CAM FERENBACH, Magistrate Judge.
Before the Court are Defendants Las Vegas Sands Corp. and Sands Aviation, LLC's Motion to Strike Portions of Plaintiffs' First Amended Complaint (ECF No. 56); Plaintiffs Sean Kennedy, Andrew Snider, Christopher Ward, Randall Weston, and Ronald Williamson's response (ECF No. 59); and Defendants' reply (ECF No. 61). For the reasons stated below, Defendants' motion is granted in part and denied in part.
The first amended complaint alleges that the Defendants own numerous hotels in Las Vegas and provide aviation services to their executives and guests. (ECF No. 55 at 2-3). Plaintiffs are current and former pilots allegedly employed by Defendants to fly those hotel executives and guests to and from Las Vegas. Id. On August 2, 2017, Plaintiffs filed their first amended complaint against the Defendants for failing to compensate Plaintiffs for overtime hours worked in violation of 29 U.S.C. §§ 207(a) and 255. (Id. at 30). Plaintiffs seek back overtime pay, various types of damages, and attorneys' fees. (Id.)
On August 16, 2017, Defendants filed a motion to strike "[s]ixty-seven (67) paragraphs of the . . . 261 paragraph" first amended complaint: 7 (second sentence only), 124, 127, 136, 138-140, 149-204, and 223-226. (ECF No. 56 at 2). The Defendants argue that the Court should strike these allegations because they are immaterial, impertinent, and scandalous and have no essential or important relationship to Plaintiffs' claims. (Id. at 10). The Plaintiffs argue that the subject allegations go directly to the amount of discretion Plaintiffs had in their positions as pilots, which is a material factor the Court must consider when determining whether they are eligible for overtime under the Fair Labor Standards Act ("FLSA"). (ECF No. 59 at 2, 6-7).
Federal Rule of Civil Procedure 12(f) provides that "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." The purpose of a Rule 12(f) motion to strike is "to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial." Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)). In deciding a motion to strike, courts may not resolve disputed and substantial factual or legal issues. Id. And "[i]f the court is in doubt as to whether the challenged matter may raise an issue of fact or law, the motion to strike should be denied, leaving an assessment of the sufficiency of the allegations for adjudication on the merits." Sliger v. Prospect Mortg., LLC, 789 F.Supp.2d 1212, 1216 (E.D. Cal. 2011) (citing Whittlestone, Inc., 618 F.3d at 973). Rule 12(f) motions should not be used as a means to have certain portions of a complaint dismissed or to obtain summary judgment as to those portions, as these actions are better suited for a Rule 12(b)(6) motion or a Rule 56 motion. Whittlestone, Inc., 618 F.3d at 974.
An allegation is "immaterial" it if "has no essential or important relationship to the claim for relief or the defenses being pleaded." See Fogerty, 984 F.2d at 1527 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1382, at 706-07 (1990)). "Impertinent" matters consist of statements that do not pertain, and are not necessary, to the issues in question. Id. The concepts of "impertinent" and "immaterial" matters have considerable overlap. See 5C Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure, § 1382, 463-64 (3d ed. 2010). An allegation is "scandalous" if it improperly casts a "cruelly derogatory light" on someone, most typically on a party to the action. In re 2TheMart.com, Inc. Sec. Litig., 114 F.Supp.2d 955, 965 (C.D.Cal. 2000); see also 5C Wright et al., supra, § 1382 at 465-66 ("It is not enough that the matter offends the sensibilities of the objecting party if the challenged allegations describe acts or events that are relevant to the action.").
A Rule 12(f) motion to strike is an extreme and drastic remedy—it is generally disfavored. See Armed Forces Bank, N.A. v. FSG-4, LLC, No. 2:11-cv-654-JCM-CWH, 2011 WL 5513186, at *4 (D. Nev. Nov. 10, 2011); see also 5C Wright et al., supra, § 1382 at 434-36 ("Rule 12(f) motions to strike . . . are not favored, often being considered purely cosmetic or `time wasters'). In ruling on a motion to strike, the Court accepts as true the factual allegations underlying the claim. Kelly v. Kosuga, 358 U.S. 516, 516 (1959). Whether to grant a motion to strike lies within the discretion of the district court. See Whittlestone, Inc., 618 F.3d at 973; see also 5C Wright et al., supra, § 1382 at 433 ("The district court possesses considerable discretion in disposing of a Rule 12(f) motion to strike").
