United States District Court, E.D. California
ORDER DENYING MOTION TO STRIKE PORTIONS OF FIRST
AMENDED COMPLAINT (Doc. 39)
United States Environmental Protection Agency (“United
States” or “Government”) brought the
instant environmental protection action against Gibson Wine
Company (“Gibson”) related to Gibson's
winemaking activities in Sanger, California. This action
proceeds on the Government's First Amended Complaint
(“FAC”), filed on December 1, 2016. On December
13, 2016, Gibson filed a motion to strike portion of the
Government's first and second causes of action and the
entirety of the Government's third cause of action.
Gibson contends that many of the Government's allegations
are premised on inapplicable regulatory authority and
now-vacated findings by the California Division of
Occupational Safety and Health (“DOSH”).
United States responds that Gibson's motion is not the
appropriate subject of a motion to strike-the motion seeks
dismissal of three of the Government's four causes of
action and injects factual allegations that conflict with the
allegations of the complaint. The United States contends,
even if the Court were to hear the substance of the claims
despite Gibson's use of the incorrect procedural vehicle,
Gibson's arguments are without merit.
Gibson's reply, it disclaims any intent to challenge the
legal sufficiency of the Government's complaint. It
further explains that its reference to factual material
outside of the complaint “is solely for the purpose of
explaining the significance of the accurate statement of
statutory defenses and elements of” the
Government's claims. Doc. 48 at 2. Gibson asks that its
motion only be considered as a motion to strike pursuant to
following reasons, Gibson's motion to strike will be
Court summarized the allegations of the Government's
original complaint in its April 25, 2016 order. Doc. 21. In
short, the Court explained the alleged release of anhydrous
ammonia from the Gibson facility and the Government's
three original corresponding causes of action.
winemaking facility in Sanger, California, uses refrigeration
systems requiring the storage and use of anhydrous ammonia.
The United States alleges that on September 11, 2012, the
Gibson facility experienced a 284-pound release of anhydrous
ammonia from its refrigeration system. A cloud of the ammonia
formed and the facility was evacuated. One of Gibson's
contract employees died from exposure to the ammonia.
Government's three original causes of action were as
follows: (1) violation of the general duty clause of Section
112(r)(1) of the Clean Air Act (“CAA”), 42 U.S.C.
§ 7412(r)(1), premised on Gibson's alleged failure
to meet ten requirements relating to ammonia storage and use;
(2) violation of Section 103 of the Comprehensive
Environmental Response, Compensation and Liability Act
(“CERCLA”), 42 U.S.C. § 9603, based on
delayed notification of the National Response Center
(“NRC”) after the alleged release of ammonia in a
reportable quantity; and (3) violation of Section 304 of the
Emergency Planning and Community Right-To-Know Act
(“EPCRA”), 42 U.S.C. § 11004(a)(1), based on
delayed notification of the State Emergency Response
Commission (“SERC”) after the alleged release of
ammonia in a reportable quantity. After the Court's April
25, 2016 order, the Government amended its complaint.
See Docs. 35 (granting unopposed motion to amend),
and 36 (Government's FAC). The three claims that the
Court previously detailed were re-alleged, and the Government
alleged a fourth cause of action (that it inserted as its
first cause of action)-violation of the Risk Management Plan
(“RMP”) regulations established under Section
112(r)(7) of the CAA, applicable only to facilities storing
regulated substances exceeding a threshold amount, (to wit,
10, 000 pounds of anhydrous ammonia) based on alleged
failures to meet nine requirements relating to ammonia
storage and use, different from the ten failures alleged
under the general duty clause of Section 112(r)(1) of the
Government's first cause of action, violation of the RMP
regulations of Section 112(r)(7) of the CAA is applicable
only if it can show that Gibson operated a process involving
the use of anhydrous ammonia in an amount exceeding 10, 000
pounds. See 40 C.F.R. §§ 68.1, 68.10,
68.115, 68.130. The Government's section cause of action,
violation of the General Duty Clause of Section 112(r)(1) of
the CAA applies if Gibson used any amount of anhydrous
ammonia at its facility. See 42 U.S.C. §
7412(r)(1); 40 C.F.R. § 68.1 (“[T]hreshold
quantities and accident prevention regulations promulgated
under this part do not limit … the general duty
provisions under [S]ection 112(r)(1).”)
Motion to Strike
to Federal Rule of Civil Procedure 12(f), a court may strike
“any redundant, immaterial, impertinent, or scandalous
matter.” A matter is “redundant” if it
presents “the needless repetition of allegations or the
inclusion of allegations that ‘are foreign to the
issue.'” Lexington Ins. Co v. Energetic Lath
& Plaster, Inc., 2015 WL 5436784, *10 (E.D. Cal.
Sept. 15, 2015) (quoting Wilkerson v. Butler, 229
F.R.D. 166, 170 (E.D.Cal.2005)). A matter is immaterial if it
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). A matter is impertinent if it “consists of
statements that do not pertain, and are not necessary, to the
issues in question.” Fogerty, 984 F.2d at
1527. A matter is scandalous if it improperly casts a
derogatory light on a party to the action. Lexinton Ins.
Co., 2015 WL 5436784 at *10. If an allegation does not
fall within one of those categories it is not appropriately
stricken under Rule 12(f).
purpose of Rule 12(f) is to “avoid the expenditure of
time and money that … arise[s] 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); accord Whittlestone,
Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir.
