United States District Court, M.D. Florida, Orlando Division
B. SMITH, UNITED STATES MAGISTRATE JUDGE.
case comes before the Court without oral argument on
Defendant's Motion to Strike Plaintiff's Improper
Class Definition (Doc. 31), and Defendant's Motion to
Stay Discovery (Doc. 32). Plaintiff Crystal DeJesus has filed
responses in opposition to both motions (Docs. 38-39).
complains that Defendant Cigna Corporation violated the
Telephone Consumer Protection Act, 47 U.S.C. § 227 by
making numerous prerecorded, automated telephone calls to her
cell phone (Doc. 1, ¶¶ 14-18). She alleges that she
did not consent to receive these calls and that she was not
the intended recipient of the calls (Id.,
¶¶ 18-19). Plaintiff also alleges that
“Defendant's practice of placing prerecorded voice
calls to ‘wrong numbers' is both pervasive and long
standing.” (Id., ¶ 21). She brings this
action on behalf of the following classes:
No Consent Class: All persons in the United
States whose (1) cellular telephone number has been called by
Defendant; (2) more than once; (3) with an artificial or
prerecorded voice and/or an automatic telephone dialing
system; and (4) such calls were made without the prior
express consent of the person subscribing to the number
called, (5) from four years preceding the filing of this
complaint to the date that the class is certified.
Wrong Number Subclass: All persons in the
United States whose (I) cellular telephone number has been
called by Defendant; (2) more than once; (3) with an
artificial or prerecorded voice and/or an automatic telephone
dialing system; and (4) such calls were "wrong
numbers" where the person subscribing to the number
called was not the same person Defendant's records show
it intended to call, (5) from four years preceding the filing
of this complaint to the date that the class is certified.
(Id., ¶ 23). Defendant answered the complaint
on July 28, 2017 (Doc. 9).
Defendant is asking the Court to strike the definitions of
the No Consent Class and the Wrong Number Subclass from
Plaintiff's complaint pursuant to Fed.R.Civ.P.
23(c)(1)(A) and/or (d)(1)(D) (Doc. 31 at 1). As grounds,
Defendant argues that the No Consent Class: (1) violates the
typicality requirement of Rule 23(a)(3); (2) is an improper
“fail-safe-class;” and (3) individual issues
predominate over questions common to the members of the No
Consent Class (Id., at 2). Defendant contends that
the Wrong Number Class should be stricken because it fails to
satisfy the ascertainability and predominance requirements
for class certification (Id.).
Defendant is not travelling under Fed.R.Civ.P. 12(f), the
Court begins with a discussion of this rule. Pursuant to Rule
12(f) the district court may “strike from a pleading an
insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f).
District courts have broad discretion in making this
determination. Id.; Honus Wagner Co. v. Luminary
Grp. LLC, No. 17-cv-61317-BLOOM/Valle, 2017 WL 6547899,
at *4 (S.D. Fla. Dec. 21, 2017). When it evaluates a motion
to strike, the court “must treat all well pleaded facts
as admitted and cannot consider matters beyond the
pleadings.” Florida Software Systems v.
Columbia/HCA Healthcare Corp., No. 97-2866-cv-T-17B,
1999 WL 781812, at *1 (M.D. Fla. Sept. 16, 1999). Motions to
strike are generally disfavored and are often considered
“time wasters.” Somerset Pharm., Inc. v.
Kimball, 168 F.R.D. 69, 71 (M.D. Fla. 1996). “A
motion to strike will usually be denied unless the
allegations have no possible relation to the controversy and
may cause prejudice to one of the parties.” Harty
v. SRA/Palm Trails Plaza, LLC, 755 F.Supp.2d 1215, 1218
(S.D. Fla. 2010) (internal quotation and citation omitted).
The striking of all or part of a pleading is a “drastic
remedy to be resorted to only when required for the purposes
of justice.” Jackson v. Grupo Indu. Hotelero,
S.A., No. 07-22046-CIV, 2008 WL 4648999, at *14 (S.D.
