015.

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