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COMPASS VISION, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO STRIKE CASE NO. CV 07-05642 BZ
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DION N. COMINOS (SBN: 136522)
dcominos@gordonrees.com
CATHERINE A. SALAH (SBN: 154524)
csalah@gordonrees.com
GORDON & REES LLP
Embarcadero Center West
275 Battery Street, Suite 2000
San Francisco, CA 94111
Telephone: (415) 986-5900
Facsimile: (415) 986-8054
Attorneys for Defendant
COMPASS VISION, INC.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
JOANNE ELIZABETH CLEVELAND,
CYNTHIA DANIELS, LAURA FUJISAWA,
CAROLINE HOWE and TRACEY MOORE,
Plaintiff,
vs.
COMPASS VISION, INC.; NATIONAL
MEDICAL SERVICES, INC., d/b/a NMS
LABS, and DOES ONE THROUGH
TWENTY,
Defendants.
/
CASE NO. CV 07-05642 BZ
COMPASS VISION, INC.’S
OPPOSITION TO PLAINTIFFS’
MOTION TO STRIKE
ORAL ARGUMENT REQUESTED
Date: March 19, 2008
Time: 10:00 a.m.
Courtroom: G
Judge: Hon. Bernard Zimmerman
Defendant Compass Vision, Inc. (“Compass Vision”) hereby opposes Plaintiffs’ Motion
to Strike Compass Vision’s Motion to Dismiss Plaintiffs’ Complaint.
I. INTRODUCTION
Compass Vision has moved to dismiss Plaintiffs’ Amended Complaint pursuant to
Federal Rules of Civil Procedure 12(b)(6) for failure to state a viable claim against it. In
response, Plaintiffs filed a Motion to Strike Compass Vision’s Motion to Dismiss in an effort to
avoid this Court’s reviewing the Opinion issued by the Hon. Dennis M. Cavanaugh of the United
States District Court for the District of New Jersey in the action Garlick v. Quest Diagnostics,
Inc., et. al., referenced by Compass Vision in support of its Motion.
CMPVS/1046170/5377035v.1
Case 3:07-cv-05642-BZ Document 38 Filed 02/20/2008 Page 1 of 4
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COMPASS VISION, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO STRIKE CASE NO. CV 07-05642 BZ
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In Plaintiffs’ haste to try to prevent this Court from reviewing Judge Cavanaugh’s
Opinion, Plaintiffs fail to take note that the Federal Rule upon which their Motion to Strike is
based is wholly inapplicable and does not provide a proper basis for their Motion.
Plaintiffs also overlook the fact that Compass Vision in no manner referenced the opinion
in the Garlick action as binding authority but, rather, provided the opinion as merely persuasive
support for Compass Vision’s position that it did not owe Plaintiffs a duty of care and that
Plaintiffs’ Complaint is, therefore, legally untenable. This is the very same course of conduct
followed by counsel for Plaintiff in the related Wilson action, in which the same counsel
representing Plaintiffs in the instant action provided this Court with the Southern District Court’s
ruling in the related action Quisenberry v. Compass Vision, et. al. Additionally, it should be
noted that at the hearing on the Wilson Motion to Dismiss, this Court expressly inquired as to
how the New Jersey Court had ruled in the Garlick action. It would be inherently unjust to allow
Plaintiffs to present this Court with favorable opinions in related cases as persuasive authority,
yet strike the entirety of Defendant’s Motion to Dismiss for presenting an unfavorable opinion.
As there is no legal basis for granting the motion and further, that doing so would thwart
the interests of justice, Compass Vision requests that Plaintiffs’ Motion to Strike be denied.
II. LEGAL ARGUMENT
A. No Legal Basis Exists for Granting Plaintiffs’ Motion to Strike
Plaintiffs’ Motion to Strike is brought pursuant to Fed.R.Civ.P.12(f). Plaintiffs’ reliance
on Rule 12(f), however, is misplaced. This rule provides:
(f) Motion To Strike.
The court may strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter. The court may act:
(1) on its own; or
(2) on motion made by a party either before responding to the pleading or, if a
response is not allowed, within 20 days after being served with the pleading.
