Argentine v. Bank of America Corporation et al

Filing 31

ORDER ATTACHED denying 24 Motion to Strike Class Allegations from 17 Amended Complaint. Signed by Judge Richard A. Lazzara on 7/29/2015. (CCB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

JOSEPH J. ARGENTINE,
Plaintiff,
v.

CASE NO: 8:15-cv-957-T-26JSS

BANK OF AMERICA CORPORATION and
FIA CARD SERVICES, N.A.,
Defendants.
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ORDER
Before the Court is Defendants’ Motion to Strike Class Allegations from the
Amended Complaint (Dkt. 24) and Plaintiff’s Response (Dkt. 30). After careful
consideration of the allegations of the Amended Complaint (Dkt. 17), the argument of
counsel, and the applicable law, the Court concludes the motion should be denied.
STANDARD OF REVIEW
A motion to strike under Federal Rule of Civil Procedure 12(f) is used to rid a
complaint of “any redundant, immaterial, impertinent, or scandalous matter.” Motions to
strike may be granted only if “the matter sought to be omitted has no possible relationship
to the controversy, may confuse the issues, or otherwise prejudice a party.” United States
v. MLU Servs., Inc., 544 F.Supp.2d 1326, 1330 (M.D. Fla. 2008) (quoting Reyher v.
Trans World Airlines, Inc., 881 F.Supp. 574, 576 (M.D. Fla. 1995)). Motions to strike

are “generally disfavored by the Court and are often considered time wasters.” MLU
Servs., Inc., 544 F.Supp.2d at 1330 (quoting Somerset Pharm., Inc. v. Kimball, 168
F.R.D. 69, 71 (M.D. Fla. 1996)). In the context of motions directed to allegations of class
certification as insufficient under Federal Rule of Civil Procedure 23, the court must be
particularly hesitant to decide matters against a class in view of the absence of a
developed factual record. Jones v. Diamond, 519 F.2d 1090, 1099 (5th Cir. 1975)
(holding that “trial court abused its discretion in deciding against the class solely on the
basis of the initial pleadings” and stating that the court “should be loathe to deny the
justiciability of class actions without the benefit of the fullest possible factual
background.”1
DISCUSSION
Defendants assert that Plaintiff’s definition of his class is overbroad and the
requirements of commonality and typicality cannot be satisfied under the facts as alleged
in the Amended Complaint. The Court, however, agrees with Plaintiff that the motion to
strike the allegations of class certification is premature.2 See, e.g., Desmond v.
Citimortgage, Inc., 2015 WL 845571 (S.D. Fla. 2015) (finding that on the face of the
1

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
the Eleventh Circuit adopted as binding precedent all former Fifth Circuit decisions prior
to October 1, 1981.
2

As aptly noted by Plaintiff, the Defendants sought removal based on the Class
Action Fairness Act, 28 U.S. C. § 1332(d) (CAFA). See docket 1. The declaration filed
in support of the Notice of Removal was based on the allegations of the complaint. See
docket 3.
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complaint, class allegations are sufficient, and determination of class certification should
be done after filing of formal motion for class certification); Bohlke v. Shearer’s Foods,
LLC, 2015 WL 249418 (S.D. Fla. 2015) (finding that striking class action allegations
premature before motion to certify class filed); James D. Hinson Elec. Contracting Co.,
2014 WL 1118015 (M.D. Fla. 2014) (finding motion to strike class allegations as
premature because class discovery was necessary). Plaintiff should, of course, be
prepared to address these issues in any future motion for class certification. To the extent
Defendants seek to strike other references in the Amended Complaint as failing to comply
with this Court’s prior order, their request is also denied.
It is therefore ORDERED and ADJUDGED that Defendants’ Motion to Strike
Class Allegations from the Amended Complaint (Dkt. 24) is DENIED.
DONE AND ORDERED at Tampa, Florida, on July 29, 2015.

s/Richard A. Lazzara
RICHARD A. LAZZARA
UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:

Counsel of Record

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