Carolina Casualty Insurance Company v. Oahu Air Conditioning Service, Inc. et al

Filing 22

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 1/28/2014 ORDERING 13 that the moving defendants, motion to dismiss the Complaint be, and the same hereby is, DENIED; and moving defendants' motion to strike be, and the same hereby is, DENIED. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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CAROLINA CASUALTY INSURANCE
COMPANY,

CIV. NO. 2:13-1378 WBS AC
MEMORANDUM AND ORDER RE: MOTION
TO DISMISS; MOTION TO STRIKE

Plaintiff,

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v.
OAHU AIR CONDITIONING
SERVICE, INC., dba OAHU AIR
CONDITIONING CO.; PACIFIC
COMMERCIAL SERVICES, LLC;
MATSON NAVIGATION COMPANY,
INC.; and DOES 1 through 100,

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Defendants.

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----oo0oo----

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Plaintiff Carolina Casualty Insurance Company brought

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this action against Oahu Air Conditioning Service, Inc., doing

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business as Oahu Air Conditioning Co. (“Oahu”), Pacific

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Commercial Services, LLC (“Pacific”), and Matson Navigation

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Company, Inc. (“Matson”) arising out of a hazardous waste spill

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by plaintiff’s insured, Smith Transportation Systems, Inc.

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(“Smith”).

Oahu and Pacific (“moving defendants”) now move to
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dismiss plaintiff’s First Amended Complaint (“FAC”) for failure

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to state a claim upon which relief can be granted pursuant to

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Federal Rule of Civil Procedure 12(b)(6), and to strike various

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other allegations in the First Amended Complaint (“FAC”) pursuant

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to Federal Rule of Civil Procedure 12(f).

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I.

(Docket No. 16.)

Factual & Procedural History

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In October 2010, plaintiff issued an insurance policy

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to Smith, a transportation company that specializes in

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transporting hazardous waste to disposal sites.

(FAC ¶ 9.)

In

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July 2011, Smith transported a trailer loaded with hazardous

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material from San Jose, California to a waste disposal site in

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Sacramento, California.

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trailer, the Sacramento Police Department was called to the

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disposal site because the trailer was observed emitting white

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smoke.

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out and completely engulfed the trailer.

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investigation revealed that the trailer contained refrigerator

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waste oil that Oahu had shipped to California for disposal, and

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that the fire resulted in the release of hazardous vapors and

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contaminated water runoff into the environment.

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(Id. ¶ 12.)

(Id. ¶ 11.)

After Smith delivered the

After several hours, an active fire broke
(Id.)

A subsequent

(Id. ¶ 13.)

As a result of this incident, a number of claimants

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issued Smith notices of violation and demanded that it pay for

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the cleanup of the hazardous waste spill from the trailer.

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¶ 22.)

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plaintiff to provide a defense and indemnify Smith from any

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claims resulting from a hazardous waste spill, plaintiff settled

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and paid upon numerous claims brought against plaintiff by

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several claimants, including the City of Sacramento, the County

(Id.

Pursuant to Smith’s insurance policy, which required

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of Sacramento, and Clean Harbor Environmental Services.

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23-24.)

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expenses and indemnified it against additional personal injury

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damages.

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(Id. ¶¶

In addition, plaintiff reimbursed Smith for its cleanup

(Id. ¶ 25.)
Plaintiff alleges that defendants were involved in the

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supply, packing, and transportation of the refrigerator waste oil

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that Smith transported to Sacramento.

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result, plaintiff and Smith issued a claim and demand to

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defendants for reimbursement of the payments plaintiff incurred

(Id. ¶¶ 17-21.)

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as a result of the hazardous waste spill.

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Defendants did not pay.

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As a

(Id. ¶ 26.)

(Id.)

Plaintiff then brought this action seeking: (1)

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subrogation pursuant to Section 112(c) of the Comprehensive

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Environmental Response, Compensation, and Liability Act

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(“CERCLA”), 42 U.S.C. § 9612(c); (2) contribution pursuant to

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Section 113(f) of CERCLA, 42 U.S.C. § 9613(f); (3) contribution

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and/or indemnity pursuant to the Hazardous Substance Account Act

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(“HSAA”), Cal. Health & Safety Code § 25363; (4) equitable

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indemnity under California common law; (5) allocation and

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apportionment of fault under California common law; (6)

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contribution under California common law; and (7) subrogation

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under California common law.

