United States District Court, D. Oregon
A. LENNEBERG DARREN B. CARPENTER Jordan Ramis, P.C. Attorneys
C. CALDERA Bullivant Houser Bailey, PC Attorneys for
OPINION AND ORDER
J. BROWN, UNITED STATES SENIOR DISTRICT JUDGE
matter comes before the Court on Defendant's Motion (#4)
to Strike Pursuant to Fed.R.Civ.P. 12(f). For the reasons
that follow, the Court DENIES
following facts are taken from the Complaint and the
parties' filings related to Defendant's Motion to
February 12, 2001, Plaintiff City of Tillamook and Defendant
Kennedy Jenks Corporation entered into a contract for the
planning, design, contract administration, and construction
of the City of Tillamook Wastewater Treatment Improvements
Project. Plaintiff alleges in its Complaint that Defendant
served as Plaintiff's “planner, design engineer and
project manager, owner's representative[, ] and
owner's professional wastewater system consultant on the
Project.” Compl. at ¶ 6. Plaintiff alleges
prepared the plans and specifications for the Project,
prepared the Contract documents, evaluated contractor bids,
served as the onsite construction manager/owner's agent,
received and responded to information requests, change orders
and payment applications from the Project contractor . . .
and made recommendations to the City. Under the Contract
defendant was responsible for evaluating and ruling on any
claim by [the Project contractor] and advised the City
regarding all aspects of the Project.
Compl. at ¶ 6.
29, 2007, Plaintiff entered into a construction contract for
the Project with Big River Construction, Inc., after “the
defendant evaluated and ranked all bids.” Compl. at
alleges in its Complaint that during construction
“numerous design errors were discovered by the
contractor and the defendant was required to make post bid
changes to the Project specifications, resulting in
additional cost.” Compl. at ¶ 9. According to
Plaintiff, it discovered “over the course of the
project . . . that portions of the original plans and
specifications were either missing or inadequate to meet
[Plaintiff's] intended . . . requirements as a well
[sic], and the regulatory and performance
criteria.” Compl. at ¶ 9.
various times from March 2009 to October 2009 Big River
“sought additional contract time through [some of] its
monthly schedule updates.” Compl. at ¶ 25. In
addition, on March 3, 2010, “Big River submitted a
claim requesting an equitable adjustment of $2, 249, 916 plus
interest”; on March 9, 2010, “Big River submitted
a claim seeking payment under [various] pay applications . .
. in the amount of $207, 340, plus interest”; on March
22, 2010, “Big River . . . claimed it was entitled to
$135, 000 under [certain] deductive change orders”; and
on July 1, 2010, “Big River submitted a claim related
to quality control expenses in the amount of $54, 581.75,
plus interest.” Compl. at ¶¶ 21-24. Plaintiff
alleges Defendant advised Plaintiff “not to pay the
final pay application in the amount of $220, 000, not to
release the retention in the amount of $185, 000, and to deny
all claims for additional compensation and time. Relying on
the defendant's advice, the City refused to make any
further payments or grant a time extension.” Compl. at
alleges the completion of the Project was delayed because of
various design deficiencies and multiple changes proposed by
Big River. The Project was completed in January 2010.
April 16, 2010, Big River filed an action against Plaintiff
in Tillamook County Circuit Court, Big River Construction
v. City of Tillamook (the State Action), “for
breach of contract and breach of the implied warranty of the
specifications produced by Defendant.” Compl. at ¶
March 20, 2012, a jury entered a verdict in favor of Big
River in the State Action.
10, 2012, the Tillamook County Circuit Court entered a
judgment in favor of Big River and against Plaintiff in the
amount of $1, 527, 907. On June 4, 2013, the Tillamook County
Circuit Court entered a supplemental judgment for $590, 239.
November 27, 2018, Plaintiff filed an action in this Court
against Defendant alleging claims for breach of contract,
professional negligence, and breach of fiduciary duty in
connection with the Project and the State Action.
January 28, 2019, Defendant filed a Motion (#4) to Strike
Pursuant to Fed. R. Civ. P 12(f) in which it seeks an order
striking certain factual allegations in Plaintiff's
Complaint. The Court took Defendant's Motion under
advisement on March 13, 2019.
