GELMAN et al v. ROSEN et al

Filing 25

OPINION. Signed by Chief Judge Jerome B. Simandle on 4/22/2015. (TH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JONATHAN GELMAN and STACY
GELMAN,

HONORABLE JEROME B. SIMANDLE

Plaintiffs,

Civil Action
No. 14-6790 (JBS/KMW)

v.
SHERYL ROSEN and KENNETH
ROSEN,

OPINION

Defendants.

APPEARANCES:
Steven E. Angstreich, Esq.,
Nicole D. Gervato, Esq.
WEIR & PARTNERS LLP
The Liberty View Building
457 Haddonfield Road, Suite 420
Cherry Hill, NJ 08002
Attorney for Plaintiffs
Lila Wynne, Esq.
MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN, P.C.
200 Lake Drive East, Suite 300
Cherry Hill, NJ 08002
Attorney for Defendant
SIMANDLE, Chief Judge:
INTRODUCTION
In this remediation action [Docket Item 12], Plaintiffs
Jonathan and Stacy Gelman (hereinafter, “Plaintiffs”) move to
strike twenty-eight of Defendants Sheryl and Kenneth Rosen’s
affirmative defenses (hereinafter, “Defendants”) pursuant to
Federal Rule of Civil Procedure 12(f).

For the reasons set forth below, Plaintiffs’ motion will be
granted in part and denied in part.
BACKGROUND
Factual and Procedural Background
The Plaintiffs and Defendants own adjacent properties in
Margate City, New Jersey.1 (Compl. at ¶¶ 5, 7.) In their
Complaint, Plaintiffs generally assert that the Defendants’
underground heating oil storage tank (“UST”) started to leak,
contaminating the surrounding soil with heating oil. (Id. at ¶¶
8–9.) Upon learning of the leaking tank, Defendants had the tank
removed on August 6, 2013, but did not immediately advise
Plaintiffs of the leak, the tank’s removal, nor the surrounding
soil contamination. (Id. at ¶¶ 10, 12.) Rather, Plaintiffs

only

learned of the potential contamination on March 6, 2014, when
Defendants’ insurance company requested that Plaintiffs allow
Defendants’ environmental consultant “to perform investigative
work to determine the extent of contamination on and under
Plaintiffs’ property.” (Id. at ¶ 13–15.) Following the
investigation, Plaintiffs learned that “the contamination
extends at least under fifty percent (50%) of Plaintiffs’

1

The facts set forth herein are drawn from the Complaint, which
the Court accepts as true for the purposes of the pending
motion.
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property and their home,” requiring significant and costly
remediation. (Id. at ¶¶ 17–20.)
As a result of the contamination and resultant need for
remediation, Plaintiffs filed the initial Complaint in this
action on October 30, 2014, asserting claims for negligence,
trespass, nuisance, and remediation under New Jersey’s Spill
Compensation and Control Act (hereinafter, the “Spill Act”).
(See Compl. at ¶¶ 21-44.)

On December 23, 2014, Defendants

filed an answer [Docket Item 9], in which Defendants assert
thirty-nine affirmative defenses to Plaintiff’s claims.
Answer at 5 ¶ 1 – 8 ¶ 39.)

(See

The pending motion to strike

followed.
STANDARD OF REVIEW
The Court, either sua sponte or on motion by a party, may,
in its discretion, “strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous
matter.” FED. R. CIV. P. 12(f); see also Tonka Corp. v. Rose Art
Indus., Inc., 836 F. Supp. 200, 217 (D.N.J. 1993) (citation
omitted) (noting court’s considerable discretion in connection
with motions to strike).
Motions to strike, however, generally are viewed with
disfavor and rarely are granted.

See Garlanger v. Verbeke, 223

F. Supp. 2d 596, 609 (D.N.J. 2002).

Indeed, “‘there appears to

be general judicial agreement,’” that motions to strike “should
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be denied unless the challenged allegations have no possible
relation or logical connection to the subject matter of the
controversy and may cause some form of significant prejudice to
one or more of the parties to the action.’”

