Chappelle et al v. Suntrust Mortgage, Inc. et al

Filing 62

ORDER by Judge Yvonne Gonzalez Rogers denying 57 Motion to Strike ; denying as moot 60 Motion to Appear by Telephone. The hearing set for 12/15/15 is VACATED. (fs, COURT STAFF) (Filed on 12/4/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHARLES CHAPPELLE, ET AL.,

Case No. 14-cv-03745-YGR

Plaintiffs,
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v.
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SUNTRUST MORTGAGE, INC.,
Defendant.

United States District Court
Northern District of California

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ORDER (1) DENYING MOTION TO STRIKE
FIRST AMENDED COMPLAINT; (2) DENYING
MOTION FOR TELEPHONIC APPEARANCE AS
MOOT; AND (3) SETTING CASE
MANAGEMENT CONFERENCE
Re: Dkt. Nos. 57, 60

On September 2, 2015, the Court granted defendant’s motion to dismiss three of the four

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causes of action in the initial complaint,1 with leave to amend. (Dkt. No. 55.) Any amended

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complaint was to be filed within fourteen days, or by September 16, 2015. (Id. at 3.) Plaintiffs

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filed a First Amended Complaint on October 23, 2015. (Dkt. No. 56 (“FAC”).)2 Thereafter, on

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November 10, 2015, defendant filed both a motion to strike the FAC as untimely (Dkt. No. 57)

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and an answer to the FAC (Dkt. No. 58). Plaintiffs opposed the motion on November 23, 2015.

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(Dkt. No. 59.) Defendant failed to file a reply brief in support of the motion by the December 1,

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2015 deadline. See Civ. L.R. 7-3.3 The Court finds the motion appropriate for decision without

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The version of the initial complaint filed along with defendant’s notice of removal omits
two pages apparently containing the third cause of action, which was not challenged in
defendant’s motion to dismiss. (Dkt. No. 2-1.) The causes of action in that complaint were
apparently (1) breach of contract; (2) intentional misrepresentation; (3) negligent
misrepresentation; and (4) wrongful foreclosure.
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The FAC contains two causes of action: (1) breach of contract, and (2) negligent
misrepresentation. A loan modification agreement is attached as an exhibit to the FAC in support
of the breach of contract claim, which plaintiffs earlier claimed had been “‘inadvertently not
attached to the original complaint.’” (Dkt. No. 55 at 2.)
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Moreover, defendant’s untimely reply fails to respond to the substantive points raised in
plaintiffs’ opposition brief, largely reiterating the arguments presented in its motion. (See
generally Dkt. No. 61.) The untimeliness is therefore irrelevant as the brief does not impact the
outcome addressed herein.

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oral argument, as permitted by Civil Local Rule 7-1(b) and Federal Rule of Civil Procedure 78.

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See also Lake at Las Vegas Investors Group, Inc. v. Pacific Malibu Dev. Corp., 933 F.2d 724, 729

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(9th Cir. 1991). Thus, the hearing set for December 15, 2015 is VACATED and the motion to

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appear by telephone at the hearing (Dkt. No. 60) is DENIED as moot.

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Defendant moves to strike the FAC pursuant to Federal Rule of Civil Procedure 12(f),

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arguing (1) the FAC was untimely filed; and (2) the amended allegation as to Count II (negligent

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misrepresentation) fail to satisfy Rule 9(b)’s pleading requirements.

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A court “may strike from a pleading an insufficient defense or any redundant, immaterial,

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impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “The function of a [Rule] 12(f) motion
to strike is to avoid the expenditure of time and money that must arise from litigating spurious

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United States District Court
Northern District of California

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issues by dispensing with those issues prior to trial. . . .” Whittlestone, Inc. v. Handi-Craft Co.,

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618 F.3d 970, 973 (9th Cir. 2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.

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1993) rev’d on other grounds, 510 U.S. 517 (1994)). “Motions to strike ‘are generally disfavored

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because they are often used as delaying tactics and because of the limited importance of pleadings

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in federal practice.’” Shaterian v. Wells Fargo Bank, N.A., 829 F. Supp. 2d 873, 879 (N.D. Cal.

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2011) (quoting Rosales v. Citibank, Fed. Sav. Bank, 133 F. Supp. 2d 1177, 1180 (N.D. Cal.

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2001)). Given the disfavored status of Rule 12(f) motions, “courts often require a showing of

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prejudice by the moving party before granting the requested relief.” Sanchez v. City of Fresno,

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914 F. Supp. 2d 1079, 1122 (E.D. Cal. 2012) (quoting California Dep’t of Toxic Substances

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

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whether the portion to be stricken might bear on an issue in the litigation, the court should deny

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the motion.” Holmes v. Elec. Document Processing, Inc., 966 F. Supp. 2d 925, 930 (N.D. Cal.

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2013) (quoting Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F. Supp. 2d 1048, 1057 (N.D. Cal. 2004)).

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Whether to grant a motion to strike is a matter committed to the sound discretion of the district

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court. See Whittlestone, 618 F.3d at 973 (citing Nurse v. United States, 226 F.3d 996, 1000 (9th

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Cir. 2000)).

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Here, as noted above, defendant first argues that the entire FAC should be stricken as

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untimely. Plaintiffs respond that their initial intent was to rest on the sole remaining cause of
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action for negligent representation and not to file an amended complaint. (Dkt. No. 59 at 4.)

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Thereafter, defendant apparently raised an issue of “inconsistencies in the pleadings” resulting

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from “inconsistent versions of the original Complaint,” which prompted plaintiffs to file the FAC.

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(Id.) In light of these circumstances, for which defendant may be partly responsible, the Court

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declines to strike the FAC as untimely.

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Defendant next argues the negligent misrepresentation claim should be stricken for failing

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to satisfy Rule 9(b)’s heightened pleading requirements. As a threshold matter, the Court notes

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that this argument is more appropriately raised in the context of a motion to dismiss pursuant to

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Rule 12(b)(6). Regardless, this argument was waived insofar as the present Rule 12(f) motion is
concerned due to defendant’s failure to raise it in connection with the earlier Rule 12(b)(6) motion

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United States District Court
Northern District of California

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to dismiss. Federal Rule of Civil Procedure 12(g)(2) provides that “a party that makes a motion

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under this rule must not make another motion under this rule raising a defense or objection that

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was available to the party but omitted from its earlier motion.” One treatise describes the rule as

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follows:

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Simply stated, the objective of the . . . rule is to eliminate
unnecessary delay at the pleading stage.
Subdivision (g)
contemplates the presentation of an omnibus pre-answer motion in
which the defendant advances every available Rule 12 defense and
objection he may have that is assertable by motion. The defendant
cannot delay the filing of a responsive pleading by interposing these
defenses and objections in piecemeal fashion, but must present them
simultaneously. Any defense that is available at the time of the
original motion, but is not included, may not be the basis of a second
pre-answer motion.
Fed. Prac. & Proc. Civ. § 1384 (3d ed.).
In light of the foregoing, the motion is DENIED. The Court SETS a further Case
Management Conference for January 25, 2016.

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This Order terminates Docket Numbers 57, 60.

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IT IS SO ORDERED.

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Dated: December 4, 2015
______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE
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