Angel v. Ray
| Citation | 285 F. Supp. 64 |
| Decision Date | 07 June 1968 |
| Docket Number | No. 67-C-285.,67-C-285. |
| Parties | Nanette ANGEL and Christine Kammerer Rook, Plaintiffs, v. Charles RAY, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Ruttenberg & Ruttenberg, Chicago, Ill., for plaintiffs.
Kivett & Kasdorf, Milwaukee, Wis., for defendant.
This case is now before the court on plaintiffs' motion to strike the affirmative defenses of Ray. The two defenses are basically as follows: that the action is barred by virtue of the Tennessee statute of limitations which provides that action against a tortfeasor must be commenced within one year from the date of the occurrence; and that Tennessee law provides that contributory negligence upon the part of a person seeking recovery shall bar that person from recovery.
The action arises out of a Tennessee automobile accident between two Illinois plaintiffs, Nanette Angel and Christine Kammerer Rook, and a Wisconsin defendant, Charles Ray. The accident occurred on July 30, 1966. On July 18, 1967, the plaintiffs filed a complaint in the United States district court for the northern district of Illinois against the defendant's insurance company, Dairyland Insurance Company, a Wisconsin corporation. On July 21, 1967, Dairyland's agent in Milwaukee was served with an Illinois federal court summons and complaint.
On August 17, 1967, Dairyland moved to quash the service of the summons and to dismiss the action. One week later, the plaintiffs filed a motion for leave to amend their complaint and for transfer to the U. S. district court for the eastern district of Wisconsin. The amended complaint proposed to substitute as named defendant, Charles Ray, in addition to dismissing Dairyland from the action. The grounds for transfer, as stated in the motion, were the convenience of the parties and the interests of justice.
The present motion to strike is made pursuant to rule 12(f) of the Federal Rules of Civil Procedure, which states in part:
"* * * the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter."
The plaintiffs contend that the affirmative defenses are insufficient since the action was instituted within one year from the date of the accident and then merely transferred to this court. They further contend that the substantive law of Wisconsin applies, and therefore the defense of contributory negligence is not applicable.
One of the purposes of a motion to strike is to gain an early adjudication as to the legal sufficiency of defenses set forth in the answer of the defendant. United States v. Southerly Portion of Bodie Island, N. C., 114 F. Supp. 427 (E.D.N.C.1953). Such a motion should be denied if the defense set forth is sufficient as a matter of law, or if it fairly presents a question of law and fact that the court ought to hear. Talarowski v. Pennsylvania Railroad Company, 135 F.Supp. 503 (D.Del.1955).
The plaintiffs concede that the Tennessee one year statute of limitations is applicable whether by virtue of Wisconsin law (Wis.Stat. § 893.205) or Illinois law (Ill.Rev.Stat. Ch. 83, § 21). The plaintiffs contend that the action was commenced within this period. Although the amended complaint substituting Charles Ray as the named defendant was filed after the one year period had expired, the plaintiffs argue that it relates back to the timely commencement against Dairyland Insurance Company.
In their reply brief in support of this motion, the plaintiffs forthrightly acknowledge that should this court find that the amended complaint against Ray does not relate back to the commencement of the original action against Dairyland, then this action "is clearly timed barred and should be dismissed". Rule 15(c) of the Federal Rules of Civil Procedure provides for relation back of amended pleadings. However, the plaintiffs attempt to show that the prerequisites of rule 15(c) have in fact been satisfied since the same event is the subject matter of both the original and the amended complaint.
The court believes that the requirements of rule 15(c) have been satisfied by the plaintiffs. The issue of the statute of limitations in this case is one which can and should be resolved before trial. The basic facts concerning the statute of limitations are not in issue, and the legal consequences are properly determinable on this motion to strike the defense. Even if it can be said that the Illinois federal district court did not impliedly set the statute of limitations issue at rest in ordering that Mr. Ray be made a party, I believe it fair to apply the "relation back" doctrine upon these facts. The notice requirements of rule 15(c) have been satisfied because of the "identity of interests" between the insurance company and the insured. Under the terms of the insurance, Dairyland was obligated to protect the interests of the substituted defendant, Charles Ray. Dairyland had a standing to and should have raised any objections there may have been to allowing the amendment before the Illinois federal court granted same.
As an affirmative defense, the...
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Pompey v. Lumpkin
...expire. In at least one case, notice was imputed through an insurer, where the insurer itself was the original defendant. Angel v. Ray, 285 F.Supp. 64 (E.D.Wis.1968) (imputing notice to driver of car where his insurer was the original defendant, based on the "identity of interests" between ......
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Carroll E. Zink v. Renea Zavakos, 87-LW-0829
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Williams v. Jerry L. Kaltenbach Ent., Inc.
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