Trending In 3rd Circ.: Motions To Strike Class Allegations

Judicial trends can be tough to spot, but more motions to strike class allegations are being filed of late and federal courts do seem more receptive to the motions. To be sure, courts remain cautious about striking class allegations for the same reason that they are cautious about dismissing a complaint under Rule 12(b)(6). However, motions to strike class allegations can provide an early and cost-effective means of avoiding class treatment, and in clear cases, they can be economical for courts as well as for the parties. The increased use of motions to strike arguably is in lock-step with Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541, 2550 (2011) and Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013), which remind us that class actions are "an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only." Id., quoting Califano v. Yamasaki, 442 U.S. 682, 700-701 (1979).

Motions to strike class allegations generally are analyzed under Rule 12(f), which authorizes striking from pleadings any "redundant, immaterial, impertinent, or scandalous matter." While analyzing the class allegations under Rule 12(b)(6) has some appeal, see Bessette v. AVCO Fin. Servs Inc., 279 B.R. 442, 450 (D.R.I. 2002), the analogous motion to strike defenses in an answer is governed by Rule 12(f). Dann v. Lincoln Nat'l Corp., 274 F.R.D. 139, 142-43 (E.D. Pa. 2011). Some courts prefer the vehicle of Rule 12(f), which authorizes the striking of allegations rather than the dismissal of claims and, unlike Rule 12(b)(6), arguably allows for a record beyond the pleadings. See Royal Mile Co. Inc., v. UPMC, No. 10-609, 2014 U.S. Dist. LEXIS 16224, at *60-65 (W.D. Pa. Aug. 21, 2014).

Motions to strike class allegations are viewed through the prism of Rule 23, and Rule 23(c)(1)(A) calls for a certification determination at "an early practicable time after a person sues." An order striking class allegations is equivalent to the denial of a motion for class certification. Royal Mile, 2014 U.S. Dist. LEXIS 116224, *62. Accordingly, most courts concur that the named plaintiff has the burden of showing the propriety of the class allegations on the motion. Semenko v. Wendy's Int'l Inc., No 12-CV-0836, 2013 U.S. Dist. LEXIS 52582 at *6 (W.D. Pa. Apr. 12, 2013); but see In re Paulsboro Derailment Cases, No. 13-784, 2014 U.S. Dist. LEXIS 48209, at *13 (D.N.J. Apr. 8, 2014) (suggesting that defendants have the burden before the close...