Byrd et al v. Consolidation Coal Company et al

BRIEF in Support re Motion to Dismiss

W.D. Pa.March 24, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA __________________________________________________________________________ ARNOLD BYRD and TINA BYRD, husband : and wife, : Plaintiffs, : vs. : CASE NO.: 2:16-CV-01542 CONSOL PENNSYLVANIA COAL : COMPANY LLC; CONSOL ENERGY INC.;: Chief Judge Joy Flowers Conti CNX COAL RESOURCES, LP; STRATA : PRODUCTS WORLDWIDE LLC; : CATERPILLAR INC.; RM WILSON : COMPANY; THIELE GMBH & COMPANY: KG; KWS INC.; JOHN AND JANE DOES 1 : THROUGH 10, JOHN DOE : CORPORATIONS 1 THROUGH 10 AND : OTHER JOHN DOE ENTITIES 1 : THROUGH : 10, : Defendants, : : Electronically Filed : : ______________________________________________________________________________ BRIEF IN SUPPORT OF MOTION TO DISMISS AMENDED COMPLAINT, OR, ALTERNATIVELY, MOTION FOR A MORE DEFINITIVE STATEMENT, AND MOTION TO STRIKE AND NOW, comes the Defendant, Strata Products Worldwide LLC (hereinafter “Strata”), by and through its counsel, Marshall Dennehey Warner Coleman & Goggin, Stuart H. Sostmann, Esquire, and Gregory P. Graham, Esquire, and sets forth the following Brief in Support of Motion to Dismiss Amended Complaint, or, Alternatively, Motion for a More Definitive Statement, and Motion to Strike: I. STATEMENT OF FACTS The Plaintiffs, Arnold Byrd and Tina Byrd, husband and wife, (hereinafter "Plaintiffs") commenced this civil action against the following defendants: Consol Pennsylvania Coal Company LLC; Consol Energy Inc.; CNX Coal Resources (collectively referred to hereinafter "Consol"); Strata; Caterpillar Inc. (hereinafter "Caterpillar"); R.M. Wilson Company (hereinafter Case 2:16-cv-01542-JFC Document 49 Filed 03/24/17 Page 1 of 16 2 "R.M. Wilson"); Thiele GmbH & Company KG; KWS Inc.; John and Jane Does 1 through 10; John Doe Corporations 1 through 10; and Other John Doe Entities 1 through 10. See Amended Complaint, generally. This matter arises from an incident that occurred at the Enlow Fork mine on or about December 28, 2014. Id. at ¶ 26. Specifically, Plaintiffs aver that on December 28, 2014, Plaintiff Arnold Byrd (hereinafter "Plaintiff-Husband") was working at the Enlow Fork mine. Id. at ¶¶ 26-27. Plaintiffs allege that as Plaintiff-Husband operated a piece of underground mining equipment, which Plaintiffs refer to as a "long wall machine," a chain that was a part of the machine broke off and struck Plaintiff-Husband in the groin. Id. at ¶¶ 26-28, 30-31. As a result of the incident, Plaintiffs contend that Plaintiff-Husband was injured. Id. at ¶¶ 31-32. Plaintiffs aver that they are citizens of the Commonwealth of Pennsylvania. See Amended Complaint at ¶¶ 10-11. Plaintiffs allege that Strata, Caterpiller, R.M. Wilson, and KWS Inc. are "located" in other states excluding Pennsylvania, and that Thiele GmbH & Company KG is "located" in Iserlohn, Deutschland. See Id. at ¶¶ 16-19. However, Plaintiffs contend that Consol are "Delaware corporation[s] with a principle (sic) address of 1000 Consol Energy Drive, Washington County, Canonsburg, Pennsylvania 1531." Id. at ¶¶ 12-14. Plaintiffs filed a Complaint on or about October 7, 2016, and subsequently filed an Amended Complaint on or about December 5, 2016. In the Amended Complaint, Plaintiffs raise two (2) different negligence claims (Count 1 and Count 2), a strict liability claim (Count 3), and a loss of consortium claim (Count 4). See Amended Complaint at ¶¶ 67-171. In addition to other damages, Plaintiffs also request punitive damages. Id. at ¶¶ 112, 133, 171, 175. With regard to Strata, Plaintiffs only specifically name Strata in the negligence claim at Count 1 and the loss of consortium claim at Count 4. Id. at ¶¶ 67-112, 169-171. However, for the reasons set forth Case 2:16-cv-01542-JFC Document 49 Filed 03/24/17 Page 2 of 16 3 below, Plaintiffs claims should be dismissed with prejudice, or, in the alternative, Plaintiffs should be required to file a more definite statement. II. STANDARDS OF REVIEW A. Motion to Dismiss Pursuant to Rule 12(b)(1) A Rule 12(b)(1) motion to dismiss "addresses 'the very power [of the court] to hear the case.'" Kosicki v. Nationstar Mortg., LLC, 947 F. Supp. 2d 546, 551 (W.D. Pa. 