                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
__________________________________
                                   )
LISA CARSON MOORE,                 )
                                   )
            Plaintiff,             )
                                   )
      v.                           )    Civil Action No. 17-1036 (RMC)
                                   )
UNITED STATES OF AMERICA           )
                                   )
            Defendant.             )
_________________________________  )

                                  MEMORANDUM OPINION

               Plaintiff Lisa Moore was a pedestrian crossing a street in the District of Columbia

when she was stuck by a car driven by a United States Marshals Service employee. She has sued

to recover for her damages and the United States has advanced an affirmative defense of

contributory negligence. Ms. Moore moves to strike the affirmative defense, arguing that it is no

longer available under the Motor Vehicle Collision Recovery Act of 2016 (MVCRA), D.C. Code

§ 50-2204.51, et seq., and that, as pled, the affirmative defense fails to satisfy the heightened

pleading standard that D.C. requires. The United States responds that the MVCRA does not

apply retroactively, and that even if it did, discovery will likely demonstrate that Ms. Moore was

more than 50% negligent, which would bar her recovery under the MVCRA. The motion is now

ripe for decision.

                                      I.   BACKGROUND

               On December 29, 2014, Ms. Moore was struck by a United States Marshals

Service vehicle operated by employee Willard Thomas King while Ms. Moore was crossing the

street in the vicinity of 3rd and E streets, Northwest, in Washington, D.C. Thereafter, D.C.

adopted the MVCRA, which became effective on November 26, 2016. See D.C. Law 21-167,


                                                  1
Act 21-490 (2016). The statute shifts D.C. law from a contributory to a comparative negligence

regime for collisions between automobiles and pedestrians, bicyclists, and other non-motorized

users of public streets, such as skateboards. On May 31, 2017, Ms. Moore filed a complaint

comprising claims under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671, et seq., and

alleging that she sustained bodily injury, pain and suffering, lost wages, medical expenses, and

other damages as a result of Mr. King’s negligence. Compl. [Dkt. 1]. In its Answer, filed on

September 27, 2017, the United States pled the affirmative defense of contributory negligence,

alleging that Ms. Moore was not lawfully crossing the street at the time of the incident and

denying that Mr. King was negligent in any way. Answer [Dkt. 7] at 1, 3. Ms. Moore moved to

strike the affirmative defense on October 11, 2017. She argues that the Court should apply the

MVCRA retroactively and bar the government’s affirmative defense. She also challenges the

adequacy of the affirmative defense as pled to meet a heightened pleading standard required in

D.C.1

                                  II.   LEGAL STANDARD

               “The decision to grant or deny a motion to strike is vested in the trial judge’s

sound discretion.” Gates v. District of Columbia, 825 F. Supp. 2d 168, 169 (D.D.C. 2011). An

insufficient defense might be stricken, Fed. R. Civ. P. 12(f), as might inadequate affirmative

defenses brought under Rule 8(c). Fed. R. Civ. P. 8(c). However, motions to strike are a drastic

remedy that courts disfavor. Naegele v. Albers, 355 F. Supp. 2d 129, 142 (D.D.C. 2005); see

also Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distribs. Pty. Ltd., 647 F.2d 200, 201

(D.C. Cir. 1981) (citation omitted) (“[M]otions to strike, as a general rule, are disfavored.”). In


1
 The parties’ briefs are found on the docket: Pl.’s Mot. to Strike Def.’s Contributory Negligence
Defense (Mot.) [Dkt. 9]; and Def.’s Opp’n to Pl.’s Mot. to Strike Def.’s Contributory Negligence
Defense (Opp’n) [Dkt. 12].

                                                 2
considering a motion to strike, courts will draw all reasonable inferences in the pleader’s favor

and resolve all doubts in favor of denial of the motion to strike. Nwachukwu v. Karl, 216 F.R.D.

176, 178 (D.D.C. 2003) (citations omitted).

                                      III.    ANALYSIS

               Ms. Moore alleges that the driver was negligent when he hit her and the

government answers that her contributory negligence also caused the incident. Before the

MVCRA, a victim’s contributory negligence resulting in injury would result in no recovery.

Thus, if a plaintiff contributed to the accident in any way, she would not be entitled to any

damages. The MVCRA introduced a comparative negligence standard for accidents involving

motor vehicles and pedestrians, bicyclists, and persons on non-motorized vehicles. In such

accidents, the fact finder compares the faults of all who contributed to an accident and allocates

damages among them. As long as a plaintiff is 50% or less at fault, she can now recover

something in damages. In seeking to strike the government’s affirmative defense, Ms. Moore

argues that D.C. law no longer recognizes contributory negligence in an accident in which a car

strikes a pedestrian and that the MVCRA, which became effective on November 26, 2016,

should apply retroactively to preclude the defense arising from her injuries on December 29,

2014.

