United States District Court, D. New Jersey
WILLIAM J. MARTINI. U.S.D.J.
Malibu Media, LLC ("Plaintiff) brings this action for
copyright infringement against Defendant Vincent Nolan
("Defendant"). The matter comes before the Court on
Plaintiffs Motion to Strike Improper Arguments from
Defendant's Answer ("Motion"). ECF No. 25. For
the reasons set forth below, the Motion is
September 11, 2018, Plaintiff filed this copyright suit
against a John Doe defendant using IP address 22.214.171.124.
See Compl., ECF No. 1. After serving a third-party
subpoena on an internet service provider to determine who
used the IP Address, Plaintiff filed his Amended Complaint
("AC"), replacing John Doe with Vincent Nolan. AC
¶ 9, ECF No. 11. Defendant answered on May 29, 2019. ECF
before the Court is Plaintiffs Motion to Strike certain
arguments contained in the Answer. ECF No. 25. Defendant
opposed the motion ("Opposition"). ECF No.
The Court also received significant (and unnecessary)
supplemental briefing. See ECF Nos. 33-35.
moves for "an order striking the improper argument
included in the Answer." Mot. at 1. "The court may
strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter." FRCP 12(f). The decision is within the
Court's discretion. See In re Fine Paper Antitrust
Litig., 751 F.2d 603, 604 (3d Cir.1984).
motions to strike "are viewed with disfavor .. . and are
infrequently granted." Wright & Miller, Federal
Practice and Procedure, Civil §§ 1380-81 (3d
The 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. .. .
Additionally, a motion to strike should not be granted unless
the presence of the surplusage will prejudice the adverse
Zacharewicz v. Kokes Fairways, LLC, 15-cv-1551, 2015
WL 4545638, at *1 (D.N.J. July 28, 2015) (cleaned up).
the Motion will be denied because Plaintiff has not
articulated any prejudice resulting from "the presence
of the surplusage." See Id. (quoting F.T.C.
v. Hope Now Modifications, LLC, 09-cv-1204, 2011 WL
883202, at *1 (D.N.J. Mar. 10, 2011)). Plaintiff does not
specify which portions of the Answer it objects to. See
generally Mot. As far as the Court can tell, its
objection is to the Answer's inclusion of various case
citations and arguments regarding Defendant's lack of
liability. See, e.g., Answer ¶¶ 2, 5, 17.
However, Plaintiff fails to identify any adverse consequence
resulting from those arguments' inclusion. See
generally Mot. The closest Plaintiff comes is stating:
"Motions to strike affirmative defenses 'serve a
useful purpose by eliminating insufficient defenses and
saving the time and expense which would otherwise be spent in
litigating issues that would not affect the outcome of the
case.'" Mot. at 2 (quoting U.S. v. Union Gas
Co., 743 F.Supp. 1144, 1150 (E.D. Pa. 1990)). But
nowhere does Plaintiff articulate how requiring such removal
would save "time and expense." See Union Gas
Co., 143 F.Supp. at 1150. Plaintiff is under no
obligation to formally respond to the legal arguments
sprinkled throughout Defendant's Answer. The only
incurred "time and expense" caused by the
surplusage resulted directly from the present Motion to
Strike. Had Plaintiff not moved, the only consequence of the
arguments' presence in the Answer would have been to
preview Defendant's litigation strategy.
of articulating how any surplusage in the Answer causes
prejudice, Plaintiff spends most of its brief shadowboxing an
imaginary FRCP 12(b)(6) motion based on the arguments
included in the Answer. See, e.g., Mot. at 3
("Plaintiff has properly pled a claim for copyright
infringement that survives Rule 12(b)(6)"). While
Plaintiff may disagree with Defendant's legal analysis,
that is insufficient for a motion to strike. See
Wright & Miller, supra §§ 1380-81.
Defendant's arguments amount to "I am not
liable." Removing them would not, as Plaintiff implies,
"sav[e] the time and expense which would otherwise be
spent in litigating issues that would not affect the
outcome of the case." Mot. at 2 (emphasis added)
(quoting Union Gas Co., 743 F.Supp. At 1150).
Testing Defendant's arguments that he is not liable under
existing law and fact will be the central issue of this suit.
reasons set forth above, Plaintiffs motion to strike certain
arguments from the Answer, ECF No. 25, is