Mifflinburg

Telegraph, Inc. v. Criswell, ___ F. Supp. 3d ____, No. 14-612,
2015 WL 268806, at *5 (M.D. Pa. Jan. 21, 2015) (citations
omitted); see also Symbol Techs., Inc. v. Aruba Networks, Inc.,
609 F. Supp. 2d 353, 359 (D. Del. 2009) (“[E]ven 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.”)
(internal quotations omitted).
As a result, affirmative defenses should only be stricken
where the defenses could “not have any possible bearing on the
outcome of the litigation,” Garlanger v. Verbeke, 223 F. Supp.
2d 596, 609 (D.N.J. 2002), or where the undisputed allegations
of the affirmative defense prove “clearly” insufficient.
Cipollone v. Liggett Grp., Inc., 789 F.2d 181, 188 (3d Cir.
1986), rev’d in part on other grounds, 505 U.S. 504 (1992); see
also Gateway Bottling, Inc. v. Dad’s Rootbeer Co., 53 F.R.D.
585, 588 (W.D. Pa. 1971) (defining “impertinent” and
“scandalous,” within the meaning of Rule 12(f), as including
those defenses that are invalid or not made in good faith and

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which do not fairly present questions of law or fact “which the
court ought to hear”).
DISCUSSION
Plaintiffs move to strike twenty-eight of the Answer’s
thirty-nine Affirmative Defenses.

(See generally Pls.’ Br.)

The Court will address each of the disputed defenses in turn.
A. Affirmative Defenses Nos. 21–27
At the outset, the Court notes that Defendants “consent to
the dismissal of affirmative defenses 21 through 27.” (Defs.’
Opp’n at 8.)

Plaintiffs’ motion will, accordingly, be granted

with respect to these defenses, and Affirmative Defenses Nos. 21
to 27 will be stricken from Defendants’ Answer.
B. Affirmative Defenses Nos. 2, 7, 9, 10, 15, 17, 18, 29, 32,
and 39
In Affirmative Defense Nos. 2, 7, 9, 10, 15, 17, 18, 29,
32, and 39, Defendants generally plead that Plaintiffs’ claims
are barred by an array of equitable defenses, Plaintiff’s
contributory negligence, and statutory defenses under the Spill
Act.

(See generally Answer at 5-8.)
Plaintiffs, however, argue that Affirmative Defense Nos. 2,

7, 9, 10, 15, 17, 18, 29, 32, and 39 must be stricken, because
they constitute “nothing more than bare bones conclusory
allegations.” (Pls.’ Br. at 5.)

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In so arguing, however, Plaintiffs misstate the pleading
standard for affirmative defenses.

Indeed, as stated above, the

Federal Rules only require that any affirmative defenses be
affirmatively stated.

See FED. R. CIV. P. 8(c).

Therefore,

affirmative defenses need not be bolstered by any specific
factual showing.

See Collura v. Ford, 303 F.R.D. 57, 89 (E.D.

Pa. 2014) (noting that “the majority of district courts in this
Circuit to address the issue,” in keeping with the general
principles regarding motions to strike, have declined to extend
a plausibility requirement to affirmative defenses) (citations
omitted).

Rather, in order to avoid being stricken, the

defenses must have some possible relation to the controversy,
must not result in clear confusion or prejudice, and must
generally put the adversary on notice of the nature of the
contentions.

See Tyco Fire Prods. LP v. Victaulic Co., 777 F.

Supp. 2d 893, 900 (E.D. Pa. 2011) (“An affirmative defense need
not be plausible to survive; it must merely provide fair notice
of the issue involved.”) (citations omitted); F.T.C. v. Hope Now
Modifications, LLC, No. 09-1204, 2011 WL 883202, at *3 (D.N.J.
Mar. 10, 2011) (joining other Districts in this Circuit that
have concluded that the heightened pleading standard of Twombly
and Iqbal do not apply to affirmative defenses).
Here, Plaintiffs have not alleged, nor could they allege,
that Affirmative Defense Nos. 2, 7, 9, 10, 15, 17, 18, 29, 32,
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and 39 lack any potential relation to the disputed issues in
this litigation, nor have Plaintiffs asserted that they will
suffer any prejudice from the assertion of these Affirmative
Defenses.

Rather, Plaintiffs solely rely, without explanation,

upon the defenses’ “conclusory” nature.

(Pl.’s Br. at 5.)

This

allegation standing alone, however, fails to satisfy the heavy
burden for motions for strike under Federal Rule of Civil
Procedure 12(f), and the defenses themselves otherwise place
Plaintiffs on notice of Defendants’ contentions.

