Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Shimmick Construction Co., Inc. v. Officine Meccaniche Galletti-O.M.G.

United States District Court, S.D. California

November 3, 2014



CYNTHIA BASHANT, District Judge.

Pursuant to Federal Rule of Civil Procedure 12(f), Defendants Plant Outfitters, LLC, Plaint Architects, LLC, and RS1 Holdings, Inc.[1] move to strike portions of Plaintiff Shimmick Construction Company Inc./Obayashi Corporation ("SOJV")'s Consolidated Amended Complaint ("CAC"). The remaining defendants have not joined in the motion to strike. Plaintiff opposes.

The Court finds this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). For the following reasons, the Court DENIES Defendants' motion to strike.


Plaintiff summarizes the nature of this action as follows in its consolidated amended complaint:

This action arises out of the failure of Robert W. Ober and his corporate entities' to design and provide a conforming concrete batch plant to SOJV and, further, the Sicoma-related entities' manufacture, sale, and delivery of defective and nonconforming concrete mixers to SOJV for use in the construction of the San Vincente dam-raise project. The nonconformities of the batch plant Mr. Ober and his corporate entities designed and provided have caused substantial damages to SOJV. Likewise, the defective and nonconforming concrete mixers, which are one component of the batch plant, have caused significant damages to SOJV. Consequently, SOJV seeks monetary and equitable relief.

(CAC ¶ 1.) In April 2010, Plaintiff "entered into a contract with the San Diego County Water Authority for the construction of the San Vincente Dam-Raise Project[, ]" which required raising the height of the dam by 117 feet. ( Id. ¶¶ 45-49.) According to Plaintiff, "[t]o produce a sufficient amount of concrete to timely complete the construction of the dam, SOJV required a batch plant capable of producing at least six compacted cubic yards of [roller-compacted concrete ("RCC")] output per batch." ( Id. ¶ 49.)

In June 2010, Plaintiff executed the first contract with Robert Ober, apparently on behalf of Plant Outfitters, for the purchase of components needed for the batch plant that incorporated a proposal with various obligations related to the mixers among other things. (CAC ¶¶ 74-83; CAC Ex. 3.) Shortly thereafter, Plaintiff executed the second contract "for a comprehensive design package for a customized RCC conveyor system" with "RS1 Holdings, Inc. dba Plant Architects and Plant Outfitters (Plant Architects)." (CAC ¶ 85; CAC Ex. 4.) The Sicoma Defendants-which consist of Officine Meccaniche Galletti-O.M.G. S.r.l. ("OMG"), Societa Italiana Construzione Macchine S.r.l. ("Sicoma Italy"), and Sicoma North America, Inc.-are parties to this action because they allegedly "manufactured the concrete mixers and wear parts for the concrete mixers (i.e., parts that are expected to wear over time due to use)[.]" (CAC ¶¶ 5-15.)

On November 11, 2013, Plaintiff commenced this action against Sicoma North America. On February 3, 2014, Plaintiff filed another complaint in the Orange County Superior Court against Robert W. Ober, RS1 Holdings, Robert Ober & Associates, Inc., Plant Architects, and Plant Outfitters (collectively, "Ober Defendants"), which was eventually removed to federal court.[2]

On July 10, 2014, Sicoma North America filed its answer and counterclaim to the consolidated amended complaint, and OMG and Sicoma Italy also filed their answer.

Eventually, the Court granted the parties' joint motion to consolidate the two actions with this action as the lead case, and later-filed action as the member case. Plaintiff then filed its consolidated amended complaint, which asserts causes of action that range from breach of contract, breaches of warranties, and violations of California's Unfair Competition Law. There are six causes of action asserted against the Ober Defendants and four asserted against the Sicoma Defendants. Defendants now move to strike portions of the consolidated amended complaint. Plaintiff opposes.


Rule 12(f) provides that a federal court may strike from the pleadings any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Fed.R.Civ.P. 12(f). The function of a motion to strike is to avoid the unnecessary expenditures that arise throughout litigation by dispensing of any spurious issues prior to trial. Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983); Chong v. State Farm Mut. Auto. Ins. Co., 428 F.Supp.2d 1136, 1139 (S.D. Cal. 2006). As a general matter:

[w]hile 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. To that end, courts have held that a motion to strike matter from a complaint simply for being redundant, immaterial, impertinent, or scandalous "should only be granted if the matter has ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.