2021 WL 4197337

United States District Court, C.D. California.
GREGORY PLOTKIN, Plaintiff,
v.
SWIFT TRANSPORATION COMPANY; MICHAEL A. CASTANEDA; and DOES 1 through 25, inclusive, Defendants.
Case No. CV 21-05872 AB (MARx)
|
Filed 09/15/2021

ORDER DENYING PLAINTIFF’S MOTION TO REMAND [11]; ORDER GRANTING DEFENDANT’S MOTION TO DISMISS [9]
HONORABLE ANDRÉ BIROTTE JR. UNITED STATES DISTRICT COURT JUDGE
*1 Before the Court is Plaintiff Gregory Plotkin’s (“Plaintiff”) Motion to Remand. (“Motion to Remand,” Dkt. No. 11.) Defendant Swift Transportation (“Defendant Swift”) opposed, (“Remand Opp’n,” Dkt. No. 12). Plaintiff did not reply. Also before the Court is Defendant Swift’s Motion to Dismiss. (“Motion to Dismiss,” Dkt. No. 9.) Plaintiff did not oppose the Motion to Dismiss. The Court deems this matter appropriate for decision without oral argument and vacates the hearing scheduled for September 17, 2021. See Fed. R. Civ. P. 78; LR 7-15. For the following reasons, the Court DENIES the Motion to Remand and GRANTS the Motion to Dismiss.

I. BACKGROUND
The following allegations are taken from Plaintiff’s state court complaint. (“Complaint,” or “Compl.,” Dkt. No. 1-1.) This case arises out of an alleged October 7, 2019 motor vehicle accident involving a car driven by Plaintiff and a tractor-trailer driven by Defendant Michael A. Castaneda (“Defendant Castaneda”). (Compl. at 5.) Plaintiff alleges Defendant Castaneda was an agent or employee of Defendant Swift. (Id.) Plaintiff sustained injuries as a result of the accident, as well as medical and related expenses, past, present, and future lost earnings, loss of future earning capacity, as well as mental, emotional, and physical pain and suffering. (Id.)

Plaintiff filed his Complaint in Los Angeles County Superior Court on July 20, 2020. (See Compl.) Defendant Swift was served on July 14, 2021. (Dkt. No. 8-8.) Defendant Swift removed the matter on July 20, 2021 pursuant to the Court’s diversity jurisdiction. (“NOR,” Dkt. No. 1.) The instant Motions followed.

II. LEGAL STANDARD
a. Motion to Remand
A defendant may remove a civil action filed in state court to federal district court when the federal court has original jurisdiction over the action. 28 U.S.C. § 1441(a). “A suit may be removed to federal court under 28 U.S.C. § 1441(a) only if it could have been brought there originally.” Sullivan v. First Affiliated Sec., Inc., 813 F.2d 1368, 1371 (9th Cir. 1987). “The burden of establishing federal subject matter jurisdiction falls on the party invoking removal.” Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 944 (9th Cir. 2009). “Because of the Congressional purpose to restrict the jurisdiction of the federal courts on removal,” statutes conferring jurisdiction are “strictly construed and federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.” Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996) (citations and quotations omitted).

b. Motion to Dismiss
Federal Rule of Civil Procedure 8 requires a plaintiff to present a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Under Rule 12(b)(6), a defendant may move to dismiss a pleading for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).

To defeat a Rule 12(b)(6) motion to dismiss, the complaint must provide enough details to “give the defendant fair notice of what the … claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must also be “plausible on its face,” allowing the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. Labels, conclusions, and “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. When ruling on a Rule 12(b)(6) motion, “a judge must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). But a court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (2009) (internal quotation marks omitted).

III. DISCUSSION
a. Failure to Comply with Local Rule 7-3
*2 Pursuant to Local Rule 7–3, “counsel contemplating the filing of any motion shall first contact opposing counsel to discuss thoroughly, preferably in person, the substance of the contemplated motion and any potential resolution.” C.D. CAL. L.R. 7-3. After the conciliation conference, “if the parties are unable to reach a resolution which eliminates the necessity for a hearing, counsel for the moving party shall include in the notice of motion a statement to the following effect: ‘This motion is made following the conference of counsel pursuant to L.R. 7-3 which took place on (date).’ ” Id. A district court has discretion to deny a motion that fails to comply with the Local Rules. Christian v. Mattel, Inc., 286 F.3d 1118, 1129 (9th Cir. 2002) (explaining a “district court has considerable latitude in managing the parties’ motion practice and enforcing local rules that place parameters on briefing.”)

