1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________ ) LISA CARSON MOORE, ) ) Plaintiff, ) ) v. ) Civil Action N o. 17-1036 (RMC) ) UNITED STATES OF AMERICA ) ) Defendant. )

_________________________________ )
MEMORANDUM OPINION Plaintiff Lisa Moore was a pede strian crossing a street in the District of Columbia when she was stuck by a car drive n by a United States Marshals Service employee. She has sued to recover for her damages and t he United States has advanced a n affirmative defense of contributory negligence. Ms. Moor e moves to strike the affirma tive defense, arguing that it is no longer available under the Motor Vehicle Collis ion Recovery Act of 2016 (MVCRA), D.C. Code § 50-2204.51, et seq. , and that, as pled, the affirma tive defense fails to satisfy t he heightened pleading standard that D.C. requi res. The United States respon ds that the MVCRA does not apply retroactively, and that e ven if it did, discovery will li kely demonstrate that Ms. Moore was more than 50% negligent, whic h would bar her recovery under the MVCRA. The motion is now ripe for decision.
I. BACKGROUND On December 29, 2014, Ms. Moore was st ruck by a United States M arshals Service vehicle operated by employee Willard Thomas King while Ms. Moore was crossing the street in the vicinity of 3 rd and E streets, Northwest, in W ashington, D.C. Thereafter, D.C

. adopted the MVCRA, which became effective on November 26, 2016. See D.C. Law 21-167,2 Act 21-490 (2016). The statute shift s D.C. law from a contribu tory to a comparative negligence regime for collisions between automobiles and pedestrians, bicy clists, and other non-motorized users of public streets, suc h 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 bod ily injury, pain and suffering, lost wages, medical expenses, and other damages as a result of M r. King’s negligence. Compl. [Dk t. 1]. In its Answer, filed on September 27, 2017, the United State s pled the affirmative defe nse of contributory negligence, alleging that Ms. Moore was not l awfully crossing the street at the time of the incident and denying that Mr. King was neglig ent in any way. Answer [Dkt. 7 ] at 1, 3. Ms. Moore moved to strike the affirmative defe nse on October 11, 2017. She argues that the Court should apply the MVCRA retroactively and bar the g overnment’s affirmative defens e. She also challenges the adequacy of the affirmative defe nse as pled to meet a heightene d pleading standard required in
D.C. 1
II. LEGAL STANDARD “The decision to grant or deny a m otion 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). Howev er, 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. Kais er 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 t he docket: Pl.’s Mot. to St rike Def.’s Contri butory Negligence Defense (Mot.) [Dkt. 9]; and Def .’s Opp’n to Pl.’s Mot. to Stri ke Def.’s Contributory Negligence Defense (Opp’n) [Dkt. 12].3 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 stri ke. 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 cont ributory negligence also caused the incident. Before the MVCRA, a victim’s contributory negligence resulting in injury w ould result in no recovery. Thus, if a plaintiff contribut ed to the accident in any way, sh e would not be entitled to any damages. The MVCRA introduced a comparative negligence standar d for accidents involving motor vehicles and pedestri ans, bicyclists, and persons on non- motorized vehicles. In such accidents, the fact finder compares the faults of all who contr ibuted to an accident and allocates damages among them. As long as a plaintiff is 50% or less at f ault, she can now recover something in damages. In seeking to strike the government’s af firmative defense, Ms. Moore argues that D.C. law no longer r ecognizes contributory negligen ce in an accident in which a car strikes a pedestrian and that t he MVCRA, which became effective on November 26, 2016, should apply retroactively to preclud e the defense arising from her injuries on December 29,
2014.
A. Retroactive Applicat ion of the MCVRA Ms. Moore has some precedent upon which she bases her argument for retroactivity. She notes a 1975 d ecision in which the Supreme Court of the State of Washington applied the Washington comparative negligence statute “retrospe ctively 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 analysi s; that is, this Co urt should apply4 the MVCRA to events before its p assage because: (1) the local law is procedural and remedial and, therefore, its retroactiv ity 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 negligen ce; a solely prospective appli cation would subvert its purpose by allowing defendants to plead con tributory negligence for yea rs to come. Godfrey is an interesting case in whic h the Supreme Court of the State of Washington found that it had given r etroactive app lication to “ those statutes which relate to practice, procedure or remedie s and do not affect a contractual or vested right . . . or do not impose a penalty.” Id. at 961. The Washington Supreme Co urt also held “that there is no vested right to a common-law bar to r ecovery that is provided by the a ffirmative 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 Ap peals would follow the lead of the Washington Supreme Co urt or that the City Council a nd government would expect it to do so with no signal or legis lation on point. To the contra ry, the District of C olumbia 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 whic h 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 C ourt and does not alter the principle that “[i]n general, c ourts presume that a law does no t apply retroac tively unless it is sufficiently clear that the legislature intended to give the st atute 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 c ounsel against retroactive app lication of new laws.” Metroil,5 Inc. v. ExxonMobil Oil Corp. , 672 F.3d 1108, 1113 (D.C. Cir. 2012). The District of Columb ia Court of Appeals has similarly he ld that “statutes are to be co nstrued as having only a prospective operation, unless ther e is a clear legislative show ing 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 i s clearly governed by this holding a s it is part of t he D.C. Code. Ms. Moore seeks to avoid these op inions, arguing that the MVCRA can be given retroactive effect without “o ffend[ing] principles of due proce ss because the implications relate to practice, procedure, or re medies and do not affect a contrac tual or vested right.” Mot. at 3 (citing Godfrey , 84 Wash. 2d at 963). The government responds that retroactiv e application of the MVCRA would “create new lega l consequences by altering Defe ndant’s common law, affirmative defense to negligen ce by imposing liability if Plai ntiff’s negligence failed to meet the strict requirements of the MV CRA.” 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 af ter the accident in quest ion. Plaintiff urges retroactive application to her cas e, but has not made the necessary showing of clear legislativ e intent to that effect. State courts, and federal courts applying state law, have gener ally held that comparative negligence statutes a re not retroacti ve absent a de finitive 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 retroact ively a statute which was en acted 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 tha t “[t]he plaintiff’s cause of action here arose before the6 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 app ly comparative negligence statute retroactively where “[statute] was not gran ted expressed retroact ive 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 Loui siana’s comparative negligence statute does not apply retroactively). If the City Council intended the MVCRA to apply retroactively, it could easily have included lan guage 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 oth er jurisdictions to inform its work. 2 The lack of retroactive applicab ility language in the statute deflates Ms. Moore’s argument on legislative intent. T his Court finds that the MVCR A does not apply retroactively to Plaintiff’s suit and Defendant i s not precluded f rom raising an affirmative defense of contributory negligence under pre-MVCRA law.
B. Pleading Standard Ms. Moore further challenges th e adequacy with which the government has plead its affirmative defense of contri butory negligence as inconsist ent 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 t he affirmative defense be stricken.