2013) (quoting Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006)). If a court lacks subject matter jurisdiction, then it must grant a motion to dismiss pursuant to Rule 12(b)(1). Id. (citing In re Schering-Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235 (3d cir. 2012)). "The burden of establishing subject-matter jurisdiction in the district court lies with the party seeking to invoke the court's jurisdiction." Wahl v. George, 2010 U.S. Dist. LEXIS 77166, *6-7 (W.D. Pa. 2010) (citing KVOS, Inc. v. Associated Press, 299 U.S. 269, 278 (1936); Carpet Group Intern. V. Oriental Rug Imps. Ass'n, Inc., 227 F.3d 62, 69 (3d Cir. 2000); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)). In evaluating such a motion to dismiss, "a court must first determine whether the movant presents a facial or factual challenge." Kosicki, 947 F. Supp. 2d at 551 (citing In re Schering- Plough, supra). In a facial attack, the sufficiency of the pleading is challenged and the court must accept the plaintiff's allegations as true. Wahl, 2010 U.S. Dist. LEXIS 77166 at *7 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Cedars-Sinai Med. Center v. Watkins, 11 F.3d 1573, 1583 (Fed. Cir. 1993); 2 James Wm. Moore et al., Moore's Federal Practice § 12.3[4], at 12-45 to 46 (2010)); see also Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006). In contrast, a factual challenge challenges the factual basis of the court's subject matter jurisdiction. Wahl, 2010 U.S. Dist. LEXIS 77166 at *7 (citing Watkins, 11 F.3d at 1583-84). "In such a case, Case 2:16-cv-01542-JFC Document 49 Filed 03/24/17 Page 3 of 16 4 the allegations in the complaint are not controlling, . . . and only uncontroverted factual allegations are accepted as true for purposes of the motion." Id. at *8 (citing KVOS, 299 U.S. at 277-79; Trentacosta v. Frontier Pac. Aircraft Indus., Inc., 813 F.2d 1553, 159 (9th Cir. 1987); Gibbs v. Buck, 307 U.S. 66, 72 (1939); Watkins, 11 F.3d at 1583-84). "All facts underlying the controverted jurisdictional allegations are in dispute and are subject to fact-finding by the district court." Id. (citing Watkins, 11 F.3d at 1583-84). "Consequently, the court may 'consider affidavits, depositions, and testimony to resolve the factual issues bearing on jurisdiction.'" Kosicki, 947 F. Supp. 2d at 551 (quoting Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1997)). B. Motion to Dismiss Pursuant to Rule 12(b)(6) Pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed when it fails "to state a claim upon which relief can be granted." Fed.R.C.P. 12(b)(6). In reviewing a motion to dismiss, a court must "'accept all factual allegations as true, construe the complaint in light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). In order to "survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). "'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liability for the misconduct alleged.'" Connelly v. Lane Constr. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (quoting Iqbal, 556 U.S. at 678); see also Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010). Case 2:16-cv-01542-JFC Document 49 Filed 03/24/17 Page 4 of 16 5 To meet this obligation, Plaintiffs must allege more than "'mere labels and conclusions'" or "'a formulaic recitation of the elements of a cause of action.'" Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Twombly, 550 U.S. at 555; Phillips, 515 F.3d at 232). The “factual allegations must be enough to raise a right to relief above the speculative level” and “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Twombly, 550 U.S. at 555 (internal citations omitted). Conclusory or bare bones allegations will no longer survive a motion to dismiss, and "'threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'" Fowler, 578 F.3d at 210 (quoting Iqbal, 556 U.S. at 678). "[A] complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts." Fowler, 578 F.3d at 211 (citing Phillips, 515 F.3d at 234-35). A complaint does not meet this standard "'[w]here the well pleaded facts do not permit the Court to infer more than the mere possibility of misconduct, a Complaint has alleged – but it has not ‘show[n]’ – that the pleader is entitled to relief.'” Phillips, 578 F.3d