Baesel v. Mutual Of Omaha Mortgage, Inc. ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID BAESEL, individually and on Case No.: 20cv0886 DMS(AGS) behalf of all others similarly situated, 12 ORDER (1) DENYING Plaintiffs, 13 DEFENDANT’S MOTION TO v. STRIKE AND (2) DENYING AS 14 MOOT DEFENDANT’S MOTION TO MUTUAL OF OMAHA MORTGAGE, 15 STAY DISCOVERY INC., a Delaware corporation 16 Defendant. 17 18 19 This case comes before the Court on Defendant’s motion to strike Plaintiff’s class 20 allegations from the Complaint and Defendant’s motion to stay discovery pending a ruling 21 on its other motions. As this Order resolves all of Defendant’s pending motions, the motion 22 to stay discovery is denied as moot. The motion to strike is also denied for the reasons set 23 out below. 24 Defendant argues the class allegations should be stricken because the proposed 25 classes are uncertifiable fail-safe classes, they are not objectively defined, they are 26 / / / 27 / / / 28 / / / 1 overbroad, and they are not certifiable under Federal Rule of Civil Procedure 23(b). 2 Plaintiff disputes all of these arguments, and also argues Defendant’s motion is premature. 3 Federal Rule of Civil Procedure 12(f) states, “[t]he court may strike from a pleading 4 an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” 5 Fed. R. Civ. P. 12(f). “Class allegations may be stricken at the pleading stage.” Lyons v. 6 Coxcom, Inc., 718 F. Supp. 2d 1232, 1235 (S.D. Cal. 2009) (citing Kamm v. California 7 City Dev. Co., 509 F.2d 205, 212 (9th Cir.1975)). “However, motions to strike class 8 allegations are generally disfavored because ‘a motion for class certification is a more 9 appropriate vehicle.’” Id. at 1235-36 (quoting Thorpe v. Abbott Lab., Inc., 534 F.Supp.2d 10 1120, 1125 (N.D.Cal.2008)). “As other courts have noted, ‘the granting of motions to 11 dismiss class allegations before discovery has commenced is rare.’” Id. at 1236 (quoting 12 Thorpe, 534 F.Supp.2d at 1125). See also Mattson v. New Penn Fin., LLC, No. 3:18-CV- 13 00990-YY, 2018 WL 6735088, at *2 (D. Or. Nov. 6, 2018) (quoting In re Wal–Mart Stores, 14 Inc. Wage & Hour Litig., 505 F. Supp. 2d 609, 615–16 (N.D. Cal. 2007)) (“Dismissing 15 class allegations at the pleading stage is rare because ‘the parties have not yet engaged in 16 discovery and the shape of a class action is often driven by the facts of a particular case.’”) 17 Indeed, courts in the Ninth Circuit have repeatedly “denied motions to strike class 18 allegations prior to discovery as premature.” Mattson, 2018 WL 6735088, at *2. 19 Here, Defendant raises some interesting arguments as to why the proposed classes 20 should not be certified. However, it has not shown that the proposed classes are not 21 certifiable as a matter of law. Lyons, 718 F.Supp.2d at 1236. As Plaintiff points out, the 22 issues surrounding commonality may be subject to class-wide proof, but it is difficult to 23 make that determination without any evidence on those issues. It is also unclear from the 24 25 26 1 Defendant argues the proposed classes are overbroad because they would include 27 individuals who lack standing to sue, as set out in Defendant’s motion to dismiss. In light of the Court’s order denying the motion to dismiss, the Court rejects Defendant’s 28 1 ||pleadings whether Defendant is still engaged in the calling practices giving rise to 2 || Plaintiffs claims, which bears on the issue of class certification under Rule 23(b)(2). In 3 || other words, it is not clear from the Complaint “that the class claims cannot be maintained.” 4 || Collins v. Gamestop Corp., No. C10-1210-TEH, 2010 WL 3077671, at *2 (N.D. Cal. Aug. 5 2010). Accordingly, the Court denies Defendant’s motion to strike the class allegations.’ 6 IT IS SO ORDERED. 7 Dated: October 20, 2020 g ns my. L4\ Hon. Dana M. Sabraw 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 mail 25 Defendant also moves to strike the allegations concerning Plaintiff's Do Not Call claim for the reasons set out in its motion to dismiss. In light of the Court’s denial of that motion, the motion to strike those allegations is denied. Defendant’s final request to strike the 27 |\allegations of on-line complaints is also denied as Defendant has not shown those 28 Oe to be “redundant, immaterial, impertinent, or scandalous[.]” Fed. R. Civ. P.