2 As of 2001, only four states and th e District of Columbia had preserved the common law bar to comparative negligence. Georgi a, 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).7 Twombly and Iqbal set a “plausibility” standard by which federal courts examine whether a complaint should be di smissed for inadequacy of the p leading. 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 d istrict 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 weighi ng 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 de fense of contributory negligence under the traditional notice standard s et by Rule 8(c). The purpose of the Rule is to “give the oppos ing party notice of the defense a nd to permit the opposing party to develop in discovery and present both evidence and argument bef ore 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 s ufficient notice to plaintiff where affirmative defense was re ferenced in interrogatories and depositions). In its answer, Defendant asserts its affirmativ e defense of contributory negli gence 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 s ingle sentence). Plaintiff contends that “Defendant fails to provide any facts as to how P laintiff may have been negligent in this matter.” Mot. at 6. In f act, Defendant also answers t hat Plaintiff was not crossing the street lawfully at the time of the incident. Answer at 3. Thi s additional information stifles any potential doubt as to the sufficiency of the affirmative defens e as pled. Discovery provides the8 proper avenue for further inves tigation into the claims and aff irmative 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 l ack of sufficient pleading.
IV. CONCLUSION The Court finds that the MVCRA do es not apply retroactively to Plaintiff’s negligence claim, and that Defenda nt sufficiently raised the af firmative defense of contributory negligence to survive a motion t o strike. The Court will deny Plaintiff’s Motion to Strike Defendant’s Contributory Negligen ce Defense. A memorializing O rder accompanies this Memorandum Opinion.

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