Cole v. Sierra Pacific Mortgage Company, Inc.

Filing 28

Order by Chief Magistrate Judge Joseph C. Spero denying without prejudice 26 Motion to Strike Affirmative Defenses. (jcslc2S, COURT STAFF) (Filed on 11/1/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DEVIN COLE,

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Case No. 18-cv-01692-JCS

Plaintiff,
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v.
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SIERRA PACIFIC MORTGAGE
COMPANY, INC.,

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Re: Dkt. No. 26

Defendant.

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United States District Court
Northern District of California

ORDER DENYING WITHOUT
PREJUDICE MOTION TO STRIKE
AFFIRMATIVE DEFENSES

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Plaintiff Devin Cole moves to strike several affirmative defenses from the answer filed by

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Defendant Sierra Pacific Mortgage Company (“Sierra Pacific”). At least some of the affirmative

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defenses at issue appear to relate to issues that will likely be litigated either for class certification

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or for the merits of Cole’s TCPA claim, while others appears unlikely to have any effect on the

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case. “‘The function of a 12(f) motion to strike is to avoid the expenditure of time and money that

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must arise from litigating spurious issues by dispensing with those issues prior to trial . . . .’”

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Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (ellipsis in original;

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citation omitted). Based on the present record, Cole’s motion is more likely to cause than avoid

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unnecessary litigation and expense.

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In the interest of efficiency, Sierra Pacific need not file a response, the hearing set for

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December 7, 2018 is VACATED, and the motion is DENIED without prejudice.1 See Hernandez

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v. Balakian, No. CV-F-06-1383 OWW/DLB, 2007 WL 1649911, at *3 (E.D. Cal. June 1, 2007)

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(denying a motion to strike affirmative defenses that appeared to be “an ‘unnecessary formalism’

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wasting the time and resources of the parties and the Court”).

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If Cole remains concerned that Sierra Pacific has asserted improper defenses, the parties

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The parties have consented to the jurisdiction of the undersigned magistrate judge for all
purposes pursuant to 28 U.S.C. § 636(c).

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shall meet and confer regarding whether an agreement can be reached for Sierra Pacific to amend

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its answer. If the parties cannot resolve the issue, Cole may file a renewed, narrowly tailored

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motion articulating the prejudice that he faces from any improper defense he seeks to strike.

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IT IS SO ORDERED.
Dated: November 1, 2018

______________________________________
JOSEPH C. SPERO
Chief Magistrate Judge

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United States District Court
Northern District of California

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