The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO STRIKE [doc. #11] and GRANTING REQUEST FOR JUDICIAL NOTICE [doc. #21]
Defendant The Insurance Corporation of New York ("INSCORP") moves to strike portions of plaintiffs'*fn1 first amended complaint ("FAC") under Federal Rule of Civil Procedure 12(f). The motion has been fully briefed and is decided without oral argument.
Mancini was a plaintiff in an action in the San Diego Superior Court, Mancini v. Brookfield Waterford, Inc., GIC836666 ("underlying action"). In that case, Mancini sought reimbursement and damages for property damages resulting from construction defects that were alleged to have been caused by SMP. Cross-defendant SMP tendered the action to its insurer, INSCORP but INSCORP denied coverage. SMP settled the case with Mancini and other plaintiff-homeowners. As part of the settlement SMP assigned to Mancini all its rights, claims and causes of action against INSCORP, except for emotional distress and punitive damages. As a result of the assignment, Mancini, along with SMP, filed the above-captioned case.
Plaintiffs filed this action on August 3, 2007, in the San Diego Superior Court. Defendant removed the case on the basis of diversity jurisdiction. In their complaint, plaintiffs alleged, based on the commercial general liability insurance policy and two excess liability policies issued by INSCORP to SMP, breach of written contract -- failure to defend and to indemnify; breach of the implied covenant of good faith and fair dealing -- failure to defend and to indemnify; reformation and declaratory relief.
Defendant moved to dismiss the complaint contending that there was no coverage under the primary policy and no coverage under the express terms of the excess policies and therefore, plaintiffs had failed to state a claim under Federal Rule of Civil Procedure 12(b)(6). On October 12, 2008, prior to the time plaintiffs' opposition to the motion was due to be filed, defendant withdrew its motion. Plaintiffs then filed their FAC which asserted the same causes of action but for the reformation claim which was deleted. Defendant filed the present motion to strike portions of the FAC.
Legal Standard for a Motion to Strike
Federal Rule of Civil Procedure 12(f) provides that a court "may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." FED. R. CIV. P. 12(f). Motions to strike are generally disfavored because they are often used as delaying tactics and because of the limited importance of pleadings in federal practice. See Rosales v. Citibank, 133 F. Supp.2d 1177, 1180 (N.D. Cal. 2001); Bureerong v. Uvawas, 922 F. Supp. 1450, 1478 (C.D. Cal. 1996). A federal court will not exercise its discretion under Rule 12(f) to strike a pleading unless the matters sought to be omitted have no possible relationship to the controversy, may confuse the issues, or otherwise prejudice a party. Id. Ordinarily a motion to strike will not be granted unless "the matter to be stricken clearly could have no possible bearing on the subject of the litigation." Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F. Supp.2d 1048, 1057 (N.D. Cal. 2004). Where the motion involves background or historical material, it should not be granted unless the material is prejudicial to the opponent. See LeDuc v. Kentucky Cent. Life Ins. Co., 814 F. Supp. 820, 830 (N.D. Cal. 1992). Any doubt concerning the import of the allegations to be stricken weighs in favor of denying the motion to strike. See In re 2TheMart.com, Inc. Sec. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000). Striking pleadings is "long disfavored," and only appropriate where allowing the improper matter to linger in the pleadings will prejudice the moving party. Sapiro v. Encompass Ins., 221 F.R.D. 513, 518 (N.D. Cal. 2004). "Motions to strike are rarely granted in the absence of a showing of prejudice to the moving party." Freeman v. Alta Bates Summit Med. Ctr. Campus, 2004 WL 2326369, at *2 (N.D. Cal. 2004)(citing 61 AM. JUR. 2D PLEADING § 505 (West 1999)). Matters may be stricken to reduce trial complication or if challenged allegations are so unrelated to plaintiff's claims to be unworthy of consideration as a defense and their presence in the pleading will prejudice the party seeking to strike matters. Fantasy, Inc., 984 F.2d at 1527. "[A] motion to strike may be used to strike any part of the prayer for relief when the damages sought are not recoverable as a matter of law." Bureerong, 922 F. Supp. at 1478 n. 34 (C.D. Cal. 1996). When considering a motion to strike, the court "must view the pleading in a light most favorable to the pleading party." In re 2TheMart.com, Inc., 114 F.Supp. at 965.
As noted above, a motion to strike may be granted with respect to language that is "redundant, immaterial, impertinent, or scandalous." An "immaterial" matter has no essential or important relationship to the claim for relief or defenses pleaded. California Dept. of Toxic Substance Control v. ALCO Pacific, Inc., 217 F. Supp.2d 1028, 1032 (C.D. Cal. 2002) (internal citations and quotations omitted); see also Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.1993); Gilbert v. Eli Lilly & Co., Inc., 56 F.R.D. 116, 120, n. 5 (D.P.R. 1972). An "impertinent" allegation is neither responsive nor relevant to the issues involved in the action and which could not be put in issue or given in evidence between the parties. Fantasy, Inc., 984 F.2d at 1527; Gilbert, 56 F.R.D. at 120, n. 6. Scandalous pleadings are those that reflect cruelly upon the defendant's moral character, use repulsive language, or detract from the dignity of the Court. Skadegaard v. Farrell, 578 F. Supp. 1209, 1221 (D.C.N.J. 1984), overruled on other grounds by Aitchison v. Raffiani, 708 F.2d 96 (3d Cir. 1983).
Defendant seeks to strike allegations in the complaint concerning other lawsuits against defendant; the filing and subsequent withdrawal of its motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6); claims that assert defendant's attorney acted as its agent; allegations seeking ...