Kelly v. United States, 7:10–CV–172–FL.

• Decision Date: 11 August 2011
• Docket Number: No. 7:10–CV–172–FL.,7:10–CV–172–FL.
• Citation: 809 F.Supp.2d 429
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Morgan KELLY; Pamela Kelly; and Terry Kelly, Plaintiffs, v. UNITED STATES of America, Defendant.

809 F.Supp.2d 429

Morgan KELLY; Pamela Kelly; and Terry Kelly, Plaintiffs,

v.UNITED STATES of America, Defendant.

No. 7:10–CV–172–FL.

United States District Court, E.D. North Carolina.

Aug. 11, 2011.

Steven Michael Stancliff, James L. Chapman, IV, Crenshaw, Ware and Martin, P.L.C., Norfolk, VA, for Plaintiffs.

R.A. Renfer, Jr., W. Ellis Boyle, U.S. Attorney's Office, Raleigh, NC, for Defendant.

ORDER

LOUISE W. FLANAGAN Chief Judge.

This matter comes before the court on plaintiffs' motion to strike affirmative defenses pursuant to Federal Rule of Civil Procedure 12(f), or in the alternative, for partial judgment pursuant to Federal Rule of Civil Procedure 12(c) (DE # 20). Plaintiffs' motion has been fully briefed. Also before the court is the parties' joint request for hearing on the motion (DE # 24). For the reasons that follow, plaintiffs' motion to strike is allowed in part and denied in part. The companion joint motion for hearing is denied.

STATEMENT OF THE CASE

This is an action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq. (“FTCA”), to recover damages for injuries allegedly suffered by Morgan Kelly, a minor, at United States Marine Corps Base Camp Lejeune (“Camp Lejeuene”). Morgan Kelly's parents, Pamela Kelly and Terry Kelly, join their daughter as plaintiffs in this action.

Plaintiffs filed complaint on September 2, 2010. The government filed answer on December 29, 2010, stating several affirmative defenses. The court conducted a telephonic scheduling conference on February 23, 2011, and afterward entered a preliminary case management order providing for an initial period of written discovery to be completed by April 1, 2011, and for all Rule 12 motions to be filed by May 15, 2011. Further discovery in the case was stayed pending resolution of any motions pursuant to Rule 12.

On May 15, 2011, plaintiffs filed the instant motion to strike the government's affirmative defenses pursuant to Rule 12(f), or in the alternative, for partial judgment pursuant to Rule 12(c). The motion has been fully briefed. On July 1, 2011, the parties filed joint request for hearing on the motion. On July 6, 2011, the government filed motion for judgment on the pleadings pursuant to Rule 12(c). Plaintiffs were granted an extension of time to respond, and that Rule 12 motion is not yet ripe.

STATEMENT OF THE UNDISPUTED FACTS

In July, 2007, Morgan Kelly, then a fifteen-year-old high school student, was a cadet in the Navy Junior Reserve Officer Training Corps (“NJROTC”) program at her high school. As part of the program, she voluntarily attended an orientation visit to Camp Lejeune. The United States Marines Corps (“the Marines”) required all NJROTC cadets attending the orientation visit to sign a waiver, which was drafted by the Marines, before being allowed to enter Camp Lejeune.¹ The Marines also required the parent or guardian of any cadet who was a minor to sign the waiver. Morgan Kelly and her mother, Pamela Kelly, both signed the waiver, which is dated July 20, 2007.

The NJROTC group arrived at Camp Lejeune on July 23, 2007. On July 25, 2007, Morgan Kelly participated in scheduled training activities at the confidence course. On the last obstacle, called the “Slide for Life” (“SFL”), Morgan Kelly fell as she was climbing and suffered unspecified but allegedly serious injuries. Plaintiffs now seek damages in excess of ten million dollars ($10,000,000.00).

DISCUSSION

A. Joint Request for Hearing

Counsel for the parties have suggested to the court that, due to the complexity of the matters at issue in plaintiffs' motion, oral argument would aid the court in its determination of the motion. On this basis, the parties jointly request a hearing on the motion. Local Civil Rule 7(i) provides that hearings on motions may be ordered by the court in its discretion, but that motions shall be determined without a hearing unless the court orders otherwise. The court is sensitive to counsel's request, however, hearing is not necessary on this thoroughly briefed motion. Counsel have been quite articulate in their respective written presentations. Accordingly, the parties' request for hearing on plaintiffs' motion is denied. The court turns its attention below to the underlying motion.

