Meyer v. Bebe Stores, Inc.

Filing 142

ORDER by Judge Yvonne Gonzalez Rogers denying 115 Motion to Strike ; denying 115 Motion for More Definite Statement; denying 116 Motion ; terminating 117 Motion; Granting the parties' administrative motions to file certain exhibits and portions of their briefs under seal, only for the purposes of the instant motions. (fs, COURT STAFF) (Filed on 2/10/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MELITA MEYER, ET AL.,

Case No. 14-cv-00267-YGR

Plaintiffs,
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v.
9
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BEBE STORES, INC.,

Defendant.

Re: Dkt. No. 115, 116, 117

United States District Court
Northern District of California

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ORDER DENYING BEBE’S MOTION TO
STRIKE OR FOR MORE DEFINITE
STATEMENT; DENYING MOTION TO
DECERTIFY

Plaintiffs bring this class action against defendant bebe Stores, Inc. (“bebe”) alleging two

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counts: (i) negligent violations of the Telephone Consumer Protection Act (“TCPA”); and (ii)

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willful violations of the TCPA. (Dkt. No. 112, “FAC”.) To prevail under the TCPA, plaintiffs

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must establish that a defendant: (i) “made” text message calls (ii) using an automatic telephone

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dialing system (“ATDS”)1 (iii) without prior express consent. 47 U.S.C. § 227(b)(1). Beginning

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on October 16, 2013, regulations became effective requiring prior express written consent before

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“deliver[ing] or caus[ing] to be delivered to the person called advertisements or telemarketing

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messages using an [ATDS].” 47 C.F.R. §§ 64.1200(a)(2), (f)(8). The Court previously certified

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two classes in this action:
1. Post-October 16, 2013 Non-Club bebe Class
All persons within the United States who provided their mobile
telephone number to bebe in one of bebe’s stores at the point-of-sale
and were sent an SMS or text message from bebe during the period
of time beginning October 16, 2013 and continuing until the date the
Class is certified, who were not members of Club bebe during the
Class Period.

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1

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The term ATDS is defined as “equipment which has the capacity . . . to store or produce
telephone numbers to be called, using a random or sequential number generator[, and] to dial such
numbers.” 47 U.S.C. § 227(a)(1).

2. Post-October 16, 2013 Club bebe Class
All persons within the United States who provided their mobile
telephone number to bebe in one of bebe’s stores at the point-of-sale
and were sent an SMS or text message from bebe during the period
of time beginning October 16, 2013 and continuing until the date the
Class is certified, who were members of Club bebe during the Class
Period.

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With regards to the Club bebe Class, the Court instructed plaintiffs to present an amended

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complaint joining a proper class representative, else the Court would decertify the same. On

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October 21, 2016, plaintiffs filed an amended complaint naming plaintiff Courtney Barrett as a

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representative for the Club bebe Class. (See FAC.)

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Now before the Court are two motions from bebe:2 (i) motion to decertify both classes;
and (ii) motion to strike, or in the alternative for a more definite statement, allegations relating to

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United States District Court
Northern District of California

10

plaintiff Courtney Barrett. (Dkt. Nos. 115, 116.) With regards to the motion to decertify, bebe

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argues that the Court should decertify both classes because further discovery has revealed (i) that

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neither class is ascertainable and (ii) plaintiffs lack common proof as to whether the equipment

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used was an ATDS. Bebe further argues that the Court should decertify the Club bebe Class on

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the grounds that plaintiff Barrett is an improper representative. On January 6, 2017, the Court

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requested supplemental briefing on the effect of the Ninth Circuit’s recent decision in Briseno v.

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ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017) on the topic of ascertainability. The parties

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filed supplemental briefs on January 20 and 27, 2017. (Dkt. Nos. 136, 137.)

