Levine et al v. Sleep Train, Inc. et al

Filing 23

ORDER signed by Senior Judge William B. Shubb on 3/24/2015 GRANTING-IN-PART and DENYING-IN-PART 11 Motion to Strike. The motion is GRANTED with respect to the following language, which is hereby STRICKEN from defendants' tenth affirmative def ense: "bona fide" and "but a plaintiff who intentionally stages nuisance lawsuits to extort monetary settlements." The motion is DENIED with respect to the remaining affirmative defenses. Defendants have 90 days from the date of this order to complete necessary discovery to determine whether there is any basis for a good faith belief that their affirmative defenses have merit. Within 120 days, defendants shall file an amended answer. Within 14 days of the filing of the amended answer, plaintiff may file a renewed motion to strike any remaining affirmative defenses. (Donati, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT LEVINE and VERONICA
GUZMAN,

CIV. NO. 2:15-0002 WBS AC
MEMORANDUM AND ORDER RE: MOTION
TO STRIKE

Plaintiffs,

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v.
THE SLEEP TRAIN, INC.; LIVE
NATION ENTERTAINMENT, INC.;
COASTAL BREEZE LIMOUSINE,
LLC; BGE YUBA, LLC; and DOES
1-20, inclusive,

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Defendants.

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Plaintiff Robert Levine, a disabled person, and his

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fiancée, plaintiff Veronica Guzman, attended a concert at the

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Sleep Train Amphitheater on July 25, 2014.

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No. 1).)

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accessible parking as required by federal and state anti-

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discrimination laws.

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(Compl. ¶ 1 (Docket

Plaintiffs allege the facility did not provide disabled

(Id. ¶¶ 1-2.)

Plaintiffs brought this action against defendants
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alleging violations of the Americans with Disabilities Act and

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several California statutes.

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answered, asserting thirty affirmative defenses. (See Answer

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(Docket No. 4).)

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defenses pursuant to Federal Rule of Civil Procedure 12(f).

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Defendant Live Nation timely

Plaintiffs moved to strike all thirty of those

After this motion was filed, defendant Sleep Train also

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answered the Complaint raising identical affirmative defenses.

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(See Docket No. 13.)

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at the hearing on March 23, 2015, the court will consider both

Pursuant to the parties’ stipulation made

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Live Nation and Sleep Train’s Answers in ruling on this motion to

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strike.

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Rule 12(f) authorizes a court to “strike from a

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pleading an insufficient defense or any redundant, immaterial,

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impertinent, or scandalous matter.”

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function of a 12(f) motion to strike is to avoid the expenditure

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of time and money that must arise from litigating spurious issues

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by dispensing with those issues prior to trial . . . .”

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Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (quotation

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marks, citation, and first alteration omitted), rev’d on other

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grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994).

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

“The

Fantasy,

Because motions to strike are “often used as delaying

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tactics,” they are “generally disfavored” and are rarely granted

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in the absence of prejudice to the moving party.

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Citibank, FSB, 133 F. Supp. 2d 1177, 1180 (N.D. Cal. 2001); see

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also 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

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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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Rosales v.

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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)).

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“where superfluous pleadings may confuse the jury, or where a

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party may be required to engage in burdensome discovery around

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frivolous matters.”

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2:10-3229 JAM CKD, 2011 WL 5040709, at *1 (E.D. Cal. Oct. 24,

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2011) (citations omitted).

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with a motion to dismiss, the court should view the pleading in

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the light most favorable to the nonmoving party.”

Courts may find prejudice

J & J Sports Prods., Inc. v. Luhn, Civ. No.

“With a motion to strike, just as

Platte Anchor

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Bolt, Inc. v. IHI, Inc., 352 F. Supp. 2d 1048, 1057 (N.D. Cal.

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2004).

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Defendants’ tenth affirmative defense is “unclean

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hands.”

Defendants allege that “plaintiffs’ claims are barred

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under the doctrine of unclean hands because plaintiffs are not a

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bona fide customer, but a plaintiff who intentionally stages

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nuisance lawsuits to extort monetary settlements.”

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10.)

(Answer ¶

Plaintiffs’ motion to strike this defense is well taken.

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“Scandalous matter” within the meaning or Rule 12(f)

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“includes allegations that cast a cruelly derogatory light on a

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party or other person.”

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114 F. Supp. 2d 955, 965 (C.D. Cal. 2000).

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the accusation that plaintiffs are engaging in extortion is

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scandalous.

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fide” and “but a plaintiff who intentionally stages nuisance

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lawsuits to extort monetary settlements” from defendants’

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Answers.

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barred under the doctrine of unclean hands because plaintiffs are

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not a customer.”

In re 2TheMart.com, Inc. Secs. Litig.,
The court agrees that

The court will accordingly strike the words “bona

The remaining allegation reads: “Plaintiffs’ claims are

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Plaintiffs move to strike all of defendants’ remaining

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defenses on the bases that they are not technically affirmative

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defenses, are insufficiently plead, and/or are immaterial to the

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action.

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boilerplate.

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that they will suffer any real prejudice from those defenses

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remaining in the Answer.

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situation where the court should grant a motion to strike in the

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absence of prejudice to plaintiffs.

Defendants’ defenses do appear to be conclusory and
However, plaintiffs have not convinced the court

Neither is this an extraordinary

See Rosales, 133 F. Supp. 2d

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at 1180.

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argument that defendants should not be permitted to proceed

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forward with affirmative defenses which they have no reason to

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believe are supported in law or fact.

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There is nevertheless some merit to plaintiffs’

Accordingly, the court will allow defendants a limited

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time to investigate whether there is a factual and legal basis

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for their affirmative defenses before requiring that any of those

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defenses be stricken from the Answer.

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IT IS THEREFORE ORDERED

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(1) that plaintiffs’ motion to strike be, and the same

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hereby is, GRANTED in part, with respect to the following

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language, which is hereby STRICKEN from defendants’ tenth

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affirmative defense: “bona fide” and “but a plaintiff who

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intentionally stages nuisance lawsuits to extort monetary

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settlements;”

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(2) that plaintiffs’ motion to strike be, and the same

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hereby is, DENIED with respect to the remaining affirmative

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defenses;

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(3) that defendants shall have 90 days from the date
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this Order is signed to complete all necessary discovery in order

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to determine whether there is any basis for a good faith belief

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that their affirmative defenses have merit.

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means that such discovery shall have been conducted so that all

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necessary depositions have been taken and interrogatories have

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been answered, and any disputes relevant to that discovery shall

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have been resolved by appropriate order if necessary and, where

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discovery has been ordered, the order has been obeyed.

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motions to compel discovery must be noticed on the magistrate

The word “complete”

All

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judge’s calendar in accordance with the local rules of this court

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and so that such motions may be heard (and any resulting orders

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obeyed) by the time set forth in this Order;

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(4) that within 120 days from the date of this Order,

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defendants shall file an Amended Answer which eliminates all

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affirmative defenses which defendants do not have an honest, good

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faith belief may be supported by specific facts and applicable

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law; and

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(5) that within fourteen days from the filing of

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defendants’ Amended Answer, plaintiffs may file a renewed motion

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to strike any remaining affirmative defenses.

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Dated:

March 24, 2015

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