See O’Gara v.

Countrywide Home Loans, Inc., No. 08-113, 2010 WL 3070211, at *2
(D. Del. July 30, 2010) (denying a motion to strike affirmative
defenses as to defenses which placed the plaintiff on notice,
and where the plaintiff would suffer no prejudice).

Plaintiffs

are free to explore the grounds for these defenses through
contention interrogatories; if Defendants are unable to supply
appropriate grounds for an affirmative defense, they are
expected to voluntarily dismiss it.
Plaintiffs’ motion will therefore be denied with respect to
Affirmative Defense Nos. 2, 7, 9, 10, 15, 17, 18, 29, 32, and
39, without prejudice to Plaintiffs’ right to propound
contention interrogatories regarding each Affirmative Defense.
C. Affirmative Defenses Nos. 3 and 38
Affirmative Defense Nos. 3 and 38 both generally allege
that Plaintiffs’ claims must be reduced, excused, and/or
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discharged, as a result of Plaintiff’s failure to mitigate
damages.

(See Answer at 5, 8.)

Plaintiffs argue that these defenses must be striken as
legally insufficient and needlessly repetitive.
at 5.)

(See Pls.’ Br.

Defendants counter, however, that Plaintiffs predicate

their challenge “upon unsupported and disputed facts” that
“cannot be resolved on a motion to strike.”
4.)

(Defs.’ Opp’n at

The Court agrees.
Plaintiffs’ sufficiency challenges plainly hinge upon their

position concerning a key disputed issue in this litigation,
namely, the source(s) of the alleged contaminant.

(See Pls.’

Br. at 5) (implying that it is undisputed that Defendants’ UST
caused the contamination).)

Indeed, Defendants specifically

allege that a different UST caused and/or contributed to the
disputed contamination.

(See Defs.’ Opp’n at 4 (summarizing

Defendants’ Spill Act counterclaim).)

Arguments predicated upon

disputed or undeveloped issues of fact, however, fail to afford
a basis for striking a party’s pleading.

See Klaus v. Jonestown

Bank and Trust Co., No. 12-2488, 2014 WL 1024591, at *2 (M.D.
Pa. Mar. 14, 2014) (“Motions to strike should not be granted
when the sufficiency of the defense depends upon disputed or
undeveloped issues of fact.”) (citations omitted).

Therefore,

the Court rejects Plaintiffs’ sufficiency challenge as a basis
to strike Affirmative Defense Nos. 3 and 38. See Goldfaden v.
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Miss World (Jersey) Ltd., No. 02-712, 2005 WL 1703207, at *9
(D.N.J. July 20, 2005) (refusing to strike affirmative defenses
that turned upon questions of disputed fact).
Nor will the Court strike these Affirmative Defenses on
redundancy grounds.

Critically, although the Court may strike

any redundant defenses pursuant to Rule 12(f) “there is little
point in striking a redundant claim, since [the opposing party]
can safely respond to only the claim which it duplicates.”

US

LEC Commn’s LLC v. Qwest Commn’s Co., LLC, No. 10–4106, 2011 WL
2474262, *4 (D.N.J. Jun. 20, 2011).

Therefore, the Court also

rejects Plaintiffs’ position that these Affirmative Defenses
must be striken as redundant.
For all of these reasons, Plaintiffs’ motion will be denied
with respect to Affirmative Defense Nos. 3 and 38.
D. Affirmative Defenses Nos. 5, 28, and 35
Affirmative Defense Nos. 5, 28, and 35 generally assert
that Defendants acted, at all times, “with due care” and did not
violate “any alleged duty owed to [P]laintiffs” and, as a
result, allege that the “environmental contamination alleged in
the Complaint” resulted from the “negligence and/or actions of
others,” including Plaintiffs.

(Answer at 5, 7.)

Plaintiffs assert that these Defenses are “devoid of any
legal basis,” because the Spill Act renders Defendants “strictly
liable without regard to fault for all cleanup and removal costs
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as the owners” of the leaking UST.

(Pls.’ Br. at 5-6.)

Nevertheless, Defendants, as stated above, have specifically
alleged that a UST previously placed on Plaintiffs’ property
caused and/or contributed to the disputed contamination.
e.g., Defs.’ Opp’n at 5.)