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Having carefully considered the pleadings, the papers submitted on these motions, and oral
arguments held on February 7, 2017, the Court DENIES bebe’s motions.3

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2

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Defendant bebe also filed a motion regarding its objections to plaintiffs’ trial plan.
While the Court acknowledges such objections and will consider the same if and when the time
comes to prepare for trial, such is not a proper motion and does not at this time require action from
the Court. Accordingly, the Court administratively terminates Docket Number 117.
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Plaintiffs and bebe each filed two administrative sealing motions (Dkt. Nos. 123, 124,
132, 134). The material in question is subject to an earlier Stipulated Protective Order, allowing
the parties to designate certain documents produced in discovery as confidential. (Dkt. No. 53.)
The Court finds the requests are sufficiently justified under the applicable “good cause” standard
and, therefore, GRANTS the motions to seal the designated excerpts and documents in question
solely for purposes of resolving the instant motions. See Kamakana v. City & Cty. of Honolulu,
447 F.3d 1172, 1179–80 (9th Cir. 2006). The Court notes that should the parties file motions to
seal such documents in the context of a summary judgment motion, it may not grant the same, as
those are dispositive motions.
2

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I.
.

BACKG
GROUND
The Co adopts th Backgrou section in its August 22, 2016 Order regardin class
ourt
he
und
n
t
ng

2
3

cer
rtification, an adds the following fa relevant to the instan motions:
nd
f
acts
nt
Pursuan to the Cou
nt
urt’s order, plaintiffs file their FAC joining plai
p
ed
C
intiff Barrett as a
t

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5

rep
presentative for the Club bebe Class. (FAC ¶¶ 3 7–45.) With regards to Barrett, reco show
h
ords

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tha she signed up for Club bebe in Oct
at
d
b
tober 2010, and provided a telephon number du
ne
uring the

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sig
gn-up process. (See FAC ¶ 38; Dkt. No. 124-7 a 2.) Howev Barrett returned to a bebe store
C,
at
ver,

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on December 12, 2013, and in connection with a pu
1
d
urchase, pro
ovided her m
mobile teleph
hone number
r

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at a point-of-sa (“POS”). (Dkt. No. 116-2 at ¶ 2( 4 Shortl thereafter, plaintiffs al
ale
1
(k).)
ly
,
llege that
beb sent Barre the Opt-In Text at iss in this lit
be
ett
sue
tigation. (FA ¶ 37.)
AC

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United States District Court
Northern District of California

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II.
.

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13

MOTIO TO DECER
ON
RTIFY
A.

Leg Framew
gal
work
Federal Rule of Civ Procedure 23(c)(1)(C provides th “[a]n ord that gran or denies
l
vil
e
C)
hat
der
nts

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cla certificati may be altered or am
ass
ion
a
mended befor final judg
re
gment.” “[A district cou retains
A]
urt

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the flexibility to address pr
e
t
roblems with a certified class as they arise, inclu
h
y
uding the abi
ility to

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dec
certify.” U. Steel, Paper &Forestry v. ConocoP
r
Phillips Co., 593 F.3d 802, 809 (9th C 2010);
Cir.

17

see also Gen. Tel. Co. of Sw v. Falcon 457 U.S. 1
e
T
w.
n,
147, 160 (1982) (“Even a
after a certif
fication order
r

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is entered, the judge remain free to mo
e
j
ns
odify it in lig of subseq
ght
quent develo
opments in t
the

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litigation.”). “T standard applied by the courts in reviewing a motion to decertify is the same as
The
d
y
n
s

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the standard us in evalua
e
sed
ating a motio to certify; namely, wh
on
;
hether the re
equirements of Rule 23

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are met.” Cruz v. Dollar Tree Stores, Inc., 270 F.R
e
z
T
I
R.D. 499, 50 (N.D. Cal. Sept. 9, 2010) (citing
02

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O’Connor v. Boeing N. Am Inc., 197 F.R.D. 404, 410 (C.D. C 2000)).
m.,
F
Cal.

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4

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At or arguments, plaintiffs’ counsel con
ral
nfirmed that the number provided in October
r
n
201 was the same number as that prov
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r
vided in Dec
cember 2013 However, plaintiffs in
3.
,
ndicate, and
beb did not di
be
ispute, that it was not ent
t
tered into be
ebe’s databa as a mobi telephone number in
ase
ile
e
201 and was only entered as such wh plaintiff Barrett retur
10,
d
hen
rned to the s
store and con
nfirmed it as
a mobile teleph
m
hone number at a POS in December 2013. (See Dkt. No. 12
r
n
23-7 at 2, Me
endelsohn
De ¶ 2 (secti of databa showing the “Create Date” for B
ecl.
ion
ase
Barrett’s mob telephon number
bile
ne
ent as “12/12
try
2/2013”); Dk No. 123-8 Mendelsoh Decl. Ex. 1, Agarwal Dep. Tr. 38
kt.
8,
hn
l
8:4–39:12
(co
onfirming tha the “Creat Date” field is “the dat that the in
at
te
te
ndividual pro
ovided their c phone
cell
num
mber”).)
3

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B.

