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Title: Dalton Petrie v. Electronic Game Card

March 6, 2012

TITLE: DALTON PETRIE
v.
ELECTRONIC GAME CARD, INC., ET AL.



The opinion of the court was delivered by: The Honorable David O. Carter, Judge

CIVIL MINUTES - GENERAL

Julie Barrera Not Present Courtroom Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:

NONE PRESENT NONE PRESENT

PROCEEDING (IN CHAMBERS): GRANTING MOTION TO STRIKE AND MOTIONS TO DISMISS

Before the Court are a Motion to Strike Certain Exhibits and Allegations of Plaintiffs' Third Amended Complaint filed by Defendant Lee J. Cole ("Cole") (Docket 199) ("Motion to Strike) and six Motions to Dismiss filed by Defendant Paul Farrell ("Farrell") (Docket 191); Defendant Linden Boyne ("Boyne") (Docket 195); Defendant Estate of Lord Steinberg ("Steinberg") (Docket 192); Defendant Anna Houssels ("Houssels") (Docket 193); Defendant Cole (Docket 196); and Defendants Kevin Donovan ("Donovan") and Eugene Christiansen ("Christiansen") (Docket 197) (collectively, "Defendants" and "Motions to Dismiss"). The Court finds these matters appropriate for decision without oral argument. Fed.R.Civ. P. 78; Local Rule 7-15. After considering the moving, opposing, and replying papers, the Court hereby GRANTS the Motion to Strike and Motions to Dismiss.

I. BACKGROUND

The Court and the parties are familiar with both the factual and procedural history of this case, as detailed in the Court's October 19, 2011 Order. After the Court dismissed Plaintiffs' Second Amended Complaint in its October Order, Plaintiffs filed a Third Amended Complaint ("TAC") on November 21, 2011 (Docket 189). Defendants now move to dismiss the TAC. Defendant Cole also moves to strike certain allegations in the TAC based on information that Plaintiffs allegedly obtained via subpoena from Mendoza & Berger ("M&B"), the firm that served as auditor for Electronic Game Card Inc. Cole alleges that Plaintiffs impermissibly utilized subpoenaed information from M&B to draft the TAC, despite the fact that the information was obtained during the PSLRA's automatic discovery

II. LEGAL STANDARD

A. Motion to Strike

Federal Rule of Civil Procedure 12(f) provides that a court "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." FED. R. CIV. P. 12(f). Motions to strike are disfavored and "will usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties." Friedman v. 24 Hour Fitness USA, Inc., 580 F. Supp. 2d 985, 990 (C.D. Cal. 2008) (internal quotation marks and citation omitted). The Ninth Circuit has defined "immaterial" matter as "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) (internal quotation marks and citation omitted), rev'd on other, 510 U.S. 517, 114 S. Ct. 1023 (1994).

B. Motion to Dismiss

Under Federal Rule of Civil Procedure 12(b)(6), a complaint must be dismissed when a plaintiff's allegations fail to state a claim upon which relief can be granted. Dismissal for failure to state a claim does not require the appearance, beyond a doubt, that the plaintiff can prove "no set of facts" in support of its claim that would entitle it to relief. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1968 (2007) (abrogating Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99 (1957)). In order for a complaint to survive a 12(b)(6) motion, it must state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). A claim for relief is facially plausible when the plaintiff pleads enough facts, taken as true, to allow a court to draw a reasonable inference that the defendant is liable for the alleged conduct. Id. at 1949. If the facts only allow a court to draw a reasonable inference that the defendant is possibly liable, then the complaint must be dismissed. Id. Mere legal conclusions are not to be accepted as true and do not establish a plausible claim for relief.

Determining whether a complaint states a plausible claim for relief will be a context-specific task requiring the court to draw on its ...


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