(See,

Plaintiffs’ argument therefore rests

upon disputed issues of fact, and provides no basis for striking
these Defenses.

Therefore, Plaintiffs’ motion will be denied

with respect to Affirmative Defense Nos. 5, 28, and 35.
E. Affirmative Defenses Nos. 6 and 37
Affirmative Defense Nos. 6 and 37 allege that Defendants
“acted at all times within their legal and contractual rights
and did not breach any legal or contractual duty owed to
[P]laintiffs” and that Plaintiffs’ claims are otherwise “barred
due to lack of privity and lack of duty on the part of
Defendants.”

(See Answer at 5, 7.)

In challenging these Affirmative Defenses, Plaintiffs argue
that they must be striken because “no contract” governed the
parties’ relationship, thereby rendering any assertion rooted in
contractual rights or duties immaterial.

(Pls.’ Reply at 5.)

Defendants, in essence, concede that contractual theories have
no relevance to this action, but assert that the Affirmative
Defenses encompass more than “claims for breach of contract” and
“apply more broadly to ‘legal duties.’”

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(Defs.’ Opp’n at 5.)

The parties concede that this action presents no issues of
contract.

(See Defs.’ Opp’n 5; Pls.’ Reply at 5.)

Rather,

Plaintiffs’ Complaint only raises statutory and tort claims.
(See generally Compl.)

Therefore, to the extent these

Affirmative Defenses reference contractual rights and privity,
the Court finds that the Defenses lack any reasonable relation
to this litigation.

See Deery v. Crystal Instruments Corp., No.

13–198, 2013 WL 4517867, *1 (D.N.J. Aug. 26, 2013) (citing
United States v. Kramer, 757 F. Supp. 397, 410 (D.N.J. 1991))
(noting that motions to strike seek to “save parties the time
and expense of litigating claims that could not affect the
outcome of the case”).

Moreover, to the extent these Defenses

could be construed to rely more broadly upon non-contractual
“legal duties,” these Defenses are unnecessary and duplicative
given the multitude of other tort-related defenses raised by
Defendants.
Therefore, the Court will strike Affirmative Defense Nos. 6
and 37.
F. Affirmative Defense No. 12
Affirmative Defense No. 12 alleges that “[P]laintiffs’
claims are barred as a matter of law” for failure to comply with
the “applicable statute or statutes of limitations, or other
applicable law, rule, statute or regulation controlling or

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requiring the institution of suit within a certain period of
time following its accrual.”

(Answer at 6.)

Plaintiffs argue that this Defense must be stricken as
legally insufficient, because Plaintiffs filed this action
“within months of knowing of the [alleged] contamination,” and
therefore acted well within “the six year limitations period”
applicable to their claims.

(Pls.’ Reply at 6; see also Pls.’

Br. at 6)
Nevertheless, the Court need not belabor Plaintiffs’
position, because it is premised upon disputed issues of fact,
namely, the source of the alleged contaminant and when
Plaintiffs knew, or show have known, of the existence of the
contamination.

As stated above, the source of the contaminant

constitutes, at this time, one of the critical factual disputes
in this litigation.

As a result, the Court cannot, at this

time, find Affirmative Defense No. 12 legally insufficient and
Plaintiffs’ motion will, accordingly, be denied with respect to
this Defense.

See Goldfaden, 2005 WL 1703207, at *9.

G. Affirmative Defense No. 14
Affirmative Defense No. 14 alleges that “Plaintiffs’ claims
are barred to the extent that [P]laintiffs failed to comply with
all of the statutory and/or regulatory prerequisites necessary
to bring a claim for contribution under” the Spill Act.
at 6.)
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(Answer

Plaintiffs argue that this Defense must be striken as
“legally insufficient” because Plaintiffs “have not asserted a
contribution claim,” and because Plaintiffs seek damages for
“actually” incurred remediation costs, rather than for loss of
use and enjoyment of their property. (Pls.’ Br. at 7; Pls.’
Reply at 6.)

Defendants counter, however, that the Spill Act

only permits private claims for “remediation and/or
investigation expenses,” and argues that Affirmative Defense No.
14 “highlights the defective nature” of Plaintiffs’ claims to
the extent Plaintiffs’ Complaint specifically references a
request for damages associated with the “loss of ‘the use and
enjoyment of their property during the time it takes to
remediate’ the property.”

