Brooks v. Bevmo! Inc. ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 VALERIE BROOKS, individually and No. 20-cv-01216-MCE-DB on behalf of all others similarly situated, 12 Plaintiff, 13 ORDER v. 14 BEVMO! INC., a Delaware corporation; 15 and DOES 1 to 10, inclusive, 16 Defendants. 17 18 Through the present action, Plaintiff Valerie Brooks, who is legally blind, seeks 19 redress from Defendant BevMo! Inc. (“Defendant”) on grounds that Defendant’s website 20 is not fully accessible to the visually impaired and therefore violates both the Americans 21 with Disabilities Act, 42 U.S.C. §§ 12181, et seq. (“ADA”) and California’s Unruh Civil 22 Rights Act, California Civil Code §§ 51, et seq. Plaintiff also seeks class-wide relief, 23 including injunctive relief, statutory damages, and attorney’s fees and costs, on behalf of 24 all others similarly situated. 25 On July 6, 2020, Defendant filed its Answer (ECF No. 5) to Plaintiff’s Complaint. 26 That Answer includes twenty-three (23) affirmative defenses. Presently before the Court 27 is Plaintiff’s Motion to Strike (ECF No. 8) thirteen (13) of those defenses. 28 /// 1 Although a defectively pled affirmative defense can be stricken under Federal 2 Rule of Civil Procedure 12(f), which authorizes the removal of “an insufficient defense,” 3 motions to strike such defenses are “regarded with disfavor because of the limited 4 importance of pleading in federal practice, and because they are often used as a 5 delaying tactic.” Dodson v. Gold Country Foods, Inc., No. 2:13-cv-00336-TLN-DAD, 6 2013 WL 5970410 at * 1 (E.D. Cal. Nov. 4, 2013), citing Neilson v. Union Bank of Cal., 7 N.A., 290 F. Supp. 2d 1101, 1152 (C.D. Cal. 2003). “Accordingly, courts often require a 8 showing of prejudice by the moving party before granting the requested relief.” Vogel v. 9 Linden Optometry APC, No. CV 13–00295 GAF (SHx), 2013 WL 1831686 at * 2 (C.D. 10 Cal. Apr. 30, 2013), citing Quintana v. Baca, 233 F.R.D. 562, 564 (C.D. Cal. 2005). 11 Where no such prejudice is demonstrated, motions to strike may therefore be denied 12 “even though the offending matter was literally within one or more of the categories set 13 forth in Rule 12(f).” N.Y.C. Emps.’ Ret. Sys. v. Berry, 667 F. Supp. 2d 1121, 1128 (N.D. 14 Cal. 2009). Ultimately, “whether to grant a motion to strike lies within the sound 15 discretion of the district court.” California Dep’t of Toxic Substances Control v. Alco 16 Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002). 17 In the instant Motion to Strike, Plaintiff states only that she is “prejudiced by 18 having to defend against . . . poorly pled affirmative defenses” and that there is 19 consequently “the threat of potentially wasteful and irrelevant discovery and an 20 unnecessary complication of the trial.” ECF No. 8, 9:20-21; 10:2-4. Plaintiff makes no 21 effort whatsoever to show that she would actually be prejudiced by the inclusion of any 22 of the specific affirmative defenses she seeks to exclude beyond some “potential threat” 23 of discovery she makes no attempt to identify. This is insufficient, particularly since 24 motions to strike affirmative defenses are not favored in the first place. 25 It bears noting that Plaintiff, a serial litigant in ADA litigation with multiple cases 26 pending in this District, has filed similar motions to strike affirmative defenses in other 27 pending matters. In Brooks v. Boiling Crab Franchise Co., LLC, Case No. 2:20-cv- 28 01390-JAM-CKD, for example, she filed a motion to strike (ECF No. 8) that uses virtually 1 | the exact same language employed in this motion, as summarized above, with an 2 || identical lack of any factual specificity in showing any actual prejudice. Id. at pp. 10-11. 3 | Plaintiffs motion was denied in that case given her failure to demonstrate any 4 || cognizable prejudice. Brooks v. Boiling Crab, ECF No. 11. 5 The reasoning in Boiling Crab is equally applicable here. Plaintiff's boilerplate 6 | allegations of prejudice fail to carry the day in surmounting the high bar set for prevailing 7 || upon a motion to strike, and to the extent her Motion represents an effort to simply 8 || generate attorney’s fees that may ultimately be recovered (in the absence of any other 9 | identified purpose) it will not be countenanced. Plaintiff's Motion to Strike (ECF No. 8) is 10 || accordingly DENIED." 11 IT IS SO ORDERED. 12 | Dated: August 12, 2021 Main Whig { AX Xo - SENIOR UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 □ 28 | this matter on the briefs pursuant to Local Rule230),