ACC Industries, Inc. et al v. Bart Street III, LLC et al

Filing 34

ORDER denying 29 Motion to Strike. Signed by Magistrate Judge Carl W. Hoffman on 5/16/2017. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ACC INDUSTRIES, INC., et al.,

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Plaintiffs,
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vs.
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BART STREET II, LLC, et al.,
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Defendants.
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__________________________________________)

Case No. 2:17-cv-00942-JAD-CWH
ORDER

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Presently before the court is Plaintiffs ACC Industries, Inc., ACC Enterprises, LLC, and

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Calvada Partners, LLC’s Emergency Motion to Strike Rogue Documents Filed by Nonparty (ECF

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No. 29), filed on May 12, 2017. Defendant Solutionary, Inc. filed a response (ECF No. 32) on May

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15, 2017.

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Plaintiffs move to strike Defendant Solutionary, Inc.’s Amended Motion to Dismiss the

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First Amended Complaint (ECF No. 23), arguing that the motion to dismiss is a rogue document

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that has been filed by a nonparty. Specifically, Plaintiffs argue that they sued and served a Nevada

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entity known as Solutionary, Inc., but that the motion to dismiss was filed by a Delaware entity

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known as Solutionary, Inc. Plaintiffs further argue that because the Delaware entity is not a party in

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this case, its motion to dismiss should be stricken.

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Defendant Solutionary, Inc. responds that although Plaintiffs assert there are two

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Solutionary entities—a Nevada entity and a Delaware entity— there was only one Solutionary

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entity, which was a Delaware entity. Defendant argues that the Delaware entity was incorporated in

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January 2011, was inadvertently incorporated in Nevada for five days, and was dissolved as a

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Nevada corporation on December 11, 2012. Defendant further argues that the Delaware

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corporation was acquired by Nippon Telegraph and Telephone Corporation and dissolved as a

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Delaware corporation on August 1, 2016. Additionally, Defendant argues that it was not properly

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served in this case.

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Rule 12(f) of the Federal Rules of Civil Procedure provides that the court may “strike from

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a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”

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Fed. R. Civ. P. 12(f). “Redundant matter” is that which “consists of allegations that constitute a

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needless repetition of other averments.” Germaine Music v. Universal Songs of Polygram, 275 F.

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Supp. 2d 1288, 1299–300 (D. Nev. 2003), aff’d in part, rev’d in part, 130 F. App’x 153 (9th Cir.

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2005). Matter is “immaterial” if it “has no bearing on the controversy before the court.” In re

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2TheMart.com, Inc. Sec. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000). Allegations are

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“impertinent” if they “are not responsive or irrelevant to the issues that arise in the action” and are

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inadmissible as evidence. Id. “Scandalous” matter includes allegations that “cast a cruelly

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derogatory light on a party or other person.” Id. Striking material under Rule 12(f) is considered a

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“drastic remedy” that is “generally disfavored.” Nevada Fair Housing Center, Inc. v. Clark Cnty.,

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565 F. Supp. 2d 1178, 1187 (D. Nev. 2008). It is within the court’s discretion whether to strike

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matters from a pleading. Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 940, 974 (9th Cir. 2010).

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As defined in Rule 12(f), motions to strike are directed to “pleadings” only. Under Rule

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7(a) of the Federal Rules of Civil Procedure, pleadings include: “(1) a complaint; (2) an answer to a

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complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a

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crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) if the court

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orders one, a reply to an answer.” Thus, a motion to strike technically is not available to strike

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material contained in motions and other briefs. See, e.g., Albertson v. Fremont Cnty., Idaho, 834 F.

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Supp. 2d 1117, 1123 n.3 (D. Idaho 2011); U.S. v. Crisp, 190 F.R.D. 546, 550-51 (E.D. Cal. 1999).

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Here, given that Plaintiffs are moving to strike a motion rather than material from the

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pleadings, the court finds that a motion to strike is not procedurally proper in this context and

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therefore will deny the motion. Plaintiffs may challenge the propriety of Defendant Solutionary,

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Inc.’s motion to dismiss by filing a response to the motion. Even if the motion to strike were

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proper, the court notes that the issue of whether Defendant Solutionary, Inc. is a Nevada entity or a

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Delaware entity, whether that entity was properly served with process, and whether that entity has
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appeared in this case are the same disputed issues that are before the court in various other filings.

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Given the centrality of these issues to the litigation, it would be difficult for Plaintiffs to meet their

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formidable burden of establishing that the pending motion to dismiss is redundant, immaterial,

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impertinent, or scandalous.

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As for Plaintiffs’ argument that the court has the inherent authority to strike the motion to

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dismiss, the court does not find that Defendant Solutionary, Inc.’s filing of a motion to dismiss

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constitutes abusive litigation conduct in which documents should be stricken as a sanction. See

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Ready Transp., Inv. v. AAR Mfg., Inc., 627 F.3d 402, 404-05 (9th Cir. 2010). The court therefore

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declines to strike the motion to dismiss under its inherent authority to control its docket and leaves

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the motion to dismiss to adjudication on the merits by the United States district judge assigned to

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this case.

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Finally, the court takes this opportunity to advise the parties of several requirements set

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forth in the court’s local rules that have not been observed in this case. Under Local Rule 7-4(a)(3),

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emergency motions must include, among other things, “[a] statement of movant certifying that,

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after participation in the meet-and-confer process to resolve the dispute, the movant has been

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unable to resolve the matter without court action.” While the court recognizes that the parties

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previously met and conferred regarding the issue of whether Solutionary, Inc. is a Nevada or

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Delaware entity at the time the parties discussed the joint status report regarding removal, Plaintiffs

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do not attach a meet-and-confer certification to the motion to strike. Under Local Rule IA 10-3(b),

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“[c]opies of pleadings or other documents filed in the pending matter must not be attached as

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exhibits or made part of an appendix.” Thus, various exhibits filed by the Plaintiffs are

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unnecessary. Additionally, both Plaintiffs and Defendant Solutionary, Inc.’s documents are not in a

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searchable PDF format as required by Local Rule IA 10-1(b).

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IT IS THEREFORE ORDERED that Plaintiffs ACC Industries, Inc., ACC Enterprises,

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LLC, and Calvada Partners, LLC’s Emergency Motion to Strike Rogue Documents Filed by

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Nonparty (ECF No. 29) is DENIED.

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DATED: May 16, 2017

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______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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