Alvarado Chaverri et al v. Dole Food Company, Inc. et al
Filing
164
ORDER & REASONS denying 153 Plaintiffs' Motion to Strike. Signed by Judge Carl Barbier on 6/8/12. (Reference: all cases)(sek, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ALVARADO CHAVERRI ET AL
CIVIL ACTION
VERSUS
NO: 11-1289
REF: ALL CASES
DOLE FOOD COMPANY, INC. ET
AL
SECTION: “J”(4)
ORDER AND REASONS
Before the Court are Plaintiffs’ 12(f) Motion to Strike
Shell’s Incorporation by Reference “In Extenso” of All Relevant
Arguments and Authorities Set Forth in Its Previous Motions to
Dismiss Plaintiffs’ Original, First and Third Amended Complaints
into Shell’s 12(b)(6) Motion to Partially Dismiss Plaintiffs’
Fourth Amended Complaint (the “Motion to Strike”) (Rec. Doc.
153), and Shell Oil Company (“Shell”)’s opposition to same (Rec.
Doc. 158).
The motion is set for submission on June 6, 2012 on
supporting memoranda and without oral argument.
Having
considered the motion and legal memoranda, the record, and the
applicable law, the Court finds that the motion should be DENIED.
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PROCEDURAL HISTORY AND BACKGROUND FACTS
Plaintiffs, citizens of Ecuador, Panama, and Costa Rica,
allege injury due to exposure to the chemical pesticide
dibromochloropropane (“DBCP”).
Plaintiffs allege that Defendants
manufactured, distributed, or used DBCP on the farms where
Plaintiffs worked in commercial banana cultivation.
Plaintiffs
seek compensation for damage that they allege resulted from
Defendants’ actions and for the costs of medical monitoring for
DBCP-related health conditions, including sterility or abnormally
low sperm counts, cornea damage, cancer, chronic skin disorders,
compromised renal systems, and damage to pulmonary and
respiratory function.
THE PARTIES’ ARGUMENTS
Plaintiffs move the Court to strike Shell’s reference “in
extenso” of “all relevant arguments” contained in Shell’s
previous motions to dismiss Plaintiffs’ several amended
complaints.
Plaintiffs argue that the prior complaints have been
superseded by Plaintiffs’ Fourth Amended Complaint.
Plaintiffs
aver that Shell’s prior motions to dismiss are now immaterial or
are redundant of Shell’s current motion to dismiss.
They assert
that many of the allegations in prior complaints challenged in
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Shell’s prior motions are no longer relevant because such
allegations have been amended in the Fourth Amended Complaint.
Plaintiffs argue that Shell’s wholesale incorporation of its
prior motions injects confusion and uncertainty as to which of
its previous arguments are relevant to the most recently filed
motion.
Plaintiffs aver that such pleading constitutes an
insufficient defense that invokes Rule 12(f)’s vehicle for
striking said defense.
Moreover, Plaintiffs argue that they are left vulnerable on
appeal to the risk of having failed to address Shell’s nonspecific previous arguments that Shell has incorporated by
reference, because of the risk that Plaintiffs will wrongly guess
which of Shell’s previous arguments Shell considers relevant to
the latest motion to dismiss.
Plaintiffs assert that Shell
should not be permitted to place Plaintiffs in this speculative
position.
They aver that Shell does not identify from its prior
motions the arguments that are relevant to the most recent
motion.
In conclusion, Plaintiffs argue that they should only be
required to address the arguments clearly set forth in Shell’s
motion to dismiss Plaintiffs’ Fourth Amended Complaint.
Shell argues that Rule 12(f) does not permit a motion to
strike any portion of a motion because a motion is not a
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pleading.
It argues that a motion to strike is a drastic remedy
and that Plaintiffs have asserted no basis in support of
obtaining such relief, for several reasons.
First, Shell asserts
that Plaintiffs’ allegations of redundancy and/or immateriality
lack merit because the Fourth Amended Complaint does not state
that it supersedes all prior complaints, and therefore Shell
validly made an incorporation by reference to prior motions.
