Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mitschke v. Gosal Trucking, Ltd.

United States District Court, D. Nevada

October 7, 2014

VIRGINIA MITSCHKE, et al., Plaintiffs,
v.
GOSAL TRUCKING, LTD., et al., Defendants.

ORDER

CAM FERENBACH, Magistrate Judge.

This matter involves Virginia Mitschke's wrongful-death action against Gosal Trucking, Canadian Western Bank, and Samimi Saeed. Before the court are Defendants' Motion for a More Definite Statement (#30[1]) and Motion to Strike (#31). For the reasons stated below, Defendants' motions are denied.

BACKGROUND

Virginia and Richard Mitschke lived in Idaho and wanted to visit their daughter in California. (Compl. #1-1) at ¶ 12). On August 1, 2013, they packed up their 1997 Ford F-150 and headed through Nevada towards their destination. ( Id. ) While driving down Interstate 15, the Mitschke's vehicle was struck, became airborne, and landed on its wheels on a nearby embankment. ( Id. at ¶ 17). Richard later died. ( Id. at ¶ 25).

The cause: a Kenworth Aerocab semi-truck, driven by Samimi Saeed, collided with the Mitschke's vehicle from the adjacent lane. ( Id. at ¶ 16). As a result of the accident, Virginia and Richard incurred considerable medical expenses, lost wages, lost property, funeral expenses, loss of consortium, and emotional distress. ( See, e.g., id. at ¶¶ 27-29). Virginia commenced this action in May of 2014.

Defendants now contest a variety of the complaint's allegations. First, Defendants argue that Virginia "failed to properly plead [her] cause of action for negligence per se " because the complaint "is vague and ambiguous" and "does not set forth the specific statutory or ordinance violation for which Defendants are liable." (Def.'s Mot. (#30) at 4:5-6; 5:1-2). The heading for Virginia's negligence per se claim reads: "Negligence Per Se Violations of NRS 484B.223, NRS 484B.657 and Provisions of Federal Motor Carrier Safety Regulations contained in Title 49 of the Code of Federal Regulations." (Compl. #1-1) at ¶¶ 68, 72) (explicitly citing 49 C.F.R. 392.3). The factual allegations supporting these legal allegations state that Saeed failed to stay in his lane because he was sleepy. ( See id. at 70-72).

Second, Defendants argue that three of the complaint's allegations should be stricken because they are "immaterial, impertinent, and scandalous." (Def.'s Mot. (#31) at 4:9). Defendants move the strike the following:

38. There is pending before the Justice Court, North Las Vegas Township, Clark County, Nevada criminal case number 13MN0441X against Defendant for the criminal vehicular manslaughter of Richard and for the criminal failure to maintain a travel lane.
58. Upon information and belief, Defendants, and each of them, also breached the duty of care, by... immediately after the accident putting the tractor trailer back into service without preserving and maintaining evidence and data lawfully required to be maintained after the collision and by failing to follow all lawfully required procedures and protocols.
70. There is pending before the Justice Court, North Las Vegas Township, Clark County, Nevada criminal case number 13MN0441X against Defendant for the criminal vehicular manslaughter of Richard and for the criminal failure to maintain a travel lane.

This order follows.

LEGAL STANDARDS

Federal Rule of Civil Procedure 12(e) governs motions for a more definite statement. In pertinent part, it provides, "[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." The Honorable Miranda M. Du, U.S. District Judge, recently explained the purpose of Rule 12(e) motions, writing"

A motion for more definite statement pursuant to Rule 12(e) attacks the unintelligibility of the complaint, not simply the mere lack of detail. Courts will deny the motion if the complaint is specific enough to give notice to the defendants of the substance of the claim asserted. A Rule 12(e) motion should be granted only if the complaint is so vague or ambiguous that the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.