United States District Court, S.D. Alabama, Northern Division
W.J. SMITH, et al., Plaintiffs,
LIQUID TRANSPORT CORP., et al., Defendants.
REPORT AND RECOMMENDATION
F. BIVINS UNITED STATES MAGISTRATE JUDGE.
case is before the Court on Defendant Liquid Transport
Corp.'s Motion to Partially Dismiss Plaintiffs' First
Amended Complaint and Strike Certain Improper Allegations
(Doc. 38). The motion has been fully briefed and is ripe for
resolution. Upon consideration of all matters
presented, the undersigned RECOMMENDS, for the reasons stated
herein, that Defendant's Motion to Dismiss and Strike be
W.J. Smith and Irma Smith filed the instant action against
Eddie Wayne Williams, Liquid Transport Corp. (hereinafter
“Liquid Transport”), Dana Transport, and Great
West Casualty Insurance in connection with a collision that
occurred on May 5, 2015, in Catoosa County, Georgia. (Doc.
1). In their amended complaint,  Plaintiffs allege that
Defendant Williams caused the 2003 Peterbilt tractor and
tanker trailer that he was driving to hit the back of the
1997 Kenworth tractor and semitrailer operated by Plaintiff
W.J. Smith. (Doc. 30). Plaintiffs also contend that
“[t]he collision was caused by Williams'
inadvertence, his failure to keep an appropriate lookout, his
aggressive driving too fast for the circumstances, and his
decision to follow too closely.” (Id. at 5).
Plaintiffs further contend that W.J. Smith is totally
disabled as a result of the injuries that he sustained in the
count 1 of the amended complaint, Plaintiffs assert a
negligence claim against Defendants Williams; in count 2,
Plaintiffs assert a negligence claim against Defendants
Liquid Transport and Dana Transport; in count 3, Plaintiffs
assert a punitive damages claim against Defendants Williams,
Liquid Transport and Dana Transport; in count 4, Plaintiffs
assert a vicarious liability claim against Defendants Liquid
Transport and Dana Transport; in count 5, Plaintiffs assert a
joint liability claim against Defendants Liquid Transport and
Dana Transport; and in count six, Plaintiffs assert a direct
action against Great West Casualty as the indemnity insurer
for Liquid Transport. (Doc. 30).
Transport's instant motion to dismiss seeks the dismissal
of Plaintiffs' claims in counts 2, 3, and 5. (Doc. 38).
Liquid Transport also seeks to have certain allegations
contained in paragraphs 12, 14, 15, and 17 of Plaintiffs'
amended complaint stricken pursuant to Fed.R.Civ.P. 12(f) as
immaterial, impertinent, or scandalous. (Doc. 38 at 2-3). In
their response to Liquid Transport's motion, Plaintiffs
stipulated to the voluntary dismissal of all claims against
Defendants Dana Transport, Inc. and Williams without
prejudice; thus, those Defendants were dismissed from this
case. (Docs. 50, 53). Plaintiffs also acknowledged that their
claims against Liquid Transport in counts 2 and 5 should be
dismissed; however, Plaintiffs contend that they have set
forth sufficient facts to support their claim, in count 3,
for punitive damages against Liquid Transport. (Doc. 51).
Plaintiffs also argue that Liquid Transport's request to
strike certain allegations in the amended complaint should be
denied because the allegations were not included for an
improper purpose. (Id. at 8). In light of
Plaintiffs' stipulation and response (Docs. 50, 51), the
only issues remaining with respect to Liquid Transports'
motion to dismiss and strike are: 1) whether Plaintiffs have
stated a claim for punitive damages, and 2) whether specific
allegations contained in Plaintiffs' amended complaint
should be stricken as immaterial, impertinent, or scandalous.
Standard of Review
defendant may move to dismiss a complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6) if the plaintiff has failed
to state a claim upon which relief may be granted.
“When considering a motion to dismiss, all facts set
forth in the plaintiff's complaint ‘are to be
accepted as true and the court limits its consideration to
the pleadings and exhibits attached thereto.”
Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231
(11th Cir. 2000) (quoting GSW, Inc. v. Long Cnty.,
999 F.2d 1508, 1510 (11th Cir. 1993)). All “reasonable
inferences” are drawn in favor of the plaintiff.
St. George v. Pinellas County, 285 F.3d 1334, 1337
(11th Cir. 2002). To survive a 12(b)(6) motion to dismiss for
failure to state a claim, the complaint “does not need
detailed factual allegations”; however, the
“plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do. . . . Factual allegations must be enough to
raise a right to relief above the speculative level . . ., on
the assumption that all the allegations in the complaint are
true (even if doubtful in fact).” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (internal citations
omitted). The plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face.”
Id. at 570.
Plaintiffs' request for punitive damages is listed in the
amended complaint as a separate count, “[a] request for
punitive damages is not a ‘claim' within the
meaning of Federal Rule of Civil Procedure 8(a)(2); it is
only part of the relief demanded in a claim.”
Walker v. City of Orlando, 2007 U.S. Dist. LEXIS
46129, 2007 WL 1839431, *4 (M.D. Fla. June 26, 2007)(quoting
Cohen v. Office Depot, Inc., 184 F.3d 1292, 1295-99
(11th Cir. 1999), vacated on other grounds, 204 F.3d
1069 (11th Cir. 2000); Rolle v. Brevard County, 2007
U.S. Dist. LEXIS 6920, 2007 WL 328682, *13 (M.D. Fla. Jan.
31, 2007); see also Schmidt v. C.R. Bard, Inc., 2014
U.S. Dist. LEXIS 146459, 2014 WL 5149175, *8 (S.D. Ga.
2014)(punitive damages are not a “cause of
action” subject to dismissal under Rule 12(b)(6)).
Court observes, as a threshold matter, that Plaintiffs
contend that Georgia law should control because that is where
the accident occurred and where Plaintiff W.J. Smith
sustained his injuries. Liquid Transport does not dispute
that Georgia law controls, but instead asserts that
Plaintiffs did not place it on notice that they were seeking
to recover under Georgia law, as opposed to Alabama law.
“A federal court in a diversity case is required to
apply the laws, including principles of conflict of laws, of
the state in which the federal court sits.”
Colonial Life & Accident Ins. Co. v. Hartford Fire
Ins. Co., 358 F.3d 1306, 1308 (llth Cir. 2004)
(quoting O'Neal v. Kennamer, 958 F.2d 1044, 1046
(llth Cir. 1992). Thus, the beginning point of the
Court's analysis is application of Alabama's
choice of law rules for tort actions are based on “the
traditional choice of law rule of lex loci
delicti” requiring “that the substantive law
of the place where the tort occurred must be employed.”
In re Verilink Corp., 405 B.R. 356, 365 (N.D. Ala.
2009). “Under lex loci delicti, a tort is
deemed to have occurred where the alleged harm was
suffered.” Id. (citing Norris v.
Taylor, 460 So.2d 151, 152 (Ala. 1984)). As noted,
supra, there is no dispute that the collision made
the basis of Plaintiffs' lawsuit occurred in Georgia, and
that is where Plaintiff W.J. Smith sustained his injuries.
The undersigned thus finds that Plaintiffs' claim for
tort damages is controlled by Georgia law.