SIZER et al v. BENNETT

Filing 15

MEMORANDUM OPINION denying Defendant's Motion to Strike [ECF No. 8] pursuant to Federal Rule of Civil Procedure 12(f). An appropriate order will follow. Signed by Magistrate Judge Lisa Pupo Lenihan on 7/17/2018. (vad)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CRISTOPHER T. SIZER and ANGELA
LETCHER SIZER,
Plaintiffs,
v.
DIANE R. BENNETT,
Defendant.

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C.A. No. 2: 17-cv-01591-LPL

Magistrate Judge Lisa Pupo Lenihan

Re: ECF No. 8

MEMORANDUM OPINION
Presently before the Court is Defendant Diane R. Bennett’s (“Defendant”) Motion to
Strike pursuant to Federal Rule of Civil Procedure 12(f). For the following reasons, Defendant’s
Motion will be denied.
ALLEGATIONS
Plaintiffs, Cristopher T. Sizer and wife Angela Letcher Sizer (“Plaintiffs”) initiated this
action by filing the Complaint on December 7, 2017. (ECF No. 1). The Complaint contains a
negligence count on behalf of Cristopher and a loss of consortium count on behalf of Angela.
(ECF No. 1 ¶¶ 18-24). The case arises out of a motor vehicle accident that occurred on
September 30, 2016 on Route 80 in Mercer County, Pennsylvania. (ECF No. 1 ¶¶ 1, 6-9).
Plaintiffs allege Defendant lost control of her vehicle while attempting to pass their vehicle at a
high rate of speed in the right lane, swerving into the left hand lane directly in front of Plaintiffs.
(ECF No. 1 ¶¶ 1, 8). While passing, Defendant lost control of her vehicle, striking Plaintiffs’
vehicle and the concrete median. (ECF No. 1 ¶¶ 1, 8-9). As a result of the collision, both
vehicles had to be towed from the scene. (ECF No. 1 ¶ 11).

As a result of the impact, Plaintiff Cristopher (“Cristopher”) experienced neck and back
injuries. (ECF No. 1 ¶¶ 1, 12). Cristopher also suffered from radiculopathy into his upper and
lower extremities. (ECF No. 1 ¶ 1). Upon returning home to South Dakota, Cristopher was
treated by workers’ compensation physicians who diagnosed him with several injuries including
cervical and lumbar spine damage, and was unable to return to his employment thereafter. (ECF
No. 1 ¶ 12). Cristopher underwent several months of unsuccessful conservative treatments
including epidural injections and physical therapy. (ECF No. 1 ¶ 13). On July 7, 2017,
Cristopher underwent a lumbar laminectomy and fusion. (ECF No. 1 ¶¶ 1, 13).
As a result of the accident and his injuries, Cristopher received a portion of his lost wages
through his workers’ compensation coverage, totaling $16, 901.90, as of December 5, 2017.
(ECF No. 1 ¶ 14). Furthermore, as of December 5, 2017, he received $124, 077.47 from his
insurer, Arch Insurance (“Arch”). (ECF No. 1 ¶ 15). Arch has claimed a subrogation lien for the
total amount of workers’ compensation benefits of $140, 979.37. (ECF No. 1 ¶ 15).
In the Complaint, Plaintiffs allege Defendant has an insurance policy with State Farm
Insurance (“State Farm”) in the amount of $100, 000. (ECF No. 1 ¶ 17). Plaintiffs further allege
that their requests for State Farm to tender Defendant’s policy limits have gone unanswered and
that there was a November 31, 2017 deadline to do so. (ECF No. 1 ¶ 17). Plaintiffs then
commenced this civil action.
On January 24, 2018, Defendant filed the Motion to Strike presently before the Court.
(ECF No. 8). In the Brief in Support of the Motion, Defendant argues that the Complaint
violates Pennsylvania statutory law, the Federal Rules of Evidence, and the Federal Rules of
Civil Procedure. (ECF No. 9).

