Before class certification hearings occur in the Southern District of Florida, defendants may not challenge plaintiff’s class allegations via Rule 12(f) motions to strike but may challenge plaintiff’s standing via motions to dismiss.

In Bohlke v. Shearer’s Foods, LLC, plaintiff sought to represent a Florida class and alternative nationwide class of purchasers of five flavors of defendant’s rice chips. Plaintiff alleged that defendant’s “all natural” labels were false and misleading because the rice chips contained artificial ingredients. Plaintiff herself had purchased only three of the five rice chip flavors. Defendant moved to strike the nationwide class allegations due to the insurmountable obstacles under Rule 23 of applying the laws of fifty-one different jurisdictions to the putative class. Defendant also moved to dismiss because Plaintiff lacked standing to pursue any claims involving the varieties she did not purchase. Plaintiff responded that both motions were premature until the certification hearing. Plaintiff added that the substantial similarity of the rice chip varieties was sufficient to defeat a standing challenge at this stage in the proceedings.

The district court refused to consider Defendant’s motion to strike the nationwide class allegations. While observing that district courts in other federal circuits allow such motions, the Bohlke court followed Southern District of Florida precedent and applied the requirements of Rule 12(f) strictly. Finding nothing in plaintiff’s allegations that was “redundant, immaterial, impertinent, or scandalous,” the court summarily denied defendant’s motion. The court specifically noted that it was not opining on the merits of class certification and authorized defendant to re-raise the arguments if and when plaintiff moved to certify a nationwide class.

The district court reached a different result, however, on defendant’s standing challenge. Again, while observing that district courts in other circuits have held that such issues are more properly raised at the certification stage, the court followed Eleventh Circuit precedent holding that a named plaintiff in a consumer class action cannot raise claims relating to products which she herself did not purchase. Furthermore, citing Southern District of Florida precedent, the court declined to apply the “sufficiently similar” test. Accordingly, the Court granted defendant’s motion to dismiss, without prejudice, as to the two flavors of rice chips plaintiff herself had not purchased.

Bohlke v. Shearer’s Foods, LLC, Case No. 9:14-cv-80727-Rosenberg/Brannon (S.D. Fla. January 20, 2015).