Innovation Ventures LLC et al v. Pittsburg Wholesale Grocers Inc et al

Filing 184

ORDER GRANTING MOTION TO STRIKE by Judge Alsup granting 156 Motion to Strike ; granting 178 Motion for Joinder (whalc1, COURT STAFF) (Filed on 2/7/2013)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 INNOVATION VENTURES, LLC, et al., 11 For the Northern District of California United States District Court 10 12 13 No. C 12-05523 WHA Plaintiffs, v. ORDER GRANTING MOTION TO STRIKE 14 PITTSBURG WHOLESALE GROCERS, INC., et al., 15 Defendants. / 16 17 Defendants Pittsburg Wholesale Grocers, Inc. and Pacific Groservice, Inc. (“Pitco”) filed 18 a motion under Rule 12(f) to strike conspiracy allegations in plaintiffs’ second amended 19 complaint. No opposition on the merits was filed. A self-serving, conditional statement of non- 20 opposition was filed, but the statement did not address plaintiffs’ position on the motion were the 21 conditions not accepted. In particular, defendants stated that they did not oppose the motion to 22 strike on condition that “the Court’s order clarify that those words are stricken only insofar as 23 they refer to Pitco.” Subsequent to the filing of their conditional statement of non-opposition, 24 defendant United Custom Distribution, LLC, filed a motion for joinder in Pitco’s motion to 25 strike (Dkt. No. 178). 26 In light of the failure of the complaint on its face to support the allegations of conspiracy 27 therein, all conspiracy allegations in the second amended complaint shall be STRICKEN. 28 Plaintiffs’ suggestion that the conspiracy allegations should be preserved as to three defendants because the complaint asserts “facts that allow the inference of conspiracy (i.e. unlawful 1 agreement)” is unpersuasive. Where, as here, the object of the conspiracy is fraudulent, the 2 allegations of conspiracy are subject to the heightened pleading requirements of Rule 9(b). 3 Swartz v. KPMG LLP, 476 F.3d 756, 765 (9th Cir. 2007). Even assuming the facts in the 4 paragraphs cited by plaintiffs permit an inference of conspiracy, they do not state with 5 particularity the circumstances constituting the conspiracy. 6 Plaintiffs’ observation that no other defendants have moved to strike does not affect the 7 calculus. A defendant’s standing to challenge the conspiracy allegations against other 8 defendants is irrelevant because Rule 12(f)(1) plainly contemplates that a Court may strike 9 pleadings “on its own” initiative. 11 For the Northern District of California United States District Court 10 IT IS SO ORDERED. 12 13 Dated: February 7, 2013. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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