Free Proposed Order - District Court of California - California

Case 3:07-cv-05115-JSW

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Filed 12/14/2007

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1 GUTRIDE SAFIER REESE LLP Adam J. Gutride (Cal. State Bar No.181466) 2 Seth A. Safier (Cal. State Bar No. 197427) 835 Douglass Street 3 San Francisco, California 94114 Telephone: (415) 271-6469 4 Facsimile: (415) 449-6469 5 Counsel for Plaintiff 6 7 8 9 10 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 07-5115 JSW [PROPOSED] ORDER GRANTING PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S RULE 12 MOTIONS JUDGE: Hon. Jeffery S. White DATE: Jan. 25, 2008 TIME: 9:00 am CTRM: 2

11 DOE, Individually And On Behalf Of All Others Similarly Situated, 12 Plaintiff, 13 vs. 14 NETWORK SOLUTIONS, LLC Defendant. 15 16 17 18 19 20 21 22 23 24 25 26 27 28

[PROPOSED] ORDER GRANTING PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE - Case No. 07-5115 JSW

Case 3:07-cv-05115-JSW

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Filed 12/14/2007

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Plaintiff moves to strike the following pleadings under Rule 12(g) of the Federal Rules of

2 Civil Procedure, Local Rule 7-2, and this Court's standing order: (1) "Motion to Dismiss for Failure 3 to State a Claim Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dkt.# 12), in its entirety 4 (pages 1-15), or at a minimum pages 5-15; (2) "Motion to Strike Pursuant to Federal Rule of Civil 5 Procedure 12(f)" (Dkt.# 14), in its entirety (pages 1-10); and (3) "Motion to Dismiss Pursuant to 6 Federal Rule of Civil Procedure 12(b)(3), Or In The Alternative To Transfer Pursuant to 28 U.S.C. § 7 1406(a), For Improper Venue" (Dkt.# 16), in its entirety (pages 1-15). Defendant opposes the 8 motion. For GOOD CAUSE SHOWN, the court GRANTS the motion. 9 Defendant filed four separate pre-answer motions under Rule 12, totaling fifty-one pages in

10 length. "Rule 12(g) requires that a party who raises a defense by motion prior to an answer raise all 11 such possible defenses in a single motion; omitted defenses cannot be raised in a second, pre-answer 12 motion." Chilicky v. Schweiker, 796 F.2d 1131, 1136 (9th Cir. 1986), rev'd on other grounds, 487 13 U.S. 412 (1988); citing Fed. R. Civ. Pro. 12(g).1 The rule "contemplates the presentation of an 14 omnibus pre-answer motion in which defendant advances every available Rule 12 defense and 15 objection he may have that is assertable by motion." English v. Dyke 23 F.3d 1086, 1090 (6th Cir. 16 1994). Indeed, "Rule 12(g) expressly provides that those defenses not raised in the consolidated 17 Rule 12 motion are forever waived." CGHH, LLC v. Cesta Punta Deportes, S.A. de C.V., 2006 U.S. 18 Dist. LEXIS 15015 (N.D. Ga.). Applying this rule, the Ninth Circuit has held, for example, that a 19 defense of improper venue is "waived ...if a defendant moves to dismiss on one or more of the other 20 grounds specified by Rule 12 while failing to raise venue in the same motion." King v. Russell, 963 21 F.2d 1301 (9th Cir 1992). 22 Beyond the Rule 12(g) requirement that all pre-answer defenses be brought in a single,

23 consolidated motion, this District has further imposed rules to control its own process. The Local 24 Rules impose a 25-page limit on motions, and require the filing of one document that contains the 25 Rule 12(g) provides that "[a] party who makes a motion under this rule may join with it any other motions herein provided for and then available to the party. If a party makes a motion 27 under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the 28 defense or objection so omitted." Fed. R. Civ. P. 12(g). 26
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[PROPOSED] ORDER GRANTING PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE - Case No. 07-5115 JSW

Case 3:07-cv-05115-JSW

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Filed 12/14/2007

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1 notice of motion, statement of relief, and memorandum of points and authorities. See N.D. Cal. Civ. 2 Loc. R. 7-2(b). This Court has imposed a fifteen (15) page limit on any memorandum of points and 3 authorities. See Civil Standing Order of Hon. Jeffrey S. White. Section 1 of this Court's Standing 4 Order provides that "any failure to comply with any of the rules and orders may be deemed 5 sufficient grounds for monetary sanctions, dismissal, entry of default judgment, or other appropriate 6 sanctions." Id. One of these "appropriate sanctions" is striking from the records improper 7 pleadings. See, e.g., Merrifield v. Lockyer, 388 F. Supp. 2d. 1051, 1056 (N.D. Cal. 2005) (40-page 8 brief ordered stricken for exceeding 25-page limit). 9 The purpose of a motion to strike pursuant to Rule 12(f) is to allow the courts to effectuate

10 judicial economy. See Fed. R. Civ. P 12; See Cazares v. Pac. Shore Funding, 2006 U.S. Dist. 11 LEXIS 1081, at *7 (C.D. Cal. Jan. 3, 2006). Whether to grant a Rule 12(f) motion to strike is within 12 the discretion of the court. See Federal Sav. & Loan Ins. Corp. v. Gemini Mgmt., 921 F.2d 241, 244 13 (9th Cir. 1990). 14 Accordingly, Defendant's second, third and fourth rule 12 motions (Dkt.# 12, 14 and 16) are

15 stricken. 16 [Alternatively] Accordingly, pages 5-15 of the second rule 12 motion (Dkt.# 12) are

17 stricken, and the third and fourth rule 12 motions (Dkt.# 14 and 16) are stricken in their entirety. 18 19 20 21 22 23 24 25 26 27 28 IT IS SO ORDERED Dated: ____________________ Jeffrey S. White United States District Judge

[PROPOSED] ORDER GRANTING PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE - Case No. 07-5115 JSW