McIntosh v. Cub Crafters, Inc.
| Decision Date | 19 February 2014 |
| Docket Number | No. CV-13-3004-EFS,CV-13-3004-EFS |
| Court | U.S. District Court — District of Washington |
| Parties | SHIRLEY CAROLINE McINTOSH, Individually and as Guardian and Representative of M.M., D.M., T.M., and J.M., minors, Plaintiffs, v. CUB CRAFTERS, Inc., Defendant. |
This matter comes before the Court on Plaintiff Shirley McIntosh's Motion to Dismiss Defendant's Fourth Affirmative Defense, ECF No. 15, filed in her individual and representative capacity. Having reviewed the pleadings, the record in this matter, and applicable authority, the Court is fully informed. For the reasons set forth below, Plaintiffs' motion is granted in part and denied in part.
On April 23, 2011, Plaintiff Shirley McIntosh's husband, David McIntosh, was killed in the crash of a Cub Crafters Model CC11-160Carbon Cub (registered as N143FJ), a Light Sport Aircraft (LSA). The crash occurred at Everitt Airport in Parker, Colorado, during a sales demonstration flight, destroying the aircraft and killing Peter Vinton and David McIntosh. Peter Vinton, the pilot of the aircraft, was demonstrating the flight maneuvers and climb performance of the aircraft to Mr. McIntosh, a passenger in the aircraft.
On January, 24, 2013, Plaintiff, on behalf of herself and four minor children, filed a Complaint alleging negligence and wrongful death against Cub Crafters, Inc. ECF No. 1. On February 20, 2013, Defendant filed their Answer, alleging multiple affirmative defenses 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.
ECF No. 5 at 2. On June 4, 2013, the Court held a Scheduling Conference, and directed the parties to file any dispositive motions related to the preemption defense by August 5, 2013. ECF No. 10. On August 5, 2013, Defendant filed a memorandum further clarifying the Fourth Affirmative Defense but sought no specified relief. ECF No. 14. On August 15, 2013, Plaintiffs filed a Response and Motion to Dismiss arguing that preemption does not apply and concluding that theFourth Affirmative Defense should be dismissed.2 ECF No. 15. On September 5, 2013, Defendant filed a response to the motion to dismiss, ECF No. 16, and subsequently, the Court permitted Plaintiffs to file a reply, ECF No. 20, which was filed on September 24, 2013, ECF No. 21.
Plaintiffs moves to dismiss Defendant's Fourth Affirmative Defense which asserts that the claims in the Complaint are preempted by federal law. However, the parties' briefing is completely devoid of citation to the standard for the relief sought. While Plaintiffs' motion is captioned as a "Motion to Dismiss" and concludes that "Defendant's Affirmative Defense No. 4 should be dismissed," the brief also argues that "federal preemption does not apply to this litigation, and Defendant's Affirmative Defense No. 4 (federal preemption) must be stricken" and that "[u]nder Ninth Circuit precedent, Defendant's defense would be stricken." ECF No. 15. Accordingly, the briefing is unclear if Plaintiffs seek relief pursuant to Federal Rules of Civil Procedure 12(b)(6) or 12(f). However, having reviewed Plaintiffs' motion and the applicable authority, the Court finds the motion should be treated as a motion to strike. Compare Rutman Wine Co. v. E.&J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987) () with Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc.,677 F.2d 1045, 1057 (5th Cir. 1982) () and Old Dutch Farms, Inc. v. Milk Drivers & Dairy Emp. Local Union No. 584, 281 F. Supp. 971, 976 (E.D.N.Y. 1968) ()
Rule 12(f) of the Federal Rules of Civil Procedure allows the court to strike from "any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." The purpose of a Rule 12(f) motion is to avoid the costs that arise from litigating spurious issues by dispensing with those issues prior to trial. Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Rule 8(c) of the Federal Rules of Civil Procedure determines whether the pleading of an affirmative defense is "sufficient." See Wyshak v. City National Bank, 607 F.2d 824, 827 (9th Cir. 1979). A defense may be found "insufficient" as a matter of pleading or as a matter of substance. With respect to substantive insufficiency, a motion to strike an affirmative defense is proper "when the defense is insufficient as a matter of law." See Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982).
Federal law may preempt state law in three ways. First, "Congress may withdraw specified powers from the States by enacting a statute containing an express preemption provision." Arizona v. United States, 132 S.Ct. 2492, 2500-01 (2012). Second, "States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance." Id. at 2501. Finally, "state laws are preempted when they conflict with federal law." Id. Regardless of the type of preemption involved — express, field, or conflict — "[t]he purpose of Congress is the ultimate touchstone of pre-emption analysis." Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992) (internal quotation marks omitted).
Recently, in Gilstrap, the Ninth Circuit reviewed the issues of field preemption under the Federal Aviation Act (Act). Gilstrap v. United Air Lines, Inc., 709 F.3d 995, 1004 (9th Cir. 2013). In Gilstrap, the Ninth Circuit recognized that "federal law generally establishes the applicable standards of care in the field of aviation safety." Id. at 1005 (citations omitted) (emphasis in original). The court then adopted the Third Circuit's division of the Act's field preemptive effect into two components, the Id. at 1006. Accordingly, the Ninth Circuit has established a two-part framework for evaluating field preemption. First, the Court must "ask whether the particular area of aviationcommerce and safety implicated by the lawsuit is governed by pervasive federal regulations." Id. Then, if pervasive federal regulations exist, "any applicable state standards of care are preempted . . . however, the scope of field preemption extends only to the standard of care." Id. "Local law still govern[s] the other negligence elements (breach, causation, and damages), as well as the choice and availability of remedies." Id. (citations omitted).
In Montalvo v. Spirit Airlines, 508 F.3d 464, 470 (9th Cir. 2007), the Ninth Circuit held that any state-imposed duty to warn airline passengers about risks of deep vein thrombosis was preempted by the FAA and its corresponding regulations. Id. at 471 (). The Ninth Circuit in Montalvo pointed to specific and comprehensive regulations governing the warnings and instructions given to airline passengers. See id. at 472-73; see also Gilstrap v. United Air Lines, Inc. , 709 F.3d 995, 1007 (9th Cir. 2013) (). By contrast, in Martin, the Ninth Circuit held that the Act did not preempt a state tort lawsuit involving aircraft stairs because, in contrast to the lengthy list of federal regulations on passenger warnings, "the only [federal] regulation on airstairs is that theycan't be designed in a way that might block the emergency exists." Martin ex rel. Heckman v. Midwest Express Holdings, Inc., 555 F.3d 806, 808, 812 (9th Cir. 2009).
Here, neither party has presented any claim of express or conflict preemption, accordingly, as to Defendant's Fourth Affirmative Defense, the Court looks to the Act's field preemptive effect utilizing Gilstrap's two-part framework.
Defendant's Fourth Affirmative Defense asserts preemption as to "the claims set forth in the Complaint." ECF No. 22. However, Plaintiffs correctly argue that there must be pervasive regulation as to each theory of liability asserted. ECF No. 15 at 4. In response, Defendant clarified that the Fourth Affirmative Defense "is directed only to this specific claim, paragraph 4.5a of the Complaint." ECF No. 16 at 6. Plaintiffs' Complaint at paragraph 4.5a asserts that Defendant was negligent in "failing to properly design, test, and approve the stall/spin characteristics of the accident aircraft." ECF No. 1 at 5-6. Accordingly,...
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