Moses v. GMAC Mortgage, Inc et al

Filing 37

ORDER granting in part and denying in part 34 Motion to Strike as to 28 Amended Complaint. Signed by Judge Thomas J. Whelan on 4/4/11. (rlu)

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-BLM Moses v. GMAC Mortgage, Inc et al Doc. 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. GMAC MORTGAGE, INC., Defendant. Pending before the Court is Defendant GMAC Mortgage, Inc.'s motion to strike portions of Plaintiff Clark Moses' Second Amended Complaint ("SAC"). The Court decides the matter on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1(d.1). For the reasons stated below, the Court GRANTS-IN-PART and DENIES-IN-PART Defendant's motion to strike. I. DISCUSSION Rule 12(f) provides that a court may strike from the pleadings any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Fed.R.Civ.P. 09cv1961w UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA CLARK MOSES, Plaintiffs, CASE NO. 09-CV-1961 W (BLM) ORDER GRANTING IN-PART AND DENYING IN-PART DEFENDANT'S MOTION TO STRIKE [DOC. 34] -1Dockets.Justia.com 1 12(f). The function of a motion to strike is to avoid the unnecessary expenditures that 2 arise throughout litigation by dispensing of any spurious issues prior to trial. Chong v. 3 State Farm Mut. Auto. Ins. Co., 428 F.Supp.2d 1136, 1139 (S.D. Cal. 2006); Sidney4 Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Rule 12(f) motions 5 "are generally regarded with disfavor because of the limited importance of pleading in 6 federal practice, and because they are often used as a delaying tactic." Neilson v. Union 7 Bank of Cal., N.A., 290 F.Supp.2d 1101, 1152 (C.D. Cal. 2003). Thus, courts generally 8 grant a motion to strike only where "it is clear that the matter to be stricken could have 9 no possible bearing on the subject matter of the litigation." LeDuc v. Kentucky Cent. 10 Life Ins. Co.,814 F.Supp. 820, 830 (N.D. Cal. 1992). 11 On July 14, 2010, this Court granted Defendant's motion to strike Plaintiff's 12 damage claims under TILA and Business & Professions Code § 17200. (See Order 13 Granting In-Part and Denying In-Part Mt. to Dismiss and Strike [Doc. 27] 8:23­28.) 14 Defendant argues that "[i]n clear violation of the Court's order, Plaintiff alleges and 15 requests damages pursuant to TILA." (Mt, 221­23.) Defendant, therefore, seeks to 16 strike the following allegations in the SAC: 17 18 19 20 21 22 23 · · · "The amount of damages pled in good faith are $1,000,000." (SAC, ¶ 5.) ". . . Defendants violated §226.23(b)(1) resulting in damages in an unspecified amount." (Id., ¶ 34.) "AS TO THE FIRST THROUGH FOURTH CAUSES OF ACTION 1. Actual Damages; *** 8. $1,00,000.00." (Id., ¶ E1 and 2.) Having reviewed the SAC, only the second damage allegation identified above 24 specifically references TILA. The other allegations do not, and Defendant has not 25 explained why it believes the damage allegations refer to TILA. 26 27 28 09cv1961w -2- 1 II 2 CONCLUSION & ORDER For the reasons stated above, the Court GRANTS IN PART and DENIES IN 3 PART Defendant's motion to strike, and ORDERS the following language from 4 paragraph 34 of the SAC stricken: ". . . Defendants violated §226.23(b)(1) resulting in 5 damages in an unspecified amount." 6 Additionally, Plaintiff is reminded that his TILA claim has been dismissed with 7 prejudice, and that he is not entitled to recover damages under TILA or Business & 8 Professions Code § 17200. 9 10 11 12 DATED: April 4, 2011 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 09cv1961w IT IS SO ORDERED. Hon. Thomas J. Whelan United States District Judge -3-

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