Discussion
1. Motion to Decertify Bo Classes
D
oth
a. Ascert
tainability

In this Court’s prev
C
vious order certifying the two classes at issue her the Court found that
c
e
s
re,
t

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pla
aintiffs’ show
wing of ascer
rtainability was sufficien upon plain
w
nt
ntiffs’ repres
sentation tha they
at

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ant
ticipated bein able to ob
ng
btain records from mGag whom pl
s
ge,
laintiffs indi
icated was cu
urrently in

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pos
ssession of Air2Web rec
A
cords that could establish class memb
h
mbership. Mo recently, bebe
ost

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con
ntends, plain
ntiffs conced that they have been u
ded
unable to get the requisit document from
t
te
ts

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mG
Gage and mG
Gage has ind
dicated they may not actu
ually have th ability to produce the same.
he
e

10

United States District Court
Northern District of California

11

(Dk No. 117-3 at 2.) On such basis, bebe argues that the Cou should de
kt.
b
urt
ecertify both classes.
h
Shortly after bebe filed its moti to decert
y
f
ion
tify, the Nint Circuit iss
th
sued a decisi in
ion

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Bri
iseno holdin that class proponents are not requi
ng
p
a
ired to demo
onstrate that there is an

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adm
ministrativel feasible way to determ who is in the class i order for t class to b certified.
ly
w
mine
in
the
be

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Bri
iseno, 844 F.3d at 1126. In so holdin the Ninth Circuit exp
ng,
h
plained that Rule 23’s “e
enumerated

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crit
teria already address the policy conc
y
e
cerns that ha motivated some cour to adopt a separate
ave
rts

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adm
ministrative feasibility re
equirement, and do so w
without under
rmining the balance of in
nterests

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stru by the Supreme Cou Congress and the oth contribu
uck
S
urt,
s,
her
utors to the R
Rule.” Id. at 1123. The

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Court asked the parties to file additiona briefs disc
e
f
al
cussing the i
impact of the Ninth Circ
e
cuit’s

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dec
cision on beb motion to decertify.
be’s
.

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Despite this recent opinion, beb continues to argue tha the Court should decertify the
e
be
s
at

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cla due to pla
ass
aintiffs’ inab
bility to obtain such reco
ords from mG
Gage. Bebe contends th although
hat,

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the Ninth Circu has disav
e
uit
vowed the ex
xistence of an independe administr
n
ent
rative feasibi
ility

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req
quirement, Federal Rule of Civil Procedure 23(b)
)(3)(2) still r
requires a sh
howing that a class

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act
tion would be superior to other available method Such a re
b
o
ds.
equirement, argues bebe includes an
e,
n

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ana
alysis of the “manageabi
ility” of the class and req
c
quires “cour to balance the benefit of class
rts
e
ts

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adj
judication ag
gainst its cos
sts.” See id. at 1128. In support of i argument bebe prima
its
t,
arily relies

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on Smith v. Mic
crosoft Corp 297 F.R.D 464 (S.D. Cal. 2014), which prece
p.,
D.
eded Briseno In Smith,
o.

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the court refuse to certify a TCPA cla finding th plaintiff f
e
ed
ass
hat
failed to sati the supe
isfy
eriority
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requirement. Specifically, the Smith court conducted an analysis balancing several factors, and

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concluded that a class action would not be superior, in part because no feasible method existed to

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determine who actually received a text message. Id. at 472–73. Similar to the situation at hand,

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the defendant in Smith had produced a list of mobile telephone numbers that were sent text

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messages. However, the court credited declarations from defendants indicating that at least some

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of those phone numbers were incapable of receiving texts, and thus, even though the court could

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determine what numbers were sent texts, one could not actual receipt. Id.at 473. Additionally, the

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court found that asking potential class members to opt-in if they remembered receiving a text

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would be ineffective, “because it is highly unlikely that, more than five years out, an individual

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would remember that single unsolicited text message.” Id.

