McIntosh v. Cub Crafters Inc

Filing 30

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO DISMISS DEFENDANT'S FOURTH AFFIRMATIVE DEFENSE; granting in part and denying in part 15 Motion to Dismiss. Signed by Senior Judge Edward F. Shea. (CV, Case Administrator)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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4
5

No.

SHIRLEY CAROLINE McINTOSH,
Individually and as Guardian and
Representative of M.M., D.M.,
T.M., and J.M., minors,

ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFFS'
MOTION TO DISMISS DEFENDANT'S
FOURTH AFFIRMATIVE DEFENSE

6
Plaintiffs,
7
8

CV-13-3004-EFS

v.
CUB CRAFTERS, Inc.,

9

Defendant.

10

I.

11

This

matter

comes

INTRODUCTION

before

the

Court

on

Plaintiff

Shirley

12

McIntosh’s Motion to Dismiss Defendant’s Fourth Affirmative Defense,

13

ECF

14

Having

15

applicable authority, the Court is fully informed.

16

set forth below, Plaintiffs’ motion is granted in part and denied in

17

part.

No.

15,

filed

reviewed

in

the

18
19

her

individual

pleadings,

II.
A.

the

and

representative

record

in

this

capacity.

matter,

and

For the reasons

BACKGROUND

Factual History1

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On April 23, 2011, Plaintiff Shirley McIntosh’s husband, David

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McIntosh, was killed in the crash of a Cub Crafters Model CC11-160

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1

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The factual history recited herein is based on the factual
allegations in the Complaint, ECF No. 1. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
The Court assumes to be true those
portions of the Complaint that “contain sufficient allegations of
underlying facts to give fair notice and to enable the opposing
party to defend itself effectively,” but the Court does not afford
the presumption of truth to allegations that “simply recite the
elements of a cause of action.”
Starr v. Baca, 652 F.3d 1202,
1216 (9th Cir. 2011).

ORDER - 1

1

Carbon Cub (registered as N143FJ), a Light Sport Aircraft (LSA).

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crash occurred at Everitt Airport in Parker, Colorado, during a sales

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demonstration flight, destroying the aircraft and killing Peter Vinton

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and David McIntosh.

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demonstrating

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aircraft to Mr. McIntosh, a passenger in the aircraft.

7

B.

the

The

Peter Vinton, the pilot of the aircraft, was

flight

maneuvers

and

climb

performance

of

the

Procedural History

8

On January, 24, 2013, Plaintiff, on behalf of herself and four

9

minor children, filed a Complaint alleging negligence and wrongful

10

death against Cub Crafters, Inc.

ECF No. 1.

On February 20, 2013,

11

Defendant filed their Answer, alleging multiple affirmative defenses

12

including:
Fourth Affirmative Defense. The product referred to in the
Complaint, was designed, tested, assembled, manufactured,
certified, approved, and sold in full compliance with the
Federal Aviation Regulations (14 C.F.R. § § 1 et seq.), and
in full compliance of American Society for Testing and
Materials (ASTM) standards under the supervision of the
Federal Aviation Administration, an agency of the United
States Government, and, as such, the claims set forth in
the Complaint are preempted by federal law.

13
14
15
16
17
18

ECF

No.

5

at

2.

On

June

4, 2013,

the

Court

held

a Scheduling

19

Conference, and directed the parties to file any dispositive motions

20

related to the preemption defense by August 5, 2013.

21

August 5, 2013, Defendant filed a memorandum further clarifying the

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Fourth Affirmative Defense but sought no specified relief.

23

14.

24

Dismiss arguing that preemption does not apply and concluding that the

ECF No. 10.

On

ECF No.

On August 15, 2013, Plaintiffs filed a Response and Motion to

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ORDER - 2

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Fourth Affirmative Defense should be dismissed.2

2

September

3

dismiss, ECF No. 16, and subsequently, the Court permitted Plaintiffs

4

to file a reply, ECF No. 20, which was filed on September 24, 2013,

5

ECF No. 21.

5,

2013,

Defendant

filed

a

ECF No. 15.

response

to

the

On

motion

to

III. MOTION TO DISMISS DEFENDANT’S FOURTH AFFIRMATIVE DEFENSE

6

Plaintiffs

7

moves

to

dismiss

Defendant’s

Fourth

Affirmative

8

Defense which asserts that the claims in the Complaint are preempted

9

by federal law.

However, the parties’ briefing is completely devoid

10

of citation to the standard for the relief sought.

11

motion

12

“Defendant’s Affirmative Defense No. 4 should be dismissed,” the brief

13

also

14

litigation,

and

15

preemption)

must

16

precedent,

17

Accordingly,

the

18

pursuant

to

Federal

19

However,

having

20

authority, the Court finds the motion should be treated as a motion to

21

strike.

