Liu v. TNC US Holdings

Opinion

1 2 3 6 7 FRANK LIU, Case No. 21-cv-07313-JSW

8 Plaintiff, ORDER DENYING MOTION TO 9 v. STRIKE AND PERMITTING PLAINTIFF TO FILE SUR-REPLY Re: Dkt. No. 45 Defendant. 11

12 13 In reply on Defendant’s motion to dismiss for lack of personal jurisdiction and improper 14 venue or, in the alternative, to transfer venue, Defendant, for the first time, mentions that this 15 Court could transfer venue to the District of New Jersey (instead of New York as previously 16 argued). 17 Plaintiff moves to strike this part of Defendant’s reply under Federal Rule of Civil 18 Procedure 12(f). Under Rule 12(f), a party may seek to “strike from a pleading an insufficient 19 defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). 20 Immaterial matter “is that which has no essential or important relationship to the claim for relief or 21 the defenses being pleaded.” California Dep’t of Toxic Substance Control v. ALCO Pacific, Inc., 22 217 F. Supp. 2d 1028, 1032 (C.D. Cal. 2002) (internal citations and quotations omitted). 23 Impertinent material “consists of statements that do not pertain, or are not necessary to the issues 24 in question.” Id. The function of a motion made under this rule is “to avoid the expenditure of 25 time and money that must arise from litigating spurious issues by dispensing with those issues 26 prior to trial.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (quoting 27 Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other grounds by Fogerty 1 “While a Rule 12(f) motion provides the means to excise improper materials from 2 pleadings, such motions are generally disfavored because the motions may be used as delaying 3 tactics and because of the strong policy favoring resolution on the merits.” Barnes v. AT & T 4 Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1170 (N.D. Cal. 2010). “If 5 there is any doubt whether the portion to be stricken might bear on an issue in the litigation, the 6 court should deny the motion.” Platte Anchor Bolt, Inc. v. THT, Inc., 352 F. Supp. 2d 1048, 1057 7 (N.D. Cal. 2004) (citations omitted). “Ultimately, whether to grant a motion to strike lies within 8 the sound discretion of the district court.” Cruz v. Bank of N.Y. Mellon, 2012 WL 2838957, at *2 9 (N.D. Cal. July 10, 2012) (citing Whittlestone, 618 F.3d at 973). 10 The Court does not exercise its discretion to strike the portion of Defendant’s reply 11 arguing that New Jersey may be a proper venue. However, the Court does find that Plaintiff 12 should be permitted an opportunity to file a response to this new jurisdictional offer. Accordingly, 5 13 || the Court DENIES Plaintiffs motion to strike, but Plaintiff may file a sur-reply to the Defendant’s 14 motion to dismiss or transfer venue by no later than May 6, 2022. 3 15 IT IS SO ORDERED. on ] 16 Dated: April 22, 2022 C / ( At = 17 Foi | BARU 8. wayfe United //tates’ Digiict Judge 19 20 21 22 23 24 25 26 27 28