Both Motions are replete with issues regarding Plaintiff’s failure to comply with this Court’s meet and confer requirement. (See Motion to Dismiss at 2; Remand Opp’n at 3-5.) This alone is cause to deny Plaintiff’s Motion to Remand and grant Defendant Swift’s Motion to Dismiss. While the Court will nonetheless reach the merits of both Motions, the Plaintiff is directed to carefully read this Court’s Standing Order and the Local Rules of this district. Further failure to comply may result in more serious consequences, such as dismissal of the action or sanctions.

b. Motion to Remand
Plaintiff brings his Remand Motion on the grounds that Defendant Swift’s removal was untimely pursuant to 28 U.S.C. § 1446(b). On May 26, 2021, Plaintiff served an unspecified settlement demand on Defendant Swift’s counsel. (“Settlement Demand,” Dkt. No. 11-1.) Plaintiff contends that the Settlement Demand triggered Defendant Swift’s 30 day window for removal because such demand revealed that the amount in controversy exceeded the jurisdictional minimum of $75,000. (Motion to Remand at 4.) Thus, Defendant Swift was required to remove this action by June 15, 2021. (Id. at 11.) Defendant Swift responds that removal was timely because Defendant removed the case within six days of receipt of Plaintiff’s Complaint. (Remand Opp’n at 7-8.) The Court agrees with Defendant Swift.

Title 28 U.S.C. § 1446 provides:
The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant of such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

What constitutes an “initial pleading” is clear. Under Rule 7, the only pleadings allowed in this Court are: “(1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an answer.” Fed. R. Civ. P. 7(a). Nowhere in the law does it state that a settlement demand constitutes an initial pleading for purposes of removal. The initial pleading here is unequivocally Plaintiff’s Complaint. Defendant Swift received the Complaint when it was served on July 14, 2021. (Dkt. 1-8.) Thus, Defendant Swift was required to remove the action within 30 days of July 14, 2021. Defendant Swift removed the case within six days of such date. (See NOR.) Accordingly, Defendant Swift’s removal was timely.

Plaintiff further argues that even if the Settlement Demand was not the “initial pleading,” the Settlement Demand nonetheless provided Defendant Swift with “constructive notice” that a lawsuit had been filed in Los Angeles County Superior Court. (Remand Opp’n at 6.) Plaintiff avers that Defendant Swift’s awareness of the lawsuit should have triggered the 30 day window for removal. (Id.) However, the law is clear. The 30 day window for removal is triggered by a defendant’s receipt of an initial pleading. 28 U.S.C. § 1446(b)(3). Nowhere in the law does it state that mere “constructive notice” of a lawsuit triggers the 30 day window for removal. The parties provide no showing that Defendant Swift received Plaintiff’s Complaint prior to July 14, 2021.

*3 Accordingly, because Defendant Swift removed this matter within six days of being served with the Complaint, removal was timely. The Court finds, and the parties do not dispute, that the parties are diverse and that the amount in controversy exceeds $75,000. (See NOR.) Accordingly, removal was appropriate and Plaintiff’s Remand Motion is DENIED.

c. Motion to Dismiss
Next, Defendant Swift moves to dismiss Plaintiff’s Complaint for failure to state a claim. (See Motion to Dismiss.) Defendant Swift points to Plaintiff’s form, state court Complaint and argues that it is comprised merely of legal conclusions and lacks any basis for the causes of action alleged. (Id.) The Court agrees.1

This Court’s Standing Order requires a plaintiff in a removed case to file a revised pleading that complies with federal pleading standards within 30 days of removal. (Dkt. No. 7, ¶ 3.) Indeed, “[t]he Federal Rules of Civil Procedure apply irrespective of the source of subject matter jurisdiction, and irrespective of whether the substantive law at issue is state or federal.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102 (9th Cir. 2003). Once an action is removed, federal law governs the pleading standards required for plaintiff’s complaint to survive a 12(b)(6) motion. Faulkner v. ADT Sec. Servs., 706 F.3d 1017, 1021 (9th Cir. 2013) (although a plaintiff’s complaint was initially filed in state court, it was the federal—and not state—pleading standards that applied to the complaint after removal). Consequently, although this action is brought under California substantive law, the pleading requirements of Rule 12(b)(6) and Rule 8(a) apply.