United States District Court
Northern District of California

11

Such management concerns are alone insufficient to decertify the classes here. The Ninth

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Circuit specifically noted that it was not clear why “requiring an administratively feasible way to

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identify all class members at the certification stage is necessary to protect [defendant’s] due

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process rights.” Briseno, 844 F.3d at 1132. The Ninth Circuit also addressed several of the same

15

concerns bebe has raised: “If the concern is that claimants in cases like this will eventually offer

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only a ‘self-serving affidavit’ as proof of class membership, it is again unclear why that issue must

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be resolved at the class certification stage to protect a defendant’s due process rights.” Id. The

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Ninth Circuit further explained that defendants can “challenge the claims of absent class members

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if and when they file claims for damages” explaining that parties have “long relied on ‘claim

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administrators, various auditing processes, sampling for fraud detection, follow-up notices to

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explain the claims process, and other techniques tailored by the parties and the court’ to validate

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claims.” Id. at 1131 (citation omitted).

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Plaintiffs’ inability to obtain the actual messaging records from mGage does, however,

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impact the superiority analysis under Rule 23(b)(3), which was a necessary component of the

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Court’s certification of both classes. Under such analysis, courts consider the following four non-

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exhaustive factors: (1) the interests of members of the class in individually controlling the

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prosecution or defense of separate actions; (2) the extent and nature of any litigation concerning

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the controversy already commenced by or against the members of the class; (3) the desirability of
5

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concentrating the litigation of the claims in the particular forum; and (4) the difficulties likely to

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be encountered in the management of a class action. Fed. R. Civ. P. 23(b)(3)(A)–(D).

3

Contrary to the finding in Smith, this Court previously found that the statutory damages

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provided by the TCPA are “not sufficient to compensate the average consumer for the time and

5

effort that would be involved in bringing small claims against a national corporation.” (Dkt. No.

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106 at 18 (quoting Agne v. Papa John’s Int’l, Inc., 286 F.R.D. 559, 571–72 (W.D. Wa. 2012)

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(citing cases))); see also Whitaker v. Bennett Law, PLLC, No. 13-CV-3145, 2014 WL 5454398, at

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*7 (S.D. Cal. Oct. 7, 2014) (finding that given the damages allowed under the TCPA, “requiring

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the putative class members to adjudicate their claims independently would be too economically
burdensome and would deprive many of a chance to recover under the law”). The Court does not

11
United States District Court
Northern District of California

10

now disturb its finding on that factor. The Court next evaluates whether the benefits of litigating

12

this action as a class outweigh the manageability concerns present here.5

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Here, plaintiffs have presented the Declaration of Randall A. Snyder, an independent

14

telecommunications technology consultant, who avers that the list of telephone numbers that bebe

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produced in discovery can be readily analyzed “to determine which of these numbers would have

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been sent a text message.” (Dkt. No. 126 at ¶ 89.) Mr. Snyder further states that “[t]his analysis

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will produce a final list of cellular telephone numbers that would have been sent a text message by

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Air2Web on behalf of [bebe].” (Id.) Bebe argues that such method would not conclusively

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determine who received text messages, which would be the only people to whom bebe would be

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liable, if at all. Thus, bebe contends, it would be impossible to determine bebe’s actual liability in

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this action because it hinges on how many people actually received text messages during the Class

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Period. Although the Court agrees that such issues do present manageability concerns, the Court

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finds that at this stage, plaintiffs’ showing is sufficient to tilt the balance in their favor. In a case

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involving the statutory damages at issue here, it is unlikely that individual plaintiffs would actually

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incur the time and expense to bring these claims. Thus, but for a class action, such violations of

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27
28

5

Bebe did not raise arguments with regards to factors two and three of the superiority
analysis, and thus, the Court need not address the same.
6

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the TCPA may never be brought to light. See Briseno, 844 F.3d at 1128 (discussing need for

2

balancing administrative feasibility against other superiority factors particularly where “there may

3

be no realistic alternative to class treatment”). The Court therefore finds that a class action is the

4

superior method for litigating the issues in this case, and therefore, plaintiffs have satisfied the

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requirements under Rule 23(b)(3).