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LEGAL STANDARD
Federal Rule of Civil Procedure 12(f) allows the court to strike from a pleading “an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R.
Civ. P. 12(f). The standard for striking portions of a complaint under Rule 12(f) “is strict and . . .
only allegations that are so unrelated to the plaintiffs’ claims as to be unworthy of any
consideration should be stricken.” Johnson v. Anhorn, 334 F. Supp.2d 802, 809 (E.D. Pa. 2004)
(quoting Becker v. Chicago Title Ins. Co., No. Civ. A. 03-2292, 2004 WL 228672, at *6 (E.D.
Pa. Feb. 4, 2004)). Moreover, striking portions of a plaintiff’s pleadings is a drastic remedy,
which should be used only when justice requires it. Id. “[A]llegations are immaterial or
impertinent if they do not have an important relationship to the claims pled or do not pertain to
the issues involved.” Gority v. Norfolk S. Ry. Co., Civil Action No. 3:10-cv-87, 2011 WL
4542676, at *6 (W.D. Pa. Sept. 28, 2011). Additionally, “[w]hen allegations in the Complaint
could lead to a ‘better understanding of plaintiff’s claims or perform any useful purpose in
promoting the just disposition of the litigation,’ they will not be considered immaterial,
impertinent or scandalous, and a motion to strike will be denied.” Miller v. Allstate Fire & Cas.
Ins. Co., Civ. No. 07-260, 2009 WL 577964, at *2 (W.D. Pa. March 5, 2009).
ANALYSIS
Defendant moves to strike Paragraphs 1, 7, 10, 17, and any allegation of recklessness set
forth in the Complaint including but not limited to those in Paragraph 19, with prejudice. (ECF
No. 1 ¶¶ 1, 7, 10, 17, 19).
I. Recklessness/ Paragraph 19
Defendant first argues that Plaintiffs’ Complaint fails to assert any factual allegations that
would sufficiently establish Defendant’s subjective awareness of recklessness set forth in the

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Complaint including but not limited to, those in Paragraph 19. (ECF No. 9 at 3). Defendant
contends that the Complaint fails “to allege the culpable mental state of the Defendant necessary
to prove the type of recklessly indifferent conduct which is necessary to make a claim for
punitive damages.” (ECF No. 9 at 3).
Plaintiffs respond by arguing that their allegations of recklessness are appropriate at this
time in the proceedings. (ECF No. 11 at 4). Furthermore, they contend, “[t]he purpose of a
complaint is to put the court and the defendant on notice of the basis of the claims at issue.”
(ECF No. 11 at 3). In support of their averments concerning recklessness, Plaintiffs cite to the
Restatement (Second) of Torts § 500 which defines reckless disregard as follows:
The actor’s conduct is in reckless disregard of the safety of another
if [she] does an act or intentionally fails to do an act of which it is
[her] duty to the other to do, knowing or having reason to know of
facts which would lead a reasonable man to realize, not only that
[her] conduct creates an unreasonable risk of physical harm to
another, but also that such risk is substantially greater than that
which is necessary to make [her] conduct negligent.
(ECF No. 11 at 5 (citing Restatement (Second) of Torts § 500 (1965))).
In further support, Plaintiffs argue that the courts have found allegations of recklessness
to be proper when a driver was speeding in adverse weather or driving carelessly in dangerous
road conditions, citing Sabo v. Suarez, Civ. A. No. 3:CV-08-1889, 2009 WL 2365969, at *3
(M.D. Pa. July 31, 2009) and Gregory v. Sewell, Nos. 4:CV-04-2438, 4:CV-04-2439; 4:CV-042440, 2006 WL 2707405, at *12 (M.D. Pa. Sept. 19, 2006). (ECF No. 11 at 5). Plaintiffs
emphasize that striking any mention of recklessness with prejudice would lead to an unfair result
of dismissing any possible future claim for punitive damages. (ECF No. 11 at 7). Plaintiffs
maintain that although there are no requests for punitive damages in the Complaint at this time,

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discovery may reveal punitive damages to be justified and to eliminate them at this time with
prejudice would be inappropriate. (ECF No. 11 at 7).
Plaintiffs’ allegations suggesting recklessness are proper at this stage of the proceedings
because these allegations are neither redundant, immaterial, impertinent nor scandalous pursuant
to Rule 12(f). Striking portions of a plaintiff’s pleading is a drastic remedy and should only be
used when justice requires it. Johnson, 334 F. Supp.2d at 808. Furthermore, the standard is so
strict that, “only allegations that are so unrelated to the plaintiffs’ claims as to be unworthy of
any consideration should be stricken.” Id. at 809. Instead, Plaintiffs sufficiently allege that
Defendant passed Plaintiff Cristopher in the right-hand lane at a very high rate of speed. (ECF
No. 1 ¶¶ 1, 7-10). Defendant has not established that these allegations cannot, after discovery,
establish recklessness. That is, “[a]t this stage of the litigation, the [C]ourt cannot assume that
[Plaintiffs] will be unable to present any evidence to support a claim of punitive damages.”
Thompson v. Med-Mizer. Inc., Civil Action No. 10-cv-2058, 2011 WL 13141659, at *1 n.1 (E.D.
Pa. Oct. 5, 2011). Therefore, Defendant’s request to strike with prejudice any allegation of
recklessness set forth in the Complaint including but not limited to, those in Paragraph 19 will be
denied.
II. Witness Statements and Police Reports/ Paragraphs 7 and 10
Defendant requests the Court to strike Paragraphs 7 and 10 of the Complaint because they
contain references to the police report created in response to the September 30, 2016 motor
vehicle accident (hereinafter “the Report”). Defendant argues that Plaintiffs’ reference to the
Report violates 75 Pa. Cons. Stat. Ann. § 3751, which prohibits the admission of police reports
into evidence in a civil action for damages arising out of a motor vehicle accident. (ECF No. 9 at

