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Brown v. Swagway, LLC

United States District Court, N.D. Indiana, Hammond Division

March 7, 2017

MICHAEL BROWN, Plaintiff,
v.
SWAGWAY, LLC, Defendant.

          OPINION AND ORDER

          JOSEPH S. VAN BOKKELEN UNITED STATES DISTRICT COURT

         Plaintiff claims the Swagway hoverboard he bought burst into flames. He attempts to bring a consumer class action. Defendant Swagway moves to strike the class allegations, to dismiss the unjust enrichment claim, and to dismiss the claim for injunctive relief. (DE 39.) For the following reasons, the Court denies these motions.

         A. Motion to strike class allegations

         Motions to strike class allegations are disfavored. See Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989) (involving motion to strike affirmative defenses). Courts disfavor motions to strike class allegations in part because a motion for class certification is a more appropriate vehicle for consideration of the relevant issues. See DuRocher v. Nat'l Collegiate Athletic Ass'n, No. 1:13-cv-1570, 2015 WL 1505675, at *4, n.2 (S.D. Ind. Mar. 31, 2015).[1]

         This is because class action plaintiffs generally bear the burden of satisfying Rule 23, but class action defendants often control the information plaintiffs need to carry that burden. Hence, the need for discovery. See Murdock-Alexander v. Tempsnow Employment, No. 16-cv-5182, 2016 WL 6833961, at *3 (N.D. Ill. Nov. 21, 2016).

         Since class certification “generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action, ” striking class allegations at the pleading stage is generally inappropriate. Boatwright v. Walgreen Co., No. 10-cv-3902, 2011 WL 843898, at *2 (N.D. Ill. Mar. 4, 2011). “[M]otions to strike class allegations are generally regarded as premature because the shape and form of the class is to be given time to evolve through discovery.” DuRocher, 2015 WL 1505675, at *4.

         Indeed, a court abuses its discretion by not allowing appropriate discovery before deciding whether to certify a class. See Damasco v. Clearwire Corp., 662 F.3d 891, 897 (7th Cir. 2011) (overruled on other grounds by Chapman v. All Am. Painting, Inc., 796 F.3d 783, 787 (7th Cir. 2015)).

         Motions to strike class allegations at the pleading stage are generally only appropriate where it is clear from the pleadings that the class claims are defective. See Murdock-Alexander, 2016 WL 6833961, at *4; see also Kasalo v. Harris & Harris, Ltd., 656 F.3d 557, 563 (7th Cir. 2011).

         On a motion to strike class allegations (as opposed to a motion for class certification) the moving defendant bears the burden of persuasion. See Rysewyk v. Sears Holdings Corp., No. 15-cv-4519, 2015 WL 9259886, at *8 (N.D. Ill.Dec. 18, 2015).

         Here, Defendant Swagway has not persuaded the Court to strike the class allegations at this stage. The Court cannot say “it is obvious from the pleadings that no class action can be maintained.” In re Yasmin & Yaz (Drospirenone) Mktg., 275 F.R.D. 270, 274 (S.D. Ill. 2011).

         Plaintiff might have an uphill climb on a motion to certify the class, but striking at this point would be premature. Defendant may re-raise its arguments later.

         For these reasons, and for other reasons articulated in Plaintiff's response (DE 50), the Court denies the motion to strike (DE 39).

         B. Motions to dismiss

         1. Standard for evaluating ...


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