I. INTRODUCTION

15 Plaintiff Lawrence Pascal brings a putative class action against Defendant Concentra, Inc. 16 (“Concentra”) under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. 17 Presently before the Court is Concentra’s Motion to Dismiss Second Amended Complaint 18 Pursuant to FRCP Rule 12(b)(6), for a More Definite Statement Pursuant to FRCP Rule 12(e) and 19 to Strike Pursuant to Rule 12(f)/ 23(c)(1)(A) (“Motion”). The Court finds that the Motion can be 20 decided without a hearing and therefore vacates the Motion hearing set for September 4, 2020 at 21 9:30 pursuant to Civil Local Rule 7-1(b). For the reasons stated below, the Motion is DENIED.1 22

II. BACKGROUND

23 Over a year ago, Concentra brought a motion to dismiss Plaintiff’s First Amended 24 Complaint (“FAC”). See Dkt No. 13. On August 20, 2019, the Court granted the motion as to 25 Concentra’s request for attorneys’ fees but rejected Concentra’s other challenges, finding that 26 27 1 Plaintiff stated a viable claim under the TCPA and declining to strike from the class definition 2 individuals who do not reside in California. Dkt. No. 19. Concentra filed an answer to the FAC 3 on September 3, 2019. Dkt. No. 24. Discovery commenced and is ongoing. 4 On May 20, 2020, the Court granted a stipulation allowing Plaintiff to file a Second 5 Amended Complaint (“SAC”) so that Plaintiff could amend the class definition to: 1) strike from 6 the class definition the phrase “for the purpose of promoting Defendant’s services;” and 2) strike 7 the language related to consent to address the concern that the class definition could be considered 8 a failsafe class. Dkt. No. 59. Consistent with the stipulation, the SAC is identical to the FAC 9 except for these two changes to the class definition. Dkt. No. 60 (SAC).2 10 On May 22, 2020, Concentra stated in the parties’ joint case management conference 11 statement that it “anticipate[d] filing a motion to disqualify plaintiff, a motion to disqualify 12 plaintiff’s counsel, and a motion for summary judgment.” Dkt. No. 63. It made no mention, 13 however, of its intention to bring a motion to dismiss the SAC. Nonetheless, on June 19, 2020, 14 Concentra filed the instant Motion. 15 While styled as challenges to the sufficiency of the pleadings brought under Rule 12, the 16 Motion is based in large part on evidence that Concentra asks the Court to consider in evaluating 17 the adequacy of Plaintiff’s TCPA claim. In particular, Concentra asks the Court to consider 18 evidence it contends shows that Plaintiff’s wife is a licensed therapist who consented to receive 19 texts about potential employment opportunities at the telephone number where Plaintiff received 20 the text that is the basis for his TCPA claim. Based on that text, Concentra argues that the Court 21 should dismiss the TCPA claim under Rule 12(b)(6) or order Plaintiff to provide a more definite 22 statement under Rule 12(e) to include allegations about his wife’s consent. 23 Concentra also asks the court to strike the class allegations under Rule 12(f) because 24 Plaintiff is not typical of the class he represents (because he has actual knowledge that his wife 25 consented to receive the text, according to Concentra) and would be an inadequate class 26 representative. Concentra further contends the “overly broad putative class” will result in 27 1 “burdensome discovery because a myriad of consent-related evidence will be required to exclude 2 those individuals who, like Mrs. Pascal, provided prior express consent to be texted” and “will 3 render the motion for class certification, motion for summary judgment and trial unmanageable, 4 and impose significant burdens on the Court’s resources, with the only reasonable outcome being 5 that class treatment is not the superior method of adjudicating this individual claim.” 6 III. ANALYSIS 7 A. Challenges Under Rule 12(b)(6) 8 A complaint may be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure 9 for failure to state a claim on which relief can be granted. “The purpose of a motion to dismiss 10 under Rule 12(b)(6) is to test the legal sufficiency of the complaint.” N. Star Int’l v. Ariz. Corp. 11 Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). In ruling on a motion to dismiss under Rule 12(b)(6), 12 the court analyzes the complaint and takes “all allegations of material fact as true and construe[s] 13 them in the light most favorable to the non-moving party.” Parks Sch. of Bus. v. Symington, 51 14 F.3d 1480, 1484 (9th Cir. 1995). “Ordinarily, a court may look only at the face of the complaint 15 to decide a motion to dismiss.” Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th 16 Cir. 2002). However, under the doctrine of incorporation by reference, a court may look beyond 17 the pleadings to consider documents that were “referenced extensively in the complaint and were 18 accepted by all parties as authentic” without converting a Rule 12(b)(6) motion into a summary 19 judgment motion. Id. (citing In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th 20 Cir.1999)). 