The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER GRANTING MOTION TO FOR STRIKE AFFIRMATIVE EXONERATION FROM OR DEFENSES; DENYING MOTION TO OF LIABILITY, DISMISS PRAYER FOR PUNITIVE DAMAGES; DENYING MOTION TO STRIKE PRAYER FOR ATTORNEY'S FEES
Plaintiffs-in-Limitation Mission Bay Jet Sports, LLC and Robert Adamson, individually and dba Mission Bay Jet Sports, move (1) to strike four of the eleven affirmative defenses; (2) to dismiss the prayer for punitive damages; and (3) to strike the demand for attorneys' fees. Claimants Haley Colombo and Jessica Slagel partially oppose the motions. Claimants Bombardier Recreational Products Inc. and BRP US Inc. (collectively "Bombardier") did not file a response to the motions. Pursuant to Local Rule 7.1(d)(1), this matter is appropriate for decision without oral argument. For the reasons set forth below, the court grants the motion to strike the eighth through eleventh affirmative defenses; denies the motion to dismiss the prayer for punitive damages; and denies the motion to strike the demand for attorney's fees.
Plaintiffs-in-Limitation, or Movants, commenced this action on January 24, 2008 requesting, among other things, that this court (1) limit their liability in a state court action to the value of the Jet Ski involved in the incident at issue, and (2) enjoin further prosecution of them in state court. Movants filed this complaint for exoneration and limitation of liability pursuant to the Limitation of Vessel Owner's Liability Act, ("LOLA") 46 U.S.C. §30501-30512, Rule 9(h) of the Federal Rules of civil Procedure, and Rule F of the Supplemental Rules for Certain Admiralty and Maritime Claims (the "Supplemental Rules"). In conjunction with the complaint, Movants filed a stipulation of value for the Jet Ski in the amount of $6,005 and deposited this amount with the Court Clerk.
Movants are named as defendants in a state court action entitled Colombo v. Kohl, Case No. 37-2007-00077350-CU-PO-CTL ("State Action"). Movants allege that on July 29, 2007 an employee of MBJS, Brett Kohl, removed a jet ski from the premises without their knowledge or consent. (Compl. ¶¶ 6, 7). The employee then met some friends and provided jet ski rides to Claimants on Mission Bay, navigable waters located within San Diego County. (Compl. ¶11). An accident occurred seriously injuring Claimants, (Compl. ¶9), and their guardians filed suit in state court against the driver of the Jet Ski, Brett Kohl, and Movants herein. (Compl. ¶16). By means of this action, Movants seek to limit their liability to the value of the Jet Ski involved in the accident. (Compl. at p.7:7-17).
On February 7, 2008 this court granted Movants ex parte application to stay the State Action and required Movants to provide notice to all interested parties. On June 30, 2008 the court determined that the court lacked admiralty jurisdiction, lifted the stay, and dismissed the action. Movants appealed and, meanwhile, Claimants continued to prosecute the State Action. In February 2009 Claimants amended their state court complaint, joining Bombardier as a defendant and asserting a products liability claim.*fn1 On July 16, 2009 the Ninth Circuit issued its mandate reversing the district court's jurisdictional determination. On July 31, 2009, Judge Bloom stayed the State Action.
On October 19, 2009 the court denied Movants's motion to dismiss for failure to state a claim and ordered all interested parties to file a claim by November 6, 2009. Movants and Bombardier are the only parties to file a claim. An evidentiary hearing to determine LOLA related issues is calendared for June 7, 2010.
Federal Rule of Civil Procedure 12(b)(6) dismissal is proper only in "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1981). Courts should grant 12(b)(6) relief only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Courts should dismiss a complaint for failure to state a claim when the factual allegations are insufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp v. Twombly, __550 U.S. __, 127 S.Ct. 1955 (2007) (the complaint's allegations must "plausibly suggest" that the pleader is entitled to relief); Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) (under Rule 8(a), well-pleaded facts must do more than permit the court to infer the mere possibility of misconduct). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 1949. Thus, "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. The defect must appear on the face of the complaint itself. Thus, courts may not consider extraneous material in testing its legal adequacy. Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir. 1991). The courts may, however, consider material properly submitted as part of the complaint. Hal Roach Studios, Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989).
Finally, courts must construe the complaint in the light most favorable to the plaintiff. Concha v. London, 62 F.3d 1493, 1500 (9th Cir. 1995), cert. dismissed, 116 S.Ct. 1710 (1996). Accordingly, courts must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. Holden v. Hagopian, 978 F.2d 1115, 1118 (9th Cir. 1992). However, conclusory allegations of law and unwarranted inferences are insufficient to defeat a Rule 12(b)(6) motion. In Re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).
Before responding to a pleading, Rule 12(f) permits a party to move to strike any "insufficient defense or any redundant, immaterial, impertinent or scandalous matter." Fed.R.Civ.P. 12(f). While a Rule 12(f) motion provides the means to excise improper materials from pleadings, such motions are generally disfavored because the motions may be used as delaying tactics and because of the strong policy favoring resolution on the merits. See Stanbury Law Firm v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000). In order to grant a motion to strike, the "court must be convinced that there are no questions of fact, that any questions of ...