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now move to dismiss each of these claims for failure to state a

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claim upon which relief can be granted pursuant to Rule 12(b)(6),

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to strike plaintiff’s references to the “tort of another”

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doctrine pursuant to Rule 12(f), and to strike allegations

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related to personal injury or toxic tort claims pursuant to Rule

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12(f).

(Docket No. 7.)

(Docket No. 16.)
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Moving defendants

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II.

Motion to Dismiss

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On a motion to dismiss under Rule 12(b)(6), the court

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must accept the allegations in the complaint as true and draw all

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reasonable inferences in favor of the plaintiff.

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Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by

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Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S.

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319, 322 (1972).

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must plead “only enough facts to state a claim to relief that is

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plausible on its face.”

Scheuer v.

To survive a motion to dismiss, a plaintiff

Bell Atl. Corp. v. Twombly, 550 U.S.

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544, 570 (2007).

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for more than a sheer possibility that a defendant has acted

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unlawfully,” and where a complaint pleads facts that are “merely

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consistent with a defendant’s liability,” it “stops short of the

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line between possibility and plausibility.”

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556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557).

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This “plausibility standard,” however, “asks

Ashcroft v. Iqbal,

“While a complaint attacked by a Rule 12(b)(6) motion

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to dismiss does not need detailed factual allegations, a

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plaintiff’s obligation to provide the ‘grounds’ of his

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entitle[ment] to relief’ requires more than labels and

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conclusions . . . .”

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original) (citations omitted).

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elements of a cause of action, supported by mere conclusory

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statements, do not suffice.”

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Iqbal, 556 U.S. at 679 (“While legal conclusions can provide the

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framework of a complaint, they must be supported by factual

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allegations.”).

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A.

Twombly, 550 U.S. at 555 (alteration in
“Threadbare recitals of the

Iqbal, 556 U.S. at 678; see also

CERCLA Section 112(c)
Section 112(c) of CERCLA provides that “[a]ny person .
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. . who pays compensation pursuant to this chapter to any

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claimant for damages or costs resulting from the release of a

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hazardous substance1 shall be subrogated to all rights, claims,

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and causes of action for such damages and costs of removal that

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the claimant has under this chapter or any other law.”

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§ 9612(c)(2).

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that an “insured must first make a claim to . . . a potentially

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liable party before an insurer can bring a subrogation action

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under [S]ection 112(c).”

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42 U.S.C.

The Ninth Circuit has construed CERCLA to require

Chubb Custom Ins. Co. v. Space

Systems/Loral Inc., 710 F.3d 946, 971 (9th Cir. 2013).

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In Chubb, the plaintiff brought a subrogation claim

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under Section 112(c) after its insured incurred environmental

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cleanup costs and submitted an insurance claim.

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district court held, and the Ninth Circuit agreed, that

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plaintiff’s insured was not a “claimant” under the statute

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because it had not submitted any claim for reimbursement to the

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defendants, who plaintiff alleged were potentially responsible

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parties (“PRPs”).

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that requiring a plaintiff’s insured to submit a claim to other

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PRPs for reimbursement prior to pursuing a subrogation action

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furthered two of CERCLA’s major policy goals: preventing the

Id. at 965-66.

Id. at 957.

The

The Ninth Circuit reasoned

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Although the term “hazardous substance” expressly
excludes petroleum and its derivatives, 42 U.S.C. § 9601(14)(F),
the petroleum exclusion does not apply to the refrigerant waste
oil that Smith transported. See, e.g., Cose v. Getty Oil Co., 4
F.3d 700, 704 (noting that “EPA does not consider materials such
as waste oil to which listed CERCLA substances have been added to
be within the petroleum exclusion” (citation omitted)); Mid
Valley Bank v. North Valley Bank, 764 F. Supp. 1377, 1384 (E.D.
Cal. 1991) (Karlton, J.) (noting that “the petroleum exclusion
does not apply to waste oil”).
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insured from obtaining double recovery from the insurance company

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and any PRPs; and identifying PRPs so that they, rather than

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insurance companies, would shoulder the cost of environmental

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cleanup.

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Id. at 968-70.
Unlike the plaintiff in Chubb, whose insured made no

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claim for reimbursement from the defendants whatsoever, plaintiff

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alleges that Smith “made demand and claim upon and against

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Defendants . . . for payment and reimbursement” of the expenses

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Smith incurred.

(FAC ¶ 26.)

Although moving defendants maintain

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that this allegation is insufficient to show that Smith made a

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“formal claim,” neither Chubb nor the statute supports this

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conclusion.