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4). Furthermore, Defendant argues the Report is inadmissible hearsay and should not be
admitted into an action for damages. (ECF No. 9 at 4).
Plaintiffs respond that although under the statute police reports are inadmissible in any
action for damages arising out of a motor vehicle accident, a complaint is not evidence. (ECF
No. 11 at 7 (citing Butler v. BTC Foods, Inc., Civ. A. No. 12-492, 2012 WL 5315034, at *4
(E.D. Pa. Oct. 19, 2012))). Accordingly, Plaintiffs assert that the witnesses’ observations
thereunder are admissible to establish Defendant’s speed and driving behavior before the
accident. (ECF No. 11 at 7). Plaintiffs also oppose Defendant’s claim that expert testimony is
required to determine the speed of a vehicle. (ECF No. 11 at 7). Plaintiffs argue lay witness
testimony is admissible “where a witness is in a position to observe the speed of a vehicle and
has experience judging speed due to their own everyday experience and knowledge.” (ECF No.
11 at 8). Plaintiffs justify the admissibility of the statements in the police report as putting the
Defendant on notice as to the source of the claims, and provide a basis for their negligence claim.
(ECF No. 11 at 8).
As correctly argued by Plaintiffs, a complaint is not evidence. See VFB LLC v. Campbell
Soup Co., 482 F.3d 624, 636 (3d Cir. 2007); Hayes v. Easterday, 879 F. Supp.2d 449, 452, n.1
(E.D. Pa. 2012). Therefore, it would be inappropriate for the Court to apply 75 Pa. Cons. Stat.
Ann. § 3751 to Paragraphs 7 and 10 at this point in the proceedings. Regarding Defendant’s
second argument, the Court disagrees and will deny the Motion to Strike on the grounds the
Report is inadmissible hearsay evidence. The Complaint is not bound by the Federal Rules of
Evidence; therefore, it would be premature and improper for the Court to make a judgement on
the admissibility of the statements in the Report at this time. Thus, the Court will deny
Defendant’s Motion to Strike Paragraphs 7 and 10.

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III. Preliminary Statement/ Paragraph 1
Defendant requests Paragraph 1 of the Complaint, the Preliminary Statement, be stricken
for redundancy pursuant to Federal Rule of Civil Procedure 12(f) and improper form pursuant to
Rule 10(b).1 (ECF No. 8 ¶ 31). In support, Defendant relies on this District’s definition of
redundancy as when immaterial averments are needlessly repeated. (ECF No. 9 at 5 (citing
Burke v. Mesta Mach. Co., 5 F.R.D. 134, 138 (W.D. Pa. 1946)). Furthermore, Defendant argues
the Preliminary Statement is improperly formatted because it “serves to summarize the entirety
of the Plaintiffs’ Complaint.” (ECF No. 9 at 6).
In opposition, Plaintiffs maintain their Preliminary Statement is in compliance with
Federal Rule of Civil Procedure 10(b). (ECF No. 11 at 8). Plaintiffs also contend the Defendant
has failed to show any prejudice caused by the Preliminary Statement. (ECF No. 11 at 8 (citing
Berezansky v. CBN Bank, Case No. 3:17-cv-105, 2018 WL 461245, at *3 (W.D. Pa. Jan. 7, 2018)
(holding allegations must cause prejudice to one of the parties in granting a motion to strike))).
As a general rule, a motion to strike paragraphs of a complaint will only be granted when
the allegations have no possible relation to the controversy or may prejudice the other party.
American Oil Co. v. Cantelou Oil Co., 41 F.R.D. 143, 145 (W.D. Pa. 1966); Federal Deposit Ins.
Corp. v. Alter, 14 F.R.D. 67, 69 (W.D. Pa. 1953). Here, the Defendant’s motion to strike for
improper form under Rule 10 and redundancy under 12(f) will be denied. Although the Court
notes that the Preliminary Statement is a summary, it does not meet the strict standard of Rule
12(f). Plaintiffs’ Preliminary Statement has a logical connection to the subject matter of the
controversy and does not cause significant prejudice to the Defendant. For the foregoing
reasons, Defendant’s Motion to Strike the Preliminary Statement will be denied.
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Defendant incorrectly cites to Pa. R. Civ. P. 10 and Pa. R. Civ. P. 12(f) in their Brief in
Support. (ECF No. 9 at 5 ¶ C).
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IV. Paragraph 17
Defendant contends this Court should strike Paragraph 17 for violating Federal Rules of
Evidence 408 and Rule 411, because it references settlement negotiations and liability insurance.
(ECF No. 9 at 6). Furthermore, Defendant argues in the alternative, that the allegations are
“immaterial” and “impertinent” pursuant to Federal Rule of Civil Procedure 12(f). (ECF No. 9
at 6).
Specifically, Defendant asserts Rule 408 is applicable when it concerns the settlement or
compromise of a claim and deems such evidence inadmissible when offered to establish liability,
validity, or the amount of a claim. (ECF No. 9 at 7 (citing Affiliated Mfrs., Inc. v. Aluminum Co.
of America, 56 F.3d 521 (3d Cir. 1995))). Defendant argues, therefore, that Plaintiffs violate
Rule 408 because they only mention the policy to establish Defendant’s liability and to validate
the amount of their claim for damages. (ECF No. 9 at 7).
In response, Plaintiffs contend any reference to their demand on Defendant’s policy
limits was done to apprise the Court and provide a background of the circumstances surrounding
the case. (ECF No. 11 at 9). They further assert that the information about Defendant’s policy
and prior demands of those limits are material to the case and will be heard by the Court at the
initial case management conference. (ECF No. 11 at 9).
It is well established that Rule 408 is a rule of evidence and does not generally govern
pleadings. Grant Mfg. & Alloying, Inc. v. Recycle Is Good, LLC., Civ. A. No. 11-3115, 2011
WL 6015663, at *3 (E.D. Pa. Dec. 1, 2011); Mobile Conversions, Inc. v. Allegheny Ford Truck
Sales, No. 2:12-cv-1485, 2013 WL 1946183, at *8 (W.D. Pa. May 9, 2013). Rule 12(f),
however, is appropriate when striking from a pleading . . . “any redundant, immaterial,
impertinent or scandalous matter.” Fed. R. Civ. P. 12(f). Rule 408 bars evidence that is used,

