Free Motion to Strike - District Court of California - California

Case 3:07-cv-05642-BZ

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

JOANNE ELIZABETH CLEVELAND, CYNTHIA DANIELS, LAURA FUJISAWA, CAROLINE HOWE and TRACEY MOORE Plaintiffs vs.

COMPASS VISION, INC. and NATIONAL MEDICAL SERVICES, INC. d/b/a NMS LABS Defendants

: CASE NO. CV 07 5642 BZ : : ORDER- PLAINTIFFS' MOTION : TO STRIKE DEFENDANT NATIONAL : MEDICAL SERVICES, INC.'S MOTION : TO DISMISS PLAINTIFFS' AMENDED : COMPLAINT AND DEFENDANT : NATIONAL MEDICAL SERVICES, INC.'S : REQUEST FOR JUDICIAL NOTICE : : : : :

__________________________________________:

This matter having come before the Court by application of the attorneys for plaintiffs for an Order striking the Motion to Dismiss the Amended Complaint and Request for Judicial Notice of defendant National Medical Services, Inc., and the Court having reviewed the submissions of all counsel and for good cause shown, IT IS HEREBY ORDERED that defendant National Medical Services, Inc.'s Motion to Dismiss, and Request for Judicial Notice, are hereby STRICKEN. IT IS FURTHER ORDERED that defendant National Medical Services, Inc.'s shall file Answer and Affirmative Defenses to plaintiff's Amended Complaint within date hereof. IT IS FURTHER ORDERED that a copy of this Order shall be served on Defendant National Medical Services, Inc. within SO ORDERED: DATED: HONORABLE BERNARD ZIMMERMAN UNITED STATES MAGISTRATE JUDGE
ORDER PLAINTIFFS' MOTION TO STRIKE

days of the

days of the date hereof.

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Norman Perlberger, Esquire POMERANTZ PERLBERGER & LEWIS LLP 21 South 12th Street, 7th Floor Philadelphia, PA 19107 (215) 569-8866 [email protected]

Attorney Pro Hac Vice for Plaintiff

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

JOANNE ELIZABETH CLEVELAND, CYNTHIA DANIELS, LAURA FUJISAWA, CAROLINE HOWE and TRACEY MOORE Plaintiffs

: CASE NO. CV 07 5642 BZ : : PLAINTIFFS' NOTICE OF MOTION : TO STRIKE DEFENDANT NATIONAL : MEDICAL SERVICES INC.'S MOTION TO vs. : DISMISS PLAINTIFFS' AMENDED : COMPLAINT AND DEFENDANT COMPASS VISION, INC. and : NATIONAL MEDICAL SERVICES, INC.'S NATIONAL MEDICAL SERVICES, INC. : REQUEST FOR JUDICIAL NOTICE d/b/a NMS LABS : Defendants : Date: March 19, 2008 : Time: 10:00 a.m. : Courtroom: G __________________________________________: Judge: Hon. Bernard Zimmerman

TO ALL PARTIES AND THEIR RESPECTIVE ATTORNIES OF RECORD:

PLEASE TAKE NOTICE that on March 19, 2008 at 10:00 a.m., or as soon thereafter as the matter may be heard in the above entitled Court, Courtroom G, located at 450 Golden Gate Ave, San Francisco, California, 94102; plaintiffs Joanne Elizabeth Cleveland, Et. Al. will move this Honorable Court to Strike defendant National Medical Services, Inc.'s Motion to Dismiss Plaintiffs' Complaint and Request for Judicial Notice for violating Local Rule of Civil Procedure 3-4 (e) Prohibition of Citation to Uncertified Opinion or Order.

PLAINTIFFS NOTICE - MOTION TO STRIKE

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This motion will be based on this Notice of Motion, the Memorandum of Points and Authorities filed herewith, and upon such other oral and documentary evidence as required by this Honorable Court. PLEASE TAKE FURTHER NOTICE that plaintiffs WAIVE ORAL ARGUMENT. PLEASE TAKE FURTHER NOTICE that at the time and place aforesaid , plaintiffs will request that the proposed form of Order submitted herewith, be entered by the Court.

Dated: February 8, 2008

POMERANTZ PERLBERGER & LEWIS LLP

BY:

/s/ Norman Perlberger Attorney Pro Hac Vice for Plaintiffs

PLAINTIFFS NOTICE - MOTION TO STRIKE

Case No. 07 CV 5642 BZ

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Norman Perlberger, Esquire POMERANTZ PERLBERGER & LEWIS LLP 21 South 12th Street, 7th Floor Philadelphia, PA 19107 (215) 569-8866 [email protected]

