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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELA WARE
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`GENENTECH, INC. and CITY OF
`HOPE,
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`Plaintiffs,
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`V.
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`AMGEN INC.,
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`Defendant.
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`Civ. No. 18-924- CFC.
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`MEMORANDUM ORDER
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`On September 4, 2019, Plaintiffs Genentech, Inc. and City of Hope
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`(collectively, Genentech) filed the Third Amended Complaint in this action. D.I.
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`347. Defendant Amgen Inc. timely filed its Answer and Counterclaims to the
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`Third Amended Complaint. D.I. 366. Genentech now moves under Federal Rule
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`of Civil Procedure 12( f) to strike Amgen' s Eleventh and Twelfth Affirmative
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`Defenses and related counterclaims. D.I. 425.
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`Pursuant to Rule 12(f), "[t]he court may strike from a pleading any
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`insufficient defense or any redundant, immaterial, impertinent, or scandalous
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`matter." Fed. R. Civ. P. 12(f). Motions to strike are generally disfavored and
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`ordinarily denied "unless the allegations have no possible relation to the
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`controversy and may cause prejudice to one of the parties." Sun Microsystems,
`
`
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`Case 1:18-cv-00924-CFC-SRF Document 507 Filed 02/12/20 Page 2 of 3 PageID #: 34129
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`Inc. v. Versata Enters., Inc., 630 F. Supp. 2d 395,402 (D. Del. 2009) (quoting
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`Mcinerney v. Moyer Lumber & Hardware, Inc., 244 F. Supp. 2d 393,402 (E.D.
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`Pa. 2002)). When ruling on a motion to strike, "the [c]ourt must construe all facts
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`in favor of the nonmoving party ... and deny the motion if the defense is sufficient
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`under law." Procter & Gamble Co. v. Nabisco Brands, Inc., 697 F. Supp. 1360,
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`1362 (D. Del. 1988).
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`"It has long been the rule in this district that in answering an amended
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`complaint the defendant is free to answer not simply the amendments, but the new
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`complaint, as if answering an original complaint." Standard Chlorine of Del., Inc.
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`v. Sinibaldi, 1995 WL 562285, at *2 (D. Del. Aug. 24, 1995) (rejecting argument
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`that defendants could not add new counterclaims in responding to an amended
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`complaint without seeking leave of the court); see also Berrada v. Cohen, 2017
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`WL 6513954, at* 1 (D.N.J. Dec. 20, 2017) (ruling that "Court leave is not required
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`for a responsive pleading filed as of right," even where that responsive pleading
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`adds "several new factual allegations and counterclaims"); E.I. DuPont De
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`Nemours & Co. v. Millennium Chems., Inc., 1999 WL 615164, at *4 (D. Del. Aug.
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`2, 1999) ( denying plaintiffs motion to dismiss new counterclaims raised in answer
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`to second amended complaint). Thus, Amgen's filing of a responsive pleading as
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`of right allows it to "bring new counterclaims without regard to the scope of
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`[Genentech's] amendment." Mun. Revenue Serv., Inc. v. Xspand, Inc., 2006 WL
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`2
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`
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`Case 1:18-cv-00924-CFC-SRF Document 507 Filed 02/12/20 Page 3 of 3 PageID #: 34130
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`91358, at *2 (M.D. Pa. Jan. 12, 2006); see also Joseph Bancroft & Sons Co. v. M
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`Lowenstein & Sons, Inc., 50 F.R.D. 415,419 (D. Del. 1970) (noting that Rule
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`15(a)(3) "does not direct a response to the 'amendment,' as it might have, but to
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`the 'amended pleading"'). Genentech has only itself to blame for enabling Amgen
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`to assert the defenses and counterclaims to which Genentech now objects.
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`"[Genentech's] decision to amend its complaint opened the door to [Amgen] filing
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`its counterclaims." Mun. Revenue Serv., 2006 WL 91358, at *2.
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`Wherefore, IT IS HEREBY ORDERED that Genentech's Motion to Strike
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`(D.1. 425) is DENIED.
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`Dated: February 12, 2020
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`UNITED STATES DISTRI JUD
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`3
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