at 211 (quoting Iqbal, 556 U.S. at 678). In reviewing the sufficiency of a complaint, a court must first "'tak[e] note of the elements [the] plaintiff must plead to state a claim.'" Connelly, 809 F.3d at 787 (quoting Iqbal, 556 U.S. at 675). Next, the court "should identify allegations that, 'because they are no more than conclusions, are not entitled to the assumption of truth.'" Id. (quoting Iqbal, 556 U.S. at 675; citing Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011)). Lastly, "'[w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.'" Id. (quoting Iqbal, 556 U.S. at 679). In other words, the court must separate the factual and legal elements, in which the Case 2:16-cv-01542-JFC Document 49 Filed 03/24/17 Page 5 of 16 6 court must accept all of the complaint's well-pleaded facts as true while disregarding any legal conclusion. Fowler, 578 F.3d at 210-11. C. Motion for More Definite Statement Pursuant to Rule 12(e), "[a] party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response." Fed.R.C.P. 12(e). "Rule 12(e) is part of the 'district court's case-management arsenal,' . . . that, in conjunction with the rest of Rule 12 and Rule 8, serves to 'frame and govern [the] court's assessment of the quality of a pleading.'" Garrett v. Wexford Health, 2016 U.S. Dist. LEXIS 92226, *10 (W.D. Pa. 2016) (quoting Twombly, 550 U.S. at 593 n.13; Sony BMG Music Entm't v. Cloud No. 08-1200, 2008 U.S. Dist. LEXIS 64373, *2 (E.D. Pa. 2008)). To fall within the scope of Rule 12(e), "'the pleading must be sufficiently intelligible for the court to be able to make out one or more potentially viable legal theories on which the claimant might proceed.'" Gregg v. Lonestar Transp., LLC, 2015 U.S. Dist. LEXIS 27680, *7 (W.D. Pa. 2015) (quoting Sun Co., Inc. (R&M) v. Badger Design & Constructors, Inc., 939 F.Supp. 365 (E.D. Pa. 1996)). This motion is appropriate when the pleading is so vague or ambiguous that the answering party will not be able to frame a responsive pleading. Id. at *7-8 (citing Schaedler v. Reading Eagle Publications, Inc., 370 F.2d 795 (3d Cir. 1967)). D. Motion to Strike Federal Rule of Civil Procedure 12(f) states that "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.C.P. 12(f). "'The purpose of a motion to strike is to clean up the pleadings, streamline litigation, and avoid unnecessary forays into immaterial matters.'" Zaloga v. Provident Live & Accident Ins. Co. of Am., 671 F. Supp. 2d 623, 633 (M.D. Pa. 2009) (quoting McInerney v. Case 2:16-cv-01542-JFC Document 49 Filed 03/24/17 Page 6 of 16 7 Moyer Lumber & Hardware, Inc., 244 F. Supp. 2d 393, 402 (E.D. Pa. 2002)). Such motions are decided on the pleadings alone and are vested in the district court's discretion. Id. (citing Hanover Ins. Co. v. Ryan, 619 F. Supp. 2d 127, 132 (E.D. Pa. 2007); Snare & Triest v. Friedman, 169 F. 1, 6 (3d Cir. 1909); BJC Heath System v. Columbia Cas. Co., 478 F.3d 908, 917 (8th Cir. 2007)). III. ARGUMENT A. This Honorable Court Lacks of Subject Matter Jurisdiction In the Amended Complaint, Plaintiffs aver that this Honorable Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332, as "there is diversity of citizenship and an amount of controversy greater than $75,000.00." See Amended Complaint at ¶ 23. However, Plaintiffs fail to plead complete diversity in the Amended Complaint. Pursuant to Section 1332(a), "[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . [c]itizens of different States." 28 U.S.C. § 1332(a)(1). "[A] corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business." Id. at § 1332(c)(1). A corporation's principal place of business is its "nerve center," which is the place "where the corporation maintains its headquarters—provided that the headquarters is the actual center of direction, control, and coordination . . . and not simply an office where the corporation holds its board meetings (for example, attended by directors and officers who have traveled there for the occasion)." Hertz Corp. v. Friend, 559 U.S. 77, 92-93 (2010). Furthermore, "[a] corporation's 'nerve center,' usually its main headquarters, is a single place . . . And it is a place within a State." Id. at 93. Case 2:16-cv-01542-JFC Document 49 Filed 03/24/17 Page 7 of 16 8 