Varner et al v. Dometic Corporation

Filing 147

ORDER granting in part and denying in part 108 Defendant's Motion to Strike. Signed by Judge Robert N. Scola, Jr on 5/15/2017. (mc)

United States District Court
for the
Southern District of Florida
Brandy Varner and others,
Plaintiffs,
v.
Dometic Corporation, Defendant.

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) Civil Action No. 16-22482-Civ-Scola
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Order on Defendant’s Motion to Strike
Brandy Varner and seven additional class representatives bring this
proposed class action against Dometic Corporation (“Dometic”) for breach of
implied warranty, unjust enrichment, and violation of various consumer
protection statutes. On February 7, 2017, the Court granted in part Dometic’s
motion to dismiss the Plaintiffs’ Amended Complaint. (Order, ECF No. 86.) On
February 22, 2017, the Plaintiffs filed their Second Amended Complaint (ECF No.
89.) This matter is before the Court on Dometic’s Motion to Strike Certain
Allegations and Exhibits Contained in Plaintiffs’ Second Amended Complaint
(ECF No. 108). For the reasons set forth below, the Court grants in part and
denies in part Dometic’s motion (ECF No. 108).
1. Legal Standard
Federal Rule of Civil Procedure 12(f) permits district courts to strike from a
pleading “any redundant, immaterial, impertinent, or scandalous matter.” On a
motion to strike, a court has broad discretion. Badilo v. City of Deerfield Beach,
No. 13-60057-CIV, 2013 WL 3762338, at *1 (S.D. Fla. July 16, 2013)
(Rosenbaum, J.) However, striking allegations from a pleading “is a drastic
remedy” that is not appropriate “unless the matter sought to be omitted has no
possible relationship to the controversy, may confuse the issues, or otherwise
prejudice a party.” Blake v. Batmasian, 318 F.R.D. 698, 700-01 (S.D. Fla. 2017)
(Marra, J.) (citations omitted); see also Gonzalez v. Sunrise Lakes Condominium
Apartments Phase III, Inc. 4, No. 06-61575, 2007 WL 2364050, at *4 (S.D. Fla.
Aug. 14, 2007) (Cooke, J.) (internal quotations and citations omitted). “Prejudice
results when the matter complained of has the effect of confusing the issues or
where it is so lengthy and complex that it places an undue burden on the
responding party.” Blake, 318 F.R.D. at 700 (internal quotations and citations
omitted). Motions to strike are generally viewed with disfavor. See Pandora
Jewelers 1995, Inc. v. Pandora Jewelry, LLC, No. 9-61490, 2010 WL 5393265, at
*1 (S.D. Fla. Dec. 21, 2010) (Cooke, J.).

