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Steven G. Dunmore v. Jeremy A. Dunmore

March 7, 2013

STEVEN G. DUNMORE, PLAINTIFF,
v.
JEREMY A. DUNMORE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Allison Claire United States Magistrate Judge

FINDINGS & RECOMMENDATIONS

Pending before the court is plaintiff's August 29, 2012 motion to dismiss and/or strike defendant Sidney B. Dunmore's Answer (in part) and dismiss alleged counterclaim. ECF No. 67. On September 25, 2012, the court vacated the hearing on plaintiff's motion and submitted the matter on the record. ECF No. 76. On review of the motion, the documents filed in support and opposition, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND This action, which is premised on federal and state law, was initially filed in the Sacramento County Superior Court and removed to this court on October 28, 2011 pursuant to 28 U.S.C. § 1332 and 28 U.S.C. § 1441(b). Plaintiff is Steven G. Dunmore, proceeding as the Assignee of Claims, the Named Beneficiary of the Declaration of the Dunmore Family Trust, and the Attorney-in-Fact for Ruth Dunmore, plaintiff's mother. Plaintiff's April 16, 2012 second amended complaint ("SAC") is the operative pleading. ECF No. 26. The SAC sets forth thirteen claims and names nineteen defendants: Sidney B. Dunmore; Jeremy A. Dunmore; Sidney D. Dunmore; GSJ Company, LLC (dba "Dunmore Communities"); GSJ Company, LP; Kathleen L. Dunmore; Chady Evette Dunmore; Anthony J. Garcia; Claude F. Parcon; Kelly Houghton; Mary

R. Neilson; Shelli R. Donald; L. [Lynda] Tremain; Maximillion Capital, LLC; Canyon Falls Group, LLC; Acquisition Venice, LP; Acquisition Phoenix-Miami, LP; Amberwood Investments, LLC; and Acquisition West Hatcher, LP.*fn1 Stated generally, this action arises from the allegedly fraudulent conduct of the descendants of Ruth Dunmore, as well as other individuals and related entities. Relevant here, plaintiff brings suit against Sidney B. Dunmore (hereafter, "Sidney B."*fn2 ), plaintiff's brother and Ruth Dunmore's son, for Financial Elder Abuse and Quia Timet.*fn3

On August 8, 2012, Sidney B. filed an answer and counterclaim. ECF No. 56. As to 196 of the 208 paragraphs in the SAC, this defendant responded as follows: "Denied based upon lack of personal knowledge, and the fact that the word 'Defendants' is used conjunctively throughout, without specificity as to this answering defendant." Sidney B. also asserted 21 affirmative defenses and five "counterclaims," including that plaintiff be deemed a vexatious litigant.

On August 29, 2012, plaintiff filed the instant motion, which Sidney B. opposes.

DISCUSSION

A. Legal Standards

1. Federal Rule of Civil Procedure 12(f)

Under Federal Rule of Civil Procedure 12(f), a court "may strike from a pleading an 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). At the same time, 12(f) motions are "generally regarded with disfavor because of the limited importance of pleading in federal practice, and because they are often used as a delaying tactic." Neilson v. Union Bank of Cal., N.A., 290 F. Supp. 2d 1101, 1152 (C.D. Cal. 2003). Indeed, a motion to strike "should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation." Neveau v. City of Fresno, 392 F. Supp. 2d 1159, 1170 (E.D. Cal. 2005) (quoting Colaprico v. Sun Microsystems, Inc., 758 F. Supp. 1335, 1339 (N.D. Cal. 1991)). Unless it would prejudice the opposing party, courts freely grant leave to amend stricken pleadings. Wyshak v. City Nat'l Bank, 607 F.2d 824, 826 (9th Cir. 1979); see also Fed. R. Civ. P. 15(a)(2).

An affirmative defense may be insufficient as a matter of pleading or as a matter of law. Sec. People, Inc. v. Classic Woodworking, LLC, 2005 WL 645592, at *2 (N.D. Cal. 2005). "The key to determining the sufficiency of pleading an affirmative defense is whether it gives the plaintiff fair notice of the defense." Wyshack, 607 F.2d at 827 (citing Conley v. Gibson, 355 U.S. 41 (1957)) (emphasis added); Simmons v. Navajo, 609 F.3d 1011, 1023 (9th Cir. 2010). Fair notice generally requires that the defendant state the nature and grounds for the affirmative defense. See Conley, 355 U.S. at 47. It does not, however, require a detailed statement of facts. Id. at 47-48. On the other hand, an affirmative defense is legally insufficient only if it clearly lacks merit "under any set of facts the defendant might allege." McArdle v. AT & T Mobility, LLC, 657 F. Supp. 1140, 1149-50 (N.D. Cal. 2009).

A court may also strike responses that are immaterial or impertinent. Fed. R. Civ. P. 12(f). An immaterial response "has no essential or important relationship to the claim for relief of the defense being pleaded." Wright & Miller, 5C Fed. Prac. & Proc. Civ. § 1382 (3d ed. 2012). Impertinent responses do not pertain, and are not necessary, to the issues in question. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (internal citations omitted), rev'd on other grounds, 510 U.S. 517 (1994).

2. Federal Rule of Civil Procedure 12(b)(6)

The purpose of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, a ...


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