Jurisdiction pursuant to Section 1332(a) "requires 'complete diversity,' meaning that 'no plaintiff can be a citizen of the same state as any of the defendants.'" Johnson v. Smithkline Beecham Corp., 724 F.3d 337, 346(3d Cir. 2013) (quoting Grand Union Supermarkets of the V.I., Inc. v. H.E. Lockhart Mgmt., 316 F.3d 408, 410 (3d Cir. 2003)). Additionally, "[i]t is well established that 'the basis upon which jurisdiction depends must be alleged affirmatively and distinctly and cannot 'be established argumentatively or by mere inference.'" S. Freedman & Co. v. Raab, 180 Fed. Appx. 316, 320 (3d Cir. 2006) (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1206, at 78-79). In the Amended Complaint, while Plaintiffs aver that Consol are Delaware corporations, they fail to allege any facts that Consol's principal place of business is located in Delaware. See Amended Complaint at ¶¶ 12-14. Instead, Plaintiffs contend that Consol have a "princip[al] address of 1000 Consol Energy Drive, Washington County, Canonsburg, Pennsylvania 15317." Id. Thus, on the face of the Amended Complaint, complete diversity is lacking. Additionally, Plaintiffs and Consol are currently engaging in limited factual discovery regarding subject matter jurisdiction, which is to be completed on or before April 15, 2017. See ECF No. 32, 44. Consol has maintained that their headquarters is located in Canonsburg, Pennsylvania. See ECF No. 43. As such, Consol contends that its nerve center and principal place of business is in Pennsylvania. If this Honorable Court holds that Consol's principal place of business is in Pennsylvania, then complete diversity is destroyed. Therefore, Plaintiffs' Amended Complaint should be dismissed. B. The Amended Complaint Fails to State Claims Upon Which Relief can be Granted i. Plaintiffs fail to state a negligence claim against Strata In Count 1 of the Amended Complaint, Plaintiffs appear to raise a negligence claim against a number of defendants, including Strata. See Amended Complaint at ¶¶ 67-112. Case 2:16-cv-01542-JFC Document 49 Filed 03/24/17 Page 8 of 16 9 However, the vague and at times redundant paragraphs of Count 1 are difficult to understand, and the exact duties Strata allegedly owed Plaintiff-Husband and alleged breaches of these duties by Strata are unclear.1 Federal courts sitting in diversity jurisdiction must apply the substantive law of the state in which it sits. Kester v. Zimmer Holdings, Inc., 2010 U.S. Dist. LEXIS 59869, *14 (W.D. Pa. 2010) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); see also Griggs v. Bic Corp., 981 F.2d 1429, 1431 (3d Cir. 1992). Accordingly, Pennsylvania law must be applied to Plaintiffs' claims. Pursuant to Pennsylvania law, it is axiomatic that the elements of a negligence cause of action are: (1) existence of a duty; (2) a breach of that duty; (3) a causal relationship between the breach and the resulting injury; and (4) actual loss. Wright v. Eastman, 63 A.3d 281, 284 (Pa. Super. 2013). However, "the primary element in any negligence cause of action is that the defendant owes a duty of care to the plaintiff." Althaus v. Cohen, 756 A.2d 1166, 1168 (Pa. 2000). As such, unless there is a duty, "'there can be no cause of action based upon negligence.'" Minnich v. Yost, 817 A.2d 538, 541 (Pa. Super. 2000) (quoting J.E.L. v. Tri- County Big Brothers/Big Sisters, Inc., 692 A.2d 582 (Pa. Super. 1997)). In determining whether a common law duty exists in a particular case, the following Althaus factors must be balanced: (1) The relationship between the parties; (2) The social utility of the actor's conduct; (3) The nature of the risk imposed and the foreseeability of the harm incurred; (4) The consequences of imposing a duty upon the actor; and (5) The overall public interest in the proposed solution. Althaus v. Cohen, 756 A.2d 1166, 1169 (Pa. 2000). 