Michael Savetsky v. Pre-Paid Legal Services, Inc.

Filing 56

Order vacating hearing on 45 motion to strike and denying motion. Signed by Judge Samuel Conti on April 28, 2015. (sclc2, COURT STAFF) (Filed on 4/28/2015)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL SAVETSKY, individually and ) Case No. 14-03514 SC
on behalf of all others similarly )
situated,
) ORDER DENYING MOTION TO
) STRIKE
Plaintiff,
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v.
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PRE-PAID LEGAL SERVICES, INC.
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d/b/a LegalShield,
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Defendant.
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)
)

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For the Northern District of California

United States District Court

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Now before the Court is Plaintiff Michael Savetsky's motion to

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strike Defendant LegalShield's1 motion for reconsideration.

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Nos. 34 ("Recons. Mot."), 45 ("Mot. to Strike").

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fully briefed, ECF Nos. 50 ("Opp'n"), 52 ("Reply"), and because it

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is appropriate for consideration without oral argument under Civil

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Local Rule 7-1(b), the hearing currently set for May 15, 2015 is

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VACATED.

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ECF

The motion is

For the reasons set forth below, the motion is DENIED.

Defendant is actually named Pre-Paid Legal Services, Inc., but
does business as LegalShield. For simplicity the Court will refer
to Defendant as LegalShield.

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The Court previously denied LegalShield's motion to compel

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arbitration, ECF No. 33 ("Prior Order"), concluding that Savetsky

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had not assented to the arbitration provision contained in

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LegalShield's membership contract.

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reconsideration partly on the basis of newly discovered facts, and

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the Court denied the motion.

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Savetsky argues the Court should strike LegalShield's motion for

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reconsideration and supporting declaration and exhibits as they are

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"an improper attempt to lard the record for an eventual

LegalShield sought

ECF No. 48 ("Recons. Order").

Now,

United States District Court

For the Northern District of California

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appeal . . ." and contain documents and arguments "which

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LegalShield should not be permitted to embed into an appellate

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record."

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Mot. at 2.

Setting aside the parties' jurisdictional arguments, the Ninth

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Circuit has clearly held that it is impermissible to grant a

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Federal Rule of Civil Procedure 12(f) motion to strike a motion for

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reconsideration "to keep [the movant] from improperly augmenting

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the record for appeal . . . ."

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Co., 697 F.2d 880, 885 (9th Cir. 1983).

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pointed out, a party has a right to appeal orders denying

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reconsideration.

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II, Ltd., 652 F.2d 808, 811 (9th Cir. 1981)) (additional citations

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omitted).

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could be thwarted if a district court were permitted to deny the

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motion and then, by granting a motion to strike, delete the motion

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or supporting documents from the record.

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See Sidney-Vinstein v. A.H. Robins
As the Ninth Circuit

See id. (citing Stephenson v. Calpine Conifers

Yet appellate review of an order denying reconsideration

Id.

Savetsky attempts to distinguish Sidney-Vinstein by pointing

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out that (1) unlike the movant in Sidney-Vinstein, he is not

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relying on Rule 12(f) (which is expressly limited to striking

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materials from "pleadings"), (2) courts routinely strike materials

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outside pleadings including briefs and declarations without relying

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on Rule 12(f), and, (3) in any event, the materials he seeks to

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strike were "immaterial" to the Court's decision on the motion for

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reconsideration.

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Ltd. v. Harrah's Operating Co., No. 04-3955 SC, 2009 WL 2487990, at

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*3 (N.D. Cal. Aug. 13, 2009); Frye v. The Wine Library, Inc., No.

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06-5399 SC, 2007 WL 4208289, at *1 (N.D. Cal. Nov. 27, 2007)).

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However, none of the cases Savetsky cites suggests that striking

Reply at 5 n.1 (citing, among others, NGV Gaming,

United States District Court

For the Northern District of California

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submissions to insulate them from appellate review is permissible

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under sources of authority other than Rule 12(f), even if the

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stricken materials are immaterial to the denial of the motion for

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reconsideration.

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about insulating matters from appellate review apply with equal

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force to materials the Court considered irrelevant in denying

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reconsideration because the Ninth Circuit may well have a different

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view of what is relevant when it reviews the Court's orders.

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On the contrary, the Ninth Circuit's concerns

As a result, the motion is DENIED.

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IT IS SO ORDERED.

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Dated: April 28, 2015
UNITED STATES DISTRICT JUDGE

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