Jones v. U.S. Border Patrol Agent Hernandez et al

Filing 95

ORDER Granting 74 Defendant's Motion to Strike. Signed by Judge Thomas J. Whelan on 3/29/2018. (jao)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ALTON JONES,

Case No.: 16-CV-1986 W (WVG)
Plaintiff,

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v.

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ORDER GRANTING DEFENDANT’S
MOTION TO STRIKE [DOC. 74]

U.S. BORDER PATROL AGENT
HERNANDEZ, et al.,

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Defendants.

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Pending before the Court is Defendant’s motion to strike an unauthorized claim for

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relief in the Third Amended Complaint (“TAC”). [Doc. 74.] Plaintiff opposes.

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[Doc. 77.] The Court decides the matter on the papers submitted and without oral

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argument pursuant to Civil Local Rule 7.1(d)(1). For the reasons that follow, the Court

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grants Defendants’ motion.

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16-CV-1986 W (WVG)

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I.

BACKGROUND
On November 9, 2017, the Court granted Defendants’ motion to dismiss, inter alia,

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the third cause of action in the Second Amended Complaint (“SAC”) as to Defendant

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Bowen. (Nov. 9, 2017 Order [Doc. 71].) The SAC alleged an unconstitutional search of

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Plaintiff only at the Imperial Beach Border Patrol station. (SAC [Doc. 38] ¶¶ 54, 88.)

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The same is true of all previous complaints. (FAC [Doc. 9] ¶¶ 52, 69; Compl. [Doc. 1] ¶¶

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50, 65.) From the original Complaint, filed on August 8, 2016, through the SAC, filed on

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June 23, 2017, at no time did Plaintiff ever allege a search on the road before he arrived

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at the station. (Compl. [Doc. 1] ¶¶ 35–40, 65; FAC [Doc. 9] ¶¶ 35–42; 69; SAC [Doc. 38]

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¶¶ 35–42.)
The Court’s November 9 order focused solely on the search at the station, as that

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was the only search that Plaintiff had ever alleged. (Nov. 9, 2017 Order [Doc. 71].) It

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dismissed the third cause of action against Defendants Johnson, Hernandez, Faatoalia,

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and Bowen with leave to amend on the basis that the SAC contained no allegation that

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they were involved in the search in question. (Id. [Doc. 71] 13:22–15:12; 22:4–13.)

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Given that the deadline for moving to amend pleadings had passed in June of 2017,

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the Court circumscribed Plaintiff’s leave to amend “in accordance with the terms of this

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order.” (See Scheduling Order [Doc. 30] ¶ 1; Nov. 9, 2017 Order [Doc. 71] 22:12–13.)
On December 1, 2017, Plaintiff filed his Third Amended Complaint (“TAC”).

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(TAC [Doc. 74].) This document for the first time alleged a separate search—one

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involving Agent Bowen on the road before he was taken to the station. (Id. [Doc. 74] ¶¶

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41, 91.) Defendant Bowen has moved to strike this allegation as outside the scope of

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Plaintiff’s leave to amend, as granted in the Court’s prior order. (Mot. to Strike [Doc.

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74].) Plaintiff opposes. (Pl.’s Opp’n [Doc. 77].)

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For the reasons set forth below, the allegations in question are outside the scope of

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Plaintiff’s leave to amend and will be stricken as impertinent. See Fed. R. Civ. P. 12(f).

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16-CV-1986 W (WVG)

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II.

LEGAL STANDARD

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A.

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Rule 12(f) allows a court to “strike from a pleading an insufficient defense or any

Motion to Strike Pursuant to Rule 12(f)

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redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “The

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court may act . . . on its own[,] or . . . on motion made by a party either before responding

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to the pleading or, if a response is not allowed, within 21 days after being served with the

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pleading.” Id. “ ‘The function of a 12(f) motion to strike is to avoid the expenditure of

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time and money that must arise from litigating spurious issues by dispensing with those

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issues prior to trial . . . .’ ” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th

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Cir. 2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d

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on other grounds by 510 U.S. 517 (1994)). Motions to strike are generally disfavored

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and are “usually . . . denied unless the allegations in the pleading have no possible

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relation to the controversy, and may cause prejudice to one of the parties.” See Travelers

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Cas. & Sur. Co. of Am. v. Dunmore, 2010 WL 5200940, at *3 (E.D. Cal. 2010).

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Redundant matter is the needless repetition of assertions. See Dunmore, 2010 WL

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5200940, at *3. “ ‘Immaterial matter is that which has no essential or important

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relationship to the claim for relief or the defenses being plead.’ ” Whittlestone, 618 F.3d

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at 974 (quoting Fogerty, 984 F.2d at 1527). “Impertinent matter consists of statements

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that do not pertain, and are not necessary, to the issues in question.” Id. (internal

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quotation omitted). “Scandalous matters are allegations that unnecessarily reflect . . . on

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the moral character of an individual or state . . . anything in repulsive language that

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detracts from the dignity of the court.” Consumer Solutions REO, LLC v. Hillery, 658 F.

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Supp. 2d 1002, 1020 (N.D. Cal. 2009) (quoting Corbell v. Norton, 224 F.R.D. 1, 5

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(D.D.C. 2004)).

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16-CV-1986 W (WVG)

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III.

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DISCUSSION
The May 16, 2017 Scheduling Order set the deadline for amending the complaint

at June 23, 2017. (Scheduling Order [Doc. 30] ¶ 1.)

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Plaintiff has not moved to amend since the expiration of that deadline. The only

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claim at issue in the previous motion to dismiss—which resulted in a grant of leave to

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amend—involved a search that was alleged to have taken place at the Border Patrol

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station. (See Nov. 9, 2017 Order [Doc. 71].) That was the context of the prior order, and

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that was the scope of the leave granted Plaintiff to amend the SAC “in accordance with

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the terms of [that] order.” (Id. [Doc. 71] 22:7–9; 22:12–13.) In adding allegations

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relating to a new search beyond that which was alleged in the previous complaints just

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before the close of fact discovery on January 16, 2018 (Scheduling Order [Doc. 30] ¶ 6),

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Plaintiff exceeded the scope of this Court’s leave to amend and circumvented Judge

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Gallo’s scheduling order.

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Plaintiff did not have leave of Court to allege an entirely new search, for which the

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opposing parties were not on notice. The allegations of a search wholly distinct from that

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analyzed in the prior order are impertinent and will be stricken. See Fed. R. Civ. P. 12(f);

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Motion to Strike—Redundant, Immaterial, Impertinent, or Scandalous Matter, 5C Fed.

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Prac. & Proc. Civ. § 1382 (3d ed. 2017) (“ ‘[I]mpertinent’ matter consists of statements

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that do not pertain, and are not necessary, to the issues in question.”); Harrison v. Perea,

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168 U.S. 311, 318–19 (1897) (“It is also said that impertinence is the introduction of any

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matters in a bill, answer, or other pleading in the suit which are not properly before the

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court for decision at any particular stage of the suit.”). If Plaintiff wants to allege a new

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search at this stage of the case, he must move both for leave to amend his pleading and to

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amend the scheduling order.

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16-CV-1986 W (WVG)

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IV.

CONCLUSION & ORDER
Defendant Bowen’s motion to strike is GRANTED. [Doc. 74.]

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IT IS SO ORDERED.
Dated: March 29, 2018

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16-CV-1986 W (WVG)