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7
8
9

Accordingly, the Court DENIES bebe’s motion to decertify both classes on these grounds.
b. Common Proof Regarding Use of ATDS
Bebe also argues that both classes should be decertified because plaintiffs have presented
no common proof establishing that bebe utilized an ATDS to send text messages during the Class
Period. Plaintiffs counter proffering the declaration of Mr. Snyder, who provides the following

11
United States District Court
Northern District of California

10

opinions with regards to the evidence on the record relating to bebe’s use of an ATDS: Mr.

12

Snyder, who has set forth significant experience in the industry, has opined that the text messages

13

sent to plaintiffs contained a short code number, “42323.” (Dkt. No. 126 at ¶ 59.) According to

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Mr. Snyder, text messages containing such short codes can only be “sent by computer equipment;

15

otherwise, the originating address of the mobile-terminated text messages would appear as a

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standard 10-digit cellular telephone number.” (Id.) Mr. Snyder further opines that the “creation of

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the SMS communications protocol format and the transmission of the SMS messages that were

18

sent en masse occurred in a completely automatic fashion.” (Id. at ¶ 60.) Based on this

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information and Mr. Snyder’s knowledge of Air2Web, he opines that bebe utilized an ATDS to

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transmit these messages. (See id. at ¶¶ 57–58.)

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Such a showing at this stage is sufficient to demonstrate that plaintiffs intend to offer proof

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common to the entire class that bebe utilized an ATDS during the three-month class period.

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Bebe’s contention that such evidence is not probative of bebe’s violation of the TCPA does not

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persuade. If bebe believes that the evidence is insufficient to establish liability under the TCPA,

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other procedural mechanisms are available. Such arguments, however, do not militate towards

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decertification. Bebe cannot short-circuit the process by asking the Court to make a factual

27

determination regarding the probative value of plaintiffs’ expert’s opinions on this record,

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7

1

particularly where bebe has not even deposed such expert. Accordingly, the Court DENIES bebe’s

2

motion to decertify both classes on this ground.

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2. Motion to Decertify Club bebe Class

4

Finally, bebe also moves to decertify the Club bebe Class on the grounds that plaintiff

5

Barrett is not an appropriate class representative. Specifically, bebe argues that a proper Club

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bebe Class representative would be an individual who both gave their number to bebe and

7

received a text message from bebe during the Class Period itself. Bebe notes that Barrett provided

8

her mobile telephone number to bebe in October 2010 when she first enrolled in Club bebe, not

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during the Class Period. (Dkt. No. 116-2 at 2.) On this basis, bebe contends that Barrett would
not have fallen under the written consent rule promulgated in October 2013, and, therefore, is not

11
United States District Court
Northern District of California

10

similarly situated. Plaintiffs respond with two arguments: first, the class definition is not limited

12

to those who provided a mobile telephone number during the Class Period; and second, even if it

13

were, plaintiff Barrett actually provided such number both before and during the Class Period. As

14

to the second argument, plaintiffs note that, although Barrett provided a telephone phone number

15

to bebe in 2010 as part of her Club bebe membership, it was not until December 12, 2013 that

16

bebe asked Barrett for a mobile telephone number at a POS for the purposes of the text messaging

17

program at issue in this litigation, which, as discussed above, bebe’s records confirm.

18

With regards to plaintiffs’ first argument, the Court clarifies that the class definition must

19

necessarily apply only to those who both provided a mobile telephone number and then received a

20

text message during the Class Period. The timing of when a class member provided such number

21

to bebe is relevant to whether they belong to the Class. The Court refused to certify the larger

22

class proposed by plaintiff and only certified the two post-October 2013 classes due to a

23

regulatory change that required consent to be written. For everyone else, the Court found that the

24

“varied scripts and instructions provided to different stores at different times . . . renders the

25

question of consent not one that can be answered on a classwide basis because it would require an

26

individual assessment of what each customer was told.” (Dkt. No. 106 at 10.) If plaintiff Barrett

27

had provided her mobile telephone number prior to the Class Period, these very same

28

individualized issues of consent would predominate.
8

With re
egards to pla
aintiffs’ second argument however, t Court fin that the r
nt,
the
nds
relevant date
e

1
2

for when plaint provided her mobile telephone n
r
tiff
d
number to be is Decem
ebe
mber 12, 2013, not

3

Oc
ctober 2010. Bebe conce
edes as much in their mo
h
otion to dece
ertify: “At th time [i.e. October
hat
.