Here, Plaintiff has not filed a revised pleading in compliance with this Court’s Standing Order. Plaintiff’s Complaint was filed using California Judicial Council forms wherein he checked boxes and provided bare bones allegations to indicate Defendants were negligent or violated a motor vehicle cause of action. (See Compl.) Specifically, Plaintiff asserts claims for “Motor Vehicle” and “General Negligence” against all Defendants. (Compl. ¶ 10.) In the Motor Vehicle cause of action, Plaintiff avers Defendants Swift, Castaneda, and Does 1 to 25: (1) operated the motor vehicle; (2) employed persons who operated the motor vehicle within the scope of their employment; (3) owned the motor vehicle; (4) entrusted the motor vehicle; and (5) were agents and employees of one another. (Id. at 5.) Plaintiff asserts nearly identical allegations in his General Negligence cause of action, alleging Defendants Swift, Castaneda, and Does 1 to 25 “negligently owned, operated, maintained, entrusted, and/or controlled the subject vehicle” so as to cause the collision, “breached their duty or duties” to Plaintiff and caused Plaintiff’s damages. (Id. at 6.)

Such allegations amount to nothing more than labels, legal conclusions, and formulaic recitations of the elements of the causes of action. See Twombly, 550 U.S. at 555. Moreover, Plaintiff lumps all Defendants together in both causes of action and fails to plead cognizable legal theories as separate causes of action against appropriate individual and entities. While such a complaint may suffice in state court, Plaintiff’s vague and bare bones allegations will simply not do in this Court. Accordingly, Plaintiff’s Complaint fails to state a claim upon which relief can be granted, and it must be dismissed in its entirety.

*4 Defendant Swift concedes that Plaintiff should be granted leave to amend. (Motion to Dismiss at 6.) The Court agrees. The Court therefore grants leave to amend so that Plaintiff may file a proper revised pleading which sets forth only cognizable legal theories against the appropriate individuals and entities and complies with federal pleading standards.

IV. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Remand is DENIED. Defendant Swift’s Motion to Dismiss is GRANTED, with leave to amend. Plaintiff is ORDERED to file any First Amended Complaint within 14 days of the issuance of this order. Failure to do so will result in the dismissal of this action, with prejudice.

IT IS SO ORDERED.

All Citations
Slip Copy, 2021 WL 4197337

Footnotes

1
Plaintiff did not oppose the Motion to Dismiss. This alone is cause to dismiss the Complaint. C.D. Cal. L.R. 7–9; C.D. Cal. L.R. 7–12 (stating that a plaintiff’s failure to oppose a motion to dismiss “may be deemed consent to the granting or denial of the motion”); see also, e.g., Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (holding that a court may dismiss an action based on a party’s failure to comply with the court’s Local Rules). However, the Court will also reach the merits of this Motion.

2021 WL 4196969

United States District Court, D. Nebraska.
JESSICA VANICEK, Personal Representative of the Estate of Ryan T. Vanicek; THOMAS VANICEK and KAREN VANICEK, Individually, and Parents of the Deceased, Ryan T. Vanicek; and TAMARA WITZEL, step-daughter of the Deceased, Ryan T. Vanicek; Plaintiffs,
and
LYMAN-RICHEY CORPORATION, D/B/A CENTRAL SAND AND GRAVEL COMPANY, Plaintiff-Intervenor,
v.
KENNETH E. KRATT and SANDAIR CORPORATION, Defendants.
8:21CV49
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Filed: 09/15/2021

ORDER
Michael D. Nelson United States Magistrate Judge
*1 This matter comes before the court on the Motion to Strike (Filing No. 31) filed by Defendants, Kenneth E. Kratt and Sandair Corporation. Defendants move the court for an order striking the following paragraphs from Plaintiff’s second amended complaint (Filing No. 30): Plaintiff’s request for punitive damages in paragraph 22; Plaintiff’s references to California law in paragraphs 22, 27, 32, and closing prayer; and Plaintiff’s allegations regarding specific elements required for awarding punitive damages under California law, including allegations of “gross negligence,” “evil” or “malicious” acts, “egregious and oppressive conduct,” and “willful disregard of the safety of others,” in paragraphs 16, 16(f), 16(h), and 20-22. The court will grant the motion with respect to Plaintiffs’ references to California law and punitive damages.