Fla. Oct. 20, 2008) (internal quotation marks omitted). A
motion to strike pursuant to Rule 12(f) must be made
“before responding to the pleading or, if a response is
not allowed, within 21 days after being served with the
pleading.” Fed.R.Civ.P. 12(f)(2). Defendant's
pending motion to strike, if filed pursuant to Rule 12(f),
would have properly been denied as untimely.
contends that the Court has the authority, independent of
Rule 12(f), to strike Plaintiff's class definitions
pursuant to Rules 23(c) and (d) (Doc. 31 at 3-5). Rule
23(c)(1) provides that “[a]t an early practicable time
after a person sues or is sued as a class representative, the
court must determine by order whether to certify the action
as a class action.” Fed.R.Civ.P. 23(c)(1)(A). Rule
23(d) governs the conduct of the action and provides,
inter alia, that “[i]n conducting an action
under this rule, the court may issue orders that …
require that the pleadings be amended to eliminate
allegations about representation of absent persons and that
the action proceed accordingly.”
courts outside the Eleventh Circuit “have held that a
motion to strike class allegations, made pursuant to [Rules
23(c) and (d)], is an appropriate device to determine whether
the case will proceed as a class action.” Wright v.
Family Dollar, Inc., No. 10 C 4410, 2010 WL 4962838, at
* 1 (N.D. Ill. Nov. 30, 2010) (citing Muehlbauer v.
General Motors Corp., 431 F.Supp.2d 847, 870 (N.D. Ill.
2006)); Cornette v. Jenny Garton Ins. Agency, Inc.,
No. 2:10-CV-60, 2010 U.S. Dist. LEXIS 52809, at *4 (N.D.
W.Va. May 27, 2010)).
Eleventh Circuit has affirmed a district court order granting
a motion to strike class action allegations from a complaint.
Griffin v. Singletary, 17 F.3d 356, 361 (11th Cir.
1964). But, it has not discussed the proper standard for the
district court to apply in making this determination.
reading the cases cited by the parties and performing its own
research, the Court is in agreement with Judge
Rosenbaum's decision in Gill-Samuel v. Nova
Biomedical Corp., No. 13-62591-CIV, 298 F.R.D. 693 (S.D.
Fla. April 9, 2014), that on a motion to strike pursuant to
Rule 23, the Rule 23 factors should be viewed “through
the lens of the Rule 12(f) standard for motions to
strike.” Id., at 693. This conclusion follows
from a comparison of Rules 12(f) and 23(c)(1)(C).
23(c)(1)(C) provides that “[a]n order that grants or
denies class certification may be altered or amended before
final judgment.” Under Rule 23(c)(1)(C), the district
court “retains the flexibility to change its position
on a motion for class certification, [and] orders on motions
for class certification are usually not appealable as of
right.” Id. at 699 (citing Coopers &
Lybrand v. Livesay, 437 U.S. 463, 468 (1978) (orders on
class certification are subject to revision in the district
court), superseded by rule on other grounds,
Microsoft Corp. v. Baker, 137 S.Ct. 1702, 1715, 198
L.Ed.2d 132 (2017)). “Thus, any prejudice to the
parties arising from the court's directive to rule on
class certification as early as practicable-and, possibly,
prior to a fully developed record-is tempered in part by the
court's ability to amend its ruling on class
certification as new evidence comes to light concerning the
propriety of certification.” Gill-Samuel, 298
F.R.D. at 699. The same flexibility does not exist when the
court grants a motion to strike pursuant to Rule 12(f). As
Judge Rosenbaum explains:
[S]triking Plaintiff's class-action allegations from her
Complaint would prevent the Court from reconsidering the
certification issue at a later date absent amendment of the
Complaint. This differs from an order on a motion for class
certification, in which the class-action allegations remain
intact, if dormant, in the complaint for the court to
reconsider at a later date. Thus, an order on a motion to
strike class-action allegations would, by its very nature,
carry more finality and less prospective flexibility than the
typical order on a motion for class certification. This lack
of flexibility weighs against the general directive for