2. Analysis
Despite acknowledging that motions to strike are disfavored, Dometic has
moved to strike all or portions of 51 paragraphs, three footnotes and two exhibits
of the Second Amended Complaint. (Mot. to Strike Ex. A, ECF No. 108-1.) The
material that Dometic seeks to strike falls into five categories: (1) descriptions of
the parties’ discovery disputes and characterizations of positions taken by
Dometic in its motion to dismiss; (2) information concerning the opinions of one
of the Plaintiffs’ experts; (3) evidentiary material attached as exhibits to the
Second Amended Complaint; (4) factual allegations that consist of information the
Plaintiffs obtained during discovery; and (5) irrelevant references to state statutes.
(Mot. to Strike, ECF No. 108.) The Court will address each category in turn.
A. Characterizations of Positions Taken by Dometic
Dometic asserts that the Second Amended Complaint includes immaterial
and scandalous allegations concerning “the nature and veracity of arguments”
that Dometic has made in the course of this litigation, as well as information
concerning discovery disputes between the parties. (Mot. to Strike at 8, ECF No.
108.) By way of example, Dometic points to the first paragraph of the Second
Amended Complaint. (Id.) The first paragraph alleges that Dometic made a false
statement to the Court in its briefing on Dometic’s motions to dismiss. (Second
Am. Compl. ¶ 1, ECF No. 103-1.) The first paragraph also alleges that Dometic
tried to withhold “important, responsive” discovery that the Court ultimately
compelled Dometic to produce. (Id.) The first paragraph includes two footnotes
that detail discovery disputes between the parties, and also make statements
concerning the “bold representations” that Dometic made in support of its motion
to dismiss. (Second Am. Compl. ¶ 1 n.3, n.4, ECF No. 103-1.) Dometic asserts
that these allegations have no value in developing the issues in this case and are
irrelevant, defamatory, and prejudicial. (Mot. to Strike at 10, ECF No. 108.)
In support of its position, Dometic cites to Blake v. Batmasian, which held
that it was inappropriate for plaintiffs to “state or argue in a Complaint,
particularly in a footnote, Defendants’ position regarding a contested issue.” 318
F.R.D. 698, 701 (S.D. Fla. 2017) (Marra, J.). Judge Marra therefore struck the
plaintiffs’ characterization of the defendants’ position in the complaint. Id. In
response, the Plaintiffs assert that their allegations do not reflect on Dometic’s
moral character or detract from the dignity of the Court. (Pl.’s Resp. at 20, ECF
No. 113.) Furthermore, the Plaintiffs assert that Dometic has not shown that it
will be prejudiced by these statements. (Id.)
“The word ‘scandalous’ generally refers to any allegation that unnecessarily
reflects on the moral character of an individual. . .or casts a cruelly derogatory
light on a party or other person.” Id. (citing S.E.C. v. Lauer, No. 03-80612, 2007
WL 1393917, at *2 (S.D. Fla. Apr. 30, 2007) (Marra, J.)). The Court notes that in

its order on Dometic’s motion to dismiss (ECF No. 86), it made no findings that
Dometic made false statements in its briefing. As Judge Marra noted, it is
inappropriate for the Plaintiffs to state or argue the Defendant’s position
concerning a contested issue, and the Plaintiffs’ allegations that Dometic made
false representations in its filings are scandalous and unnecessary to the
development of any factual issue in this matter. Therefore, the Court grants the
Defendant’s motion to strike the Plaintiffs’ allegations that it made false
statements in its filings, as well as the Plaintiffs’ characterizations of the positions
that Dometic took in the briefing. Accordingly, the Court strikes the seventh
sentence of Paragraph 1 of the Second Amended Complaint, the first two
sentences of footnote 4, and the second sentence of Paragraph 140.
However, the Court declines to employ the drastic remedy of striking the
information concerning the parties’ discovery disputes and the fact that Dometic
was compelled to produce documents that the Plaintiffs deem to be important to
their case. Although it is highly unusual for such information to be included in a
complaint, Dometic has not sufficiently demonstrated that the information has no
possible relationship to the controversy, may confuse the issues, or will otherwise
prejudice it. In its reply, Dometic asserts that the Second Amended Complaint is
a public document, and that the accusations that Dometic tried to withhold
incriminating documents harm its reputation and goodwill. (Reply at 3, ECF No.
116.) This claim is of no avail, because the briefing and orders on the Plaintiffs’
motions to compel are also public documents. Therefore, striking the information
in the Second Amended Complaint concerning the parties’ discovery disputes will
not remove the information from the public record. Furthermore, the Defendant’s
argument, if successful, would apply to most complaints, since any allegation
that a defendant engaged in wrongful conduct could harm the defendant’s
reputation and goodwill.
B. References to Expert Opinions
The Defendant requests that the Court strike references in the Second
Amended Complaint to “hypothetical and untested opinions of Plaintiffs’
undisclosed expert, Dr. Paul Eason.” (Mot. to Strike at 11, ECF No. 108.) The
Defendant asserts that these opinions are improper because Dometic has not yet
been afforded an opportunity to challenge the opinions under Daubert. (Id. at 12.)
Dometic asserts that the information is prejudicial because the jury would be
exposed to expert opinions that may be wholly excluded under Daubert. (Id.)
Dometic relies in part on Mazzeo v. Nature’s Bounty, Inc., in which Judge
Bloom struck an expert report that was attached to a complaint. No. 14-60580,
2015 WL 1268271, at *3 (S.D. Fla. Mar. 19, 2015); see also Meeks v. Murphy Auto
Group, Inc., No. 9-1050, 2009 WL 3669638, at *1 (M.D. Fla. Oct. 30, 2009)
(striking expert affidavit attached to the plaintiff’s complaint because the