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“any person who presents a written demand for reimbursement of

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monetary costs . . . for a CERCLA violation” to a PRP, it did not

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specify the precise form that a written claim for reimbursement

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must take.

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While Chubb held that the term “claimant” refers to

See 710 F.3d at 959.

Nor does 40 C.F.R. § 307.30(a), which governs requests

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for payment from a PRP, require dismissal.

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regulation outlines eight specific criteria that a written claim

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must satisfy, it is inapplicable here because it applies only to

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written requests to PRPs for reimbursement “before filing a claim

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against the Fund,” rather than written requests for reimbursement

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before filing a civil action for subrogation pursuant to Section

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112(c).

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Smith’s demands for reimbursement, it does not follow that

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plaintiff’s complaint must specify in exact terms how Smith’s

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demand letter complied with these requirements.

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U.S. at 555 (noting that a complaint “does not need detailed

40 C.F.R. § 307.30(a).

Although that

Even if it were applicable to

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See Twombly, 550

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factual allegations” to survive a motion to dismiss).

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stage in the litigation and in the absence of controlling

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authority showing otherwise, plaintiff’s allegation that Smith

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sent a written demand for reimbursement to defendants suffices to

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show that Smith is a “claimant” and that plaintiff may therefore

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seek subrogation under Section 112(c).

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must deny moving defendants’ motion to dismiss this claim.

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B.

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At this

Accordingly, the court

CERCLA Section 113(f)
Section 113(f) of CERCLA provides that “[a]ny person

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may seek contribution from any other person who is liable or

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potentially liable under Section 9607(a) of this title, during or

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following any civil action under section 9606 . . . or under

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section 9607(a) of this title.”

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addition, the statute provides that a “person who has resolved

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its liability to the United States or a State for some or all of

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a response action or for some or all of the costs of such an

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action in an administrative or judicially approved settlement may

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seek contribution” from a person who is not a party to that

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settlement.2

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42 U.S.C. § 9613(f)(1).

42 U.S.C. § 9613(f)(3)(B).

In

The Supreme Court has

Although neither the Supreme Court nor the Ninth
Circuit has explicitly addressed the question of whether CERCLA’s
use of the term “State” encompasses political subdivisions of a
state, at least one judge in this district has held that CERCLA’s
use of the term “does not exclude municipalities.” Unigard Ins.
Co. v. City of Lodi, Civ. No. 98-1712 FCD JFM, 1999 WL 33454809,
at *5 (E.D. Cal. Mar. 5, 1999). The Supreme Court has likewise
held in the context of the Federal Insecticide, Fungicide, &
Rodenticide Act that the “exclusion of political subdivisions
cannot be inferred from the express authorization to the
‘State[s]’ because political subdivisions are components of the
very entities the statute empowers.” Wis. Pub. Intervenor v.
Mortier, 501 U.S. 597, 608 (1991). Accordingly, plaintiff’s
alleged settlement with the City and/or County of Sacramento is
sufficient to demonstrate that it “resolved its liability to . .
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held that, in the absence of such a civil action or settlement, a

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plaintiff may not seek contribution under Section 113(f).

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Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 166 (2004).

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Cooper

Here, plaintiff alleges that it paid significant sums

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to several parties who sent letters to Smith demanding

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reimbursement, including the City of Sacramento, the County of

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Sacramento, and Clean Harbors Environmental Services.

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24.)

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insufficient to state a claim under Section 113 because it does

(FAC ¶

Moving defendants contend that this allegation is

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not explicitly allege that these sums were paid in order to

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settle a civil action under CERCLA.

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6-7 (Docket No. 18).)

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allegation permits the reasonable inference that plaintiff paid

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these sums in order to settle potential CERCLA claims against

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Smith.3

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Ninth Circuit’s observation that that “the receipt of a PRP

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notice is the effective commencement of a ‘suit’ necessitating a

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legal defense.”

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1507, 1517 (9th Cir. 1991).

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. a state” pursuant to Section 113(f).

