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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

SARA HAWES, et al.,

 Plaintiffs,

vs.

MACY’S INC., et al.,

 Defendants.

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 Case No. 1:17-cv-754

 

 Judge Timothy S. Black

ORDER GRANTING

DEFENDANT MACY’S MOTION TO STRIKE COUNT SIX (Doc. 57) AND 

REQUIRING PLAINTIFFS TO FILE A THIRD AMENDED COMPLAINT

This civil action is before the Court upon Defendant Macy’s Inc. (“Macy’s”)’s 

Motion to Strike Count Six of the Amended Class Action Complaint (Doc. 57) and the 

parties’ responsive memoranda (Docs. 58 and 59).

On April 29, 2019, this Court granted in part and denied in part Plaintiffs’ Motion 

for Leave to Amend the Complaint. (Doc. 54). Germane to the present issue, the Court 

held specifically that: 

The Court finds that Plaintiff Hawes’ notice was improper 

under the CLRA and therefore Plaintiffs’ proposed amended 

complaint fails to sufficiently state a claim under the CLRA. 

See Von Grabe v. Sprint PCS, 312 F. Supp. 2d 1285, 1303–04 

(S.D. Cal. 2003) (granting defendant’s motion to dismiss 

plaintiff’s claims under the CLRA where the notice “was not 

delivered in the proper fashion”). Accordingly, Plaintiffs’ 

motion for leave to amend the complaint is denied in relation 

to Plaintiff Hawes’ claim brought under the CLRA as it is 

futile.

(Id. at PAGEID # 694). 
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On June 12, 2019, Plaintiffs filed their [Second] Amended Complaint (Doc. 55), 

purportedly pursuant to the Court’s leave (see Doc. 54 at PAGEID # 698). Inexplicably, 

and without leave of Court, Plaintiffs presented a Count Six alleging a CLRA claim.

(Doc. 55 at PAGEID #’s 725-728). 

In response to Macy’s Motion to Strike Count Six, Plaintiffs assert that the Court 

denied leave to file the CLRA claim because Hawes failed to provide the requisite presuit notice. However, Plaintiffs argue that the pre-suit notice requirement only pertains to 

claims for damages, not injunctive relief. Cal. Civ. Code § 1782(a) (notice required to 

bring “an action for damages”); Cal. Civ. Code § 1782(d) (“An action for injunctive 

relief . . . may be commenced without compliance with subdivision (a).”). Thus, 

Plaintiffs argue the CLRA claim in the amended complaint should proceed, because it 

seeks injunctive relief. (Doc. 55 at ¶ 130). However, in the Second Amended Complaint 

there is no mention of “injunctive relief” and Plaintiffs continue to allege pre-suit notice 

which the Court has ruled was insufficient as a matter of law. (Id. at ¶¶ 107, 131).

Regardless of Plaintiffs’ characterization of their latest version of Count Six, 

Macy’s moves to strike Count Six of the amended complaint (Doc. 57), because Plaintiffs 

did not seek leave and were not granted leave of court to file that CLRA claim.

Macy’s is correct. And “[w]hen a court grants a party leave to amend a complaint, 

subsequent amendments that exceed the scope of the leave granted may be stricken under 

Rule 12(f).” Wheat v. Chase Bank, No. 3:11-cv-309, 2014 WL 457588, at *6 (S.D. Ohio 

Feb. 3, 2014). 
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Accordingly, Plaintiffs’ Count Six of the [Second] Amended Complaint is hereby 

STRICKEN. Nonetheless, Plaintiffs are granted leave to file a Third Amended 

Complaint with a CLRA claim expressly seeking injunctive relief only. Moreover, 

because Plaintiffs have named the wrong Macy’s entity as the Defendant, the [Second] 

Amended Complaint (Doc. 55) is STRICKEN in its entirety, and in the “Third Amended 

Class Action Complaint,” Plaintiffs shall also name the proper Defendant. Plaintiffs shall 

file their Third Amended Complaint within 30 days of entry of this Order.

IT IS SO ORDERED.

Date: 7/30/2019

Timothy S. Black

United States District Judge