United States District Court, N.D. Texas, Dallas Division
ANNA PEREZ, individually, as wrongful death beneficiary, and as representative of the estate of JOSE ANTONIO PEREZ, Plaintiff,
ZTE (USA), INC. and METROPCS TEXAS, LLC, Defendants.
MEMORANDUM OPINION & ORDER
J. BOYLE UNITED STATES DISTRICT JUDGE
the Court is Defendant ZTE (USA), Inc.'s Motion to Strike
(Doc. 18), filed December 21, 2018. Having considered the
Motion, the Court is of the opinion that ZTE's Motion to
Strike should be and hereby is GRANTED in part and
DENIED in part.
action alleges products liability, breach of implied
warranties, negligence, and negligence per se against ZTE;
seller/distributor liability against Defendant MetroPCS
Texas, LLC; and wrongful death against both Defendants. Doc.
1-3, Pl.'s Pet., ¶¶ 36-61. Specifically,
Plaintiff Anna Perez, individually and as a representative of
the estate of Jose Antonio Perez, (“Plaintiff”)
alleges that her father's cell phone-manufactured by ZTE
and sold by MetroPCS-caught fire in the middle of the night,
engulfing him and his bed in fire. Id. ¶ 26.
She alleges he suffered injuries so significant that he was
“hospitalized or in a skilled nursing unit from the
night of the fire until just shortly before his death.”
filed in state court on Friday, November 2, 2018, and ZTE
removed it to this Court three days later. While
Plaintiff's Motion to Remand was pending, and after
having received two unopposed extensions of time to respond
to Plaintiff's Petition, ZTE filed this Rule 12(f) Motion
to Strike on December 21, 2018.
asserts that paragraphs 11-24 and parts of paragraph 25
contain immaterial, inflammatory, and scandalous allegations
that have no bearing on Plaintiff's claims or ZTE's
defenses in this case. Doc. 19, ZTE's Br., 1-2. Plaintiff
responds that “[t]he challenged allegations provide
important background information about the habit, routine,
and practices of ZTE and its conduit subsidiaries that
consist almost entirely of matters either admitted to by ZTE
or adjudicated by federal courts and federal agencies.”
Doc. 22, Pl.'s Resp., 2. Plaintiff argues that it would
be improper to make an evidentiary ruling on the
admissibility of this evidence before discovery. Id.
at 3-4. In addition, Plaintiff argues that ZTE has not met
its burden to show prejudice. Id. at 4-5. ZTE
replies that the only purpose of the allegations is
“character assassination, ” that striking the
allegations will not affect Plaintiff's claims, and that
because of the then-pending Motion to Remand, ZTE's
motion is not causing delay. Doc. 23, ZTE's Reply, 1-2.
12(f) of the Federal Rules of Civil Procedure provides that
“a court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or
scandalous matter[, ]” acting either sua sponte or upon
a party's motion. Fed.R.Civ.P. 12(f). Motions to strike a
portion of a pleading are generally viewed with disfavor and
are seldom granted, as such motions seek a “drastic
remedy” and are often “sought by the movant
simply as a dilatory tactic.” FDIC v. Niblo,
821 F.Supp. 441, 449 (N.D. Tex. 1993) (citing Augustus v.
Bd. of Public Instruction of Escambia Cnty., 306 F.2d
862, 868 (5th Cir. 1962)). A motion to strike should be
denied if there is any question concerning law or fact.
Id. Even when dealing with a pure question of legal
sufficiency, courts are still “very reluctant” to
determine such issues on a motion to strike, instead viewing
such questions “as best determined only after further
development by way of discovery and a hearing on the merits,
either on a summary judgment motion or at trial.” 5C
Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1381 (3d ed. 2018). The
granting of a motion to strike falls within a court's
sound discretion. Niblo, 821 F.Supp. at 449 (citing
Augustus, 306 F.2d at 868).
the Court finds that ZTE has met its burden to show that most
of the paragraphs at issue are immaterial, inflammatory, or
scandalous. Plaintiff brings claims against ZTE for products
liability, breach of implied warranties, negligence, and
negligence per se and seeks punitive damages related to these
claims. But the paragraphs at issue do not relate to these
claims or those against MetroPCS. Instead, the allegations
are about patent infringement, violations of federal export
controls, and other civil and criminal investigations that
bear no apparent relation to the issue at hand-a ZTE phone
that allegedly caught on fire. See Logtale, Ltd. v. IKOR,
Inc., 2013 WL 4427254, at *7-8 (N.D. Cal. Aug. 14, 2013)
(striking as irrelevant an allegation in a breach-of-contract
case that defendant made false statements to the federal
government, a non-party, in order to acquire equipment
“previously used for chemical and biological
warfare”). It is prejudicial and does not advance the
case at hand to ask ZTE to answer these unrelated allegations
as stated in the petition.
clear, by granting this Motion to Strike the Court is not
making an evidentiary finding that some evidence of ZTE's
corporate character as it relates to the allegedly defective
phone may or may not be relevant to some of Plaintiff's
claims or Plaintiff's request for punitive damages. That
issue can be raised and briefed by the parties at a later
stage in the litigation; striking these allegations at this
time will not prejudice Plaintiff.
such, the Court hereby STRIKES paragraphs
12-23 of Plaintiff s Petition. Paragraph 11, as a general
introduction into the premise that corporate culture is
sometimes relevant, may remain, as well as paragraphs 24 and
25, for the same reason.