4

201 bebe po
10],
oint-of-sale software did not include a mobile tel
s
lephone num
mber field; th mobile
he

5

tele
ephone num
mber field wa later added to facilitate customers initiating th enrollme in bebe’s
as
d
e
heir
ent

6

tex messaging program.” (Dkt. No. 116-1 at 7.) T
xt
g
Thus, the rel
levant intera
action here occurred on

7

De
ecember 12, 2013, when bebe specifi
2
ically asked plaintiff Bar
rrett for a mobile telepho number,
one
,

8

and then shortl thereafter sent her a te message. Bebe’s arg
d
ly
ext
gument essen
ntially boils down to

9

ask
king the Cou to decide on the merit of their de
urt
ts
efense: that plaintiff Bar
rrett’s enroll
lment in
Clu bebe and provision of a mobile te
ub
f
elephone num
mber at the t
time of enrol
llment const
tituted

11
United States District Court
Northern District of California

10

con
nsent to rece the text message at issue in this litigation. W
eive
i
Whether that is so, howe
t
ever, is not

12

an appropriate argument fo class certification purp
or
poses, and is better reser
s
rved for sum
mmary

13

jud
dgment or tri 6
ial.

14

III.
.

15

MOTIO TO STRIK OR FOR MORE DEFINI STATEM
ON
KE
ITE
MENT
A.

Leg Framew
gal
work

16

A court “may strike from a plea
t
e
ading an insu
ufficient def
fense or any redundant, i
immaterial,

17

imp
pertinent, or scandalous matter.” Fe R. Civ. P 12(f). “Th function o a [Rule] 12 motion
r
ed.
P.
he
of
2(f)

18

to strike is to avoid the exp
s
penditure of time and mo
oney that mu arise from litigating s
ust
m
spurious

19

issu by dispe
ues
ensing with those issues prior to trial . . . .” Whit
t
l
ttlestone, Inc v. Handi-C
c.
Craft Co.,

20

618 F.3d 970, 973 (9th Cir 2010) (quo
8
9
r.
oting Fantasy Inc. v. Fog
y,
ogerty, 984 F
F.2d 1524, 15 (9th Cir.
527

21

199 rev’d on other grounds, 510 U.S 517 (1994 “Motion to strike ‘are generally disfavored
93),
n
S.
4)).
ns
y
d

22

bec
cause they ar often used as delaying tactics and because of the limited i
re
d
g
d
importance o pleadings
of

23

in federal pract
f
tice.’” Shate
erian v. Well Fargo Ban N.A., 829 F. Supp. 2 873, 879 (
ls
nk,
9
2d
(N.D. Cal.

24

201 (quoting Rosales v. Citibank, Fe Sav. Bank 133 F. Sup 2d 1177, 1180 (N.D. Cal.
11)
g
C
ed.
k,
pp.
,

25

200
01)).

26
6

27
28

Should the parties bring moti
ions for sum
mmary judgm on this i
ment
issue, the par
rties should
add
dress the Nin Circuit’s recent opin
nth
s
nion addressi issues of consent in t context o the TCPA
ing
f
the
of
A
in Van Patten v. Vertical Fitness Group -- F.3d --, 2017 WL 4
v
F
p,
,
460663 (9th Cir. 2017).
9

Given the disfavore status of Rule 12(f) m
t
ed
R
motions, “cou often req
urts
quire a show
wing of

1
2

pre
ejudice by th moving pa before granting the r
he
arty
g
requested re
elief.” Sanch v. City of Fresno,
hez
f

3

914 F. Supp. 2d 1079, 1122 (E.D. Cal. 2012) (quot
4
d
2
ting Californ Dep’t of Toxic Subst
nia
f
tances

4

Control v. Alco Pac., Inc., 217 F. Supp 2d 1028, 1
o
p.
1033 (C.D. C 2002)). “If there is a doubt
Cal.
any

5

wh
hether the portion to be stricken migh bear on an issue in the litigation, t court sho
ht
n
e
the
ould deny

6

the motion.” Holmes v. Elec. Documen Processin Inc., 966 F. Supp. 2d 925, 930 (N Cal.
e
H
nt
ng,
d
N.D.