BACKGROUND
This is a diversity action filed by the estate and next of kin of Ryan Vanicek. Vanicek was a Nebraska resident and citizen, as are his surviving next of kin. Vanicek was killed on September 20, 2019, on I-80 near Buffalo County, Nebraska, when his Chevrolet Silverado was struck by a tractor trailer driven by defendant, Kenneth Kratt. Kratt is a resident of California and was driving a tractor trailer in the course and scope of his employment with defendant, Sandair Corporation, a California corporation. Plaintiffs allege Vanicek and other traffic had slowed and/or stopped for construction on I-80 when Kratt collided with Vanicek’s vehicle, resulting in the death of three people, including Vanicek. (Filing No. 30).

Plaintiffs’ second amended complaint contains claims for wrongful death and negligent infliction of emotional distress under Nebraska state law. Plaintiffs allege Kratt, “with particularly egregious conduct and disregard for the safety of others, was negligent and grossly negligent” for several reasons, including “[o]perat[ing] a motor vehicle with a reckless and wanton disregard for the safety of fellow travelers on the roadway in question” and was “otherwise generally malicious, actually, knowingly, intentionally, willfully, recklessly careless and negligent.” (Id. at ¶ 16). Plaintiffs further allege that due to Kratt’s “particularly egregious an oppressive conduct … and willful disregard for the safety of others ris[ing] to the level of reckless and malicious behavior,” Plaintiffs are entitled to an award of punitive damages under California law pursuant to Ca. Civ. Code § 3294. (Id. at ¶ 22). Plaintiffs’ prayer for relief seeks “general and special damages, including punitive or exemplary damages as allowed by the laws of Nebraska and/or California[.]”

Defendants filed the instant motion to strike Plaintiffs’ request for punitive damages and any references to California law and elements required for an award of punitive damages, including Plaintiffs’ references to “gross negligence,” “evil” or “malicious” acts, “egregious and oppressive conduct,” and “willful disregard of the safety of others.” (Filing No. 31).

ANALYSIS
*2 Rule 12(f) of the Federal Rules of Civil Procedure permits the court to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “Judges enjoy liberal discretion to strike pleadings under Rule 12(f).” BJC Health Sys. v. Columbia Cas. Co., 478 F.3d 908, 917 (8th Cir. 2007)(citing Nationwide Ins. Co. v. Cent. Mo. Elec. Coop., Inc., 278 F.3d 742, 748 (8th Cir. 2001)). “Striking a party’s pleading, however, is an extreme and disfavored measure.” Id. (citing Stanbury L. Firm v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000)). “[T]he rule’s purpose is to conserve time and resources by avoiding litigation of issues which will not affect the outcome of a case.” Williams v. Averitt Express, No. 8:15CV464, 2016 WL 589861, at *2 (D. Neb. Feb. 11, 2016).

Defendants seek to strike Plaintiffs’ references to punitive damages on the basis that Nebraska law controls and does not allow punitive damages. (Filing No. 32 at pp. 2-5). Plaintiffs do not argue that Nebraska law permits punitive damages but instead argue that Defendants’ motion is premature and that the court should wait to conduct a choice-of-law analysis until after discovery. (Filing No. 33 at pp. 3-4).

