Rennick v. NPAS Solutions, LLC

          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, ...