Attorney Pro Hac Vice for Plaintiff

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

JOANNE ELIZABETH CLEVELAND, CYNTHIA DANIELS, LAURA FUJISAWA, CAROLINE HOWE and TRACEY MOORE Plaintiffs

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS' MOTION TO STRIKE vs. DEFENDANT NATIONAL MEDICAL SERVICES INC.'S MOTION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT AND DEFENDANT : NATIONAL MEDICAL SERVICES INC.'S : REQUEST FOR JUDICIAL NOTICE COMPASS VISION, INC. and : NATIONAL MEDICAL SERVICES, INC. : d/b/a NMS LABS : Defendants : Date: March 19, 2008 : Time: 10:00 a.m. : Courtroom: G __________________________________________: Judge: Hon. Bernard Zimmerman Pursuant to Federal Rule of Civil procedure 12 (f), plaintiffs Joanne Elizabeth Cleveland et. al., respectfully submit the following Motion to Strike the defendant National Medical Services, Inc.'s Motion to Dismiss Plaintiffs' Amended Complaint and Request for Judicial Notice as both filings contain impertinent matter in violation of local civil rule 3-4 (e) "Prohibition of Citation to Uncertified Opinion or Order."

: : : : : : : :

CASE NO. CV 07 5642 BZ

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS' MOTION TO STRIKE

CASE NO. CV 07 5642 BZ

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INTRODUCTION Plaintiffs filed the original Complaint on November 6, 2007. On January 9, 2008 as of right , since no responsive pleading had been filed by the defendants, plaintiffs filed their Amended Complaint. On January 29, 2008, defendant National Medical Services, Inc. filed a 12 (b) (6) Motion to Dismiss the amended complaint, together with a Request for Judicial Notice in support of its motion; that are the subject of this motion to strike. The current hearing date for the motion to dismiss is March 5, 2008. ARGUMENT Federal Rule of Civil Procedure 12 (f) allows a party to file a motion to strike. Either on motion or on its own initiative, "the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." In the Introduction 1 of defendant's motion, the defendant cites a "Not for Publication" opinion by New Jersey Federal District Judge Dennis M. Cavanaugh in the case of Garlick et al v. Quest et al. The defendant makes argument as to the relevance of that decision in its Notice, and on pages 3 and 4 of its Introduction to the Memorandum of Points and Authorities. The opinion itself is attached as Exhibit 1 to defendant's Request for Judicial Notice. Rule 3-4 (e) of the Northern District Local Rules of Civil Procedure prohibits the citing of a Not for Publication opinion from another issuing court:

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS' MOTION TO STRIKE
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CASE NO. CV 07 5642 BZ

Interestingly, the "Not for Publication" Garlick opinion is not mentioned in the Legal Authority section of the defendant's motion, or in the Table of Authorities.

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3-4. Papers Presented for Filing ...

(e) Prohibition of Citation to Uncertified Opinion or Order. Any order or opinion that is designated: "NOT FOR CITATION," pursuant to Civil L.R. 7-14 or pursuant to a similar rule of any other issuing court, may not be cited to this Court, either in written submissions or oral argument, except when relevant under the doctrines of law of the case, res judicata or collateral estoppel. The cited opinion is not relevant under the exceptions of Rule 3-4 (e). As such, both filings by the defendant seek to bring impertinent material before this Honorable Court in an attempt to persuade the Court concerning the relief sought by the defendant. WHEREFORE, the plaintiffs therefore respectfully request that defendant National Medical Services, Inc.'s 12 (b) (6) Motion to Dismiss the Amended Complaint and Request for Judicial Notice be stricken.

Dated: February 8, 2008

POMERANTZ PERLBERGER & LEWIS LLP

BY:

/s/ Norman Perlberger Attorney Pro Hac Vice for Plaintiffs

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS' MOTION TO STRIKE

CASE NO. CV 07 5642 BZ

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Norman Perlberger, Esquire POMERANTZ PERLBERGER & LEWIS LLP 21 South 12th Street, 7th Floor Philadelphia, PA 19107 (215) 569-8866 [email protected] [email protected]

Attorneys Pro Hac Vice for Plaintiff

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

JOANNE ELIZABETH CLEVELAND, CYNTHIA DANIELS, LAURA FUJISAWA, CAROLINE HOWE and TRACEY MOORE Plaintiffs vs. COMPASS VISION, INC. and NATIONAL MEDICAL SERVICES, INC. d/b/a NMS LABS

: : : : : : : : : : :

CIVIL ACTION

NO. CV 07 5642 BZ

CERTIFICATION OF SERVICE NORMAN PERLBERGER, ESQUIRE, hereby certifies that service of Plaintiffs' Motion to Strike Defendant National Medical Services, Inc.'s Motion to Dismiss Plaintiffs' Amended Complaint and Request for Judicial Notice was made this date by ecf-filing and first-class mail to the following: Catherine A. Salah, Esquire Gordon & Rees, LLP 275 Battery Street, Suite 2000 San Francisco, CA 94111 Christian Barrett Green, Esquire Law Offices of Samuel G. Grader 1680 Harvard Street, Suite 350 Sacramento, CA 95825

/s/ NORMAN PERLBERGER, ESQUIRE

DATED:

February 8, 2008