Last year, the Ninth Circuit curtailed the use of Rule 12(f) motions to strike in a case of first impression called Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970 (9th Cir. 2010). The narrow holding of Whittlestone is that "Rule 12(f) does not authorize district courts to strike claims for damages on the ground that such claims are precluded as a matter of law." Id. at 974-975. Rule 12(f) of the Federal Rules of Civil Procedure states that a district court "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." "The function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial . . . ." Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (overruled on other grounds in Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)).
Whittlestone was a breach of contract case where the
defendant filed a motion to strike the plaintiff's claims for
lost profits and consequential damages, arguing that the claims
were barred under the contract. Id. at 973. The district
court granted the motion to strike. Id. The Ninth
Circuit reversed because courts "may not resolve disputed and
substantial factual or legal issues in deciding a motion to
strike." Id. (internal quotation marks and brackets
omitted). Specifically, the court found that a claim for damages
was not an insufficient defense, redundant, immaterial,
impertinent, or scandalous matter. Id. at 974. Further,
the court reasoned that reading "Rule 12(f) in a manner that
allowed litigants to use it as a means to dismiss some or all of a
pleading . . . would be creating redundancies within the Federal
Rules of Civil Procedure, because a Rule 12(b)(6) motion . . .
already serves such a purpose." Id. Additionally, the
court reasoned that because Rule 12(f) motions are reviewed for
abuse of discretion and Rule 12(b)(6) motions are reviewed de novo,
it would not make sense to allow litigants to seek dismissal of a
pleading under 12(f) when it could do so under Rule 12(b)(6).
Id.
Since Whittlestone, district courts in the Ninth Circuit
have been split over the issue of whether a defendant may use a
Rule 12(f) motion to strike class allegations. For instance, in
Astiana v. Ben & Jerry's Homemade, Inc., No. C
10-4387 PJH, 2011 U.S. Dist. LEXIS 57348, at *39 (N.D. Cal. May 26,
2011), the court held that "the questions [of] whether the
class is ascertainable and whether a class action is superior
should be resolved in connection with a class certification
motion." The Astiana Court, citing
Whittlestone, held that the defendants had not
established that the allegations they sought to have stricken were
"either part of an insufficient defense, or are redundant,
immaterial, impertinent, or scandalous." Id.; see
also Beal v. Lifetouch, Inc., No. CV 10-8454-JST
(MLGx), 2011 U.S. Dist. LEXIS 33758, at *20-21 (C.D. Cal. Mar. 15,
2011) (holding that motion to strike class allegations was
"premature at the pleadings stage, as the issue of class
certification is not yet before the Court" and finding that
"the class allegations are clearly relevant to the subject
matter of the litigation, and do not amount to redundant,
immaterial, impertinent, or scandalous matters"); Swift v.
Zynga Game Network, Inc., No: C 09-05443 SBA, 2010 U.S. Dist.
LEXIS 117355, at *29-30 (N.D. Cal. Nov. 2, 2010) (citing
Whittlestone and denying a motion to strike class
allegations).
Other district courts in the Ninth Circuit have allowed a defendant
to bring a Rule 12(f) motion to strike class allegations and will
grant the motion "if it is clear from the complaint that the
class claims cannot be maintained." Murphy v. DirecTV,
Inc., Case No. 2:07-cv-06465-JHN-VBKx, 2011 U.S. Dist. LEXIS
87627, at *4-5 (C.D. Cal. Feb. 11, 2011) (denying motion to strike
class allegations because it was not clear from the complaint that
the class claims could not be maintained). The United States
Supreme Court has held that "[s]ometimes the issues are plain
enough from the pleadings to determine whether the interests of the
absent parties are fairly encompassed within the named
plaintiff's claim . . . ." Gen. Tel. Co. of Sw. v.
Falcon, 457 U.S. 147, 160 (1982) (reversing a class
certification order). See also Collins v. GameStop Corp.,
No. C10-1210 THE, 2010 U.S. Dist. LEXIS 88878, at *6 (N.D. Cal.
Aug. 6, 2010) (granting, in part, a motion to strike class
allegations before Whittlestone).
However, while courts may entertain the motion to strike, it is
rare to strike class allegations in advance of a motion for class
certification. Cholakyan v. Mercedes-Benz USA, LLC, No. CV
10-05944 MMM (JCx), 2011 U.S. Dist. LEXIS 72584, at *66, 70 (C.D.
Cal. June 30, 2011) ("Defendant has yet to file an answer and
discovery has not begun. Given the early stage of the proceedings,
it is premature to determine if this matter should proceed as a
class action. Accordingly, the court denies defendant's motion
to strike plaintiff's class allegations") (internal
citation omitted); see also Clerkin v. MyLife.com,
Inc., No. C 11-00527 CW, 2011 U.S. Dist. LEXIS 96735, at *9-10
n. 4(N.D. Cal. Aug. 29, 2011) ("Some defendants have brought
motions under Rule 12(f) to strike class allegations from
complaints. While courts entertain such motions, it is rare that
class allegations are stricken at the pleading stage")
(internal citation omitted); Sliger v. Prospect Mortg.,
LLC, NO. CIV. S-11-465 LKK/EFB, 2011 U.S. Dist. LEXIS 57393
(E.D. Cal. May 26, 2011) (entertaining motion to dismiss and strike
class allegations and definition, but denying the motions).
There are certainly cases where the class allegations are so
deficient on the face of the complaint that the allegations should
be stricken to conserve resources. Thus, a Rule 12(f) challenge is
probably worth a try where the class allegations in a complaint are
severely lacking.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.