As a matter of background, a brief discussion of Plaintiffs' claims under the FLSA and the related statutory exemptions is warranted. Among the protections the FLSA provides employees is the right to be paid at time and a half for work above the statutory limit, generally 40 hours per week. 29 U.S.C. § 207. Several exemptions to this requirement exist, including the "administrative" and "highly compensated" employee exemptions. 29 U.S.C. § 213(a)(1). Whether an employee exercises discretion in his or her position is relevant to both exemptions. See 29 C.F.R. § 541.200(a) (stating the administrative exemption applies to individuals whose "primary duty includes the exercise of discretion and independent judgment with respect to matters of significance;" 29 C.F.R § 541.601 (stating the highly compensated exemption applies to individuals who, among other requirements, "customarily and regularly perform any one or more of the exempt duties or responsibilities of an . . . administrative . . . employee."). The Court notes that the amended complaint alleges that Plaintiffs' primary duties did not include the exercise of discretion and independent judgment with respect to matters of significance. (ECF No. 55 at 3).
The parties present one issue in this motion to strike: whether certain factual allegations in the complaint are "immaterial, impertinent, or scandalous" in the context of a labor and employment dispute for overtime wages under the FLSA. For clarity, the Court has separated the subject allegations into four sections.
Paragraphs 124 and 127 state:
(ECF No. 56 at 4).
Paragraphs 124-127 are listed in the amended complaint under the section entitled "Plaintiffs were afforded little to no discretion," and involve the same charge: Defendants allegedly forced Plaintiffs and "similarly situated employees" to fly Defendants' dangerous and unsafe aircraft. (ECF No. 55 at 16-17). The amended complaint alleges that Plaintiffs warned Defendants numerous times that these dangerous aircrafts were in need of care and maintenance and Plaintiffs were forced to make several emergency landings due "Defendants' negligence" in maintaining the aircraft. (Id.)
The Court finds that the allegations in paragraphs 124 and 127 are not "immaterial, impertinent, or scandalous." Plaintiffs argue that these paragraphs "expose how Defendants put Plaintiffs in unsafe conditions and Plaintiffs did not have the discretion to refuse such assignments." (ECF No. 56 at 7). Whether these Plaintiffs exercised "discretion and independent judgment with respect to matters of significance" relates to the Plaintiffs underlying claim for relief. See 29 C.F.R. § 541.202(b) ("The phrase `discretion and independent judgment' must be applied in the light of all the facts involved in the particular employment situation in which the question arises."). To characterize these allegations as improperly casting a "cruelly derogatory light" on Defendants is not appropriate because the challenged allegations describe acts or events that are related to the subject matter of the action. Therefore, Defendants' motion to strike is denied as to Paragraphs 124 and 127.
Paragraphs 136, 138-140, and 223-226 state:
(ECF No. 56 at 4, 8).
Paragraphs 136-140 and 223-226 are also listed in the amended complaint under the section entitled "Plaintiffs were afforded little to no discretion" and involve scenarios where Plaintiffs and similarly situated employees are allegedly forced to (1) pilot aircraft with "illegally utilized foreign workers"; (2) train to fly aircraft under methods contrary to the federal aviation regulations; and (3) train illegal aliens. (ECF No. 55 at 16, 18-19, 27). Defendants argue that "[a]llegations of purported illegal activity have nothing to do with whether or not Plaintiffs exercised discretion and are exempt from overtime." (ECF No. 61 at 4). Plaintiffs argue these allegations "expose how Defendants forced Plaintiffs to engage in illegal activity" and "put plaintiffs in unsafe conditions," "even when Plaintiffs brought such illegality to their attention, which directly goes to how much discretion Plaintiffs actually had." (ECF No. 59 at 7).