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(See Moving Defs.’ Reply at

Even if this were so, plaintiff’s

This inference is particularly justified in light of the

Aetna Cas. & Sur. Co. v. Pintlar Corp., 948 F.2d
Because plaintiff has sufficiently

Relying on a PACER search of all federal actions in the
Ninth Circuit to which Clean Harbors has been a party, moving
defendants also contend that there is no record of any CERCLAbased action between plaintiff and Clean Harbors and that, as a
result, plaintiff’s allegation that it settled such a claim is
implausible. (See Moving Defs.’ Reply at 6; Moving Defs.’ Req.
for Judicial Notice Exs. A-E (Docket No. 18-1).) Even if the
court took judicial notice of this search and concluded that
moving defendants were correct, this evidence does not foreclose
the possibility that Smith settled its liability to either the
City or County of Sacramento in a CERCLA action, or that Smith
settled its liability to these parties after the receipt of a PRP
notice but before the commencement of a civil action.
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alleged that it paid to settle the claims against Smith, it has

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stated a claim for contribution from other PRPs under Section

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113(f).4

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Although Oahu concedes that it is a PRP, Pacific

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contends that it is not a PRP because it is not a “transporter”

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of hazardous waste as that term is defined by 42 U.S.C. §

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9607(a)(4).

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resolve this argument because plaintiff has sufficiently alleged

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that Pacific “arranged for disposal or treatment, or arranged

(Moving Defs.’ Mem. 14-15.)

The court need not

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with a transporter for transport for disposal or treatment” of

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the refrigerator waste oil.

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Court has clarified that “an entity may qualify as an arranger

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under § 9607(a)(3) when it takes intentional steps to dispose of

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a hazardous substance.”

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United States, 556 U.S. 599, 611 (2009) (citation omitted).

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42 U.S.C. § 9607(a)(3).

The Supreme

Burlington N. & Santa Fe Ry. Co. v.

Plaintiff relies on the manifest of the waste oil to

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allege that Pacific “pack[ed] the hazardous refrigerant oil for

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transport” and directed its transport from Hawaii to California

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for disposal.

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not a “transporter” of the waste oil because it did not select

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the site for disposal, plaintiff’s allegation is sufficient to

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(FAC ¶ 18.)

Even if Pacific is correct that it is

Moving defendants also rely on the Supreme Court’s
holding in United States v. Atlantic Research Corporation that an
insurer cannot seek contribution under Section 107 of CERCLA
because “a party [that] pays to satisfy a settlement agreement or
a court judgment . . . does not incur its own costs of response”
but instead “reimburses other parties for costs that those
parties incurred.” 551 U.S. 128, 139 (2007). Their reliance is
misplaced because plaintiff does not sue under Section 107, which
“permits recovery of cleanup costs but does not create a right to
contribution,” but rather under Section 113(f), which “explicitly
grants PRPs a right to contribution.” Id. at 138-39.
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show that Pacific took steps to “arrange” for the disposal of the

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waste oil under all but the narrowest readings of Section

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107(a)(3).

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States, 41 F.3d 562, 565 n.4 (9th Cir. 1994) (“Section 107(a)(3)

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must be given a ‘liberal judicial interpretation . . . consistent

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with CERCLA’s overwhelmingly remedial statutory scheme.’”

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(citations omitted)).

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alleged that both moving defendants are PRPs, and the court must

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deny their motion to dismiss plaintiff’s Section 113(f) claim.

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C.

Cf. Cadillac Fairview/California, Inc. v. United

Accordingly, plaintiff has sufficiently

The HSAA
The HSAA provides that “[a]ny person who has incurred

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removal or remedial action costs in accordance with this chapter

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or [CERCLA] may seek contribution or indemnity from any person

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who is liable pursuant to this chapter . . . .”

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Safety Code § 25363(e).

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CERCLA, the HSAA expressly incorporates the same liability

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standards, defenses, and classes of responsible persons as those

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set forth in CERCLA.

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consistent with CERCLA.”

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1011 (E.D. Cal. 2013) (Ishii, J.) (citations omitted); accord

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Castaic Lake Water Agency v. Whittaker Corp., 272 F. Supp. 2d

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1053, 1084 n.40 (C.D. Cal. 2003) (“HSAA creates a scheme that is

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identical to CERCLA with respect to who is liable.” (citations

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and internal quotation marks omitted)).

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Cal. Health &

“Although the HSAA is not identical to

As such, the HSAA is generally interpreted
Coppola v. Smith, 935 F. Supp. 2d 993,

Moving defendants contend that because they are not

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liable under CERCLA, they cannot be liable under the HSAA.

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(Moving Defs.’ Mem. at 15-16.)

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because plaintiffs have stated a claim under CERCLA, they have

In fact, the inverse is true:

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also stated a claim under the HSAA.

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at 1011.

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motion to dismiss this claim.5

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D.

