Russell v. Werner Enterprises, Inc.
MEMORANDUM AND ORDER - Defendants' motion to strike 152 is granted. Plaintiffs shall re-file the fourth amended complaint after striking the last sentence of paragraph 8, paragraphs 9-10, and exhibit 1 from the fourth amended complaint by Janu ary 6, 2017. Plaintiffs are required to re-file a motion for class certification before the Court will determine the merits of such a motion. Plaintiffs are prohibited from making any other change to the complaint without leave of Court. Member Cases: 8:14-cv-00319-LES-FG3, 8:15-cv-00287-LES-FG3 Ordered by Senior Judge Lyle E. Strom. (KLF)
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
EZEQUIEL OLIVARES ABARCA,
individually and on behalf of
all those similarly situated,
WERNER ENTERPRISES, INC.,
and DOES 1-100, inclusive,
WILLIAM SMITH, on behalf of
himself and all others
similarly situated, and on
behalf of the general public, )
WERNER ENTERPRISES, INC.,
d/b/a C.L. WERNER, INC., a
corporation, and DOES 1-100, )
MEMORANDUM AND ORDER
This matter is before the Court on a motion of
defendant, Werner Enterprises, Inc., to strike portions of the
plaintiffs’ fourth amended complaint (Filing No. 152).
matter has been fully briefed.
See Filing Nos. 153, 156, and
After review of the motion, the parties’ briefs, and the
applicable law, the Court finds as follows.
A more detailed explanation of this case’s background
and procedural history can be found in the Court’s October 28,
2016, Order (the “Order”) (Filing No. 150).
The Court will
therefore forego repeating the complete background and procedural
The Order denied without prejudice plaintiffs’
motion for class certification (Id. at 15).
The Order found that
plaintiffs had failed to adequately define the California Class
in a clearly ascertainable manner and had therefore failed to
meet the prerequisites under Federal Rule of Civil Procedure
23(a) (Id. at 9-14).
The Court gave plaintiffs leave to amend their
complaint (Id. at 15).
However, the Court ordered that the
fourth amended complaint should only “provide the Court with an
adequately defined and clearly ascertainable definition for the
(Id. at 15-16).
The Court likewise
prohibited plaintiffs from substantively altering the complaint
in any other way “including, but not limited to, adding
additional claims, parties, classes, and/or causes of action.”
(Id. at 16).
On November 9, 2016, plaintiffs filed their fourth
amended complaint (Filing No. 151).
On November 22, 2016,
defendant filed the instant motion to strike, claiming the fourth
amended complaint includes “new allegations that are not limited
to redefining [p]laintiffs’ proposed California [C]lass, in
violation of the Court’s Order.”
(Filing No. 152 at 1).
Federal Rule of Civil Procedure 12(f) provides that a
“court may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.”
R. Civ. P. 12(f).
A court “may act on its own; or on a motion
made by a party . . . .”
A district court “enjoys ‘liberal
discretion’” in the determination of a motion to strike.
Stanbury Law Firm v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000)
(internal citation omitted).
The Court finds that defendants’ motion should be
Defendants argue that the “[p]laintiffs added new
allegations beyond the new proposed definition for the California
Class, in violation of the Court’s Order.”
3) (internal cites omitted).
(Filing No. 153 at 2-
The Court agrees.
defendants’ motion to strike the last sentence of ¶ 8, ¶¶ 9-10,
and Exhibit 1 of the fourth amended complaint will be granted.
The aforementioned sentence, paragraphs, and exhibit shall be
stricken from the fourth amended complaint.
Although the parties’ briefs argue whether class
certification should now be granted given the newly defined class
(see Filing Nos. 156 at 3-6, 16; 158 at 1-3), that matter is not
before the Court at this time.
Therefore, the Court will not
address the merits of a future motion for class certification
before such a motion has been re-filed and re-briefed in
accordance with the Federal Rules of Civil Procedure and this
Court’s local rules.
IT IS ORDERED:
1) Defendants’ motion to strike is granted.
2) Plaintiffs shall re-file the fourth amended
complaint after striking the last sentence of paragraph 8,
paragraphs 9-10, and exhibit 1 from the fourth amended complaint
by January 6, 2017.
3) Plaintiffs are required to re-file a motion for
class certification before the Court will determine the merits of
such a motion.
4) Plaintiffs are prohibited from making any other
change to the complaint without leave of Court.
DATED this 29th day of December, 2016.
BY THE COURT:
/s/ Lyle E. Strom
LYLE E. STROM, Senior Judge
United States District Court
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