Second, Shell states that it previously requested the dismissal
of certain enumerated claims and causes of action, which are
clearly and specifically identified in its most recently filed
motion to dismiss.
It avers that it cited page numbers from
prior memoranda in support of the most recently filed motion to
dismiss.
Finally, Shell argues that many of the allegations in
prior complaints were not substantively amended by the Fourth
Amended Complaint.
Because it asserts that the incorporated
arguments and authorities are material and relevant, it argues
that Plaintiffs’ motion to strike should be denied.
DISCUSSION
Under Federal Rule of Civil Procedure 12(f), “[t]he court
may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.”
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FED.
R. CIV. P. 12(f).
The decision to grant or deny a motion to
strike lies within the sound discretion of the trial court.
Tarver v. Foret, No. 95-1192, 1996 WL 3536, at *1 (E.D. La. Jan.
3, 1996). However, motions to strike under Rule 12(f) are
disfavored and “should be used sparingly by the courts” because
they are considered a “drastic remedy to be resorted to only when
required for the purposes of justice.”
Pan–Am. Life Ins. Co. v.
Gill, No. 89-5371, 1990 WL 58133, at *2 (E.D. La. Apr. 27, 1990)
(internal quotations omitted).
Additionally, the moving party
must generally make a showing of prejudice before a motion to
strike is granted.
Id.
The Court finds that Plaintiffs’ motion to strike should be
denied.
Rule 12(f) only permits a court to strike matter within
pleadings.
Pleadings do not include motions, such as Shell’s
motion to dismiss Plaintiffs’ Fourth Amended Complaint.
See
Jackson v. State Farm Fire & Cas. Co., No. 06-7202, 2010 WL
724108, at *10 (E.D. La. Feb. 22, 2010) (“Plaintiffs’ motions are
not ‘pleadings’ and Rule 12(f) is therefore inapplicable.”); cf.
Marquette Transp. Co. v. Trinity Marine Prods., Inc., Nos. 06826, 06-827, 06-1281, 06-1282, 2006 WL 2349461, at *1 n.1 (E.D.
La. Aug. 11, 2006) (“Because Rule 12(f) contemplates only
striking ‘pleadings’ as defined by the Federal Rules, and because
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plaintiffs’ statements are not pleadings, defendants’ motions to
strike are DENIED.”) (citation omitted).
Even if Plaintiffs invoked a proper procedural mechanism for
attempting to strike Shell’s incorporative language, the Court is
not persuaded that the relief sought is warranted.
Shell does
not wholly fail to identify the arguments from its prior motions
that are relevant to issues raised in the most recently filed
motion to dismiss.
Rather, in several portions of its memorandum
in support of its motion to dismiss the Fourth Amended Complaint,
Shell provides pinpoint citations to page numbers of prior
memoranda.
See Rec. Doc. 116-1, at 3-4.
Moreover, nothing
prevented Plaintiffs from purporting to incorporate their prior
opposition memoranda, in which they presumably responded to
arguments raised in Shell’s prior motions to dismiss.
To the
extent that Shell’s arguments raised in those prior motions to
dismiss are alleged to be moot, Plaintiffs should so argue or
aver.
Finally, it made sense for Shell to make incorporation by
reference because Shell raises many of the same arguments in each
of its motions to dismiss.
Compare Rec. Doc. 116-1 (raising
issues with respect to punitive damages, conspiracy,
participation and assistance, medical monitoring, and allegations
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regarding specific plaintiffs), with Rec. Doc. 89-1 (addressing
same issues).
The only substantially different type of argument
made in prior motions to dismiss filed by Shell, but not raised
in Shell’s most recent motion to dismiss, is an argument
concerning group/enterprise/market-share liability.
To the
extent Plaintiffs argue that certain of Shell’s prior arguments
have been mooted by subsequent amended complaints, this is a
matter for the merits and subject to the Court’s decision as to
whether subsequent amended complaints have, in fact, addressed
the deficiencies alleged by Shell in its prior motions to
dismiss.
For the foregoing reasons, IT IS ORDERED that Plaintiffs’
Motion to Strike (Rec. Doc. 153) is DENIED.
New Orleans, Louisiana, this 8th day of June, 2012.
____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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