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Brinkley v. Monterey Financial Services, Inc.

United States District Court, S.D. California

March 23, 2017

TIFFANY BRINKLEY, on behalf of herself and others similarly situated, Plaintiff,
v.
MONTEREY FINANCIAL SERVICES, INC.; DOE NO. 1 MONTEREY FINANCIAL SERVICES, LLC DOES 1 through 100, inclusive, Defendants.

          ORDER

          WILLIAM Q. HAYES, Judge

         The matters before the Court are the Motion to Remand filed by Plaintiff Tiffany Brinkley (“Plaintiff”) (ECF No. 12); the Motions to Strike filed by Defendant Monterey Financial Services, Inc. and Defendant Monterey Financial Services, LLC (“Defendants”) (ECF Nos. 37, 51); and the Motion to Strike filed by Plaintiff (ECF Nos. 40, 41).

         I. Background

         On October 15, 2013, Plaintiff commenced an action against Monterey Financial Services, Inc. in the Superior Court of the State of California for the County of San Diego by filing a Complaint. (ECF No. 1-3 at 2). On May 6, 2016, Defendants removed this action to federal district court pursuant to the Class Action Fairness Act (“CAFA”), 28 U.S.C. §§ 1332(d)(2), 1453(b). (ECF No. 1). On May 13, 2016, Defendants filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (ECF No. 7), and a Motion for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c) (ECF No. 8).

         On May 19, 2016, Plaintiff filed a motion to remand. (ECF No. 12). On June 6, 2016, Defendants filed a response. (ECF No. 15). On June 13, 2016, Plaintiff filed a reply. (ECF No. 20). On September 15, 2016, the Court issued an order allowing “the parties a period of 60 days to engage in limited jurisdictional discovery regarding the amount in controversy requirement and the CAFA exceptions.” (ECF No. 21 at 11). The Court ordered that “[t]he parties shall file any supplemental responses within 90 days of this Order, and any replies shall be filed within 14 days of any supplemental response.” Id. at 11-12.

         On December 14, 2016, Defendants filed a supplemental brief in response to Plaintiff's motion to remand. (ECF No. 27). On December 14, 2016, Plaintiff filed a supplemental brief in support of her motion to remand. (ECF No. 28). On December 28, 2016, Defendants filed a response to Plaintiff's supplemental brief. (ECF No. 36). On December 28, 2016, Defendants filed a motion to strike the declaration of James R. Lackritz, Ph.D. included in Plaintiff's supplemental brief. (ECF No. 37). On December 28, 2016, Plaintiff filed a response to Defendants' supplemental brief. (ECF No. 38). On December 30, 2016, Plaintiff filed an amended notice of motion to strike declarations of Chris Hughes submitted by Defendants, as well as to strike an exhibit to Defendants' supplemental brief. (ECF No. 40). On January 3, 2017, Plaintiff filed an amended memorandum in support of her amended notice of motion to strike. (ECF No. 41). On January 3, 2017, Plaintiff filed a Motion to Strike Defendants' reply to Plaintiff's supplemental brief, including an attached declaration and exhibits. (ECF No. 42).

         On January 13, 2017, Defendants filed a response in opposition to the motion to strike declarations of Chris Hughes and an exhibit to Defendants' supplemental brief. (ECF No. 43). On January 13, 2017, Plaintiff filed a response in opposition to Defendants' motion to strike the declaration of Dr. Lackritz. (ECF No. 44). On January 20, 2017, Defendants filed a reply to their motion to strike the declaration of Dr. Lackritz. (ECF No. 45). On January 23, 2017, Plaintiff filed a reply to her motion to strike declarations of Chris Hughes and an exhibit to Defendants' supplemental brief. (ECF No. 47).

         On February 8, 2017, the Court issued an order granting in part and denying in part Plaintiff's motion to strike Defendants' reply to Plaintiff's supplemental brief. (ECF No. 49). The Court “allow[ed] Plaintiff to file a sur-reply to respond to any new information and/or arguments made by Defendants in their reply to Plaintiff's supplemental brief (ECF No. 36).” Id. at 4. On February 22, 2017, Plaintiff filed a sur-reply (ECF No. 50) and a supplemental declaration by Dr. Lackritz (ECF No. 50-1). On March 1, 2017, Defendants filed a motion to strike the supplemental declaration of Dr. Lackritz. (ECF No. 51). On March 7, 2017, Plaintiff filed a response. (ECF No. 53). On March 9, 2017, Defendants filed a reply. (ECF No. 54).

         II. Motion to Strike Dr. Lackritz's February 17, 2017 Supplemental Declaration (ECF No. 51)

         Defendants contend that Dr. Lackritz's supplemental declaration included in Plaintiff's sur-reply (ECF No. 50-1) should be stricken because the Court did not allow Plaintiff to file a supplemental declaration. Plaintiff contends that the Court's order did not prohibit Plaintiff from filing a supplemental declaration.

         “[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). However, “there is a strong preference against motions to strike.” Rees v. PNC Bank, N.A., 308 F.R.D. 266, 275 (N.D. Cal. 2015). In this case, the Court allowed Plaintiff “to file a sur-reply to respond to any new information and/or arguments made by Defendants in their reply to Plaintiff's supplemental brief.” (ECF No. 49 at 4). Defendants have not identified any prejudice that would result if the supplemental declaration was not stricken. See Hawn v. Exec. Jet. Mgmt., Inc., 615 F.3d 1151, 1161-62 (9th Cir. 2010) (affirming district court's denial of a motion to strike, in part because “[the moving parties] have made no showing of prejudice”); S.E.C. v. Sands, 902 F.Supp. 1149, 1165-66 (C.D. Cal. 1995) (“courts often require a showing of prejudice by the moving party” before granting a motion to strike).

         Defendants' Motion to Strike the supplemental declaration (ECF No. 51) is denied. See Chaconas v. JP Morgan Chase Bank, 713 F.Supp.2d 1180, 1190 (S.D. Cal. 2010) (Hayes, J.) (“whether to grant a motion to strike lies within the sound discretion of the district court . . . [and i]n exercising its discretion, the court views the pleadings in the light most favorable to the non-moving party”) (citation omitted).

         III. Motion to Remand (ECF No. 12)

         A. CAFA Home-State Exception i. Contentions ...


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