To determine whether Plaintiffs’ claim for punitive damages has a basis in law, the court must necessarily determine whether Nebraska law, which prohibits punitive damages, or California law, which allows for punitive damages, applies. Ordinarily, a federal court sitting in diversity must apply the choice-of-law rules of the state in which it sits. Atl. Marine Constr. Co. v. U.S. Dist. Court for W. Dist. of Tex., 571 U.S. 49, 65 (2013)(citing Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 489, 494-96 (1941)). Nebraska courts resolve conflicts of law involving tortious conduct and damages by applying the “most significant relationship” test enumerated in the Restatement (Second) of Conflict of Laws § 145 (1971). See O’Brien v. Cessna Aircraft Co., 903 N.W.2d 432, 459 (Neb. 2017)(applying the most significant relationship test in a personal injury case). For torts generally, the “[c]ontacts to be taken into account [in determining the most significant relationship]” include, “(a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered.” Restatement (Second) of Conflict of Laws § 145. Courts also consider that “[c]omment d. of § 171 [of the Restatement] addresses exemplary or punitive damages and directs that ‘[t]he law selected by application of the rule of § 145 determines the right to exemplary damages.’ ” O’Brien, 903 N.W.2d at 459.

Here, the traffic collision that caused Vanicek’s death and provides the basis of all the Plaintiffs’ claims occurred near mile marker 284 on I-80, in Buffalo County, Nebraska. As such, all the alleged tortious conduct occurred at the same location in Nebraska. Vanicek was a Nebraska resident as are all the plaintiffs, including Vanicek’s wife, parents, and minor children. These factors weigh heavily towards application of Nebraska law. The sole connection this case has to California is that both Defendants are California residents. However, the only relationship between the parties arises from the alleged wrongful conduct that occurred exclusively in Nebraska. Therefore, nearly all factors demonstrate Nebraska has the most significant relationship with this lawsuit. Accordingly, Nebraska applies.

*3 Plaintiffs largely agree Nebraska law controls but contend California law nevertheless should be applied for the sake of awarding punitive damages, citing Fanselow v. Rice, 213 F. Supp. 2d 1077 (D. Neb. 2002). Similar to this case, Fanselow involved a commercial vehicle that struck a passenger vehicle on I-80 in Nebraska, killing one of the passenger vehicle’s occupants. Also as in this case, the defendants were domiciled in other states. The plaintiffs in Fanselow argued that the law where the defendants were domiciled should apply to permit punitive damages. This court agreed, holding that Nebraska had less interest than other states in protecting out of state defendants from punitive consequences of negligent behavior because (1) no defendant was a Nebraska resident, and (2) the defendants’ only connection to the state was via the accident. The court therefore applied Minnesota and Oregon law, both of which permit punitive damages. Id. at 1085-86; see also Susman v. Goodyear Tire & Rubber Co., No. 8:18-CV-127, 2019 WL 5087279 at *8 (D. Neb. Oct. 10, 2019)(concluding conflict between Nebraska law prohibiting punitive damages and Ohio law permitting punitive damages was a “false conflict” as Nebraskan interests are unaffected by application of Ohio law against an Ohio corporation with its principal place of business in Ohio).

The facts of this case are similar to Fanselow. However, Defendants argue that the proper standard for awarding punitive damages is found in Trimble v. Helwig, No. 7:19-CV-5015, 2020 WL 2850047 at *6 (D. Neb. Jun. 2, 2020). The plaintiff in Trimble sought to apply New Jersey law to allow an award of punitive damages for Nebraska tort claims. As in Fanselow and the current case, the defendant in Trimble was an out of state corporation whose only relationship with Nebraska was borne from the tortious incident. Id. The court held in Trimble that only the Restatement § 145 factors mattered in the analysis. It did not consider New Jersey’s interests in punishing the negligent behavior of its own corporate citizen to be relevant to its application of the choice of law analysis. As in the present case, the balance of Restatement § 145 factors tipped towards Nebraska law, which barred punitive damages. See id.

The Eighth Circuit has found that punitive damages are unavailable to a plaintiff in a diversity case due to Nebraska’s strong policy prohibiting punitive damages. See Enron Corp. v. Lawyers Title Ins. Corp., 940 F.2d 307, 313 (8th Cir. 1991). In Enron, the circuit found that either Nebraska or Virgin Islands law could apply to the case generally but determined “the relevant policies of Nebraska and the Virgin Islands are the proper focal points of this inquiry” on the issue of punitive damages. Enron, 940 F.2d at 313. After looking at each forum’s policies, the circuit held punitive damages were unavailable because Nebraska’s “clear constitutional prohibition” against punitive damages outweighed the Virgin Islands’ simple adoption of the Restatement’s position that merely permitted punitive damages. Id.

