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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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INNOVATION VENTURES, LLC, et al.,

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For the Northern District of California

United States District Court

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No. C 12-05523 WHA

Plaintiffs,
v.

ORDER GRANTING
MOTION TO STRIKE

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PITTSBURG WHOLESALE GROCERS,
INC., et al.,

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Defendants.
/

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Defendants Pittsburg Wholesale Grocers, Inc. and Pacific Groservice, Inc. (“Pitco”) filed

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a motion under Rule 12(f) to strike conspiracy allegations in plaintiffs’ second amended

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complaint. No opposition on the merits was filed. A self-serving, conditional statement of non-

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opposition was filed, but the statement did not address plaintiffs’ position on the motion were the

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conditions not accepted. In particular, defendants stated that they did not oppose the motion to

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strike on condition that “the Court’s order clarify that those words are stricken only insofar as

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they refer to Pitco.” Subsequent to the filing of their conditional statement of non-opposition,

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defendant United Custom Distribution, LLC, filed a motion for joinder in Pitco’s motion to

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strike (Dkt. No. 178).

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In light of the failure of the complaint on its face to support the allegations of conspiracy

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therein, all conspiracy allegations in the second amended complaint shall be STRICKEN.

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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

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agreement)” is unpersuasive. Where, as here, the object of the conspiracy is fraudulent, the

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allegations of conspiracy are subject to the heightened pleading requirements of Rule 9(b).

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Swartz v. KPMG LLP, 476 F.3d 756, 765 (9th Cir. 2007). Even assuming the facts in the

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paragraphs cited by plaintiffs permit an inference of conspiracy, they do not state with

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particularity the circumstances constituting the conspiracy.

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Plaintiffs’ observation that no other defendants have moved to strike does not affect the

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calculus. A defendant’s standing to challenge the conspiracy allegations against other

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defendants is irrelevant because Rule 12(f)(1) plainly contemplates that a Court may strike

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pleadings “on its own” initiative.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: February 7, 2013.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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