(Fed.R.Civ. P. 12(f), emphasis added.)
Case 3:07-cv-05642-BZ Document 38 Filed 02/20/2008 Page 2 of 4
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COMPASS VISION, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO STRIKE CASE NO. CV 07-05642 BZ
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In See Sydney-Vinstein v. A.H. Robins Co. 697 F.2d 880, 885 (9th Cir. 1983) the court
instructed Rule 12(f) provides that “the court may order stricken from any pleading any
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Under the
express language of the rule, only pleadings are subject to motions to strike.” In F.T.C. v. Dept
Solutions, Inc. 2006 WL 2257022, W.D.Wash., August 07, 2006 the court, after noting that
under Fed.R.Civ.P. 12(f) any insufficient defense may be stricken from a pleading, commented
that a Rule 12(f) motion is a “rarity” and that “[D]istrict courts within the Ninth Circuit have
uniformly stated that such motions are disfavored.” (Accord, Lear v. Louisville Ladder, Inc.,
2007 WL 2947429, S.D. Cal., October 9, 2007; Estate of Migliaccio v. Midland National Life
Ins. Co., 436 F.Supp.2d 1095, 1100 (C.D.Cal.2006).) By their sole reliance on a rule that is
patently inapplicable, Plaintiffs tacitly admit that no legal authority supports their motion.
Moreover, pursuant to Federal Rules of Appellate Procedure 32.1, it is not improper to
cite unpublished federal judicial opinions issued after January 1, 2007, even if they are
designated “non-precedential” or “not for citation.” (See F.R.A.P. 32.1; Cal. Prac. Guide Fed.
Civ. Pro. Before Trial Ch. 12-B, § 12:64.) 1
B. The Garlick Opinion is Relevant
Plaintiffs represent in their motion to strike that the opinion issued in the Garlick action is
not relevant to Compass Vision’s Motion to Dismiss Plaintiffs’ Complaint in the instant matter.
Other than cursorily making this assertion, Plaintiffs do nothing to support the same. This is
because the ruling in the Garlick action is directly relevant to the legal issues currently pending
before this Court.
In Garlick, as in the instant action, Plaintiffs are nurses or pharmacists who admitted to
drug and/or alcohol use. As were the Plaintiffs in Garlick, Plaintiffs in this matter were required
to participate in the Board of Nursing/Pharmacists Diversion Program and, as part of the
program, submit to EtG testing. As did the Plaintiffs in Garlick, Plaintiffs in the instant matter
1 F.R.A.P. 32.1(a) provides a court may not prohibit or restrict the citation of federal
judicial opinions, orders, judgments, or other written dispositions that have been: (i) designated
as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like; and (ii)
issued on or after January 1, 2007.
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COMPASS VISION, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO STRIKE CASE NO. CV 07-05642 BZ
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have brought suit against Compass Vision and the testing laboratories in connection with alleged
false-positive EtG test results. And, as was addressed by defendants in the Garlick action in their
Motion to Dismiss Plaintiffs’ Complaint therein, the primary legal issue before the Court is
whether defendants can be found to have owed Plaintiffs a duty as a matter of law. In sum, the
Garlick action and the instant action present nearly identical factual and legal issues. This Court
may, therefore, consider the opinion in the Garlick action for persuasive purposes.
In the alternative, if the Court determines that reference to the opinion issued in the
Garlick matter was improper for any reason, rather than striking Compass Vision’s Motion to
Dismiss, in its entirety, Compass Vision requests that the Court simply disregard the opinion.
III. CONCLUSION
There being no legal basis for Plaintiffs’ Motion to Strike Compass Vision’s Motion to
Dismiss Plaintiffs’ Complaint, Compass Vision respectfully requests that the Court deny the
motion.
Dated: February 20, 2008 GORDON & REES LLP
/s/ Catherine A. Salah
By:
DION N. COMINOS
CATHERINE A. SALAH
Attorneys for Defendant
COMPASS VISION, INC.
Case 3:07-cv-05642-BZ Document 38 Filed 02/20/2008 Page 4 of 4