United States District Court, C.D. California
ORDER DENYING DEFENDANT'S MOTION TO STRIKE CLASS
ALLEGATIONS [21]
OTIS
D. WRIGHT, II UNITED STATES DISTRICT JUDGE
I.
INTRODUCTION
This
matter comes before the Court on Defendant NPAS Solutions,
LLC's Motion to Strike Class Allegations
(“Motion”). (ECF No. 21.) For the following
reasons, the Court DENIES the Motion.[1]
II.
BACKGROUND
On June
20, 2019, Plaintiff Jennifer Rennick filed her First Amended
Complaint (“FAC”) against NPAS Solutions. (FAC,
ECF No. 15.) Rennick alleges NPAS, a debt collector, called
her multiple times on her cellular phone using an automatic
telephone dialing system without her express consent, in
violation of the Telephone Consumer Protection Act
(“TCPA”). (FAC ¶¶ 16-40.) Specifically,
Rennick alleges that starting around March 2018, and most
recently on March 13, 2019, and March 26, 2019, she received
calls on her cellular phone in which NPAS left prerecorded
and artificial voice messages on her voicemail about a debt
owed to Havasu Regional Medical Center. (FAC ¶¶
16-21.) Rennick alleges that she has never visited, has no
prior relationship with, and maintains no debt with Havasu
Regional Medical Center. (FAC ¶ 17.) Additionally,
Rennick alleges that these prerecorded and artificial voice
messages were left using an automatic telephone dialing
system. (FAC ¶¶ 22-23.)
Rennick brings her TCPA claims on behalf of a class defined
by the FAC:
[A]ll persons within the United States who: (1) received a
telephone call from Defendant or its agents; (2) on his or
her cellular telephone number; (3) through the use of any
automatic telephone dialing systems or artificial or
prerecorded voice message as set forth in 47 U.S.C. §
227(b)(1)(A)(3); (4) without prior express consent, (5)
within four years prior to the filing of the Complaint
through the date of final approval.
(FAC ¶ 42.) NPAS now moves to strike the class
allegations under Rule 12(f). (See Mot.)
III.
LEGAL STANDARD
Under
Rule 12(f), the court may strike “any 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). “Motions to strike
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); see also Sapiro v. Encompass
Ins., 221 F.R.D. 513, 518 (N.D. Cal. 2004)
(“Courts have long disfavored Rule 12(f) motions,
granting them only when necessary to discourage parties from
making completely tendentious or spurious
allegations.”).
“In
ruling on a motion to strike under Rule 12(f), the court must
view the pleading in the light most favorable to the
nonmoving party.” Cholakyan v. Mercedes-Benz USA,
LLC, 796 F.Supp.2d 1220, 1245 (C.D. Cal. 2011).
“Thus, ‘before granting such a motion, the court
must be satisfied that there are no questions of fact, that
the claim or defense is insufficient as a matter of law, and
that under no circumstance could it succeed.'”
Id. (quoting Tristar Pictures, Inc. v. Del Taco,
Inc., No. CV 99-07655-DDP (Ex), 1999 WL 33260839, *1
(C.D. Cal. Aug. 31, 1999)) (alterations omitted).
IV.
DISCUSSION
NPAS
argues that the class allegations should be struck because it
is clear on the face of the FAC that the class cannot be
certified for two reasons. (Mot. 4.) First, NPAS argues the
proposed class is an impermissible fail-safe
class.[2] (Id. at 5-7.) Next, NPAS argues
that class certification is impracticable because determining
class membership will require highly individualized inquiries
regarding the issue of prior express consent. (Id.
at 7-18.) In opposition, Rennick raises several arguments,
including that NPAS' Motion to Strike is premature and
prejudicial as discovery is not complete, no motion for class
certification has been filed, and NPAS has failed to show
that Rennick cannot possibly certify a class. (Opp'n to
Mot. (“Opp'n”) 7-12, ECF No. 31.)
As an
initial matter, NPAS has not cited to any relevant binding
authority that mandates the action it seeks and there appears
to be none. Although some courts have granted motions to
strike class allegations under Rule 12(f), “it is in
fact rare to do so in advance of a motion for class
certification.” Cholakyan, 796 F.Supp.2d at 1245
(collecting cases). “Striking class allegations prior
to a formal certification motion is generally disfavored due
to the lack of a developed factual record.” Pepka
v. Kohl's Dep't Stores, Inc., No. CV-16-4293-MWF
(FFMx), 2016 WL 8919460, at *1 (C.D. Cal. Dec. 21, 2016);
see also In re NVIDIA GPU Litig., No. C 08-04312-JW,
2009 WL 4020104, at *13 (N.D. Cal. Nov. 19, 2009) (“A
determination of the ascertainability and manageability of
the putative class in light of the class allegations is best
addressed at the class certification stage of the
litigation.”). As this Court previously acknowledged,
...