2010). However, because of the limited importance of
pleadings in federal practice and because motions to strike
often needlessly extend litigation, broad motions to strike
are generally disfavored. See Andren v. Alere, Inc.,
2017 WL 168605, *3 (S.D. Cal. Jan. 17, 2016); Kratz
Aerial Ag Service, Inc. v. Slykerman, 2016 WL 1090361,
at *2 (E.D. Cal. Mar. 21, 2017) (citing Spring v. Fair
Isaac Corp., 2015 WL 7188234, at *2 (E.D. Cal. Nov. 16,
2015)); Atcherley v. Hanna, 2016 WL 70028, at *1
(E.D. Cal. Jan. 6, 2016) (citation omitted). Such motions
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 proceedings.” Andren,
2017 WL 168605 at *3 (quoting Colaprico v. Sun Microsys.
Inc., 758 F.Supp. 1335, 1339 (N.D. Cal. 1991)); see
Park v. Welch Foods, Inc., 2014 WL 1231035, *1 (N.D.
Cal. Mar. 20, 2014) (“Any doubt concerning the import
of the allegations to be stricken weighs in favor of denying
the motion to strike.”) (quoting In re Walmart
Stores, Inc. Wage & Hour Litig., 505 F.Supp.2d 609,
614 (N.D. Cal. 2007)).
ruling on a motion to strike, much like ruling on a motion to
dismiss for failure to state a claim, a court must assume
that all of the well-pled factual allegations of the
complaint are true and view the pleading in the light most
favorable to the pleader. See Whittlestone,
618 F.3d at 973 (“[C]ourts may not resolve
‘disputed and substantial factual or legal issues in
deciding a motion to strike.'”); Lexington Ins.
Co. v. Energetic Lath & Plaster, Inc., 2015 WL
5436784, *11 (E.D. Cal. Sept. 15, 2015); Patterson v. Two
Fingers LLC, 2015 WL 2345658, *3 (D. Ariz. May 15,
2015); Holmes v. Elec. Document Processing, Inc.,
966 F.Supp.2d 925, 930 (N.D. Cal. 2013). A motion to strike
does not test the substantive sufficiency of a pleading.
See Yamamoto v. Omiya, 564 F.2d 1319, 1327 (9th Cir.
1977) (“Rule 12(f) is neither an authorized nor a
proper way to procure the dismissal of all or a part of a
complaint.”) (citation and internal quotation marks
omitted); Granger v. Lowe's Home Centers, LLC,
2014 WL 4976134, *3 (E.D. Cal. Oct. 3, 2014). However,
insofar as a motion incorrectly designated a motion to strike
could have been properly brought as a motion to dismiss for
failure to state a claim, a court may construe it as such.
Knapp v. Art.com, Inc., 2016 WL 3268995, *6 (N.D.
Cal. June 15, 2016); Granger, 2014 WL 4976134 at *3;
Rhodes v. Placer County, 2011 WL 1302240, *22 (E.D.
Cal. Mar. 31, 2011). Similarly, if a party improperly submits
evidence in support of a motion to strike, the court may
construe that motion as a motion for summary judgment.
See Mullane v. Hilton Hotels Corp, 634 F.Supp.2d
1130, 1157 (D. Haw. 2009) (citing 5C Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure §
1380, at 404 (3d ed. 2004)). A court should only consider the
underlying merits of an improperly designated motion if
construing the motion in that manner would not deprive the
non-moving party of a meaningful opportunity to respond.
See Ewing v. Megrdle, 2014 WL 2159363, *18 (C.D.
Cal. May 23, 2014) (refusing to address the merits of a
motion filed using an improper procedural vehicle because the
non-moving party had no meaningful opportunity to respond);
Garcia v. Valenzuela, 2014 WL 683795, *1 (C.D. Cal.
Feb. 18, 2014) (hearing the merits of claims filed using an
improper procedural vehicle only after affording the
non-moving party an additional opportunity to respond).
Motion to Dismiss for Failure to State a Claim
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). Where the plaintiff
fails to allege “enough facts to state a claim to
relief that is plausible on its face, ” the complaint
may be dismissed for failure to allege facts sufficient to
state a claim upon which relief may be granted. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007);
see Fed. R. Civ. P. 12(b)(6). “A claim has
facial plausibility, ” and thus survives a motion to
dismiss, “when the pleaded factual content allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009). On a Rule 12(b)(6)
motion to dismiss, the court accepts all material facts
alleged in the complaint as true and construes them in the
light most favorable to the plaintiff. Knievel v.
ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). However, the
court need not accept conclusory allegations, allegations
contradicted by exhibits attached to the complaint or matters
properly subject to judicial notice, unwarranted deductions
of fact or unreasonable inferences. Daniels-Hall v.
National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir.
Discussion A. Gibson's First Motion to Strike - The
Government's Allegations Regarding Statutory and
first motion asks the Court to strike paragraphs 19, 22, and
23 of the FAC. Doc. 39-1 at 4-6. Those paragraphs are all
part of the Government's explanation of the statutory and
regulatory framework of the CAA. Paragraph 19 reads:
“Process” is defined in 40 C.F.R. § 68.3 to
mean “any activity involving a regulated substance
including any use, storage, manufacturing, handling, or
on-site movement of such substances, or any combination of
these activities.” “Covered Process” means
“a process that has a regulated hazardous substance
present in more than a threshold quantity as determined under
[40 C.F.R.] § 68.115.” 40 C.F.R. § 68.3.
¶ 19. Gibson takes issue with the Government's
omission of part of 40 C.F.R. § ...