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“either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior
inconsistent statement or a contradiction: . . . (2) conduct or a statement made during
compromise negotiations about the claim . . . .” Fed. R. Evid. 408.
Here, it is inappropriate to strike references to Defendant’s insurance policy for violating
Rule 408 at this point in the proceedings. In addition, pursuant to Rule 12(f), the Court does not
find the information redundant, immaterial, impertinent, or scandalous. Therefore, Defendant’s
Motion to Strike Paragraph 17 will be denied. Defendant may, however, seek to exclude this
evidence by filing a motion in limine prior to trial. See, e.g., Bailey –P.V.S. Oxides, LLC v. S &K
Packaging, Inc., No. 8-1596, 2009 WL 425605, at *2 (W.D. Pa. Feb. 19, 2009) (denying motion
to strike allegations relating to pre-litigation offers of settlement because “at the appropriate
time, the parties will have the opportunity to lay a foundation for the admission or the exclusion
of evidence from [] trial.”).
Likewise, the Court denies Defendant’s request to strike Paragraph 17 for violating Rule
411 for the foregoing reasons. (ECF No. 9 at 7). Defendant argues Plaintiffs cannot introduce
otherwise inadmissible evidence through allegations of their complaint and do not offer
allegations relating to any of the other provided purposes under Rule 411. (ECF No. 9 at 7).
Plaintiffs contend the reference to Defendant’s liability insurance was not offered as evidence,
but to apprise the Court and provide a background of the circumstances surrounding the case.
(ECF No. 11 at 9).
According to Rule 411, “[e]vidence that a person was or was not insured against liability
is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the
court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice
or proving agency, ownership, or control.” Fed. R. Evid. 411. As discussed above, the rules of

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evidence do not govern pleadings, and the Court will not apply Rule 411 to the allegations in
Paragraph 17. See Steak Umm Co., LLC v. Steak ‘Em Up, Inc., Civil Action No. 09- 2857, 2009
WL 3540786, at *3 (E.D. Pa. Oct. 29, 2009). Again, this does not foreclose Defendant’s ability
to file a motion in limine before trial.
In conclusion, the Court will deny Defendant’s Motion to Strike Paragraph 17 for
violating Federal Rules of Evidence 408 and 411 because it does not find the allegations to be
immaterial or impertinent pursuant to Federal Rule of Civil Procedure 12(f). Defendant,
however, may file a motion in limine before trial in an effort to exclude evidence deemed
inadmissible by these Federal Rules of Evidence.

CONCLUSION
For the above reasons, Defendant’s Motion to Strike will be denied. An appropriate
Order will follow.

Dated: July 17, 2018

BY THE COURT

___________________
LISA PUPO LENIHAN
United States Magistrate Judge

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