The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Presently before the Court is a Motion to Dismiss, brought by Defendants pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1
Plaintiffs in this case, Halema Buzayan and the Buzayan family ("Plaintiffs") allege sixteen causes of action against the Davis Police Department and various individual police officers; the Yolo County Office of the District Attorney and individuals from the District Attorney's Office; and the City of Davis (collectively referred to as "Defendants" unless otherwise noted).
Defendants have submitted the current Second Motion to Dismiss in an unusual manner. They claim that in this Court's September 29, 2008 Memorandum and Order ("September 29 Order"), several arguments raised in a prior motion to dismiss were not adequately addressed and/or resolved. In response, Plaintiffs filed an Opposition Brief to Defendants' Second Motion to Dismiss and a separate Motion to Strike. Although the Court concludes that the majority of the Second Motion to Dismiss is duplicative and unnecessary, and while Plaintiffs have strong arguments that the Motion to Dismiss is untimely in the first place, the Court will nonetheless exercise its discretion to hear Defendants' pleading challenge one final time because resolution of Defendants most recent contentions may help clarify the remaining issues in the present action. As set forth below, the Second Motion to Dismiss is granted in part and denied in part.*fn2
The Court may strike "from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). "(T)he 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...." Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Immaterial matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993)(rev'd on other grounds Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed. 2d 455 (1994))(internal citations and quotations omitted). Impertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question. Id.
On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the...claim is and the grounds upon which it rests."
Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed. 2d 80 (1957). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitlement to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Bell Atl. Corp. v. Twombly, 2007 U.S. LEXIS 5901, 20-22 (U.S. 2007) (internal citations and quotations omitted). Factual allegations must be enough to raise a right to relief above the speculative level. Id. at 21 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004) ("The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action").
If the court grants a motion to dismiss a complaint, it must then decide whether to grant leave to amend. The court should "freely give" leave to amend when there is no "undue delay, bad faith[,] dilatory motive on the part of the movant,...undue prejudice to the opposing party by virtue of...the amendment, [or] futility of the amendment...." Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only denied when it is clear that the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).
A. Plaintiffs' Motion to Strike
Plaintiffs bring a Motion to Strike on the basis that Defendants' Second Motion to Dismiss is untimely. (Pls.' Mot. to Strik Defs.' Mot. to Dismiss 1, Dec. 10, 2008. [hereinafter Motion to Strike].) The September 29 Order granted Plaintiffs*fn3 leave to amend within twenty days. (September 29 Order 25.) That time period expired on October 20, 2008.
Although Defendants argue the time period expired on October 23, Defendants misconstrue Rule 6(d), which provides a three day extension for a time to serve an amended pleading where "a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C),(D), (E), or (F) ...." (emphasis added). Here, Plaintiffs did not effect service under Rule 5 because they chose not to amend their complaint. Thus, the time for Plaintiffs to serve an amended complaint expired on October 20, 2008.
Because Defendants filed the Second Motion to Dismiss on November 7, 2008, which is more than ten days after the date on which Plaintiffs could have filed an amended complaint pursuant to the September 29 Order, Defendants cannot establish that the Second Motion complied with the ten-day requirements under Rules 12(a)(4) or 15(a)(3).
(Mem. of P. & A. in Supp. of Mot. to Partially Dismiss Second Am. Compl. 12, Nov. 7, 2008 [hereinafter Second Motion].)*fn4
Defendants' failure to comply with the above-cited Rules is nonetheless understandable, since ...