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Kelly v. United States

United States District Court for the Eastern District of North Carolina, Southern Division

August 10, 2011, Decided; August 11, 2011, Filed

NO. 7:10-CV-172-FL

Opinion

 [*431]  ORDER

This matter comes before the court on plaintiffs' motion to strike affirmative defenses  [*432]  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  [**2] 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

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809 F. Supp. 2d 429 *; 2011 U.S. Dist. LEXIS 89741 **

MORGAN KELLY; PAMELA KELLY; and TERRY KELLY, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.

Subsequent History: Motion granted by, in part, Motion denied by, in part Kelly v. United States, 281 F.R.D. 270, 2012 U.S. Dist. LEXIS 34291 (E.D.N.C., 2012)

Motion granted by, Stay granted by Kelly v. United States, 2013 U.S. Dist. LEXIS 188609 (E.D.N.C., Mar. 28, 2013)

Magistrate's recommendation at Kelly v. United States, 2013 U.S. Dist. LEXIS 136734 (E.D.N.C., Aug. 30, 2013)

Dismissed by, in part Kelly v. United States, 2014 U.S. Dist. LEXIS 114376 (E.D.N.C., Aug. 18, 2014)

Summary judgment granted by Kelly v. United States, 2014 U.S. Dist. LEXIS 135289 (E.D.N.C., Sept. 25, 2014)

CORE TERMS

bind, pre-injury, school-sponsored

Civil Procedure, Pleading & Practice, Motion Practice, General Overview, Defenses, Demurrers & Objections, Motions to Strike, Military & Veterans Law, Tort Liability, Torts, Federal Tort Claims Act, Exclusions From Liability, Business & Corporate Compliance, Contracts Law, Contract Conditions & Provisions, Exculpatory Clauses, Contracts Law, Contract Interpretation, Defenses, Exculpatory Clauses, Types of Contracts, Releases, Preliminary Considerations, Federal & State Interrelationships, Erie Doctrine, Liability, Contract Formation, Capacity of Parties, Minors, Bargaining Power, Special Relationships, Settlements, Releases From Liability, Validity