In this case, Plaintiffs seek punitive damages under California law. Plaintiffs have not provided any particular California policy favoring punitive damages in this case. Given that the California provisions allowing punitive damages are “strictly statutory,” such statutory provisions do not outweigh the compelling force of the Nebraska constitution. Here, Nebraska has the most significant relationship to the action. And Nebraska policy is clear: “ ‘[P]unitive, vindictive, or exemplary damages contravene Neb. Const. art. VII, § 5, and thus are not allowed in this jurisdiction.’ ” O’Brien, 903 N.W.2d at 458 (quoting Distinctive Printing & Packaging Co., 443 N.W.2d at 574 (Neb. 1989)). Although Plaintiffs assert Defendants’ motion to strike is premature, it is not clear to the court what additional evidence could be found in discovery that would outweigh Nebraska’s “clear constitutional prohibition” against punitive damages.1 In light of the foregoing, the court finds Nebraska law applies to Plaintiffs claims, including their claim for punitive damages, which are prohibited by the Nebraska constitution. Accordingly, the court will strike Plaintiffs’ claim for punitive damages from the amended complaint’s prayer for relief and from paragraph 22, as well as specific references to California law in paragraphs 22, 27, 32, and closing prayer.

*4 Defendants also request to strike Plaintiffs’ allegations of “gross negligence,” “evil” or “malicious” acts, “egregious and oppressive conduct,” and “willful disregard of the safety of others,” in paragraphs 16, 16(f), 16(h), and 20-22. (Filing No. 31). In order to strike these allegations, Defendants must show that these statements have “no bearing on the subject matter of the litigation and that [their] inclusion will prejudice” them. Naes v. City of St. Louis, No. 4:19-cv-02132, 2020 WL 6044355, at *1 (E.D. Mo. Oct. 13, 2020)(citing Laney v. City of St. Louis, No. 4:18-cv-1575, 2019 WL 2423308, at *8 (E.D. Mo. June 10, 2019). Given that striking a party’s pleading is “is an extreme and disfavored measure,” the court is inclined to be especially precise in doing so. See Nationwide Ins. Co., 278 F.3d at 748 (citing Stanbury L. Firm, 221 F.3d at 1063). Plaintiffs’ characterization of Defendants’ conduct in such terms may be somewhat superfluous in light of the court’s striking of their request for punitive damages, but the court finds no reason why Plaintiffs should be prohibited from alleging Defendants’ conduct was willful, egregious, grossly negligent, or the like. And, Defendants have not shown such allegations are prejudicial. Therefore, the court does not find striking these statements from Plaintiffs’ second amended complaint is warranted. Accordingly,

IT IS ORDERED:
1. Defendants’ Motion to Strike (Filing No. 31) is granted, in part. Plaintiffs’ request for punitive damages and reference to California law are stricken as set forth above.
2. Defendants shall file an answer to the second amended complaint on or before September 22, 2021.
3. Mandatory disclosures shall be served by October 8, 2021.
4. The parties shall meet and confer, and, on or before October 8, 2021, they shall jointly file a Rule 26(f) Report, a copy of which can be found at http://www.ned.uscourts.gov/forms.2

Dated this 15th day of September, 2021.

All Citations
Slip Copy, 2021 WL 4196969

Footnotes

1
But, Plaintiffs may in good faith seek leave to reassert their claim for punitive damages in the unlikely event discovery does provide them with additional evidence establishing a legitimate basis for California law to apply.

2
See https://www.ned.uscourts.gov/forms. The parties are hereby notified or reminded that the Rule 26(f) Report for civil cases pending in the District of Nebraska has been substantially modified, with an effective date of June 11, 2020.
DO NOT use prior versions of this report.
At the civil bar’s request, the court created a Rule 26 Report Calculator for generating proposed dates to complete the Rule 26(f) Report. This online tool was designed to offer insight on how cases are typically progressed in the District of Nebraska. It does not replace the need for counsel to decide what is reasonable and appropriate in a specific case.