1 In the interest of brevity, not all of the numerous defects of the Amended Complaint are discussed at length in this Brief in Support. Instead, only a few examples with be specifically set forth herein. Case 2:16-cv-01542-JFC Document 49 Filed 03/24/17 Page 9 of 16 10 Here, Plaintiffs failed to aver facts as to of two (2) of elements of a negligence cause of action. First, Plaintiffs failed to plead sufficient facts of the alleged duty of care owed by Strata to Plaintiff-Husband. Plaintiffs merely aver that Strata conducted "business" at the Enlow Fork mine. See Amended Complaint at ¶ 27. Plaintiffs also generally aver that Strata, along with other Defendants, directed Plaintiff-Husband to use and operate the subject machine without "adequate training" or following rules and regulations. Id. at ¶¶ 53-55, 60, 65. Additionally, Plaintiffs allege that Strata failed to properly produce, design, manufacture, and repair the subject machine. Id. at ¶¶ 56-59. Yet, these allegations are at odds with each other. Plaintiffs do not allege any facts regarding the type of relationship Plaintiff-Husband had with Strata. There are no facts alleged regarding what Strata's alleged role was at the Enlow Fork mine or how it was specifically involved with the subject long wall machine. Additionally, Count 1 sets forth a large number of alleged duties owed to Plaintiff- Husband, but Plaintiffs fail to differentiate between the different Defendants in this matter. Instead, Plaintiffs merely lump all the Defendants into one vague and general term, "Defendants". Thus, it is impossible to understand and discern which alleged duties are specifically associated with Strata. There are no facts as to how these alleged duties arose and why Strata owes any duty to Plaintiff-Husband. Further, Plaintiffs also claim that the "Defendants" owned and/or maintained the property where the alleged incident occurred. Id. at ¶ 44. As such, it is unclear whether Plaintiffs are raising a premises liability claim against Strata. The averments of the Amended Complaint are nothing more than mere accusations that suggest only the mere possibility of misconduct. Additionally, it is also unclear how Strata allegedly breached any duty of care owed to Plaintiff-Husband. For example, in Count 1, Plaintiffs aver that "all Defendants owed to Case 2:16-cv-01542-JFC Document 49 Filed 03/24/17 Page 10 of 16 11 Plaintiff[-Husband], a duty to follow all policies and procedure set up by [Strata], which would protect Plaintiff[-Husband]." Id. at ¶ 93. If this averment is taken to be true, then it serves as an admission by Plaintiffs that Strata did enact policies and procedures to protect Plaintiff-Husband. In Count 1, Plaintiffs once again failed to differentiate between Defendants, but instead set forth a vast number of alleged "failures" and breaches on the part of the "Defendants". Id. at ¶¶ 106(a)-(jjjj). Again, it is impossible to understand and discern specifically how Strata breached any alleged duties owed to Plaintiff-Husband and what specific actions or inactions of Strata resulted in these alleged breaches. It is unclear what connection, if any, Strata has to the alleged injuries of Plaintiff-Husband. The general averments of the Amended Complaint are nothing more than "threadbare recitals" and fall short of the requisite plausibility pleading standard. The averments do not allow this Honorable Court to draw any reasonable inferences that Strata is liable for the misconduct alleged. Plaintiffs have failed to show that they are entitled to relief due to any conduct on the part of Strata. Therefore, Plaintiffs' negligence claim at Count 1, as to Strata, should be dismissed with prejudice. ii. If Strata is an employer of Plaintiff-Husband, as averred in the Amended Complaint, then Plaintiffs' claims against Strata must be dismissed Pursuant to the Pennsylvania Workers' Compensation Act, 77 P.S. § 481, an employer is immune from suit by its employee. Furthermore, an employer is immune from suit if it is a "statutory employer," pursuant to Sections 461 and 462, or if the employee-plaintiff is a "borrowed servant" under the Pennsylvania common law. See JFC Temps v. WCAB, 680 A.2d 862 (Pa. 1996). In the Amended Complaint, Plaintiffs aver that the "Defendant(s) identified in paragraphs 3 through 22 of this Amended Complaint was/were Plaintiff[-Husband's] General Contractor, Case 2:16-cv-01542-JFC Document 49 Filed 03/24/17 Page 11 of 16 12 Sub-Contractor, and/or Employer." See Amended Complaint at ¶ 45. As Strata is listed as a party in Paragraph 16 of the Amended Complaint, it falls within the