Kari Eisenacher et al v. BMW of North America, LLC et al

Filing 24

ORDER GRANTING MOTION TO STRIKE FIRST AMENDED COMPLAINT 16 AND DENYING AS MOOT MOTION TO REMAND 15 by Judge Otis D. Wright, II (lc)

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United States District Court
Central District of California

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EISENACHER,

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Case № 2:17-cv-00984-ODW (JCx)

KARI EISENACHER and DAVID
Plaintiffs,

ORDER GRANTING MOTION TO

v.

STRIKE [16] AND DENYING AS

BMW OF NORTH AMERICA, LLC; SAI MOOT MOTION TO REMAND [15]
MONROVIA B, INC.; and DOES 1–10,
inclusive,
Defendants.

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I.

INTRODUCTION

Plaintiffs Kari and David Eisenacher (collectively, “Plaintiffs”) filed this action
in the Los Angeles County Superior Court on December 8, 2016. (See Not. of
Removal, ECF No. 1.) The original Complaint named BMW of North America, LLC
(“BMW”) and PAG Santa Ana B1, Inc. (“PAG Santa Ana”), as defendants. (Compl.,
ECF No. 1-1.) BMW is a Delaware corporation, and PAG Santa Ana is a California
corporation. (Id. ¶¶ 4, 5.) On January 27, 2017, Plaintiffs dismissed PAG Santa Ana
from the action without prejudice. (Not. of Dismissal, ECF No. 1-3.) Following the
dismissal of PAG Santa Ana, there was no longer a California corporation among the
defendants, and thus BMW removed the case to federal court based on diversity
jurisdiction. (See Not. of Removal.) Then, on February 13, 2017, Plaintiffs filed a
First Amended Complaint (“FAC”) naming SAI Monrovia B, Inc. (“SAI Monrovia”),

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as an additional defendant. (ECF No. 9.) SAI Monrovia is a California corporation.

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(Id. ¶ 5.)

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The parties now disagree about whether SAI Monrovia was properly joined as a

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defendant and what its joinder means for the case. BMW moves to strike the FAC,

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arguing that Plaintiff needed the Court’s permission to add SAI Monrovia. (ECF No.

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15.) Plaintiffs move to remand this case as there is no longer complete diversity.

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(ECF No. 16.) For the reasons discussed below, the Court GRANTS BMW’s Motion

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to Strike and DENIES AS MOOT Plaintiffs’ Motion to Remand.1

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II.

FACTUAL BACKGROUND

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This lawsuit relates to Plaintiffs’ purchase of a 2012 BMW. (FAC ¶ 7.) In

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connection with the purchase, BMW2 provided Plaintiffs with an express written

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warranty. (Id. ¶ 8.) The warranty established BMW’s duty to preserve or maintain

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the function of the vehicle or to compensate Plaintiffs in the event of a failure in utility

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or performance in a specific timeframe. (Id.) The warranty provided that if a defect

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developed within the warranty period, BMW would repair the vehicle. (Id.) Plaintiffs

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allege that during the warranty period, their vehicle did develop defects, including:

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excessive oil consumption, oil leakage, shimmy and noises in the steering wheel,

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smoke and oil coming from the exhaust, fuel injector failure, faulty timing chain,

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faulty fuel feed lines, faulty vacuum pumps and crackcase vent hoses, and a faulty

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battery.

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representatives in this state” repair the vehicle, but they were unable to do so after a

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reasonable number of opportunities. (Id. ¶ 10.) Even though BMW could not repair

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the vehicle, it failed to replace the vehicle or compensate Plaintiffs as required by

(Id. ¶ 9.)

Plaintiffs claim that they attempted to have BMW “and its

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After carefully considering the papers filed with respect to these Motions, the Court deems the
matters appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15.
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The FAC does not distinguish between allegations concerning BMW and SAI Monrovia, instead
using only the singular “Defendant” throughout the pleading. (See generally FAC.) Because the
FAC is substantially unchanged from the original Complaint, aside from the addition of SAI
Monrovia in the party descriptions and the cause of action for violation of the Consumer Legal
Remedies Act, the Court will assume that “Defendant” refers to BMW.

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law.3 (Id.) Plaintiffs bring this suit based on allegations of statutory violations,

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including the Song-Beverly Act (California’s Lemon Law), Breach of Express

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Warranty, Breach of the Implied Warranty of Merchantability, and violation of the

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Consumer Legal Remedies Act. (See generally id.)

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III.

MOTION TO STRIKE

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BMW argues that Plaintiffs’ entire FAC should be stricken because Plaintiffs

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filed it outside of the window to do so as a matter of right, and they failed to obtain

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BMW’s consent or leave from the Court. (Mot. to Strike 3.) Plaintiffs, on the other

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hand, claim that BMW did not properly remove this case to federal court in the first

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instance, and additionally, that BMW failed to meet and confer prior to filing their

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Motion to Strike. (See Reply.) Plaintiffs also argue that they are subject to a different

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window of time in which to file a new complaint as a matter of right. (Id.) Moreover,

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BMW and Plaintiffs take opposing positions on the issue of whether the Court should

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allow Plaintiffs leave to amend their Complaint if it treats their filing as a de facto

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motion for leave.

