United States District Court, W.D. Virginia, Danville Division
JOHNNY E. DIX, Plaintiff,
CONSTRUCTION M PRODUCTS, INC., et al., Defendants.
JACKSON L. KISER SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff Johnny E. Dix’s
(“Plaintiff”) Motion to Strike Defendant
Construction M Products, Inc.’s (“CMP”)
Affirmative Defenses [ECF No. 55] and Motion to Strike
Defendant M & W Tool, LLC’s (“M&W”)
Affirmative Defenses [ECF No. 56]. The parties fully briefed
the issues and submitted the matter for decision without oral
argument. While the motions were pending, Plaintiff
voluntarily dismissed his claims against M&W.
(See Order, Aug. 18, 3016 [ECF No. 76].) Therefore,
the motion to strike M&W’s affirmative defenses
will be denied as moot. For the reasons stated herein, the
motion to strike CMP’s affirmative defenses will be
STATEMENT OF FACTS AND PROCEDURAL
to Plaintiff’s Third Amended Complaint, Plaintiff was
injured while using a roof seamer that CMP provided to a job
site on which Plaintiff was working. (Third Am. Compl. ¶
18, May 6, 2016 [ECF No. 52].) While in use by Plaintiff, the
roof seamer “ran out of control toward Plaintiff and
struck him, knocking him from a scaffolding. Plaintiff fell
to the ground, and suffered severe and permanent
injuries.” (Id. ¶ 25.)
asserts that the seamer “was designed, manufactured, or
modified so as to be defective and unreasonably dangerous in
several respects.” (Id. ¶ 22.) Plaintiff
filed suit against various defendants, including CMP, and
alleged breach of the implied warranty of merchantability
(id. ¶ 31), breach of the implied warranty of
fitness for a particular purpose (id. ¶ 35),
and failure to warn (id. ¶ 38).
Plaintiff’s Third Amended Complaint “remove[d]
all claims based on negligence.” (Pl.’s Mot for
Leave to Amend, May 4, 2016 [ECF No. 50].)
filed its Answer to the Third Amended Complaint on May 20,
2016 [ECF No. 53], and asserted that “Plaintiff assumed
he risk(s) of potential injury to himself while in operation
of the Roof Seamer” as an affirmative defense. (CMP
Ans. aff. def. B [ECF No. 53].) Plaintiff now moves to strike
that affirmative defense. (Mot. to Strike Ans. and Aff. Def.,
May 31, 2016 [ECF No. 55].) The parties briefed the issue and
submitted the Motion for decision without oral argument. The
matter is now ripe for disposition.
STANDARD OF REVIEW
Rule of Civil Procedure 12(f) permits a party to strike
“an insufficient defense” from a pleading.
Fed.R.Civ.P. 12(f). “[A] defense that . . . would not,
under the facts alleged, constitute a valid defense to the
action can and should be deleted.” 5C Charles Alan
Wright & Arthur R. Miller, Federal Practice and
Procedure: Civil § 1381 (3d ed. 2004). “To
prevail on a motion to strike, the movant must show that the
challenged material ‘has no bearing on the subject
matter of the litigation and that its inclusion will
prejudice the [plaintiff].’” Jackson v.
United States, No. 3:14-15086, 2015 WL 5174238, at *1
(S.D. W.Va. Sept. 2, 2015) (quoting 2-12 Moore’s
Federal Practice § 12.37 at 12 (3d ed. 2009)).
On a motion to strike any part of a pleading, “the
court must view the pleading under attack in a light most
favorable to the pleader.” Clark v. Milam, 152
F.R.D. 66, 71 (S.D. W.Va. 1993).
parties agree that Virginia law governs this dispute but
disagree as to whether “assumption of the risk”
is a valid defense to Plaintiff’s breach of warranties
claims. Contrary to CMP’s argument, the Supreme Court
of Virginia has plainly declared that “the tort or
ex delicto defense of assumption of the risk is not
applicable in an action for breach of an implied
warranty.” Wood v. Bass Pro Shops, 462 S.E.2d
101, 103 (Va. 1995), see also Coker v. Louisville Ladder,
Inc., No. 4:08cv113, 2009 WL 2870030, at *3 (4th Cir.
May 26, 2009) (citing Wood v. Bass Pro Shops, Inc.,
462 S.E.2d 101, 103 (Va. 1995)); Hodges v. Fed.-Mogul
Corp., No. 7:12-cv-00362, 2015 WL 9460567, at *6 n.5
(W.D. Va. Dec. 23, 2015). CMP’s arguments against the
holding in Wood rely on cases decided prior to
Wood, see, e.g., Walker v. Caterpillar
Indus., Nos. 93-2388, 93-2482, 1994 U.S. App. LEXIS
20301, at *10 n.3 (4th Cir. Aug. 4, 1994); Lust v. Clark
Equip. Co., 792 F.2d 436, 440 (4th Cir. 1986), and which
were functionally overturned by the Virginia Supreme
Court’s definitive holding. Therefore, it is clear that
the defense of “assumption of the risk”
“has no bearing on the subject matter of the
litigation, ” 2-12 Moore’s Federal
Practice, supra, § 12.37, and should be
stricken. CMP’s argument that Wood “does
not stand for Plaintiff’s proposition that an
assumption of the risk defense is insufficiently pled or
results in any prejudice to the Plaintiff” misconstrues
both Wood and Plaintiff’s argument.
Wood’s holding is clear; Virginia law no
longer recognizes assumption of the risk as a valid defense
in breach of implied warranty actions.
Virginia law does not recognize CMP’s affirmative
defense in a breach of implied warranty action, it should and
will be stricken.
clerk is directed to forward a copy of this Memorandum
Opinion and ...