22

738 (9th Cir. 1987) ("The purpose of [Rule] 12(b)(6) is to enable

23

defendants to challenge the legal sufficiency of complaints . . . .")

24

with Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc.,

is

captioned

argues

that

as

a

“Motion

“federal

and

defense

would

briefing
Rules

reviewed

does

Affirmative

stricken”

Defendant’s

Dismiss”

preemption

Defendant’s
be

to

be

is

unclear

of

Civil

Plaintiffs’

and

concludes

not

Defense

that

While Plaintiffs’

apply
No.

to

4

Ninth

stricken.”

ECF

Plaintiffs

Procedure
motion

seek

12(b)(6)
and

the

this

(federal

“[u]nder

if

that

or

Circuit
No.

15.

relief
12(f).

applicable

Compare Rutman Wine Co. v. E.&J. Gallo Winery, 829 F.2d 729,

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2

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Plaintiffs’ motion was not filed as a motion nor noted for a hearing. See
Local Rule 7.1. Accordingly, the filing was not docketed as a pending motion
until September 6, 2013.

ORDER - 3

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677 F.2d 1045, 1057 (5th Cir. 1982) (“Rule 12(f) motion to dismiss a

2

defense is proper when the defense is insufficient as a matter of

3

law.”) and Old Dutch Farms, Inc. v. Milk Drivers & Dairy Emp. Local

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Union No. 584, 281 F. Supp. 971, 976 (E.D.N.Y. 1968) (“[A]t one time

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the proper procedure for raising objection to the sufficiency of a

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defense troubled some courts, it seems that the 1946 amendment to Rule

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12(f) was designed to provide a specific method of raising such a

8

challenge.”)

9

A.

Legal Standards

10

1.

Motion to Strike

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Rule 12(f) of the Federal Rules of Civil Procedure allows the

12

court to strike from “any pleading any insufficient defense or any

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redundant,

14

purpose of a Rule 12(f) motion is to avoid the costs that arise from

15

litigating spurious issues by dispensing with those issues prior to

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trial.

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Cir.

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determines

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“sufficient.”

20

(9th Cir. 1979).

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pleading or as a matter of substance.

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insufficiency, a motion to strike an affirmative defense is proper

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“when the defense is insufficient as a matter of law.”

24

Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d

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1045, 1057 (5th Cir. 1982).

26

//

immaterial,

impertinent,

or

scandalous

matter.”

The

Sidney–Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th

1983).

ORDER - 4

Rule

8(c)

whether

the

of

the

pleading

Federal
of

an

Rules

of

Civil

affirmative

Procedure

defense

is

See Wyshak v. City National Bank, 607 F.2d 824, 827
A defense may be found “insufficient” as a matter of
With respect to substantive

See Kaiser

1

2.

Federal Preemption

2

Federal

law

may

preempt

state

law

in

three

ways.

First,

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“Congress may withdraw specified powers from the States by enacting a

4

statute

5

United States, 132 S.Ct. 2492, 2500–01 (2012).

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precluded from regulating conduct in a field that Congress, acting

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within its proper authority, has determined must be regulated by its

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exclusive

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preempted when they conflict with federal law.”

containing

an

express

governance.”

Id.

preemption

at

2501.

provision.”

Arizona

v.

Second, “States are

Finally,

“state

Id.

laws

are

Regardless of

10

the type of preemption involved — express, field, or conflict — “[t]he

11

purpose

12

analysis.”

13

(internal quotation marks omitted).

of

Congress

is

the

ultimate

touchstone

of

pre-emption

Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992)

Recently, in Gilstrap, the Ninth Circuit reviewed the issues of

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15

field preemption under the Federal Aviation Act (Act).

16

United Air Lines, Inc., 709 F.3d 995, 1004 (9th Cir. 2013).

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Gilstrap, the Ninth Circuit recognized that “federal law generally

18

establishes the applicable standards of care in the field of aviation

19

safety.”

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court then adopted the Third Circuit’s division of the Act’s field

21

preemptive effect into two components, the “state standards of care,

22

which

23

remedies,

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preempted.”

25

established

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First, the Court must “ask whether the particular area of aviation

In

Id. at 1005 (citations omitted) (emphasis in original).

may

ORDER - 5

Gilstrap v.

be

field-preempted

which

may

Id.
a

survive

at

two-part

1006.

by
even

pervasive
if

the

Accordingly,

framework

for

regulations,
standard
the

evaluating

of

Ninth
field

and
care

The

state
is

Circuit

so
has

preemption.

1

commerce and safety implicated by the lawsuit is governed by pervasive

2

federal regulations.”

