Arch Chemicals, Inc. v. Radiator Specialty Company, No. 3:2007cv01339 - Document 384 (D. Or. 2010)
Court Description: OPINION AND ORDER: Defendant's Motion to Strike Lexington's Complaint 357 is DENIED. Signed on 12/10/10 by Magistrate Judge Dennis J. Hubel. (see formal opinion) (kb)
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Arch Chemicals, Inc. v. Radiator Specialty Company Doc. 384 1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF OREGON 11 PORTLAND DIVISION 12 13 ARCH CHEMICALS, INC., a Virginia corporation, and LEXINGTON INSURANCE CO., No. 07-1339-HU 14 Plaintiffs v. 15 16 17 OPINION AND ORDER RADIATOR SPECIALTY COMPANY, a North Carolina corporation, Defendant. 18 19 20 21 22 23 24 25 26 27 28 M. Robert Smith Joseph Rohner IV Dennis N. Freed Ryan J. McClellan Smith Freed & Eberhard 111 S.W. Third Avenue, Suite 4300 Portland, Oregon 97204 Thomas D. Allen Amber E. Tuggle Shawn D. Scott Earl W. Gunn Mark R. Johnson Laura Voght Weinberg, Wheeler, Hudgins, Gunn & Dial 50 East Paces Ferry Road, Suite 3000 Atlanta, Georgia 30326 Attorneys for plaintiffs Dockets.Justia.com 1 2 3 William G. Earle Paul R. Xochihua Jonathan Henderson Davis Rothwell Earle & Xochihua 1300 S.W. Fifth Avenue, Suite 1900 Portland, Oregon 97201 4 5 6 7 Daniel F. Mullin John A. McHugh Mullin Law Group 101 Yesler Way, Suite 400 Seattle, Washington 98104 Attorneys for defendant 8 HUBEL, Magistrate Judge: 9 This is an action by Arch Chemicals, Inc. (Arch)and Lexington 10 Insurance Company (Lexington) against Radiator Specialty Company 11 (RSC), asserting claims for contribution and Lexington brings a 12 second claim for unjust enrichment. Arch and Lexington seek 13 recovery of amounts paid in settlement of a lawsuit against Arch 14 brought by members of the Davidson family. Before the court is 15 RSC's Motion to Strike Lexington's Complaint (doc. # 357). For 16 the reasons set forth below, I deny the motion. 17 FACTS 18 This case arises out of the wrongful death and bodily injury 19 claims brought by the Davidson family against Arch Chemicals. The 20 facts are summarized in multiple earlier opinions from the court 21 and will not be repeated here. 22 On April 20, 2004, the Davidson family brought a lawsuit 23 against Arch in Oregon state court alleging civil claims related to 24 the fire. The litigation was resolved by a confidential settlement 25 on December 7, 2006, which was jointly funded by Arch and 26 Lexington. 27 On September 7, 2007, Arch brought the instant lawsuit against 28 2 - OPINION AND ORDER 1 RSC, seeking contribution for RSC's role in causing the fire. 2 June 30, 2009, on RSC's motion, Arch's insurer, Lexington, was 3 joined 4 reconsidered at the request of Arch, it was reaffirmed on September 5 25, 2009. 6 as a real party in interest. While that order On was There was nothing filed by Lexington in this regard until 7 nearly a year later. 8 its motion for summary judgment, Lexington for the first time filed 9 its own complaint against RSC. On September 14, 2010, after RSC had filed Lexington's First Claim for Relief 10 was for contribution mirroring Arch's similar claim. 11 second claim for relief was for unjust enrichment/restitution. 12 Arch has made no effort to assert a similar claim. 13 to strike Lexington's entire complaint or its claim for unjust 14 enrichment. (doc. #357) 15 Lexington's RSC now moves STANDARD 16 Rule 12(f) of the Federal Rules of Civil Procedure states that 17 a district court "may strike from a pleading an insufficient 18 defense or any redundant, immaterial, impertinent, or scandalous 19 matter." "The function of a 12(f) motion to strike is to avoid the 20 expenditure of time and money that must arise from litigating 21 spurious issues by dispensing with those issues prior to trial[.]" 22 Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) 23 (quotation marks, citation, and first alteration omitted), rev'd on 24 other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994). 25 Granting a motion to strike is within the broad discretion of the 26 district court. Stanbury Law Firm v. IRS, 221 F.3d 1059, 1063 (9th 27 Cir. 2000). 28 courts to strike claims for damages on the ground that such claims However, "Rule 12(f) does not authorize district 3 - OPINION AND ORDER 1 are 2 Handi-Craft Co., 618 F.3d 970, 974-75 (9th Cir. 2010). precluded as a matter 3 4 of law." Whittlestone, Inc. v. DISCUSSION Motion to Strike 5 RSC advances two arguments for why the court should strike 6 Lexington's Complaint and its second claim for unjust enrichment. 7 First, it argues that Lexington's Complaint has no legal effect 8 because there can only be one operative complaint at a time in any 9 one 10 case. RSC, however, cites no legal authority for this assertion, nor has this court found any authority so holding. 11 Second, RSC argues that Lexington is really trying to amend 12 its complaint to add a new claim in violation of Fed. R. Civ. P. 13 15(a)(2), and that even if the court were to allow amendment, it 14 would be futile. 15 Lexington cannot amend a complaint that it never filed in the first 16 place. This argument, however, is not well taken since 17 The substance of RSC's motion to strike focuses on elimination 18 of the unjust enrichment claim for damages on the basis that the 19 claim fails as a matter of law. 20 recently held that "a party may [not] seek dismissal of a pleading 21 under Rule 12(f)," and that the rule "does not authorize district 22 courts to strike claims for damages on the grounds that such claims 23 are precluded as a matter of law." 24 75. 25 The Ninth Circuit, however, has Whittlestone, 618 F.3d at 974- Defendant argues orally it is unfair to allow a new claim 26 after discovery closes. 27 alleged benefit conferred, but identifies no discovery in this 28 regard not already in its grasp, nor any facts in dispute. 4 - OPINION AND ORDER It argues it wants discovery about the 1 Last, defendant argues it is unfair to allow this complaint as 2 a way to avoid defendant's summary judgment motion. That motion (# 3 317) is, however, denied on other grounds. 4 RSC's motion to strike, therefore, is an inappropriate vehicle 5 to challenge Lexington's claim for unjust enrichment on the grounds 6 asserted. Accordingly, RSC's motion is denied. 7 8 9 10 CONCLUSION Defendant's Motion to Strike Lexington's Complaint [doc. # 357] is denied. IT IS SO ORDERED, 11 12 Dated this 10th day of December , 2010. 13 /s/ Dennis J. Hubel 14 Dennis James Hubel United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 - OPINION AND ORDER
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