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See Coppola, 935 F. Supp. 2d

Accordingly, the court must deny moving defendants’

Preemption of Common-Law Claims
“CERCLA does not completely occupy the field of

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environmental regulation . . . At best, CERCLA may provide a

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conflict preemption defense to . . . state law claims.”

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Envtl. Remediation, L.L.C. v. Dep’t of Health and Envtl. Quality

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of Mont., 213 F.3d 1108, 1114 (9th Cir. 2000).

ARCO

Conflict

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preemption bars a state-law claim only “where compliance with

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both the state and federal regulations is a physical

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impossibility, or when the state law stands as an obstacle to the

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accomplishment and execution of the full purposes and objectives

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of Congress.”

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928, 943 (9th Cir. 2002) (quoting Cal. Fed. Sav. & Loan Ass’n v.

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Guerra, 479 U.S. 272, 281 (1987)) (internal quotation marks

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Fireman’s Fund Ins. Co. v. City of Lodi, 302 F.3d

Although the court determines that plaintiff has stated
a claim under the HSAA, it recognizes that CERCLA’s prohibition
on double recovery precludes plaintiff from recovering the same
costs under its HSAA claim or any of its common-law claims as it
may recover under its CERCLA claims. 42 U.S.C. 9614(b); Coppola,
935 F. Supp. 2d at 1012 (“CERCLA prohibits a person from
recovering compensation for the same removal costs or damages or
claims pursuant to other state or federal law.” (citation
omitted.)
Because the court cannot determine at this stage in the
litigation whether plaintiff will ultimately prevail on its
CERCLA claims, or whether it seeks to recover the same costs
under its state-law claims as its CERCLA claims, the court will
permit plaintiff to plead both its CERCLA and state-law claims.
See Fed. R. Civ. P. 8(d)(3) (“A party may state as may separate
claims . . . as it has, regardless of consistency.”); cf. Santa
Clara Valley Water Dist. v. Olin Corp., 655 F. Supp. 2d 1066,
1079-80 (N.D. Cal. 2009) (recognizing authority stating that a
plaintiff in a CERCLA action “is allowed to plead alternative
theories, even if it cannot ultimately seek duplicate recovery.”)
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omitted).

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cavalierly pre-empt state-law causes of action,” preemption

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analysis “start[s] with the assumption that the historic police

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powers of the States were not to be superseded . . . unless that

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was the clear and manifest purpose of Congress.”

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v. Lohr, 518 U.S. 470, 485 (1996) (citation and internal

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quotation marks omitted).

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Because courts “presume[] that Congress does not

Medtronic, Inc.

Moving defendants contend that plaintiff’s “state

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common law remedies . . . are preempted, because they conflict

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with the remedial and settlement scheme approved by Congress.”

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(Moving Defs.’ Mem. at 16:15-17.)

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repeatedly clarified that CERCLA does not preempt state-law

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contribution, indemnity, or subrogation claims.

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9614(a) (“Nothing in this chapter shall be construed or

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interpreted as preempting any State from imposing any additional

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liability or requirements with respect to the release of

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hazardous substances within such state.”); 42 U.S.C. § 9613(f)(1)

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(“Nothing in this subsection shall diminish the right of any

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person to bring an action for contribution in the absence of a

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civil action under section 9606 . . . or 9607 of this title.”);

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42 U.S.C. § 9612(c)(2) (“Any person . . . who pays compensation

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pursuant to this chapter to any claimant . . . shall be

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subrogated to all rights, claims, and causes of action . . . that

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the claimant has under this chapter or any other law.”) (emphasis

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added).

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“plain language” of CERCLA “precludes any finding of preemption

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as to state law claims for contribution.”

On the contrary, Congress has

42 U.S.C. §

The Ninth Circuit has similarly emphasized that the

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City of Emeryville v.

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Robinson, 621 F.3d 1251, 1262 (9th Cir. 2010).6

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Fireman’s Fund, the only authority from the Ninth

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Circuit that moving defendants cite, is entirely consistent with

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this result.

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municipal ordinance passed by the City of Lodi to complement

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CERCLA and the HSAA, was preempted.

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doing, the court invalidated a provision of MERLO “protect[ing]

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Lodi from contribution claims by other PRPs” because it

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determined that this provision conflicted with those provisions

There, the court considered whether MERLO, a

302 F.3d at 147.

In so

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of CERCLA specifically authorizing contribution claims against

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other PRPs.

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which invalidated a municipal ordinance limiting contribution

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claims against the City of Lodi, that CERCLA categorically

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Id.