“inclusion of such expert opinions. . .is contradictory to the pleading
requirements set forth in Fed.R.Civ.P. 8. . . .”). However, the Court notes that
Judge Bloom did not strike the expert’s factual statements that were incorporated
into the complaint. Mazzeo, 2009 WL 3669638, at *1.
In response, the Plaintiffs argue that the Second Amended Complaint will
not be shown to the jury and cites to cases in which courts denied motions to
strike allegations in complaints because the allegations only posed a risk if and
when the evidence was presented to the jury. See Blake, 318 F.R.D. at 701
(“Concerns about inflaming and prejudicing the trier of fact against Defendants is
without foundation. The jury is only exposed to evidence admitted at trial.”);
Sunderland v. Bethesda Hospital, Inc., No. 13-80685, 2014 WL 11411849, at *3
(S.D. Fla. Sept. 10, 2014) (Hurley, J.) (denying motion to strike because
statements in the complaint pose “a prejudicial risk only if and when that
evidence is presented to the jury.”). The Plaintiffs assert that the Second Amended
Complaint will not be shown to the jury. (Pl.’s Resp. at 6, ECF No. 113.)
Since the Plaintiffs have not attached any expert reports or affidavits to the
Second Amended Complaint, the Court will not strike the references to expert
opinions in the Second Amended Complaint. Such references are not immaterial,
impertinent, or scandalous. Should the Plaintiffs seek to include the Second
Amended Complaint as a trial exhibit, the Defendant may raise objections
through the appropriate motions at the appropriate time.
C. Exhibits Attached to the Second Amended Complaint
The Defendant asserts that the majority of the 640 pages of exhibits that
the Plaintiffs attached to the Second Amended Complaint consist of evidentiary
matters obtained in discovery and are not appropriately considered as part of the
pleadings. (Mot. to Strike at 13-14, ECF No. 108.) The Defendant also asserts that
quotations from and citations to these exhibits in the Second Amended Complaint
should be stricken. (Id. at 14.) The Defendant relies on Fed. R. Civ. P. 10(c), which
states that “A copy of a written instrument that is an exhibit to a pleading is a
part of the pleading for all purposes.” (Mot. to Strike at 12, ECF No. 108.) The
Defendant cites to Black’s Law Dictionary for the proposition that the phrase
“written instrument” is limited to a “written legal document. . .such as a contract,
will, promissory note, or share certificate.” However, the Court notes that Rule 10
does not define the term “written instrument.”
The Defendant relies primarily on case law from other circuits to support
its position that the exhibits should be stricken. (Id. at 12-13.) In addition, the
Defendant cites to United States v. Med-Care Diabetic & Medical Supplies, Inc., et
al., in which Judge Ryskamp struck exhibits and factual information about one of
the individual defendant’s prior felony convictions, living expenses attributed to
that defendant and his wife, and records pertaining to corporate entities that were

