Genentech, Inc. v. Amgen Inc.
1:18-cv-00924
D. Del.Feb 12, 2020Background
- Plaintiffs Genentech, Inc. and City of Hope filed a Third Amended Complaint; Amgen answered and asserted affirmative defenses and new counterclaims.
- Genentech moved under Fed. R. Civ. P. 12(f) to strike Amgen's Eleventh and Twelfth Affirmative Defenses and related counterclaims.
- Rule 12(f) permits striking insufficient, redundant, immaterial, impertinent, or scandalous matter, but motions to strike are disfavored.
- The court must construe all facts in favor of the nonmovant and deny the motion if the defense is legally sufficient.
- The court recognized longstanding local rule law allowing a defendant, when answering an amended complaint, to assert new counterclaims as of right without leave.
- The court denied Genentech's motion to strike, concluding Amgen could bring the challenged defenses/counterclaims in its responsive pleading.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Amgen's Eleventh and Twelfth affirmative defenses and related counterclaims are subject to being struck under Rule 12(f) | The defenses/counterclaims are insufficient or improper and should be removed from the pleadings. | The defenses/counterclaims are permissible; Amgen may plead them in response to an amended complaint. | Denied—motion to strike failed; defenses/counterclaims not stricken. |
| Whether a defendant may add new counterclaims in answering an amended complaint without seeking leave of court | Genentech implied new counterclaims exceed scope and should not be allowed without leave. | A defendant answering an amended complaint may assert new counterclaims as of right. | Held that defendants are free to answer the amended complaint as if answering an original complaint and may bring new counterclaims without court leave. |
| Whether the procedural posture and Rule 12(f) standards (disfavored motions; construing facts for nonmovant) require denial of the motion | Motion to strike should be granted despite disfavored standard. | Motion to strike is disfavored; all facts must be construed in favor of Amgen. | Court applied the disfavored-motion standard and construed facts for Amgen; denied Genentech's motion. |
Key Cases Cited
- Sun Microsystems, Inc. v. Versata Enters., Inc., 630 F. Supp. 2d 395 (D. Del. 2009) (motions to strike are generally disfavored)
- McInerney v. Moyer Lumber & Hardware, Inc., 244 F. Supp. 2d 393 (E.D. Pa. 2002) (same)
- Procter & Gamble Co. v. Nabisco Brands, Inc., 697 F. Supp. 1360 (D. Del. 1988) (court must construe facts in favor of the nonmoving party on a motion to strike)
- Joseph Bancroft & Sons Co. v. M. Lowenstein & Sons, Inc., 50 F.R.D. 415 (D. Del. 1970) (answer to an amended complaint may be treated like an answer to an original complaint)