United States District Court, S.D. Florida
ORDER ON DEFENDANT'S MOTION TO STRIKE
N. SCOLA, JR. UNITED STATES DISTRICT JUDGE.
Varner and seven additional class representatives bring this
proposed class action against Dometic Corporation
(“Dometic”) for breach of implied warranty,
unjust enrichment, and violation of various consumer
protection statutes. On February 7, 2017, the Court granted
in part Dometic's motion to dismiss the Plaintiffs'
Amended Complaint. (Order, ECF No. 86.) On February 22, 2017,
the Plaintiffs filed their Second Amended Complaint (ECF No.
89.) This matter is before the Court on Dometic's Motion
to Strike Certain Allegations and Exhibits Contained in
Plaintiffs' Second Amended Complaint (ECF No. 108). For
the reasons set forth below, the Court grants in part and
denies in part Dometic's motion (ECF No. 108).
Rule of Civil Procedure 12(f) permits district courts to
strike from a pleading “any redundant, immaterial,
impertinent, or scandalous matter.” On a motion to
strike, a court has broad discretion. Badilo v. City of
Deerfield Beach, No. 13-60057-CIV, 2013 WL 3762338, at
*1 (S.D. Fla. July 16, 2013) (Rosenbaum, J.) However,
striking allegations from a pleading “is a drastic
remedy” that is not appropriate “unless the
matter sought to be omitted has no possible relationship to
the controversy, may confuse the issues, or otherwise
prejudice a party.” Blake v. Batmasian, 318
F.R.D. 698, 700-01 (S.D. Fla. 2017) (Marra, J.) (citations
omitted); see also Gonzalez v. Sunrise Lakes Condominium
Apartments Phase III, Inc. 4, No. 06-61575, 2007 WL
2364050, at *4 (S.D. Fla. Aug. 14, 2007) (Cooke, J.)
(internal quotations and citations omitted). “Prejudice
results when the matter complained of has the effect of
confusing the issues or where it is so lengthy and complex
that it places an undue burden on the responding
party.” Blake, 318 F.R.D. at 700 (internal
quotations and citations omitted). Motions to strike are
generally viewed with disfavor. See Pandora Jewelers
1995, Inc. v. Pandora Jewelry, LLC, No. 9-61490, 2010 WL
5393265, at *1 (S.D. Fla. Dec. 21, 2010) (Cooke, J.).
acknowledging that motions to strike are disfavored, Dometic
has moved to strike all or portions of 51 paragraphs, three
footnotes and two exhibits of the Second Amended Complaint.
(Mot. to Strike Ex. A, ECF No. 108-1.) The material that
Dometic seeks to strike falls into five categories: (1)
descriptions of the parties' discovery disputes and
characterizations of positions taken by Dometic in its motion
to dismiss; (2) information concerning the opinions of one of
the Plaintiffs' experts; (3) evidentiary material
attached as exhibits to the Second Amended Complaint; (4)
factual allegations that consist of information the
Plaintiffs obtained during discovery; and (5) irrelevant
references to state statutes. (Mot. to Strike, ECF No. 108.)
The Court will address each category in turn.
Characterizations of Positions Taken by Dometic
asserts that the Second Amended Complaint includes immaterial
and scandalous allegations concerning “the nature and
veracity of arguments” that Dometic has made in the
course of this litigation, as well as information concerning
discovery disputes between the parties. (Mot. to Strike at 8,
ECF No. 108.) By way of example, Dometic points to the first
paragraph of the Second Amended Complaint. (Id.) The
first paragraph alleges that Dometic made a false statement
to the Court in its briefing on Dometic's motions to
dismiss. (Second Am. Compl. ¶ 1, ECF No. 103-1.) The
first paragraph also alleges that Dometic tried to withhold
“important, responsive” discovery that the Court
ultimately compelled Dometic to produce. (Id.) The
first paragraph includes two footnotes that detail discovery
disputes between the parties, and also make statements
concerning the “bold representations” that
Dometic made in support of its motion to dismiss. (Second Am.
Compl. ¶ 1 n.3, n.4, ECF No. 103-1.) Dometic asserts
that these allegations have no value in developing the issues
in this case and are irrelevant, defamatory, and prejudicial.