B. Motion to Strike or for Judgment on the Pleadings

1. Standard of Review

Plaintiffs have moved, pursuant to Rule 12(f), to strike the government's fourth and seventh affirmative defenses. ² Rule 12(f) permits a district court, on motion of a party or on its own initiative, to strike from a pleading an “insufficient defense.” Fed.R.Civ.P. 12(f). “A defense is insufficient if it is clearly invalid as a matter of law.” Spell v. McDaniel, 591 F.Supp. 1090, 1112 (E.D.N.C.1984). “ Rule 12(f) motions are generally viewed with disfavor because striking a portion of a pleading is a drastic remedy and because it is often sought by the movant simply as a dilatory tactic.” Waste Management Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir.2001) (internal citations omitted). Therefore, motions to strike are rather strictly considered, see Godfredson v. JBC Legal Group, P.C., 387 F.Supp.2d 543, 547 (E.D.N.C.2005), and the court is required to “view the pleading under attack in a light most favorable to the pleader.” Racick v. Dominion Law Associates, 270 F.R.D. 228, 232 (E.D.N.C.2010). “Nevertheless, a defense that might confuse the issues in the case and would not, under the facts alleged, constitute a valid defense to the action can and should be deleted.” Waste Management, 252 F.3d at 347 (internal citations omitted).

2. Analysis

Plaintiffs move to strike the government's fourth affirmative defense, which asserts that the court lacks subject matter jurisdiction to hear plaintiffs' claims pursuant to the Feres doctrine, which provides the government with immunity from tort claims advanced by armed services personnel. See Feres v. U.S., 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950). It is undisputed that Morgan Kelly has never been a member of the armed forces. Pls.' Mot., at 5; Govt's Resp. in Opp'n, at 1 n. 1. Therefore, as the government concedes, it is not entitled to defend on the basis of the Feres doctrine.³ Because the fourth affirmative defense does not constitute a valid defense to the action under the facts alleged, see Waste Management, 252 F.3d at 347, plaintiffs' motion to strike in this part is granted. The government's fourth affirmative defense is stricken from its answer.

Plaintiffs also move to strike the government's seventh affirmative defense. At issue is whether, under North Carolina law,⁴ the liability waiver signed by the minor, Morgan Kelly, on her own behalf, and also by Pamela Kelly on the minor's behalf, is enforceable. It is well-established under North Carolina law that liability waivers are generally enforceable. See Hall v. Sinclair Refining Co., 242 N.C. 707, 709, 89 S.E.2d 396, 397 (1955) (“[A] person may effectively bargain against liability for harm caused by his ordinary negligence in the performance of a legal duty.”). North Carolina courts strictly construe the terms of exculpatory agreements against the parties seeking to enforce them. Id. Nevertheless, courts will enforce such contracts unless the contract (1) is violative of a statute; (2) is gained through inequality of bargaining power; or (3) is contrary to a substantial public interest. Waggoner v. Nags Head Water Sports, Inc., 141 F.3d 1162 (4th Cir.1998) (unpublished table decision); see also Strawbridge v. Sugar Mountain Resort, Inc., 320 F.Supp.2d 425, 432 (W.D.N.C.2004).

Although liability waivers are generally enforceable, it is beyond dispute that Morgan Kelly's own waiver is unenforceable. Under North Carolina law, the contract of a minor generally is not binding on him. See Baker v. Adidas America, Inc., 335 Fed.Appx. 356, 359 (4th Cir.2009); see also Creech ex rel. Creech v. Melnik, 147 N.C.App. 471, 475, 556 S.E.2d 587, 590 (2001) (citing Freeman v. Bridger, 49 N.C. 1 (1856)). The rule is based on the theory that minors do not have contractual capacity. Nationwide Mut. Ins. Co. v. Chantos, 293 N.C. 431, 443, 238 S.E.2d 597, 605 (1977). “[B]ecause a minor lacks legal capacity there cannot be a valid contract in most transactions, unless it is for necessaries or the statutes make the contract valid.” Creech, 147 N.C.App. at 477, 556 S.E.2d at 591. Accordingly, contracts entered into by a minor, except those for necessities or authorized by statute, are voidable at the election of the minor, and may be disaffirmed. Id. (citing Jackson v. Beard, 162 N.C. 105, 78 S.E. 6 (1913)). Having disaffirmed the waiver by filing complaint, Morgan Kelly's own contract purporting to waive her personal injury claims is not enforceable. Therefore, the seventh affirmative defense, to the extent it reaches the actions of minor plaintiff Morgan Kelly, is clearly invalid as a matter of law and therefore insufficient. See Spell, 591 F.Supp. at 1112. For this reason, the court allows plaintiff's motion to strike the seventh affirmative defense as it pertains to any waiver by Morgan Kelly.

The question now turns on whether, under North Carolina law, a liability waiver signed by a parent on behalf of a minor child ⁵ is enforceable, or whether such a waiver is unenforceable as contrary to a substantial public interest under the third Waggoner factor.⁶ The parties agree that there is no controlling precedent, and the court similarly is unaware of any. The court therefore must forecast how the North Carolina Supreme Court would rule on the question. See Liberty Mut. Ins. Co. v. Triangle Indus., 957 F.2d 1153, 1156 (4th Cir.1992) (holding that where state law is unclear, federal courts must predict the decision of the state's highest court). Because no North Carolina case or statute directly addresses the issue, the court turns to the law of other jurisdictions for persuasive guidance. Each party relies on a series of decisions from other...