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Jimmy Lewter, et al v. United States of America

June 6, 2011

JIMMY LEWTER, ET AL., PLAINTIFFS,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

ORDER DENYING PLAINTIFFS MOTION TO STRIKE [DOC. 7]

On November 19, 2010, Plaintiffs Jimmy Lewter and Theresa Cox Lewter filed this lawsuit against Defendant United States of America. On February 2, 2011, Defendant answered. On February 23, 2011, Plaintiffs filed this motion to strike portions of Defendant's answer. Defendant opposes the motion.

The Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). For the following reasons, the Court DENIES Plaintiffs' motion to strike. (Doc. 7.)

I. BACKGROUND

On November 4, 2009, Justin Kyle Lewter, a lance corporal in the U.S. Marine Corps, was stopped in his personal vehicle at the intersection of Las Pulgas Road and Basilone Road on Camp Pendleton. (Compl. ¶ 12 [Doc. 1].) Marine Chad Edward Thomas Jr. turned left at the intersection while driving a Humvee and hit Lewter's car. (Id. ¶ 13.) The Humvee crushed the driver's side compartment of Lewter's car when it came to rest on top of it. (Id. ¶ 14.) Lewter was pronounced dead on the scene. (Id. ¶ 17.)

On November 19, 2010, Plaintiffs filed a civil action in this Court asserting seven causes of action against Defendant individually and as successors in interest. The complaint included claims for: (1) negligence; (2) negligence per se; (3) negligent entrustment; (4) negligent design; (5) negligent maintenance/upkeep; (6) wrongful death; and (7) survival.

On February 2, 2011, Defendant answered, claiming sixteen affirmative defenses. On February 23, 2011, Plaintiffs filed a motion to strike Defendant's fourteenth affirmative defense, that the action is barred by the Feres doctrine, and fifteenth affirmative defense, that Defendant is immune from liability by an express statutory exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a). Defendant opposes the motion.

II. STANDARD

Rule 12(f) provides that a federal court may strike from the pleadings any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Fed. R. Civ. P. 12(f). The function of a motion to strike is to avoid the unnecessary expenditures that arise throughout litigation by dispensing of any spurious issues prior to trial. Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983); Chong v. State Farm Mut. Auto. Ins. Co., 428 F. Supp. 2d 1136, 1139 (S.D. Cal. 2006). As a general matter, [m]otions to strike affirmative defenses are disfavored. Before a motion to strike defenses may be granted, "the Court must be convinced that there are no questions of fact, that any questions of law are clear and not in dispute, and that under no set of circumstances could the defenses succeed."

Levin-Richmond Terminal Corp. v. Int'l Longshoremen's & Warehousemen's Union, Local 10, 751 F. Supp. 1373, 1375 (N.D. Cal. 1990) (quoting Systems Corp. v. Am. Tel. & Tel. Co., 60 F.R.D. 692, 694 (S.D.N.Y. 1973)).

III. DISCUSSION

A. Striking Defendant's Fourteenth Affirmative Defense Is Improper.

The Federal Tort Claims Act is a limited waiver of sovereign immunity, allowing plaintiffs to sue the United States in federal court "in the same manner and to the same extent as a private individual" for most tort claims. 28 U.S.C. § 2674. However, in Feres v. United States, 340 U.S. 135, 146 (1950), the Supreme Court held that "the [g]overnment is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." In Johnson v. United States, 704 F.2d 1431, 1436-41 (9th Cir. 1982), the Ninth Circuit provided four factors to consider when determining whether Feres bars an action: (1) the place where the negligent act occurred; (2) the plaintiff's duty status when the negligent act occurred; (3) the benefits accruing to the plaintiff because of his status as a service member; and (4) the nature of the plaintiff's activities at the time of the negligent act. The Ninth Circuit has cautioned that none of the factors is individually dispositive; rather, the factors encourage an examination of the "totality of the circumstances" of the case. Costo v. United States, 248 F.3d 863, 867 (9th Cir. 2001). Thus, the factors should not be "blindly applied," and proper analysis requires a careful examination of the facts of the individual case. Johnson, 704 F.2d at 1436.

In this case, Defendant asserts in its fourteenth affirmative defense that the action is barred by the Feres doctrine. Plaintiffs move to strike this defense arguing that Defendant has not sufficiently established facts to support the application of the Feres ...


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