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Bell Carrington
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Order | Filed: April 19, 2024 | Entered: April 19, 2024 Keller v. Prosperity Home Mortgage LLC
Telephone Consumer Protection Act (TCPA) | South Carolina
Order on Motion to Strike
TEXT ORDER denying 14 motion to strike class allegations. Defendant moves to strike the class allegations pertaining to Count II of Plaintiff's Complaint purporting to state a class claim under the South Carolina Telephone Privacy Protection Act ("SCTPPA"), S.C. Code § 37-21-10 et. seq. Specifically, Defendant contends the SCTPPA class cannot be certified as a matter of law because "actual loss" occasioned by a claimed violation is inherently individualized and fact-bound, thus defeating Plaintiff's ability to prove liability on a class-wide basis. [Doc. 14-1 at 3.] Plaintiff, on the other hand, contends that "Defendant's attempt to bootstrap the merits of the class claims capable of mathematical calculation and twist them into claims it contends are not subject to class wide proof must be rejected." [Doc. 19 at 1.] Further, Plaintiff argues that a Rule 12(f) motion is not the proper vehicle for the relief Defendant seeks, and that these arguments are more appropriately suited for briefing on a motion for class certification. [Id.]
Rule 12(f) of the Federal Rules of Civil Procedure provides that "the court may strike from a pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). "Rule 12(f) motions are generally viewed with disfavor because striking a portion of a pleading is a drastic remedy." Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001) (internal quotation marks omitted). A motion to strike class allegations asks "that the Court preemptively terminate the class aspects of this 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." Gaillard v. Cap. One Auto Fin., No. 3:21-cv-02228-SAL, 2022 WL 18495862, at *13 (D.S.C. Sept. 29, 2022) (internal quotation marks omitted). "A court may grant a motion to strike class allegations where the pleading makes clear that the purported class cannot be certified and no amount of discovery would change that determination." Burgess v. Cherokee Cnty. Sch. Dist., No. 7:19-cv-02704-DCC, 2020 WL 13876915, at *2 (D.S.C. Sept. 3, 2020) (internal quotation marks omitted). Here, Defendants arguments appear to be directed to whether a class could be certified in light of an individualized consideration of damages, not to whether the class action allegations in the Complaint should be stricken as "redundant, immaterial, impertinent, or scandalous" or incapable of proof in discovery. Whether Plaintiff will be able to succeed on a motion for class certification is an entirely separate matter to be decided at a later date. Thus, the Court finds Defendant's motion to strike is premature and denies it at this stage. Signed by Honorable Jacquelyn D Austin on 4/19/24.(jtho, )
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Order | Filed: April 19, 2024 | Entered: April 19, 2024 Keller v. Prosperity Home Mortgage LLC
Telephone Consumer Protection Act (TCPA) | South Carolina
Scheduling Order
FIRST AMENDED SCHEDULING ORDER:Motions to Amend Pleadings due by 7/15/2024, Plaintiffs ID of Expert Witness due by 12/16/2024, Defendants ID of Expert Witnesses Due by 1/16/2025, Records Custodian Affidavit due by 2/21/2025, Discovery due by 1/31/2025, Motions due by 2/28/2025, Jury Selection Deadline 9/16/2025, Mediation Due by 1/10/2025, Rule 56 Conference Deadline 2/21/2025. Signed by Honorable Jacquelyn D Austin on 4/19/24. (jtho, )
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Minutes | Filed: April 18, 2024 | Entered: April 18, 2024 Keller v. Prosperity Home Mortgage LLC
Telephone Consumer Protection Act (TCPA) | South Carolina
Scheduling Conference
Minute Entry for proceedings held before Honorable Jacquelyn D Austin: Telephone Scheduling Conference held on 4/18/2024 with all counsel. The court declines to bifurcate and the parties agreed on scheduling order deadlines. Court Reporter Teresa Johnson. (jtho, )
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