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A.

Legal Standard

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Federal Rule of Civil Procedure 12(f) provides that “[t]he court may strike from

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a pleading an insufficient defense or any redundant, immaterial, impertinent, or

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scandalous matter.”

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discretion. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1528 (9th Cir. 1993), rev’d on

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other grounds sub nom. Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994). The court

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must view the pleadings in the light most favorable to the non-moving party. In re

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2TheMart.com Sec. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000).

The decision to grant a motion to strike is at the court’s

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The court may grant a motion to strike “to avoid the expenditure of time and

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money that must arise from litigating spurious issues by dispensing with those issues

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prior to trial.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir.

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2010) (citing Fantasy, 984 F.2d at 1527). Courts may also grant a motion to strike in

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Plaintiffs cite Civil Code § 1793.2(d) and Civil Code § 1793.1(a)(2).

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order to streamline the resolution of the action and focus the jury’s attention on the

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real issues in the case. Fantasy, 984 F.2d at 1528. However, “motions to strike are

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generally disfavored due to the limited role that pleadings play in federal practice, and

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because they are often used as a delaying tactic.” Cal. Dept. of Toxic Substances

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Control v. Alco Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002).

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Where an amended complaint is filed outside of the time to do so as a matter of

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right, a court may strike the amended pleading if the plaintiff has not obtained leave to

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amend or written consent of the adverse party. Vazquez v. Select Portfolio Servicing,

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No. 13-cv-03789-JST, 2014 WL 117390, at *4 (N.D. Cal. Jan. 13, 2014); see also

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Fed. R. Civ. P. 15.

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B.

Discussion

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Firstly, the Court declines to decide the matter based on Plaintiffs’ arguments

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that BMW failed to meet and confer prior to filing its Motion to Strike. Plaintiffs

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claim that BMW never notified them of its intention to file such a motion, but BMW

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directly disputes this, stating that it met and conferred with Plaintiffs on several

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occasions regarding its issues with Plaintiffs’ FAC. (Compare Opp’n to Mot. to

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Strike 8–9, ECF No. 17, with Reply to Mot. to Strike 3–4, ECF No. 18.) Given the

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dispute, the Court will not dwell on these procedural issues and instead decides the

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motion on the merits.

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Secondly, Plaintiffs advance an argument that the Court must dispense with

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before reaching the crux of the issues at stake: that BMW improperly removed this

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action to federal court in that it failed to carry its burden of showing complete

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diversity. (See Opp’n to Mot. to Strike 9–11.) Plaintiffs urge the Court to follow a

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recent Central District of California decision finding improper removal where the

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removing party could cite only to evidence of residence, not citizenship or domicile,

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of a plaintiff in claiming diversity. (Id.; see Metropoulos v. BMW of North America,

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LLC sua sponte Remand Order, RJN Ex. 1, ECF No. 16-5.) However, as both parties

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are undoubtedly aware, this Court is not bound to follow decisions of other judges in

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this district. The Court declines to find similarly to Metropoulos, and Plaintiffs’

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argument on this front is a waste of time and resources. Plaintiffs attempt to have this

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issue resolved in their favor based on a mere technicality; they do not even dispute

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that they are domiciled in California and thus citizens of this state. (See Opp’n to

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Mot. to Strike 9–11.) The Court disagrees that the issue of proper joinder and remand

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should be decided on this minute detail, nor does it find that jurisdictional discovery is

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proper where Plaintiffs have advanced no arguments suggesting an actual question of

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fact as to domicile. They are simply trying to evade federal jurisdiction based on a

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trifle. The Court rejects this argument.

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Third, the Court turns to the question at the heart of this Motion to Strike:

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whether Plaintiffs properly filed their FAC. They did not. Further, even if the Court

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treats the FAC as a “proposed” pleading with an implicit request for leave to file, the

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Court declines to grant leave.

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1.

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This case was originally filed in state court, and therefore, two different

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deadlines for filing an amended complaint as a matter of right are at play. Defendants

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correctly point out those deadlines: January 12, 2017, based on the California Code of

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Civil Procedure Rule that a party can amend a pleading as a matter of right at any time

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prior to an Answer or Demurrer being filed (BMW filed its Answer on January 12,

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2012); and February 2, 2017, based on the Federal Rule of Civil Procedure standard

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creating a deadline of 21 days after an Answer is filed. See Cal. Code Civ. P. § 472;

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Fed. R. Civ. P. 15(a)(1). No matter which deadline is applied, Plaintiffs’ filing on

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February 13, 2017, was late. (See FAC.)

