Catlin et al v. United States of America et al

Filing 8

ORDER: (1) Granting 7 Motion to Strike; (2) Vacating Hearing; and (3) Setting Briefing Schedule re 4 MOTION to Dismiss. Plaintiffs shall file an Opposition to the Motion on or before 6/21/2018. Defendant may file a Reply in Support of its Motion on or before 6/28/2018. Signed by Judge Janis L. Sammartino on 6/8/2018. (mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SCOTT CATLIN, as guardian ad litem for
C.R., an individual, SCOTT CATLIN, an
individual, and DOES 1-10,

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Case No.: 18-CV-322 JLS (MDD)
ORDER: (1) GRANTING MOTION
TO STRIKE; (2) VACATING
HEARING; AND (3) SETTING
BRIEFING SCHEDULE

Plaintiffs,
v.
THE UNITED STATES OF AMERICA,
and ROES 1-50, inclusive,

(ECF No. 7)

Defendant.

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Presently before the Court is Defendant The United States of America’s Motion to

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Strike, (ECF No. 7). Defendant filed a Rule 12(b) Motion on April 17, 2018, (ECF No. 4).

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Plaintiffs then filed an amended Complaint on May 31, 2018, (ECF No. 5). Defendant

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moves to strike the amended Complaint as Plaintiffs have violated Federal Rule of Civil

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Procedure 15(a). (ECF No. 7.)

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Rule 12(f) provides that a court “may strike from a pleading an insufficient defense

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

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“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) (quoting Fantasy,
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18-CV-322 JLS (MDD)

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Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 517

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(1994)).

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“Motions to strike are ‘generally disfavored because they are often used as delaying

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tactics and because of the limited importance of pleadings in federal practice.’” Cortina v.

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Goya Foods, Inc., 94 F. Supp. 3d 1174, 1182 (S.D. Cal. 2015) (quoting Rosales v. Citibank,

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133 F. Supp. 2d 1177, 1180 (N.D. Cal. 2001)). “[M]otions to strike should not be granted

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unless it is clear that the matter to be stricken could have no possible bearing on the subject

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matter of the litigation.” Colaprico v. Sun Microsystems, Inc., 758 F. Supp. 1335, 1339

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(N.D. Cal. 1991). “When ruling on a motion to strike, this Court ‘must view the pleading

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under attack in the light most favorable to the pleader.’” Id. (citing RDF Media Ltd. v. Fox

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Broad. Co., 372 F. Supp. 2d 556, 561 (C.D. Cal. 2005)).

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Federal Rule of Civil Procedure 15(a)(1) allows a party to amend its complaint once

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as a matter of course without permission of the Court. A party can amend within twenty-

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one days of serving the pleading. Fed. R. Civ. P. 15(a)(1)(A). And, Rule 15(a)(1)(B)

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permits a party to “amend its pleading once as a matter of course within . . . 21 days after

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service of a motion under Rule 12(b), (e), or (f).” A plaintiff must follow the earlier of the

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two possible dates. Here, Plaintiffs served their initial Complaint on February 16, 2018,

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(ECF No. 3), Defendant filed its Rule 12(b) Motion on April 17, 2018, and Plaintiffs filed

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their amended Complaint on May 31, 2018. Thus, Plaintiff’s amended Complaint was filed

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forty-four days after Defendant’s Motion and 104 days after they served the initial

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Complaint. Thus, Plaintiffs were required to seek permission of the Court or written

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consent from Defendant. See Fed. R. Civ. P. 15(a)(2). They did not do so.

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While motions to strike are generally disfavored, the Court finds this is an

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appropriate instance to exercise such a remedy. Plaintiffs failed to comply with the Federal

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Rules of Civil Procedure and their amended Complaint was improperly filed. Accordingly

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the Court GRANTS Defendant’s Motion, (ECF No. 7), and STRIKES Plaintiff’s amended

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Complaint, (ECF No. 5).

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Therefore, Defendant’s Motion to Dismiss is not moot and remains pending before
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the Court. On its own motion, the Court VACATES the hearing currently scheduled for

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June 14, 2018 and SETS the following briefing schedule. Plaintiffs SHALL file an

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Opposition to the Motion on or before June 21, 2018. Defendant MAY file a Reply in

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Support of its Motion on or before June 28, 2018. The Court will only reschedule the

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hearing if needed; otherwise, it will take the parties’ filings under submission pursuant to

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Civil Local Rule 7.1(d)(1).

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IT IS SO ORDERED.
Dated: June 8, 2018

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18-CV-322 JLS (MDD)