not named as defendants, from the complaint. No. 10-81634, 2014 WL
12279511, at *1 (S.D. Fla. June 17, 2014) (Ryskamp, J.) Judge Ryskamp
reasoned that the information created “the possibility of an end run around the
rules of evidence, which prohibit citation to past wrongdoing or character
evidence as probative of a propensity to act in accordance with that character
trait.” Id. at *2. Here, however, the Defendant has not alleged that the exhibits or
the quotations from them would be inadmissible at trial. In fact, the Defendant’s
reply in support of its motion specifically states that it is not seeking to strike the
exhibits because they are irrelevant or inadmissible. (Reply at 7, ECF No. 116.)
Rather, the Defendant asserts that it is seeking to strike the exhibits because
“they are immaterial at the pleading stage.” (Id.)
In addition, the Defendant argues that the inclusion of the exhibits and the
references to them in the Second Amended Complaint would prejudice the
Defendant’s right to any later motions in limine to preclude the evidence at trial.
(Mot. to Strike at 15, ECF No. 108.) However, it is not clear why the Defendant
believes that it cannot later file a motion in limine to exclude the evidence if any
of the exhibits are in fact inadmissible. The Defendant will be free to challenge the
admissibility of the documentary evidence attached to the Second Amended
Complaint at trial or in the appropriate pre-trial motions. See Agan v. Katzman &
Korr, P.A., 328 F.Supp.2d 1363, 1369 (S.D. Fla. 2004) (Torres, J.) (denying motion
to strike exhibits to complaint because there was a possibility that the exhibits
could form the basis for admissible evidence, and the court did not find that the
exhibits confused the issues, unnecessarily prejudiced a party, or lacked
relationship to the controversy) (citations omitted); Mech v. School Bd. of Palm
Cnty., No. 13-80437, 2014 WL 505163, at *4 (S.D. Fla. Feb. 7, 2014) (Marra, J.)
(denying motion to strike allegedly immaterial allegations in complaint and
exhibit attached to complaint because striking is a drastic remedy and “[i]f
appropriate at the time of a trial, reference to these matters can be precluded by
order of the Court.”).
Since the Defendant has not sufficiently established that the exhibits and
references to them have no possible relationship to the controversy, may confuse
the issues, or will otherwise prejudice it, the Court denies the Defendant’s motion
to strike the exhibits and the references to them.
D. Information Obtained Through Discovery
The Defendant argues that the Court should strike information in the
Second Amended Complaint that the Plaintiffs obtained through discovery in this
matter. (Mot. to Strike at 15, ECF No. 108.) In support of its position, the
Defendant cites to several cases. (Id. at 15-17.) However, the cases cited by the
Defendant all concern motions to dismiss under Rule 12(b)(6). See, e.g., U.S. ex.
Rel. Atkins v. McInteer, 470 F.3d 1350, 1359-60 (11th Cir. 2006) (upholding

district court’s decision to dismiss plaintiff’s complaint because it failed to meet
requirements of Rule 9(b); U.S. ex rel. Clausen v. Laboratory Corp. of America, Inc.,
290 F.3d 1301 (11th Cir. 2002) (same). None of the cases hold that information
obtained through discovery should be stricken from a complaint, nor do the cases
even mention that the plaintiff(s) included information in the complaint that was
obtained through discovery. See, e.g., id. Rather, the cases hold that plaintiffs
must meet the pleading requirements of Federal Rule of Civil Procedure 9(b)
before they get “a ticket to the discovery process.” See, e.g., U.S. ex. Rel. Atkins,
470 F.3d at 1359-60.
The Defendant has not filed a motion to dismiss the Second Amended
Complaint under Rule 12(b)(6). Therefore, the case law cited by the Defendant is
irrelevant. The Defendant has not demonstrated that the information in the
Second Amended Complaint that the Plaintiffs obtained through discovery is
immaterial, scandalous, or impertinent. Therefore, the Court denies the
Defendant’s motion to strike such information.
E. References to State Statutes
Finally, the Defendant argues that the Court should strike references to a
Minnesota statute, a Michigan statute, and a Texas statute because the Plaintiffs
did not plead any claims under those statutes. (Mot. to Strike at 18-19, ECF No.
108.) In response, the Plaintiffs state that the references to the three statutes are
“clearly a scrivener’s error” and that Dometic is not prejudiced by the references
since they will have no effect on the case. (Pl.’s Resp. at 19 n. 11, ECF No. 113.)
Since the references to the three statutes are immaterial to this case, the Court
will grant Dometic’s motion to strike the references to the Minnesota, Michigan,
and Texas State Sub-Classes in Paragraph 192 of the Second Amended
Complaint.
3. Conclusion
Accordingly, the Court grants in part and denies in part the Defendant’s
motion to strike (ECF No. 19). The Court strikes the seventh sentence of
Paragraph 1, the first two sentences of footnote 4, the second sentence of
Paragraph 140, and the references to the Minnesota, Michigan, and Texas State
Sub-Classes in Paragraph 192 of the Second Amended Complaint.
Done and Ordered in chambers, at Miami, Florida, on May 15, 2017.
________________________________
Robert N. Scola, Jr.
United States District Judge