Liu v. Bank of America, N.A.

4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA SHIN-LIN LIU, Case No. 23-cv-05211-JSW 8 Plaintiff, ORDER DENYING MOTION TO REMAND, DENYING MOTION TO 9 v. STRIKE, AND DENYING, IN PART, MOTION TO CONTINUE 10 BANK OF AMERICA, N.A., Re: Dkt. Nos. 12, 15, 21, 22 Defendant.

13 Now before the Court for consideration is the motion to retain jurisdiction, which the Court has construed as a motion to remand, filed by Plaintiff Shin-Lin Liu (“Liu”), the motion strike filed by Defendant Bank of America, N.A. (“BANA”), and the motion to continue, filed by Liu.1 The Court has considered the parties’ papers, relevant legal authority, and the record in this case and finds the motions can be resolved without oral argument. See N.D. Civ. L.R. 7-1(b).

18 The Court VACATES the hearing scheduled for December 8, 2023, DENIES Liu’s motion to remand, DENIES BANA’s motion to strike, and GRANTS, IN PART, Liu’s motion to continue. The Court DEFERS dismissing the Complaint to permit Liu to join the real party in interest and to obtain counsel on its behalf.

22 BACKGROUND AND ANALYSIS 23 On September 11, 2023, Liu filed a complaint in Alameda County Superior Court alleging that BANA improperly deducted funds from a bank account belonging to Redwood 101 Investment LLC (the “LLC”) after Liu reported fraud in connection with the transaction. (See generally Dkt. No. 1, Notice of Removal, Ex. 1 (Complaint).) On October 12, 2023, BANA removed the action to this Court on the basis of diversity jurisdiction.

2 Liu filed a motion asking that the state court retain jurisdiction, which the Court has construed as a motion to remand. However, the Notice of Removal demonstrates the parties are completely diverse and that Liu seeks damages that exceed the amount in controversy.

5 Accordingly, the Court DENIES the motion to remand.

6 BANA moves to strike the Complaint pursuant to Federal Rule of Civil Procedure 12(f), which the Court, in its discretion, to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f); see also Cal. Dep’t of Toxic Substance Control v. Alco Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002).

10 “Immaterial matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded.” Fantasy, Inc. v. Fogerty, 974 F.2d 1524, 1527 (9th Cir. 1993) (internal quotations and citations omitted), rev’d on other grounds by Fogerty v. Fantasy, Inc., 510 13 U.S. 517 (1994). “Impertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question.” Id. (internal quotations and citations omitted).

15 BANA does not move to strike material contained in the Complaint that qualifies as “immaterial” or “impertinent.” Instead, it argues the relief Liu seeks is not recoverable as a matter of law. However, a motion to strike under Rule 12(f) is not the proper vehicle to argue that damages are precluded as a matter of law. Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974-75 (9th Cir. 2010).

20 BANA also argues that the LLC is the real party in interest. The Court agrees. Liu argues that the funds in question “belonged to the plaintiff personally.” (Opp. Br. ¶ 53.a.) Under California law a member or assignee of an LLC “has no interest in specific limited liability company property.” Cal. Corp. Code § 17300; see also Paclink Commc’ns Int’l, Inc. v. Sup. Ct., 90 Cal. App. 4th 598, 964 (2001) (“[M]embers of the LLC hold no direct ownership interest in the company’s assets,” and “the members cannot be directly injured when the company is improperly deprived of those assets.”).

27 Under Federal Rule of Civil Procedure 17(a)(3), “[t]he court may not dismiss an action for ] time has been allowed for the real party in interest to ratify, join, or be substituted into the action.

2 || After ratification, joinder, or substitution, the action proceeds as if it had been originally commenced by the real party in interest.”

4 Accordingly, the Court will grant Liu until March 27, 2024, to permit the LLC to ratify, || join, or be substituted in as plaintiff in this case and to obtain counsel for the LLC. The Court || again advises Liu that the Volunteer Legal Help Center can be reached by emailing || [email protected] or by calling the appointment line at (415) 782-8982. The attorney at the Legal || Help Center can provide information, advice, and basic legal help but cannot represent litigants as || their lawyer.

10 IT ISSO ORDERED. _) || Dated: November 29, 2023 ( | { Nts JEPFREY/S /WHITH 13 United Sh [tes Distr¥/A Judge ; (14 /

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