Filing of the FAC

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However, Plaintiffs argue that instead of applying either of these deadlines, the

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Court should find that Plaintiffs had until 21 days after the date of removal to file their

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FAC as a matter of right. (Opp’n to Mot. to Strike 2–3.) Plaintiffs base their

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argument on the fact that Federal Rule of Civil Procedure 15(a)(1) allows a party to

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amend its pleading once as a matter of course within 21 days of motions that are filed

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in federal court, pursuant to Rule 12(b), (e), or (f). (Id.) Plaintiffs construe this to

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mean that until a case is in federal court, the 21-day period does not begin to run. (Id.

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at 3.) This is wrong. The only case Plaintiffs cite in support of this argument is EJӧ,

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LLC v. City of Johns Creek, No. 1:15-cv-779-WSD, 2016 WL 727206, (N.D. Ga.

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February 19, 2016), which says nothing of the sort. EJӧ merely explains that when a

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case is removed to federal court, the Rule 15(a)(1) 21-day standard applies, rather than

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the more restrictive state law standard. Id. at *2. In EJӧ, the plaintiff filed its

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amended complaint within that 21-day period. Id. Therefore, EJӧ is distinguishable

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from the case at bar, and there is no support for the idea that a plaintiff automatically

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has 21 days after the date of removal in which to file an amended pleading. Thus,

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because Plaintiffs filed their FAC after the deadline to do so as a matter of right and

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without first seeking permission, the Court STRIKES the FAC.

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2.

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Both parties raise the possibility that the Court could treat Plaintiffs’ FAC as an

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implicit request for leave to amend, with the FAC as the “proposed” amended

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pleading. (See Mot. to Strike 5–7; Opp’n to Mot. to Strike 13–24.) The Court

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determines that were it to consider the FAC as such, it would not grant leave to

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amend.

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FAC as an Implicit Request for Leave to Amend

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Legal Standard

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Federal Rule of Civil Procedure 15(a)(2) provides leave to amend should be

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given freely. However, “undue delay, bad faith, futility of amendment, and prejudice

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to the opposing party” should be considered in determining the propriety of a motion

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for leave to amend. Howey v. U.S., 481 F.2d 1187, 1190 (9th Cir. 1973).

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ii.

Analysis

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Despite the policy in favor of liberal amendment, Plaintiffs’ FAC is legally

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insufficient. First, Plaintiffs provide no real explanation for why they failed to join

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SAI Monrovia earlier.

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learned that SAI, not PAG, was the dealership that sold the Vehicle to Plaintiffs.”

They claim that “[t]hrough their investigations, Plaintiffs

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(Opp’n 7.) Without elaboration on this point from Plaintiffs, the Court cannot accept

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that Plaintiffs did not know where they bought the car from the outset of the litigation,

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particularly given the fact that Monrovia and Santa Ana are roughly forty miles apart.4

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Therefore, this issue points to Plaintiffs’ undue delay and lack of diligence. See In re

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W. States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716, 737 (9th Cir. 2013)

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(noting that a court should primarily consider the diligence of the party seeking

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amendment in deciding whether to grant leave).

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Moreover, the FAC that Plaintiffs filed is prejudicial to both BMW and SAI

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Monrovia in that it fails to distinguish in any way between the actions of the two

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defendants. The FAC names BMW and SAI Monrovia in the “Parties” section and

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lists their places of incorporation and business, but otherwise, the FAC never

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mentions SAI Monrovia again. (See FAC ¶¶ 4, 5.) The FAC alternates between

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occasionally mentioning “BMW” by name and otherwise alleging acts and omissions

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by “Defendant” singular. (See generally id.) This style of pleading is insufficient to

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give either defendant fair notice of Plaintiffs’ allegations against them. Further, the

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FAC does little to convince the Court that there is a valid claim against SAI

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Monrovia, given that no specific allegations are made against that dealership.

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Therefore, the Court declines to grant leave to amend, to the extent that Plaintiffs’

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FAC can be interpreted as a request for leave.

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IV.

MOTION TO REMAND

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Given that the Court strikes Plaintiffs’ FAC, there is no longer a non-diverse

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defendant in this action, and Plaintiffs’ Motion to Remand is thus DENIED AS

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MOOT.

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//

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It is well established that a court may take judicial notice of a map and/or the distance between two
points. See, e.g., U.S. v. Trenary, 473 F.2d 680, 682 (9th Cir. 1973); U.S. v. Perea-Rey, 680 F.3d
1179, 1182 n.1 (9th Cir. 2012) (taking judicial notice of “a Google map and satellite image as a
source whose accuracy cannot reasonably be questioned”); Aleut League v. Atomic Energy Comm’n,
337 F. Supp. 534, 538 (D. Alaska 1971) (“Judicial notice may be taken of the relative distances from
certain places to other parts of the same state.”).

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III.

CONCLUSION

For the reasons discussed above, the Court GRANTS BMW’s Motion to Strike
(ECF No. 15) and DENIES AS MOOT Plaintiffs’ Motion to Remand (ECF No. 16.)

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IT IS SO ORDERED.

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April 20, 2017

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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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