group of Defendants Plaintiffs designate as "General Contractor, Sub-Contractor, and/or Employer" of Plaintiff- Husband. Additionally, Plaintiffs also aver that Strata "directed" Plaintiff-Husband to use the subject machine. See Id. at ¶ 53. Thus, as pleaded in the Amended Complaint, Strata is immune from tort liability, and any claims against Strata must be dismissed with prejudice.2 C. In the Alternative, Plaintiffs Should be Ordered to File a More Definite Statement Plaintiffs' Amended Complaint contains numerous pleading deficiencies and errors that make it impossible for Strata to properly respond. Throughout the Amended Complaint Plaintiffs fail to differentiate between the different Defendants in this matter and merely lump all the Defendants into one vague and general term, "Defendants". For example,3 in the Factual Background section of the Amended Complaint, Plaintiffs generally aver the following:  "Defendants" directed Plaintiff-Husband to use the subject machine;  "Defendants" were the "General Contractor, Sub-Contractor, and/or Employer" of Plaintiff-Husband;  Plaintiff-Husband was injured due to the action and/or inaction of "Defendants";  "Defendants" undertook the supervision of the subject machine; and  "Defendants" took no action to protect Plaintiff-Husband. See Amended Complaint at ¶¶ 38-41, 45, 48-49, 62-63. Additionally, as set forth in Section III(B), it is impossible to understand and discern what alleged duties Strata owed Plaintiff- Husband and specifically how Strata breached these alleged duties. In Count I, Plaintiffs merely 2 While Plaintiffs argue in their Brief in Opposition to Consol's Motion to Dismiss that Plaintiff-Husband was only an employee of GMS Mining, this is completely at odds with the averments of their Amended Complaint. 3 In the interest of brevity, not all of the numerous defects of the Amended Complaint are discussed at length in this Brief in Support. Instead, only a few examples with be specifically set forth herein. Case 2:16-cv-01542-JFC Document 49 Filed 03/24/17 Page 12 of 16 13 set forth numerous alleged duties and breaches of these duties by the "Defendants". See Id. at ¶¶ 67-112. In these averments of Count 1, Plaintiffs completely fail to ever specifically name Strata. Use of the term "Defendants" makes it impossible to parse out and determine which allegations relate to a particular party and forces Strata to speculate as to which allegations are aimed at it. Additionally, while Strata is not specifically named as a defendant in the strict products liability claim at Count 3, throughout the Amended Complaint Plaintiffs aver that Strata "sold, refurbished, and/or repaired" and "produce, design and/or manufacture" the subject long wall machine. Id. at ¶¶ 29, 57-59. It is unclear whether Plaintiffs are attempting to raise a strict products liability claim against Strata, and Strata is forced to guess and speculate as to the meaning and intent of these allegations. Importantly, it is unclear what legal theories are specifically raised against Strata. Furthermore, the Amended Complaint refers to a "decedent" a number of times, when in fact Plaintiffs never alleged that a fatality occurred as a result of the alleged incident. Id. at ¶¶ 103, 104(ww), 128. Therefore, the Amended Complaint is so vague and ambiguous that Strata cannot reasonably prepare a response, and Plaintiffs should be ordered to file a more definite statement. D. Plaintiffs' Claims for Punitive Damages and Attorneys' Fees Should be Stricken From the Amended Complaint i. Punitive Damages In the Amended Complaint, Plaintiffs request punitive damages. See Amended Complaint at ¶¶ 112, 133, 171, 175. The function of punitive damages "is to deter and punish egregious behavior." Martin v. Johns-Manville Corp., 494 A.2d 1088, 1096 (Pa. 1985), rev'd on other grounds sub nom. Pennsylvania courts have adopted Section 908(2) of Restatement Case 2:16-cv-01542-JFC Document 49 Filed 03/24/17 Page 13 of 16 14 (Second) of Torts as a general guide for the imposition of punitive damages. Feld v. Merriam, 485 A.2d 742, 747 (Pa. 1984); Martin, 494 A.2d at 1096. Section 908(2) states: 'Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant's act, the nature and the extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.' Martin, 494 A.2d at 1096 (quoting Restatement (Second) of Torts, § 908(2)). "The state of mind of the actor is vital. The act, or the failure of the act, must be intentional, reckless or malicious." Feld, 485 A.2d at 748. The "application of the risk is a necessary element of the mental state required for the imposition" of punitive damages. Martin, 494 A.2d at 1097. Punitive damages, therefore, "are awarded only for outrageous conduct, that is, for acts done with bad motive or with a reckless indifference to the interests of others." Martin, 494 A.2d at 1097-98. Accordingly, "[p]unitive damages may not be awarded for misconduct which constitutes ordinary negligence such as in advertence, mistake and errors of judgment." Martin, 494 A.2d at 1097 (citing Restatement (Second) of Torts, § 908 cmt. b). Further, a showing of gross negligence is not enough to warrant punitive damages. Hutchison v. Luddy, 870 A.2d 766, 772 (Pa. 2005); Martin, 494 A.2d at 1098. Here, Plaintiffs failed to plead any facts in the Amended Complaint sufficient to warrant an award of punitive damages against Strata. Plaintiffs raise a claim for punitive damages against all Defendants without any sort of meaningful distinction or particularity. Again, Plaintiffs simply lump all Defendants under the general term "Defendants" and set forth general, vague and bald averments that the "Defendants" and their conduct were reckless, careless, wanton, willful misconduct, outrageous, and/or intentional. See Amended Complaint at ¶¶ 65- 66, 104-06, 126-27, 150. There are absolutely no facts pleaded as to the mental state of Strata. Case 2:16-cv-01542-JFC Document 49 Filed 03/24/17 Page 14 of 16 15 There are also no facts pleaded that Strata had a subjective appreciation of the risk of harm that Plaintiff-Husband was allegedly exposed to or that Strata acted, or failed to act, in conscious disregard of that risk. Plaintiffs' allegations are simply not sufficient to support a claim for punitive damages. Furthermore, at best, Plaintiffs' averments merely allege negligent conduct, which is not enough to warrant punitive damages. As such, Plaintiffs' claims for punitive damages should be stricken and dismissed from the Amended Complaint. ii. Attorneys' Fees In the Amended Complaint, Plaintiffs request attorneys' fees and costs of the suit. See Amended Complaint at ¶¶ 171, 177. In determining whether to award attorneys' fees, Pennsylvania courts follow the "American Rule." Pursuant to the "American Rule," the "parties to litigation are responsible for their own counsel fees, unless otherwise provide by statutory authority, agreement of parties, or some other recognized exception." Lewis v. Delp Family Powder Coatings, Inc., 2011 U.S. Dist. LEXIS 34908, *12-13 (W.D. Pa. 2011). Here, there are absolutely no allegations in the Amended Complaint that Strata agreed to pay for Plaintiffs' attorneys' fees. While Pennsylvania statute does provide for attorneys' fees in limited well-defined circumstances, 42 Pa.C.S. § 2503, Plaintiffs failed to plead that this statute is applicable in this case. Additionally, Plaintiffs have not pleaded any exceptions to the "American Rule" that permit a claim for attorneys' fees in this case. Therefore, Plaintiffs are not entitled to attorneys' fees and this claim should be stricken and dismissed from the Amended Complaint. Case 2:16-cv-01542-JFC Document 49 Filed 03/24/17 Page 15 of 16 16 IV. CONCLUSION For all the foregoing reasons, Plaintiffs claims should be dismissed, or, in the alternative, Plaintiffs should be required to file a more definite statement. Additionally, Plaintiffs' claims for punitive damages should be stricken and dismissed from the Amended Complaint. Respectfully submitted, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN DATE: March 24, 2017 BY: /s/ Stuart H. Sostmann STUART H. SOSTMANN, ESQUIRE PA ID #84065 GREGORY P. GRAHAM, ESQUIRE PA ID#317205 Lead Attorneys for Defendant, Strata Products Worldwide LLC US Steel Tower, Suite 2900 600 Grant Street Pittsburgh, PA 15219 (412) 803-1140/(412) 803-1188/fax shsostmann@mdwcg.com gpgraham@mdwcg.com Case 2:16-cv-01542-JFC Document 49 Filed 03/24/17 Page 16 of 16