United States District Court, D. Massachusetts
JUDITH MONTEFERRANTE, on behalf of herself and all others similarly situated, Plaintiff.
WILLIAMS-SONOMA, INC., Defendant.
MEMORANDUM AND ORDER
April 15, 2013, plaintiff Judith Monteferrante brought this
class action against defendant Williams-Sonoma, Inc.
("Williams-Sonoma"). She seeks to represent a class
of consumers whose zip codes Williams-Sonoma allegedly
collected unlawfully and who subsequently received marketing
materials from Williams Sonoma from April 15, 2009 to the
present. Williams-Sonoma moves to strike the class
allegations. It argues that the class definition is overbroad
because it includes individuals whose claims are time-barred.
The court agrees. Accordingly, it is allowing the Motion to
Strike and striking the class allegation without prejudice.
Motion to Strike under Rule 12
Federal Rules of Civil Procedure authorize the court to
strike a class allegation at the pleading stage. First,
"[D]istrict courts may use their authority under Federal
Rule of Civil Procedure 12(f) to delete the complaint's
class allegations." Manning v. Boston Medical Center
Corp., 725 F.3d 34, 59 (1st Cir. 2013)(citing
Pilgrim v. Universal Heath Card, LLC, 660 F.3d 943,
949 (6th Cir. 2011)). In addition, Rule 23(d)(1)(D)
authorizes the court to "require that the pleadings be
amended to eliminate allegations about representation of
absent persons and that the allegation proceed
the First Circuit has discouraged courts from striking class
allegations before discovery:
[C]ourts should exercise caution when striking class action
allegations based solely on the pleadings, for two reasons.
First, while ruling on a motion to strike is committed to the
district court's sound judgment, "such motions are
narrow in scope, disfavored in practice, and not calculated
readily to invoke the court's discretion." This is
so because "striking a portion of a pleading is a
drastic remedy and...it is often sought by the movant simply
as a dilatory or harassing tactic." Second, courts have
repeatedly emphasized that striking class allegations under
Rule 12(f) "is even more disfavored because it requires
a reviewing court to preemptively terminate the class aspects
of... litigation, solely on the basis of what is alleged in
the complaint, and before plaintiffs are permitted to
complete the discovery to which they would otherwise be
entitled on questions relevant to class
certification"...Accordingly, a court should typically
await the development of a factual record before determining
whether the case should move forward on a representative
Id. (citations omitted). Therefore, the court may
only strike a class allegation if "it is obvious from
the pleadings that the proceeding cannot possibly move
forward on a class-wide basis." See id. at
59-60 (reversing district court's order striking class
allegations where it was "plausible" that
employer's allegedly unlawful practices affected
employees on a class-wide basis, "even [though] the
court had concerns about plaintiff's ability to represent
such a diverse group of employees").
"sometimes the issues are plain enough from the
pleadings to determine whether the interests of the absent
parties are fairly encompassed within the named
plaintiff's claim..." General Telephone Co. of
Southwest v. Falcon, 457 U.S. 147, 160 (1982). Rule
23(d)(1)(D) "permits courts to 'order deletion of
portions [of] a complaint's class claims once it becomes
clear that the plaintiffs cannot possibly prove the deleted
portion of those claims, ' at least where the basis for
the motion to strike is distinct from the factors the court
would consider on a motion for class certification."
Barrett v. Forest Laboratories, Inc., 39 F.Supp.3d
407, 458 (S.D.N.Y. 2014)(citing 5 Moore's Federal
Practice §23.145 (3d ed. 2007)).
with this principle, a court may strike class allegations
that plainly encompass individuals whose claims are barred by
jurisdictional or time limitations. See Barrett v. Avco
Financial Servs., 292 B. R. 1, 11-12 (D. Mass. 2003)
(Ponsor, D.J.)(allowing motion to strike nation-wide class
allegation, where court had no jurisdiction over out-of-state
putative class members, and ordering plaintiff to amend with
narrower class definition); Barrett, 39 F.Supp.3d at
458-60 (narrowing scope of putative class to include only
class members whose claims accrued within applicable
limitations period); Shabaz v. Polo Ralph Lauren
Corp., 586 F.Supp.2d 1205, 1211 (CD. Cal. 2008) (same).
alleges that she used her credit card to purchase items at
Williams-Sonoma, a retailor with locations in Massachusetts.
During that purchase, a Williams-Sonoma employee asked for
her zip code. Believing that Williams-Sonoma required the
information to complete her purchase, she complied.
Williams-Sonoma subsequently used her zip code to identify
her home address. As a result, she began receiving unwanted
marketing materials from the retailor, mailings which
continued "long after March 2013." Compl. at
alleges that Williams-Sonoma's collection of zip code
information, when it was not required by the credit card
issuer, violates Mass. Gen. Laws Chapter 93, §105 (a).
That statute states that:
No person, firm, partnership, corporation or other business
entity that accepts a credit card for a business transaction
shall write, cause to be written or require that a credit
card holder write personal identification information, not
required by the credit card issuer, on the credit card
transaction form[, including]...a credit card holder's
address or telephone number...[except when such] information
is necessary for shipping, delivery or installation of