        A. Retroactive Application of the MCVRA

               Ms. Moore has some precedent upon which she bases her argument for

retroactivity. She notes a 1975 decision in which the Supreme Court of the State of Washington

applied the Washington comparative negligence statute “retrospectively to causes of action

having arisen prior to the statute’s effective date of April 1, 1974, but in which trials have begun

subsequent thereto.” Godfrey v. State, 84 Wash. 2d 959, 961 (1975). Ms. Moore urges this

Court to use Godfrey as a guidepost in its retroactivity analysis; that is, this Court should apply

                                                  3
the MVCRA to events before its passage because: (1) the local law is procedural and remedial

and, therefore, its retroactivity would not offend due process because it would alter only recovery

and not liability; and (2) the legislative purpose behind MVCRA was to end the bar to recovery

effected by contributory negligence; a solely prospective application would subvert its purpose

by allowing defendants to plead contributory negligence for years to come.

               Godfrey is an interesting case in which the Supreme Court of the State of

Washington found that it had given retroactive application to “those statutes which relate to

practice, procedure or remedies and do not affect a contractual or vested right . . . or do not

impose a penalty.” Id. at 961. The Washington Supreme Court also held “that there is no vested

right to a common-law bar to recovery that is provided by the affirmative defense of contributory

negligence.” Id. at 962. That court distinguished statutory rights from common law rights in this

regard. Id. at 963. It is, at best, very unclear that the D.C. Court of Appeals would follow the

lead of the Washington Supreme Court or that the City Council and government would expect it

to do so with no signal or legislation on point. To the contrary, the District of Columbia Court of

Appeals has closely applied the common law of negligence—to and including last clear

chance—as the governing principles in this City. This Court is loath to take a position on the

application of local law which is not supported by legislative history and seems foreign to the

approach of the local courts.

               Notably, the Godfrey decision is not binding on this Court and does not alter the

principle that “[i]n general, courts presume that a law does not apply retroactively unless it is

sufficiently clear that the legislature intended to give the statute retroactive effect.” Casey v.

McDonald’s Corporation, 880 F.3d 564, 570 (D.C. Cir. 2018). This presumption “stems from

bedrock rule of law values that counsel against retroactive application of new laws.” Metroil,



                                                  4
Inc. v. ExxonMobil Oil Corp., 672 F.3d 1108, 1113 (D.C. Cir. 2012). The District of Columbia

Court of Appeals has similarly held that “statutes are to be construed as having only a

prospective operation, unless there is a clear legislative showing that they are to be given a

retroactive or retrospective effect.” Bank of Am., N.A. v. Griffin, 2 A.3d 1070, 1074 (D.C. 2010).

The statute at issue here is clearly governed by this holding as it is part of the D.C. Code.

               Ms. Moore seeks to avoid these opinions, arguing that the MVCRA can be given

retroactive effect without “offend[ing] principles of due process because the implications relate

to practice, procedure, or remedies and do not affect a contractual or vested right.” Mot. at 3

(citing Godfrey, 84 Wash. 2d at 963). The government responds that retroactive application of

the MVCRA would “create new legal consequences by altering Defendant’s common law,

affirmative defense to negligence by imposing liability if Plaintiff’s negligence failed to meet the

strict requirements of the MVCRA.” Opp’n at 5-6. However, at this juncture the Court need not

decide whether the change in D.C. negligence law for automobile/pedestrian accidents implicates

substantive or merely procedural rights. It is undisputed that the MVCRA took effect on

November 26, 2016, almost two years after the accident in question. Plaintiff urges retroactive

application to her case, but has not made the necessary showing of clear legislative intent to that

effect.

               State courts, and federal courts applying state law, have generally held that

comparative negligence statutes are not retroactive absent a definitive expression by the

legislature. See, e.g., Hunt v. Sun Valley Co., Inc., 561 F.2d 744 (9th Cir. 1977) (applying Idaho

law and declining to apply retroactively a statute which was enacted prior to, but did not take

effect until after, the incident in question); Crutsinger v. Hess, 408 F. Supp. 548 (D. Kan. 1976)

(applying Kansas law and holding that “[t]he plaintiff’s cause of action here arose before the



                                                  5
comparative negligence statute . . . became effective, and his right to recover must therefore be

gauged by the standards of the prior law”); Conley v. American Motors Corp., 769 S.W.2d 75

