Free Motion to Strike - District Court of California - California

Case 3:07-cv-05115-JSW

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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 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

PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE - Case No. 07-5115 JSW

Case 3:07-cv-05115-JSW

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NOTICE OF MOTION AND MOTION TO STRIKE

2 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 3 PLEASE TAKE NOTICE that on January 25, at 9:00 a.m., before the Honorable Jeffrey S.

4 White, United States District Judge, in Courtroom 2, 17th Floor, 450 Golden Gate Avenue, San 5 Francisco, California, Plaintiff will move and hereby does move to strike the following pleadings 6 filed by Defendant's Network Solutions, Inc., on November 28, 2007: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 · · · "Motion to Dismiss for Failure to State a Claim Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dkt.# 12), in its entirety (pages 1-15), or at a minimum pages 5-15; "Motion to Strike Pursuant to Federal Rule of Civil Procedure 12(f)" (Dkt.# 14), in its entirety (pages 1-10); and "Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(3), Or In The Alternative To Transfer Pursuant to 28 U.S.C. § 1406(a), For Improper Venue" (Dkt.# 16), in its entirety (pages 1-15). Plaintiff moves to strike these aforementioned pleadings as they violate Rule 12(g) of the Federal Rules of Civil Procedure, Local Rule 7-2, and this Court's standing order. This motion is based on this notice of motion and motion, the following memorandum, all pleadings and records on file in this action, and any other arguments and evidence presented to the Court at or before the hearing on the motion. ISSUES TO BE DECIDED Should the Court strike pages Defendant's successive Rule 12 motions (Dkts.# 12, 14, and

22 16) for violating Federal Rule of Civil Procedure 12(g), Local Rule 7-2, and this Court's standing 23 order limiting all briefs to fifteen pages? 24 25 MEMORANDUM OF POINTS AND AUTHORITIES The purpose of a motion to strike pursuant to Rule 12(f) is to allow the courts to effectuate

26 judicial economy. See Fed. R. Civ. P 12; See Cazares v. Pac. Shore Funding, 2006 U.S. Dist. 27 LEXIS 1081, at *7 (C.D. Cal. Jan. 3, 2006). Whether to grant a Rule 12(f) motion to strike is within 28

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1 the discretion of the court. Federal Sav. & Loan Ins. Corp. v. Gemini Mgmt., 921 F.2d 241, 244 (9th 2 Cir. 1990). 3 "Rule 12(g) requires that a party who raises a defense by motion prior to an answer raise all

4 such possible defenses in a single motion; omitted defenses cannot be raised in a second, pre-answer 5 motion." Chilicky v. Schweiker, 796 F.2d 1131, 1136 (9th Cir. 1986) (emphasis added), rev'd on 6 other grounds, 487 U.S. 412 (1988); citing Fed. R. Civ. Pro. 12(g).1 As the Sixth Circuit has 7 explained, Rule 12(g) "contemplates the presentation of an omnibus pre-answer motion in which 8 defendant advances every available Rule 12 defense and objection he may have that is assertable by 9 motion." English v. Dyke 23 F.3d 1086, 1090 (6th Cir. 1994). 10 Indeed, "Rule 12(g) expressly provides that those defenses not raised in the consolidated

11 Rule 12 motion are forever waived." CGHH, LLC v. Cesta Punta Deportes, S.A. de C.V., 2006 U.S. 12 Dist. LEXIS 15015 (N.D. Ga.). Applying this rule, the Ninth Circuit has held, for example, that a 13 defense of improper venue is "waived ...if a defendant moves to dismiss on one or more of the other 14 grounds specified by Rule 12 while failing to raise venue in the same motion." King v. Russell, 963 15 F.2d 1301 (9th Cir 1992). 16 Beyond the Rule 12(g) requirement that all pre-answer defenses be brought in a single,

17 consolidated motion, this District has further imposed rules to control its own process. The Local 18 Rules impose a 25-page limit on motions, and require the filing of one document that contains the 19 notice of motion, statement of relief, and memorandum of points and authorities. See N.D. Cal. Civ. 20 Loc. R. 7-2(b). This Court has imposed an even stricter requirement, including a fifteen (15) page 21 limit on any memorandum of points and authorities. See Civil Standing Order of Hon. Jeffrey S. 22 White. 23 Section 1 of this Court's Standing Order provides that "any failure to comply with any of the

24 rules and orders may be deemed sufficient grounds for monetary sanctions, dismissal, entry of 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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1 default judgment, or other appropriate sanctions." Id. One of these "appropriate sanctions" is 2 striking from the records improper pleadings. See, e.g., Merrifield v. Lockyer, 388 F. Supp. 2d. 3 1051, 1056 (N.D. Cal. 2005) (40-page brief ordered stricken for exceeding 25-page limit). 4 On November 28, 2007, in violation of Rule 12(g) and in a direct effort to circumvent the

5 page limits of the Local Rules and this Court's Standing Order, Defendant divided its Rule 12 6 challenge into four separate "motions" totaling fifty-one pages in length. This Court should strike all 7 but the first-filed motion, as only one motion is permitted under Rule 12(g). Alternatively, under 8 this Court's Standing Order, the Court should strike all pages after the fifteenth (15th) filed page of 9 briefing (that is, everything after page four in Dkt.# 12, and the entirety of Dkts.# 14 and 16). 10 Defendant's violation of the rules has imposed enormous costs on Plaintiff, forcing it to

11 research and respond to numerous additional arguments and file four separate oppositions. 12 Obviously, if this motion to strike is granted, Plaintiff will withdraw, or the Court may strike, the 13 responsive portions of Plaintiff's opposition briefs. 14 Dated: December 14, 2007 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By:____________________ Adam J. Gutride Seth A. Safier 835 Douglas Street San Francisco, California 94114 Telephone: (415) 271-6469 Facsimile: (415) 449-6469 Respectfully Submitted, GUTRIDE SAFIER REESE LLP

PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE Case No. 07-5115 JSW

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