The Court finds that striking the subject allegations in the pleading as "immaterial, impertinent, or scandalous matter" is not warranted. For similar reasons discussed in the previous section, these allegations are neither immaterial nor impertinent, because they pertain and are related to whether the Plaintiffs had the discretion necessary to qualify under certain statutory exemptions and, thus, whether they are eligible for overtime under the FLSA. The Defendants also argue that "[n]one of the facts Defendants seek to strike demonstrate or refute Plaintiffs complete control of the aircrafts in which they piloted." (ECF No. 61 at 5). However, allegations about being forced to share flying duties and responsibilities with "Singapore citizens as . . . copilot[s]" or to pilot and operate aircraft under methods against the federal aviation regulations (ECF No. 56 at 4, 8) reflects on Plaintiffs' control of the aircrafts. Therefore, Defendants' motion to strike is denied as to Paragraphs 136, 138-140, and 223-226.
Paragraphs 149-183 state:
(ECF No. 56 at 4-7).
The Court finds that the allegations in Paragraphs 149-157 are not immaterial, impertinent, or scandalous matters that should be stricken. Defendants assert that "[n]ot one of these spurious allegations goes to the issue of whether Plaintiffs were exempt from overtime pursuant to the FLSA." (ECF Nos. 56 at 10). But this misses the point of the above allegations, which is that Plaintiffs "did not have discretion to remove Defendants' customers for consuming illegal drugs on the aircraft." (ECF No. 56 at 4). The allegations do show, at the very least, that whether Plaintiffs could maintain the safety and control of their aircrafts and the passengers onboard is a disputed issue. See Whittlestone, Inc., 618 F.3d at 973 (holding that in deciding motions to strike, courts may not resolve disputed and substantial factual or legal issues). Therefore, Defendants' motion to strike is denied as to Paragraphs 149-157.
However, the Court finds that Paragraphs 158-183 contain immaterial and impertinent allegations. While Plaintiffs assert Mr. Kennedy was "pressured" into coming back to work while incapacitated and was yelled at and threatened by Mr. Gillcrist, Plaintiffs fail to assert that Mr. Kennedy was forced to come back to work or that any negative consequences arose from the incident. The allegations actually indicate that Mr. Kennedy was able to direct the flight as he saw fit, by having the co-pilot take over and landing the flight as originally scheduled, without Defendants' interference beyond an angry phone call. While these allegations could potentially be tenuously related to Plaintiffs' allegations regarding marijuana use, these allegations are too attenuated to bear an essential or important relationship to Plaintiffs' claim for relief. In addition, these allegations go far beyond the "short and plain statement of the claim" the amended complaint should contain. Fed. R. Civ. P. 8(a). Therefore, Defendants' motion to strike is granted as to Paragraphs 158-183.
Paragraphs 7 and 184-204 state:
(ECF No. 56 at 4, 7-8).
The Court finds the allegations in Paragraphs 7 and 184-192 are not immaterial, impertinent, or scandalous. As Plaintiffs argue, these allegations show "how Defendants forced Plaintiffs to engage in illegal activity even when Plaintiffs brought such illegality to their attention" and that "Plaintiffs did not. . . have the necessary discretion to refuse illegal activities." (ECF No. 59 at 7). Because Plaintiffs' discretion in their duties is relevant to their claim under the FLSA, Defendants' motion to strike is denied as to Paragraphs 7 and 184-192.
However, Paragraphs 193-204 contain immaterial and impertinent information. The concerns of customs officials and allegations that Defendants improperly classified flights as "demos" rather than commercial ventures have nothing to do with Plaintiffs' underlying FLSA claim and do not show "whether Plaintiffs are entitled to overtime or whether they are exempted." (ECF No. 61 at 3-5). While Plaintiffs allege that Defendants acted illegally in classifying flights as "demos" and used employees on these flights, Plaintiffs fail to allege that they were forced to serve on these flights or that they raised concerns over these flights that were ignored. These allegations are too attenuated from the issue of Plaintiffs' discretion to bear an essential or important relationship to Plaintiffs' claim for relief. Therefore, Defendants' motion to strike is granted as to Paragraphs 193-204.
ACCORDINGLY, and for good cause shown,
IT IS ORDERED that Defendants' Motion to Strike (ECF No. 56) is GRANTED with respect to Paragraphs 158-183 and 193-204.
IT IS FURTHER ORDERED that Defendants' Motion to Strike (ECF No. 56) is DENIED with respect to Paragraphs 7, 124, 127, 136, 138-140, 149-157, 184-192, and 223-226.
IT IS SO ORDERED.