3

exist, “any applicable state standards of care are preempted . . .

4

however, the scope of field preemption extends only to the standard of

5

care.”

6

(breach,

7

availability of remedies.”

Id.

Id.

Then, if pervasive federal regulations

“Local law still govern[s] the other negligence elements

causation,

and

damages),

as

well

as

the

choice

and

Id. (citations omitted).

8

In Montalvo v. Spirit Airlines, 508 F.3d 464, 470 (9th Cir.

9

2007), the Ninth Circuit held that any state-imposed duty to warn

10

airline passengers about risks of deep vein thrombosis was preempted

11

by the FAA and its corresponding regulations.

12

regulations enacted by the Federal Aviation Administration, read in

13

conjunction with the [Act] itself, sufficiently demonstrate an intent

14

to occupy exclusively the entire field of aviation safety and carry

15

out Congress' intent to preempt all state law in this field.”).

16

Ninth

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regulations governing the warnings and instructions given to airline

18

passengers.

19

Inc.,

20

regulations as to when and where air carriers must provide assistance

21

in

22

regulations about how airline agents should interact with passengers).

23

By contrast, in Martin, the Ninth Circuit held that the Act did not

24

preempt a state tort lawsuit involving aircraft stairs because, in

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contrast

26

warnings, “the only [federal] regulation on airstairs is that they

Circuit

ORDER - 6

Montalvo

pointed

to

specific

and

The

comprehensive

See id. at 472–73; see also Gilstrap v. United Air Lines,

709

moving

in

Id. at 471 (“[T]he

F.3d

995,

through

to

the

an

1007

(9th

airport,

lengthy

list

Cir.

but

of

not

federal

2013)

finding

(finding

pervasive

pervasive

regulations

on

federal

passenger

1

can’t be designed in a way that might block the emergency exists.”

2

Martin ex rel. Heckman v. Midwest Express Holdings, Inc., 555 F.3d

3

806, 808, 812 (9th Cir. 2009).

4

B.

Discussion
Here,

5

neither

party

has

presented

any

claim

of

express

or

6

conflict preemption, accordingly, as to Defendant’s Fourth Affirmative

7

Defense,

8

utilizing Gilstrap’s two-part framework.

the

Court

looks

to

the

Act’s

field

preemptive

effect

Defendant’s Fourth Affirmative Defense asserts preemption as to

9
10

“the claims set forth in the Complaint.”

11

Plaintiffs correctly argue that there must be pervasive regulation as

12

to each theory of liability asserted.

13

Defendant clarified that the Fourth Affirmative Defense “is directed

14

only to this specific claim, paragraph 4.5a of the Complaint.”

15

No. 16 at 6.

16

Defendant was negligent in “failing to properly design, test, and

17

approve the stall/spin characteristics of the accident aircraft.”

18

No. 1 at 5-6.

19

the Fourth Affirmative Defense as applied to all claims except 4.5a,

20

the

21

asserted

in

22

respect,

pervasive

23

approval of stall/spin characteristics of the accident aircraft.

motion

ECF No. 22.

ECF No. 15 at 4.

However,

In response,

ECF

Plaintiffs’ Complaint at paragraph 4.5a asserts that

ECF

Accordingly, to the extent Plaintiffs seek to strike

is

granted.

4.5a,

the

However,
Court

must

regulations

as

to

the

determine

exist

as

to

claim
whether,

the

of

negligence

and

design,

in

what

test,

and

The aircraft at issue was a Cub Crafters Model CC11-160 Carbon

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25

Cub

(registered

26

Administrator

ORDER - 7

of

as

N143FJ),

the

a

Federal

Light

Sport

Aviation

Aircraft

(LSA).

Administration

has

The
broad

1

authority to publish regulations to provide for aviation safety.

2

U.S.C. § 106.

3

Rule in the Federal Registrar with the purpose to “[i]ncrease safety

4

in the light-sport aircraft community by closing the gaps in existing

5

regulations” and to “[p]rovide for the manufacture of light-sport

6

aircraft

7

Certification of Aircraft and Airmen for the Operation of Light-Sport

8

Aircraft, 69 FR 44772-01.

9

(FAR) 21.190.

10
11

Under this authority, the FAA in 2004 published a Final

that

are

safe

for

their

intended

operations.”

14

See 14 CFR § 21.190.

FAR 21.190(c) provides:

(c) Manufacturer's statement of compliance for light-sport
category aircraft.
The manufacturer's statement of
compliance required in paragraph (b)(1)(iii) of this
section must-(1) Identify the aircraft by make and model, serial number,
class, date of manufacture, and consensus standard used;
(2) State that the aircraft meets the provisions of the
identified consensus standard;

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16

(3) State that the aircraft conforms to the manufacturer's
design data, using the manufacturer's quality assurance
system that meets the identified consensus standard;

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18

(4) State that the manufacturer will make available to any
interested person the following documents that meet the
identified consensus standard:

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20

(i)
(ii)

21

(iii)

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23

The aircraft's operating instructions.
The aircraft's maintenance and inspection
procedures.
The aircraft's flight training supplement.