Rule of Civil Procedure 12(f) allows the court to strike any
“redundant, immaterial, impertinent, or scandalous
material.” To be impertinent or immaterial, the
allegations must not have any possible bearing on the
controversy. Emp'rs Ins. of Wausau v. Musick, Peeler,
& Garrett, 871 F.Supp. 381, 391 (S.D. Cal. 1994),
opin. amended on reconsideration, 948 F.Supp. 942
(S.D. Cal. 1995). The “function of Rule 12(f) is not
served when . . . the motion would require the court to
resolve ‘disputed and substantial factual or legal
issues.'” Am. Gen. Life Ins. Co. v. James,
No. C-14-04242 DMR, 2015 WL 730010, at *3 (N.D. Cal. Feb. 19,
2015)(quoting Whittlestone, Inc. v. Handi-Craft Co.,
618 F.3d 970, 973-75 (9th Cir. 2010)).
courts in the Ninth Circuit are split as to whether a motion
to strike is the proper vehicle to object to allegations
relating to settlement negotiations, but the majority of
courts that have addressed the question have concluded Rule
12(f) motions to strike may be used to address allegations
relating to settlement negotiations. See, e.g., Reddy v.
Morrissey, 3:18-cv-00938-YY, 2018 WL 4407248, at *1 (D.
Or. Sept. 17, 2018)(District courts “have acknowledged,
FRCP 12(f) may be used to strike allegations from complaints
that detail settlement negotiations.”); McCrary v.
Elations Co., LLC, No. EDCV 13-0242 JGB OPX, 2013 WL
6403073, at *5 (C.D. Cal. July 12, 2013) (granting the
defendant's motion to strike allegations in the
plaintiff's second amended complaint that contained
information about offers to compromise and statements in
pursuit of settlement noting “numerous [c]ourts have
used Rule 12(f) to strike allegations from complaints that
detail settlement negotiations within the ambit of Rule
408.”); Jones v. Metro Life Ins. Co., No.
C-08-03971-JW (DMR), 2010 WL 4055928, at *14 (N.D. Cal. Oct.
15, 2010)(“[U]nder [FRCP] 12(f), courts have granted
motions to strike references to settlement negotiations even
at the pleadings stage of a case, on the basis that the
contents of settlement discussions would otherwise be
inadmissible under Federal Rule of Evidence 408 and are
therefore immaterial and potentially prejudicial.”).
But see Baroness Small Estates, Inc. v. BJ's
Restaurants, Inc., No. SACV 11-468-JST, 2011 WL
13228020, at *2 (C.D. Cal. Sept. 15, 2011)(denying the
plaintiff's 12(f) motion to strike portions of the
defendant's counterclaims and noting the plaintiff
“objects to [the defendant's] allegations on the
ground that evidence of settlement discussions is
inadmissible under Federal Rule of Evidence 408. Such an
objection is properly raised either as an objection to the
consideration of evidence on a motion for summary judgment,
or as a motion in limine before trial, when the Court may
fully consider the specific evidence, the purpose for which
the evidence is proffered, and the mitigating effect of a
to strike “are disfavored and infrequently
granted.” Liberty Nat. Prods., Inc. v.
Hoffman, 3:13-cv-00886-BR, 2017 WL 4855404, at *4 (D.
Or. Oct. 26, 2017). See also Servo v. Junginger,
3:13-cv-00702-PK, 2014 WL 3891751, at *3 (D. Or. Aug. 6,
2014)(same). “This is because they are ‘often
used as delaying tactics, and because of the limited
importance of pleadings in federal practice.'”
Baroness Small Estates, 2011 WL 13228020, at *1
(quoting Bureerong v. Uvawas, 922 F.Supp. 1450, 1478
(C.D. Cal. 1996)).
considering a motion to strike “the court must view the
pleadings in the light most favorable to the nonmoving
party.” Liberty Nat., 2017 WL 4855404, at *4.
See also In re 2TheMart.com Secs. Litig., 114
F.Supp.2d 955, 965 (C.D. Cal. 2000)(same). The disposition of
a motion to strike is within the discretion of the district
court. Federal Sav. & Loan Ins. Corp. v. Gemini
Mgmt, 921 F.2d 241, 244 (9th Cir. 1990).
See also Reddy, 2018 WL 4407248, at *2 (same).
moves to strike the second sentence of Paragraph 37 and all
of paragraphs 38-41 and 43-44 of Plaintiff's Complaint on
the ground that they contain inadmissible settlement
communications pursuant to Federal Rule of Evidence 408
and/or inadmissible mediation communications pursuant to
Oregon Revised Statutes § 36.222.
however, asserts the disputed material does not contain
allegations of communications made during a settlement