United States District Court, D. New Jersey
S.J., a minor child, by her mother and natural guardian, LORA JONES, Plaintiff,
AVANTI PRODUCTS LLC, THE MACKLE/AVANTI PRODUCTS CORPORATION, XYZ, CORP 1-5, ABC, INC 1-5, and JOHN DOES 1-5, Defendants.
WILLIAM J. MARTINI, U.S.D.J.
Lora Jones, the mother and guardian of S.J., a minor child,
brings this action against Avanti Products LLC and
Mackle/Avanti Products Corporation, the designer,
manufacture, and/or distributor of an allegedly defective hot
water dispenser. ECF No. . Defendants filed their answer
and affirmative defenses on January 11, 2019. ECF No. .
Plaintiff now moves to strike Defendants' twenty-third
and twenty-fourth affirmative defenses. ECF No. 
(“Motion”). For the reasons set forth below, the
Motion is DENIED.
BACKGROUND AND THE INSTANT MOTION
are the designers, manufacturers, and/or distributors of an
Avanti WHC-59 hot water dispenser. On November 7, 2002, S.J.,
then a one year old, was able to operate the hot water
dispenser causing the child severe burns and permanent
scaring. ECF No.  ¶¶ 8-12. Based on these facts,
Plaintiff alleges two causes of action against Defendants:
Count I: Violation of the New Jersey Products Liability Act
and Count II: Punitive Damages. Id. ¶¶
response to Plaintiff's Complaint, Defendants answered
and asserted twenty-four affirmative defenses. Plaintiff now
moves to strike affirmative defenses twenty-three and
twenty-four, which read as follows:
TWENTY-THIRD SEPARATE DEFENSE
The plaintiff's claim against this defendant is barred by
the Doctrine of Release and thus plaintiff's rights have
been extinguished. The claim was brought previously and
TWENTY-FOURTH SEPARATE DEFENSE
The Complaint, in whole or in part, is barred by the doctrine
of collateral estoppel or res judicata.
ECF No.  at 8-9. In response to the Motion, Defendants
argue that at least one of their employees, Giseelle Dresda,
has a “vague recollection” that a claim was
brought and settled around the time of the incident. ECF No.
. Defendants further note that they have not been able to
locate documentary records regarding any settlement, but
argue that the affirmative defense is asserted in good faith
and striking at this time is inappropriate before they have
had sufficient time to fully investigate. Id. On
reply, Plaintiff argues that the evidence set forth by
Defendants in support of the challenged affirmative defenses
is insufficient. Plaintiff further argues that
Defendants' “good faith” belief regarding a
settlement cannot defeat a motion to strike. ECF No. .
12(f) of the Federal Rules of Civil Procedure states that a
“court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or
scandalous matter.” Fed.R.Civ.P. 12(f). The decision is
discretionary. F.T.C. v. Hope Now Modifications,
LLC, No. 09-1204, 2011 WL 883202, at *1 (D.N.J. Mar. 10,
2011). However, “[a]s a general matter, motions to
strike under Rule 12(f) are highly disfavored.”
Thompson v. Real Estate Mortg. Network, Inc., No.
11-1494, 2018 WL 4604310, at *2 (D.N.J. Sept. 24, 2018)
(citing F.T.C, 2011 WL 883202, at *1).
noted above, Rule 12(f) sets forth two standards for striking
matter from a pleading: (1) “an insufficient defense,
” or (2) “any redundant, immaterial, impertinent,
or scandalous matter.” Fed.R.Civ.P. 12(f). First,
“[a]n affirmative defense is insufficient if it is not
recognized as a defense to the cause of action.”
F.T.C, 2011 WL 883202, at *2 (citing Tonka Corp.
v. Rose Art Indus., Inc., 836 F.Supp. 200, 217 (D.N.J.
1993)) (internal quotations omitted). Third Circuit has
instructed that a district court “should not grant a
motion to strike a defense unless the insufficiency of the
defense is clearly apparent, ” Cipollone v. Liggett
Group, Inc., 789 F.2d 181, 188 (3d Cir. 1986).
Accordingly, a motion to strike an affirmative defense
“will only be granted ‘when a defense is legally
insufficient under any set of facts which may be inferred
from the allegations of the pleading.' ”
F.D.I.C. v. Modular Homes, Inc., 859 F.Supp. 117,
120 (D.N.J. 1994) (citing Glenside West Corp. v. Exxon
Corp., 761 F.Supp. 1100, 1115 (D.N.J. 1991)). Second,
“even where the challenged material is redundant,
immaterial, impertinent, or scandalous, a motion to strike
should not be granted unless the presence of the surplusage
will prejudice the adverse party.” Id. Indeed,
motions to strike “will generally be denied unless the
allegations have no possible relation to the controversy and
may cause prejudice to one of the parties.”
Garlanger v. Verbeke, 223 F.Supp.2d 596, 609 (D.N.J.
2002) (citing Tonka, 836 F.Supp. at 217) (internal