(Ky. Ct. App. 1989) (declining to apply comparative negligence statute retroactively where

“[statute] was not granted expressed retroactive application as is required by the legislature”);

Hyde v. Chevron, U.S.A., Inc., 697 F.2d 614, 628-29 (5th Cir. 1978) (holding that Louisiana’s

comparative negligence statute does not apply retroactively). If the City Council intended the

MVCRA to apply retroactively, it could easily have included language to that effect. The D.C.

government was one of the most recent adopters of a comparative negligence statute and the

Council had the benefit of decades of analogous statutes in other jurisdictions to inform its

work.2 The lack of retroactive applicability language in the statute deflates Ms. Moore’s

argument on legislative intent. This Court finds that the MVCRA does not apply retroactively to

Plaintiff’s suit and Defendant is not precluded from raising an affirmative defense of

contributory negligence under pre-MVCRA law.

       B. Pleading Standard

                Ms. Moore further challenges the adequacy with which the government has plead

its affirmative defense of contributory negligence as inconsistent with the heightened pleading

standard required by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal,

556 U.S. 662 (2009). She asks that the affirmative defense be stricken.




2
  As of 2001, only four states and the District of Columbia had preserved the common law bar to
comparative negligence. Georgia, Mississippi, Wisconsin, South Dakota, Nebraska, Arkansas,
Montana, New York, Pennsylvania, Ohio, Louisiana, Iowa, Indiana, Arizona, and Delaware,
among others, have enacted comparative negligence legislation, while other states have
transitioned through judicial adoption. See 1-1 Victor E. Schwartz, Comparative Negligence
§ 1.05(e)(3) (5th ed. 2010).

                                                 6
               Twombly and Iqbal set a “plausibility” standard by which federal courts examine

whether a complaint should be dismissed for inadequacy of the pleading. See Twombly, 550

U.S. at 555; Iqbal, 556 U.S. at 678. It is a matter of some debate as to whether the

Twombly/Iqbal standard applies to affirmative defenses. Two judges in this district have

considered the issue and found that Twombly and Iqbal do not apply to affirmative defenses. See

Paleteria La Michoacana v. Productos Lacteos, 905 F. Supp. 2d 189, 190 (D.D.C. 2012)

(detailing reasons weighing against application of Twombly’s analysis of pleading requirements

to affirmative defenses); Malibu Media, LLC v. Parsons, No. 12-1331, 2013 WL 12324463, at

*3 (D.D.C. May 31, 2013) (accepting the analysis in Paleteria). This Court agrees.

               Instead, the Court will examine the government’s affirmative defense of

contributory negligence under the traditional notice standard set by Rule 8(c). The purpose of

the Rule is to “give the opposing party notice of the defense and to permit the opposing party to

develop in discovery and present both evidence and argument before the district court responsive

to the defense.” Rhodes v. United States, 967 F. Supp. 2d 246, 252 (D.D.C. 2013); see also

Lenkiewicz v. Castro, 145 F. Supp. 3d 140, 145 (2015) (finding sufficient notice to plaintiff

where affirmative defense was referenced in interrogatories and depositions). In its answer,

Defendant asserts its affirmative defense of contributory negligence in one sentence. In this

district, that sentence suffices. See Paleteria, 905 F. Supp. 2d at 189 (finding sufficient the

“common practice” of presenting each affirmative defense in a single sentence). Plaintiff

contends that “Defendant fails to provide any facts as to how Plaintiff may have been negligent

in this matter.” Mot. at 6. In fact, Defendant also answers that Plaintiff was not crossing the

street lawfully at the time of the incident. Answer at 3. This additional information stifles any

potential doubt as to the sufficiency of the affirmative defense as pled. Discovery provides the



                                                  7
proper avenue for further investigation into the claims and affirmative defenses raised, at which

time the Court may determine the sufficiency of both. See Paleteria, 905 F. Supp. 2d at 192-93.

Consequently, the Court will deny Plaintiff’s request to strike the affirmative defense of

contributory negligence for lack of sufficient pleading.

                                    IV.   CONCLUSION

               The Court finds that the MVCRA does not apply retroactively to Plaintiff’s

negligence claim, and that Defendant sufficiently raised the affirmative defense of contributory

negligence to survive a motion to strike. The Court will deny Plaintiff’s Motion to Strike

Defendant’s Contributory Negligence Defense. A memorializing Order accompanies this

Memorandum Opinion.



Date: July 18, 2018                                                 /s/
                                                     ROSEMARY M. COLLYER
                                                     United States District Judge




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