(5) State that the manufacturer will monitor and correct
safety-of-flight issues through the issuance of safety
directives and a continued airworthiness system that meets
the identified consensus standard;

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(6) State that at the request of the FAA, the manufacturer
will provide unrestricted access to its facilities; and

26

ORDER - 8

See

This rule added Federal Aviation Regulation

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13

49

(7) State that the manufacturer, in accordance with a
production
acceptance
test
procedure
that
meets
an
applicable consensus standard has--

1
2

(i)
(ii)

3

Ground and flight tested the aircraft;
Found the aircraft performance acceptable;
and
Determined
that
the
aircraft
is
in
a
condition for safe operation.

4
(iii)
5
14 CFR § 21.190(c).
6

Plaintiffs contend that because FAR 21.190 refers to “consensus
7
standards” that no federal standard is mandated for the purposes of
8
preemption.

ECF No. 21 at 2.

However, this reliance upon the term

9
“consensus” is misplaced.

On November 5, 2004, the FAA issued Order

10
8130.2F to “explain the new regulations . . . regarding addition of
11
the

light-sport

aircraft

category

and

light-sport

experimental

12
aircraft.”

Foreword, FAA Order 8130.2F, Airworthiness Certification

13
of Aircraft and Related Products, Issued November 5, 2004 (Cancelled
14
April 16, 2011 by Order 8130.2G).

Section 6 of FAA Order 8130.2F

15
describes the certification requirements and procedures applicable to
16
Light Sport Aircraft, specifically:
17

21

d. Light-Sport Aircraft Construction. The manufacturer of
an aircraft for airworthiness certification in the lightsport category must manufacture the aircraft to the design
requirements and quality system of the applicable consensus
standard that has been accepted by the FAA and published
through a notice of availability in the Federal Register .
. . A list of accepted consensus standards can be found on
the FAA Web site.

22

Section 6, 121(d), Order 8130.2F CH5 (revised 1/15/2010) (emphasis

23

added).

Pursuant

24

published

a

25

standard acceptable for certification to “ASTM Designation F 2245-09,

26

titled; Standard Specification for Design and Performance of a Light

18
19
20

ORDER - 9

Notice

to
of

this

Order,

on

Availability

October
which

15,

revised

2009,
the

the

FAA

consensus

1

Sport Airplane.”

2

include “4.5.9 Spinning,” “4.5.7 Wing Level Stall,” and “4.5.8 Turning

3

Flight and Accelerated Turning Stalls.”

ASTM Standard F 2245-09.

4

These

for

5

performance of LSA aircraft, and as adopted by the FAA, must be met to

6

receive airworthiness certification.

standards

74 FR 52997.

set

forth

Relevant portions of ASTM F 2245-09

requirements

the

stall

and

spin

Here, the Court finds that these ASTM Standards, as adopted by

7
8

the

FAA

and

9

regulate

the

required

for

stall/spin
based

upon

airworthiness

certification,

characteristics
field

of

11

establishes the standard of care as to the design, test, and approval

12

of the stall/spin characteristics, preempting any state standards.

For

14

the

foregoing

law

aircraft.

Accordingly,

IV.

federal

sport

10

13

preemption,

light

pervasively

exclusively

CONCLUSION

reasons,

the

Court

finds

that

Defendant’s

15

Fourth Affirmative Defense regarding preemption, as applied to only

16

the

17

sufficient as a matter of law.

claim

of

negligence

at

paragraph

18

1.

of

the

Complaint,

is

Accordingly, IT IS HEREBY ORDERED:

19

4.5a

Plaintiffs’

construed

Motion

to

Strike,

ECF

No.

15,

is

20

DENIED IN PART (as to Complaint & 4.5a) and GRANTED IN PART

21

(as to remaining claims).
2.

22

The Court finds that as to the design, test, and approval

23

of the stall/spin characteristics of the accident aircraft,

24

federal law exclusively establishes the standard of care

25

preempting any state standards.

26

//

ORDER - 10

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2
3

IT IS SO ORDERED.

The Clerk’s Office is directed to enter this

Order and provide copies to all counsel.
DATED this

19th

day of February 2014.

s/ Edward F. Shea
EDWARD F. SHEA
Senior United States District Judge

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Q:\EFS\Civil\2013\3004.dismiss.deny.lc2.docx

ORDER - 11