(Mot. to Strike at 10, ECF No. 108.)
support of its position, Dometic cites to Blake v.
Batmasian, which held that it was inappropriate for
plaintiffs to “state or argue in a Complaint,
particularly in a footnote, Defendants' position
regarding a contested issue.” 318 F.R.D. 698, 701 (S.D.
Fla. 2017) (Marra, J.). Judge Marra therefore struck the
plaintiffs' characterization of the defendants'
position in the complaint. Id. In response, the
Plaintiffs assert that their allegations do not reflect on
Dometic's moral character or detract from the dignity of
the Court. (Pl.'s Resp. at 20, ECF No. 113.) Furthermore,
the Plaintiffs assert that Dometic has not shown that it will
be prejudiced by these statements. (Id.)
word ‘scandalous' generally refers to any
allegation that unnecessarily reflects on the moral character
of an individual. . .or casts a cruelly derogatory light on a
party or other person.” Id. (citing S.E.C.
v. Lauer, No. 03-80612, 2007 WL 1393917, at *2 (S.D.
Fla. Apr. 30, 2007) (Marra, J.)). The Court notes that in its
order on Dometic's motion to dismiss (ECF No. 86), it
made no findings that Dometic made false statements in its
briefing. As Judge Marra noted, it is inappropriate for the
Plaintiffs to state or argue the Defendant's position
concerning a contested issue, and the Plaintiffs'
allegations that Dometic made false representations in its
filings are scandalous and unnecessary to the development of
any factual issue in this matter. Therefore, the Court grants
the Defendant's motion to strike the Plaintiffs'
allegations that it made false statements in its filings, as
well as the Plaintiffs' characterizations of the
positions that Dometic took in the briefing. Accordingly, the
Court strikes the seventh sentence of Paragraph 1 of the
Second Amended Complaint, the first two sentences of footnote
4, and the second sentence of Paragraph 140.
the Court declines to employ the drastic remedy of striking
the information concerning the parties' discovery
disputes and the fact that Dometic was compelled to produce
documents that the Plaintiffs deem to be important to their
case. Although it is highly unusual for such information to
be included in a complaint, Dometic has not sufficiently
demonstrated that the information has no possible
relationship to the controversy, may confuse the issues, or
will otherwise prejudice it. In its reply, Dometic asserts
that the Second Amended Complaint is a public document, and
that the accusations that Dometic tried to withhold
incriminating documents harm its reputation and goodwill.
(Reply at 3, ECF No. 116.) This claim is of no avail, because
the briefing and orders on the Plaintiffs' motions to
compel are also public documents. Therefore, striking the
information in the Second Amended Complaint concerning the
parties' discovery disputes will not remove the
information from the public record. Furthermore, the
Defendant's argument, if successful, would apply to most
complaints, since any allegation that a defendant engaged in
wrongful conduct could harm the defendant's reputation
References to Expert Opinions
Defendant requests that the Court strike references in the
Second Amended Complaint to “hypothetical and untested
opinions of Plaintiffs' undisclosed expert, Dr. Paul
Eason.” (Mot. to Strike at 11, ECF No. 108.) The
Defendant asserts that these opinions are improper because
Dometic has not yet been afforded an opportunity to challenge
the opinions under Daubert. (Id. at 12.)
Dometic asserts that the information is prejudicial because
the jury would be exposed to expert opinions that may be
wholly excluded under Daubert. (Id.)
relies in part on Mazzeo v. Nature's Bounty,
Inc., in which Judge Bloom struck an expert report that
was attached to a complaint. No. 14-60580, 2015 WL 1268271,
at *3 (S.D. Fla. Mar. 19, 2015); see also Meeks v. Murphy
Auto Group, Inc., No. 9-1050, 2009 WL 3669638, at *1
(M.D. Fla. Oct. 30, 2009) (striking expert affidavit attached
to the plaintiff's complaint because the “inclusion
of such expert opinions. . .is contradictory to the pleading
requirements set forth in Fed.R.Civ.P. 8. . . .”).
However, the ...