(Defs.’ Opp’n at 7 (citing Compl. at

¶ 27).)
In this regard, Plaintiffs do not dispute that the Spill
Act contains no provision for the recovery of damages for loss
of use and enjoyment.
6.)

(See Defs.’ Opp’n at 6-7; Pls.’ Reply at

See also Bahrle v. Exxon Corp., 678 A.2d 225, 231 (N.J.

1996) (concluding that the Spill Act “limits recovery to cleanup and removal costs” and does not extend “to damages arising
from emotional distress, enhanced risk of disease, loss of
enjoyment of property, and other economic and financial harm”).
Rather, Plaintiffs dispute whether their Complaint seeks such
damages, and claim that the Complaint clearly reflects that
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Plaintiffs only “seek damages for remediation costs.”
Reply at 6.)

(Pls.’

Nevertheless, Plaintiffs’ Complaint plainly

alleges that, “[b]ecause of the contamination and need for
remediation, Plaintiffs will lose the use and enjoyment of their
property during the time it takes to remediate the surface and
subsurface contamination” and, as a result, seeks compensatory
damages.

(Compl. at ¶ 27.)

Given these allegations, the Court does not find this
Defense legally insufficient to the extent it challenges the
viability of certain relief requested by Plaintiffs. Plaintiffs’
motions will therefore be denied with respect to Affirmative
Defense No. 14.
H. Affirmative Defense No. 19
Affirmative Defense No. 19 alleges that “Plaintiffs’ claims
are barred to the extent they seek relief for conduct occurring,
or damages incurred, before the effective date of the Spill Act”
in 1977.

(Answer at 6.)

In challenging this Defense, Plaintiffs argue that, based
upon “the size of the contamination plume mapped by Defendants’
environmental consultant,” it “does not appear that the leak
occurred over thirty-eight years ago.”

(Pls.’ Reply at 7.)

Defendants assert, however, that because “it is unknown when the
UST began leaking,” it remains conceivable that the “leak could
have [begun] before the effective date of the [Spill Act] and
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therefore, would not be subject” to its provisions.

(Defs.’

Opp’n at 7.)
The Court has some doubt that contamination would have, or
could have, gone unnoticed for 38 years.

Plaintiffs, however,

have not argued that the leak could, in no way, have predated
the enactment of the Spill Act, nor stated that Plaintiffs’
property (or any preceding structure) had not even been built in
1977, the year the Spill Act became effective.

Rather, based

upon the modeling of Defendants’ expert, Plaintiffs suggest that
such scenario does not appear likely.

(See Pls.’ Reply at 7.)

However, given Defendants’ position that an earlier UST caused
the disputed contamination in this litigation, Plaintiffs’
position clearly hinges upon disputed and currently-undecided
facts, and fails to provide a basis for striking this Defense.
Plaintiffs’ motion will therefore also be denied with respect to
Affirmative Defense No. 19.

See Goldfaden, 2005 WL 1703207, at

*9.
I. Affirmative Defense No. 34
Finally, Affirmative Defense No. 34 alleges that
Plaintiffs’ “claims are barred due to the failure to join
indispensable parties.”

(Answer at 7.)

Plaintiffs argue that this Defense must be stricken,
because this action presently includes all necessary and
indispensable parties.

(See Pls.’ Reply at 7.)
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Defendants

counter, however, that the prior owners of Plaintiffs’ property
must be joined to this action, as a result of their theory that
the disputed contamination resulted from a prior UST.

(See

Defs.’ Opp’n at 7-8.)
In this respect, and for the reasons stated above, the
legal sufficiency of this Defense turns upon disputed issues of
fact, namely the UST responsible for the oil contamination, and
cannot be stricken at this stage in the litigation.

Plaintiffs’

motion will, accordingly, be denied with respect to Affirmative
Defense No. 34.

See Goldfaden, 2005 WL 1703207, at *9.

CONCLUSION
For all of these reasons, Plaintiffs’ motion will be
granted with respect to Affirmative Defense Nos. 21 through 27,
granted with respect to Affirmative Defense Nos. 6 and 37, and
denied with respect to all other Affirmative Defenses.

An

accompanying Order will be entered.

April 22, 2015
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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