Xu v. FibroGen, Inc. ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 IN RE FIBROGEN SECURITIES Case No. 21-cv-02623-EMC 8 LITIGATION ORDER DENYING DEFENDANT’S 9 MOTION TO STRIKE PORTIONS OF KAPLAN DECLARATION IN 10 SUPPORT OF PLAINTIFFS’ MOTION FOR SPOLIATION SANCTIONS 11 Docket No. 198 12 13 14 Defendant FibroGen, Inc. brings a motion to strike portions of the Declaration of David R. 15 Kaplan in Support of Plaintiffs’ Motion for Spoliation Sanctions, Docket No. 185-1 (“Kaplan 16 Decl.”) pursuant to Northern District of California Civil Local Rules 7-2 and 7-5(b). For the 17 reasons set forth below, the Court DENIES Defendant’s Motion. 18 I. LEGAL STANDARD 19 Before responding to a pleading, a party may move to strike from a pleading any 20 “redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). The essential 21 function of a Rule 12(f) motion is to “avoid the expenditure of time and money that must arise 22 from litigating spurious issues by dispensing with those issues prior to the trial.” Wang v. OCZ 23 Tech. Grp., Inc., 276 F.R.D. 618, 624 (N.D. Cal. Oct. 14, 2011) (quoting Whittlestone, Inc. v. 24 Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010)). Motions to strike are generally disfavored. 25 See Shaterian v. Wells Fargo Bank, N.A., 829 F. Supp. 2d 873, 879 (N.D. Cal. 2011); Platte 26 Anchor Bolt, Inc. v. IHI, Inc., 352 F. Supp. 2d 1048, 1057 (N.D. Cal. 2004). A motion to strike 27 should only be granted if the matter sought to be stricken clearly has no possible bearing on the 1 (N.D. Cal. 1991); Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other 2 grounds, Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) (“‘Immaterial matter’ is that which has no 3 essential or important relationship to the claim for relief or the defenses being pleaded.”). 4 Statements that do not pertain to, and are not necessary to resolve, the issues in question are 5 impertinent. Id. If there is any doubt whether the portion to be stricken might bear on an issue in 6 the litigation, the court should deny the motion to strike. Platte Anchor Bolt, 352 F. Supp. 2d at 7 1057. Just as with a motion to dismiss, the court should view the pleading sought to be struck in 8 the light most favorable to the nonmoving party. Id. 9 Defendant moves pursuant to Civil Local Rules 7-2 and 7-5(b). The latter provides, in part 10 that “[a]n affidavit or declaration may contain only facts, must conform as much as possible to the 11 requirements of Fed. R. Civ. P. 56(e), and must avoid conclusions and argument.” LR 7-5(b). 12 Because Plaintiffs have moved for sanctions under Federal Rule of Civil Procedure 37, their 13 motion must also comply with Civil Local Rule 37-4 (“LR 37-4”), which requires, in pertinent 14 part, that such motion be accompanied by “competent declarations” that: (1) “[s]et forth the facts 15 and circumstances that support the motion” and (2) “[d]escribe in detail the efforts made by the 16 moving party to secure compliance without intervention by the Court. See also Glass Egg Dig. 17 Media v. Gameloft, Inc., 2019 WL 5720731, at *4 (N.D. Cal. Nov. 5, 2019). 18 II. DISCUSSION 19 Defendant mounts two challenges to the Kaplan Declaration. First, they argue that the 20 declaration contains paragraphs that are not based on Kaplan’s personal knowledge. Second, they 21 argue that Kaplan makes improper argument in his declaration, and in doing so mischaracterizes 22 or incorrectly summarizes the evidence the declaration is meant to authenticate. Defendant argues 23 that this improper argument is intended to circumvent the page limits set forth in the local rules. 24 Defendant argues that the Kaplan Declaration violates LR 7-5 because Kaplan does not 25 have “personal knowledge” of the underlying facts described in documents Defendants produced 26 in discovery, such as internal communications within the company. The Kaplan Declaration cites 27 to facts either within Kaplan’s personal knowledge or contained within documents or deposition 1 declaration. See, e.g., Aniel v. GMAC Mortg., LLC, 2012 WL 5373388, at *6 (N.D. Cal. Oct. 30, 2 2012) (“[p]ersonal knowledge . . . is not strictly limited to activities in which the declarant has 3 personally participated,” and “an affiant may testify to acts that she did not personally observe but 4 which have been described in business records”). 5 The Court agrees that some of Kaplan’s language toes the line of argument. To the extent 6 it does, the Court will disregard the argument and read the declaration for its factual content and 7 authentication of the factual record. See, e.g., Allbaugh, 2014 WL 2112934, at *7 (finding that 8 even if declaration included legal conclusions, “the proper remedy is not to disregard [the 9 attorney’s] declaration wholesale,” as “[t]he [c]ourt has sufficient experience ignoring the legal 10 conclusions of counsel and not treating those conclusions as established facts”); Clare v. Clare, 11 2021 WL 6206989, at *3 (E.D. Wash. Dec. 8, 2021) (declining to strike paragraphs from 12 declaration that “appear somewhat argumentative” because “they are not so egregious to be 13 stricken but instead are helpful” to adjudication of summary judgment motion). 14 III. CONCLUSION 15 Accordingly, Defendant’s motion to strike is DENIED. 16 This order disposes of Docket No. 198. 17 18 IT IS SO ORDERED. 19 20 Dated: August 29, 2023 21 22 ______________________________________ EDWARD M. CHEN 23 United States District Judge 24 25 26 27