21 A motion asserting a 12(b) defense must be made before filing an answer. Fed. R.Civ. 22 12(b) (emphasis added). “[A]mending a complaint does not automatically revive defenses and 23 objections the defendant ha[s] previously waived.” Townsend Farms v. Goknur Gida Madderleri 24 Enerji Imalat Ithalat Ihracat Ticaret Ve Sanayi A.S., No. SACV150837DOCJCGX, 2016 WL 25 10570248, at *6 (C.D. Cal. Aug. 17, 2016) (listing cases). Thus, a defendant may bring a Rule 26 12(b) motion objecting to an amended complaint only to the extent the challenges asserted in that 27 motion are based on the new matter in the amended complaint. Brooks v. Caswell, No. 3:14-CV- 1 and district courts across the country which have held that an amended complaint does not revive 2 the right to file a post-answer motion to dismiss, with the exception that new claims may be 3 attacked”); see also Regents of Univ. of California v. Triple S Steel Holdings Inc., No. 4 SACV161408DOCFFMX, 2016 WL 11002545, at *2 (C.D. Cal. Nov. 1, 2016) (rejecting Rule 5 12(b)(6) challenge to claim in amended complaint on the basis that the claim was not new and the 6 challenge had been waived by failing to assert it in an earlier motion to dismiss); Sears Petroleum 7 & Transport Corp. v. Ice Ban Am., Inc., 217 F.R.D. 305, 307 (N.D.N.Y. 2003) (holding that “if 8 the amended complaint also contains new matter, the defendant may bring a second motion under 9 Rule 12 to object to the new allegations only”). 10 Concentra’s challenges under Rule 12(b)(6) are not aimed at any new material in the SAC 11 and therefore its objections have already been waived. Further, to the extent Concentra seeks to 12 introduce evidence to contradict the allegations in the complaint and to show that they are 13 “misleading,” the motion is not proper under Rule 12(b)(6). Despite Concentra’s vague references 14 to the doctrine of incorporation, it makes no attempt to show that the evidence it relies on was 15 referenced in the SAC. It was not. Were the Court to consider the evidence offered by Concentra 16 the Motion would be converted to a summary judgment motion but such a motion is premature. 17 The Court therefore rejects Concentra’s challenges to the SAC under Rule 12(b)(6). 18 B. Request for a More Definite Statement Under Rule 12(e) 19 Under Rule 12(e), the Court may grant a motion for a more definite statement when a 20 pleading “is so vague or ambiguous that the party cannot reasonably prepare a response.” Fed. R. 21 Civ. P. 12(e). “[A] motion for a more definite statement must be considered in light of the liberal 22 pleading standards of Rule 8(a).” Bureerong v. Uvawas, 922 F. Supp. 1450, 1461 (C.D. Cal. 23 1996). “Thus, a motion for a more definite statement should not be granted unless the defendant 24 literally cannot frame a responsive pleading.” Id. (citing Boxall v. Sequoia Union High School 25 District, 464 F.Supp. 1104, 1114 (N.D.Cal. 1979)). That standard is not met here. Indeed, 26 Concentra already filed an answer, responding to virtually the same allegations as are contained in 27 the SAC. The Court therefore rejects Concentra’s argument that Plaintiff should be required to 1 C. Motion to Strike Under Rule 12(f) 2 Rule 12(f) of the Federal Rules of Civil Procedure provides that a district court “may strike 3 from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous 4 || matter.” “The function of a 12(f) motion to strike is to avoid the expenditure of time and money 5 that must arise from litigating spurious issues by dispensing with those issues prior to trial... .” 6 || Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (quotation marks, citation, and first 7 alteration omitted), rev’d on other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517, □□□ □□□□□ 8 1023, 127 L.Ed.2d 455 (1994). “Where the complaint demonstrates that a class action cannot be 9 maintained on the facts alleged, a defendant may move to strike class allegations prior to 10 discovery.” Sanders v. Apple Inc., 672 F. Supp. 2d 978, 990 (N.D. Cal. 2009) (citing Thompson v. ll Merck & Co., 2004 WL 62710, *5 (E.D.Pa. Jan. 6, 2004)). However, “[b]efore a motion to strike 12 || is granted, the court must be convinced that any questions of law are clear and not in dispute, and 13 || that under no set of circumstances could the claim or defense succeed.” Jd. (citing RDF Media 14 Ltd. v. Fox Broadcasting Co., 372 F.Supp.2d 556, 566 (C.D.Cal.2005)). 3 15 Concentra’s challenges to the class allegations, like its objections to the SAC under Rule a 16 12(b) and 12(e), are not aimed at the pleadings but instead, are based on evidence about facts that 3 17 are very much in dispute relating to whether Plaintiff's wife consented to receive the text message 18 || that is the basis of Plaintiff's claim. Under these circumstances, Concentra’s challenges are not 19 appropriately addressed under Rule 12(f). Rather, they should be addressed at the class 20 || certification stage of the case, when the parties have had a full opportunity to engage in discovery. 21 Therefore, the Court rejects Concentra’s request to strike the class allegations in the SAC. 22 || IV. CONCLUSION 23 The Motion is DENIED. 24 IT IS SO ORDERED. 25 Dated: August 21, 2020 26 i fs C. SPERO 27 ief Magistrate Judge 28