7

201 (quoting Platte Anch Bolt, Inc v. IHI, Inc. 352 F. Sup 2d 1048, 1057 (N.D. Cal. 2004))
13)
g
hor
c.
.,
pp.
).

8

Wh
hether to gra a motion to strike is a matter com
ant
mmitted to th sound disc
he
cretion of the district

9

cou See Whi
urt.
ittlestone, 61 F.3d at 97 (citing Nu
18
73
urse v. Unite States, 22 F.3d 996, 1000 (9th
ed
26

10

Cir 2000)).
r.
Rule 12 allows a party to mo for a mo definite s
2(e)
ove
ore
statement bef
fore filing a responsive

United States District Court
Northern District of California

11
12

ple
eading where the origina pleading “i so vague o ambiguou that a part cannot rea
e
al
is
or
us
ty
asonably

13

pre
epare a respo
onse.” Fed. R. Civ. P. 12
R
2(e). “Rule 12(e) motion are disfav
ns
vored and ra
arely

14

gra
anted.” Cast
taneda v. Bu
urger King Corp., 597 F. Supp. 2d 10
C
.
035, 1045 (N Cal. 20
N.D.
009) (citing

15

Cellars v. Pac. Coast Pack
kaging, Inc., 189 F.R.D. 575, 578 (N Cal. 199
N.D.
99)). “The ru is aimed
ule
d

16

at unintelligibil rather th lack of detail and is o
u
lity
han
d
only appropr
riate when th defendan cannot
he
nts

17

und
derstand the substance of the claim asserted.” Id (citing Beery v. Hitach Home Ele
o
a
d.
hi
ecs., Inc.,

18

157 F.R.D. 477 480 (C.D. Cal. 1993)). “If the det sought by a motion f more def
7
7,
tail
for
finite

19

statement is ob
btainable thro
ough discove the mot
ery,
tion should b denied.” Griffin v. Ce
be
edar Fair,

20

L.P 817 F. Su 2d 1152 1156 (N.D Cal. 2011) (quoting Ca
P.,
upp.
2,
D.
)
astaneda, 59 F. Supp. 2 at 1045).
97
2d

21

B.

Discussion

22

Bebe moves to strik or in the alternative f a more de
m
ke,
for
efinite statem
ment, allegat
tions

23

rela
ating to plain Barrett because, as bebe conten Barrett i not a prop represent
ntiff
nds,
is
per
tative of the

24

Clu bebe Clas In short, bebe’s use of this proce
ub
ss.
o
edural rule is wholly inap
s
ppropriate in this
n

25

con
ntext.

26

With re
egards to beb motion to strike refe
be’s
t
erences to Barrett and th Club bebe Class,
he
e

27

bec
cause the Co has deni bebe’s motion to dec
ourt
ied
m
certify the Cl bebe Cla and has f
lub
ass
found that

28

Bar
rrett is a pro
oper represen
ntative of the same, the C
e
Court DENIE bebe’s mo
ES
otion to strik
ke.
10
0

With regards to bebe’s motion for a more definite statement, bebe argues that plaintiffs

1
2

should provide information as to when Barrett provided her phone number to bebe. Such detail,

3

however, as revealed by the briefing on the instant motions, is obtainable, and, in fact, has been

4

obtained, through discovery. Therefore, a motion for a more definite statement on this issue is

5

unnecessary. See Griffin, 817 F. Supp. 2d at 1156. Accordingly, the Court also DENIES bebe’s

6

motion for a more definite statement.

7

IV.

8
9

CONCLUSION
For the foregoing reasons, the Court DENIES bebe’s motion to decertify the Club bebe and

Non-Club bebe Classes and bebe’s motion to strike or for a more definite statement. The Court
GRANTS the parties’ administrative motions to file certain exhibits and portions of their briefs

11
United States District Court
Northern District of California

10

under seal, only for the purposes of the instant motions.

12

This Order terminates Docket Numbers 115, 116, 117, 123, 124, 132, and 134.

13

IT IS SO ORDERED.

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Dated: February 10, 2017
______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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