But it does not follow from that decision,

Moving defendants also cite several cases from courts
within the Ninth Circuit holding that a plaintiff must incur
response costs consistent with the National Contingency Plan
(“NCP”) in order to bring an action under Section 107 of CERCLA.
(See Moving Defs.’ Reply at 2-4 (citations omitted).) None of
those cases hold that failure to comply with the NCP preempts a
plaintiff from bringing a state-law claim for contribution,
indemnity, or subrogation. Nor do they hold that dismissal on
the basis of preemption is appropriate when a plaintiff fails to
allege compliance with the NCP in the complaint.
Despite plaintiff’s insistence to the contrary,
Fireman’s Fund did not adopt the Seventh Circuit’s holding in PMC
Inc. v. Sherwin Williams Company, 151 F.3d 610, 618 (7th Cir.
1998) that failure to comply with the NCP bars a plaintiff from
bringing a state-law action for contribution. Rather, the Ninth
Circuit noted only that its holding that MERLO’s restrictions on
contribution claims were preempted “is not inconsistent with the
reasoning of other circuits that . . . litigants may not invoke
state statutes in order to escape the application of CERCLA[] . .
. .” 302 F.3d at 947 n.15. To the extent that moving defendants
rely on PMC or on Niagara Mohawk Power Corporation v. Chevron
U.S.A., Inc., 596 F.3d 112, 138 (2d Cir. 2010), in support of the
proposition that CERCLA does preempt plaintiff’s state-law
claims, City of Emeryville makes clear that those holdings do not
reflect the law of the Ninth Circuit.
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preempts state-law contribution claims.

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flout not only the plain language of CERCLA, but the court’s

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holding that MERLO was invalid in part because it “legislatively

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insulates Lodi from contribution liability under state and

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federal law.”

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This conclusion would

Id. (emphasis added).

Moving defendants’ contention that plaintiff’s common-

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law claims are preempted is inconsistent both with the

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presumption against preemption, see Medtronic, 518 U.S. at 485,

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and, more importantly, with binding Ninth Circuit authority and

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the text of CERCLA itself.

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moving defendants’ motion to dismiss plaintiff’s common-law

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claims for apportionment of fault, contribution, indemnity, and

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subrogation.

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III. Motion to Strike

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Accordingly, the court must deny

Rule 12(f) authorizes the court to strike from the

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pleadings “any redundant, immaterial, impertinent, or scandalous

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matter.”

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generally viewed with disfavor, and will usually be denied unless

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the allegations in the pleading have no possible relation to the

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controversy, and may cause prejudice to one of the parties.”

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Champlaie v. BAC Home Loans Servicing, LP, 706 F. Supp. 2d 1029,

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1039 (E.D. Cal. 2009) (Karlton, J.) (citations omitted).

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court is in doubt as to whether the challenged matter may raise

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an issue of fact or law, the motion to strike should be denied,

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leaving an assessment of the sufficiency of the allegations for

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adjudication on the merits.”

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Fed. R. Civ. P. 12(f).

“Motions to strike are

“If the

Id.

Here, moving defendants do not argue that they will be
prejudiced by plaintiff’s references to the “tort of another”
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1

doctrine or to potential liability for personal injury and/or

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toxic exposure claims.

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reason to deny moving defendants’ motion to strike.

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N.Y.C. Emps.’ Ret. Sys. v. Berry, 667 F. Supp. 2d 1121, 1128

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(N.D. Cal. 2009) (“Where the moving party cannot adequately

6

demonstrate . . . prejudice, courts frequently deny motions to

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strike even though the offending matter was literally within one

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or more of the categories set forth in Rule 12(f).” (citation and

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internal quotation marks omitted)).

The absence of prejudice is a sufficient
See, e.g.,

The court is also unable to

10

determine at this stage in the litigation that these references

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“have no logical connection to the controversy at issue.”

12

UTStarcom, Inc. Sec. Litig., 617 F. Supp. 2d 964, 969 (N.D. Cal.

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2009); see also Champlaie, 706 F. Supp. 2d at 1039.

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the court will deny moving defendants’ motion to strike.

In re

Accordingly,

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IT IS THEREFORE ORDERED that:

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(1) moving defendants’ motion to dismiss the Complaint

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be, and the same hereby is, DENIED;

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(2) moving defendants’ motion to strike be, and the

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same hereby is, DENIED.

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Dated:

January 28, 2014

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