Fish et al v. Liberty Mutual Fire Insurance Company et al

Filing 18

ORDER Denying 7 Motion to Strike. Signed by Magistrate Judge Nancy J. Koppe on 4/18/13. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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SEAN FISH, et al.,
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Plaintiff(s),
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vs.
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LIBERTY MUTUAL FIRE
INSURANCE CO., et al.,
Defendant(s).

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Case No. 2:13-cv-00326-APG-NJK
ORDER DENYING MOTION TO
STRIKE
(Docket No. 7)

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Pending before the Court is Defendant Western United Insurance Company’s (“Defendant”)

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motion to strike language in paragraph 44 of the complaint. Docket No. 7. Plaintiffs filed a

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response and Defendant filed a reply. See Docket Nos. 9, 15. Having reviewed the materials

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presented, the Court finds the motion is properly resolved without oral argument. See Local Rule

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78-2. For the reasons discussed below, the motion to strike is DENIED.

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A motion to strike material from a pleading is made pursuant to Fed. R. Civ. P. 12(f), which

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allows the striking of any material that is “redundant, immaterial, impertinent or scandalous.” The

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essential function of a Rule 12(f) motion is to “avoid the expenditure of time and money that may

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arise from litigating spurious issues by dispensing with those issues prior to trial.” Fantasy, Inc. v.

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Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 517 (1994). “Rule

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12(f) motions are generally disfavored because they are often used as delaying tactics, and because

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of the limited importance of pleadings in federal practice.” Bureerong v. Uvawas, 922 F. Supp.

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1450, 1478 (C.D. Cal. 1996) (internal citations omitted); see also Nevada Fair Housing Ctr., Inc. v.

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Clark County, 265 F. Supp. 2d 1178, 1187 (D. Nev. 2008).

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Defendant’s motion seeks to strike the reference to itself as a “fiduciar[y]” in paragraph 44

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of the Complaint. Defendant acknowledges that the Nevada Supreme Court has expressly approved

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a jury instruction that “[t]he duty owed by an insurance company to an insured is fiduciary in

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nature.” Reply at 3 (quoting Powers v. United Serv. Auto. Assoc. & USAA Cas. Ins. Co., 114 Nev.

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690, 701 (1998)). But Defendant argues that this duty is only “akin” to that of a fiduciary and not

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equivalent to it. See id. In short, Defendant asserts that “Plaintiffs have alleged a fiduciary duty

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rather than a special contractual duty akin to a fiduciary duty.” See id. at 5.

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Defendant fails to cite to any case law of any kind addressing Rule 12(f), let alone case law

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supporting its assertion that striking is appropriate in this matter. See Mot. at 5-6; Reply at 4-5. Nor

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is Defendant’s reasoning persuasive. Because the Complaint refers to Defendant as a “fiduciar[y]”

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rather than “akin to a fiduciary,” Defendant worries that Plaintiffs “attempt[] to impose a higher

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duty” on Defendant. See Mot. at 6. Suffice it to say, the Court is not persuaded that Plaintiffs’ use

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of the word “fiduciary” in their complaint rather than the phrase “akin to a fiduciary” will result in

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the imposition of a higher duty on Defendant.

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The Court is simply not persuaded that a Rule 12(f) motion is the proper vehicle for

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determining the contours of Defendant’s duty. Nor is it clear to the Court that a dispute between the

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parties of the contours of the duty owed even exists.

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Accordingly, the motion is hereby DENIED.

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IT IS SO ORDERED.

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DATED: April 18, 2013

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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