Motion to Strike in New Jersey

What Is a Motion to Strike?

Background

The rule empowers “the court to strike a defense insufficient in law upon [its] own initiative at any time.” (See Bank of China v. 769 Assocs., No. A-2100-18T4, at *8 (App. Div. Oct. 8, 2020).)

“Any pleading may be struck out on motion on the ground that it discloses no cause of action, defense or counter-claim respectively.” (See Blum v. Jersey City Lumber Co. (1934) 112 N.J.L. 65, 67.)

“On such a motion, if the part objected to should be found to be so connected with the subject-matter of the complainant's suit that it may fairly be deemed to present some question, of either law or fact, which the court ought to hear and determine, then it cannot be stricken out as impertinent, but must be considered, and its sufficiency must be passed upon as a defense, either of fact or of law, to the action.” (See Haberman v. Kaufer (1900) 47 A. 48, 49.)

General Information for Complaints and Motions

“As a discovery determination, a trial court's grant or denial of a motion to strike expert testimony is entitled to deference on appellate review.” (See Bender v. Adelson (2006) 187 N.J. 411, 428, 901 A. 2d 907; Carey v. Lovett (1993) 132 N.J. 44, 64, 622 A. 2d 1279; Townsend v. Pierre (2015) 221 N.J. 36, 52.)

New Jersey Court Rule R. 4:6-5 provides that “the court may order stricken from any pleading any defense insufficient at law. Thus, a court should strike a defense when it is without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.” (See Barriga v. Advanced Surgery Ctr. LLC, CIVIL ACTION No. BER-L-1326-17, at *12 (Law Div. Mar. 14, 2018).)

“A counterclaim may be stricken out as sham when it rests upon the defenses set up in the answer which are found to be sham.” (See Turnbull v. Eight Creditors Corp., Inc. (1931) 153 A. 625.)

Standard of Review and Burdens of Proof

“A refusal to strike out a pleading as sham or frivolous rest[s] in the discretion of the court.” (See South Camden Trust Co. v. Stiefel (1927) 101 N.J. Eq. 41, 44.)

“We review de novo the court's decision to dismiss counterclaims for failure to state a claim under Rule 4:6-2(e).” (See Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C. (2019) 237 N.J. 91, 108.) “The same standard of review governs the decision to strike pleadings under Rule 4:6-5.” (See Bank of China v. 769 Assocs., No. A-2100-18T4, at *4 (App. Div. Oct. 8, 2020).)

“The order made upon such motion is appealable after final judgment. In lieu of a motion to strike out, the same objection, and any point of law (other than a question of pleading or practice) may be raised in the answering pleadings, and may be disposed of at, or after, the trial.” (See Wright v. Kroydon Co. (1931) 154 A. 195.)

“But the court, on motion of either party, may determine the question so raised before trial, and if the decision be decisive of the whole case, the court may give judgment for the successful party or make such order as may be just.” (See id.)

“The admission or exclusion of expert testimony is committed to the sound discretion of the trial court. As a discovery determination, a trial court's grant or denial of a motion to strike expert testimony is entitled to deference on appellate review.” (See Townsend v. Pierre (2015) 221 N.J. 36, 52.)

“The power to strike out a pleading as frivolous, sham, or false, will not be exercised, unless it appears to be clearly, palpably so. This power has always been cautiously exercised.” (See Jaeger v. Naef (1934) 112 N.J.L. 417, 420.)

“The duty of the court, on a motion to strike out a pleading as sham, is to determine whether an issue of fact is presented, and not to try the issue. If an issue of fact is exhibited, the plaintiff cannot be deprived of the benefit of a trial in the ordinary mode.” (See id.)

Meet and Confer

“The rule requires attorneys to confer and exchange pretrial information including, [a]ny in limine or trial motions intended to be made at the commencement of trial, with supporting memoranda.” (See Lauckhardt v. Jeges, No. A-1970-13T4, at *11-12 (App. Div. Oct. 20, 2015).)

The Court’s Decisions

It is well settled that “when it decides a motion to strike an expert report, a trial court may conduct a hearing under N.J.R.E. 104(a). N.J.R.E. 104(a) prescribes a procedure by which a trial court may assess the soundness of [an expert's] proffered methodology and the qualifications of the expert.” (See Rubanick v. Witco Chem. Corp. (1991) 125 N.J. 421, 454, 593 A. 2d 733.) “Such a hearing allows the court to assess whether the expert's opinion is based on scientifically sound reasoning or unsubstantiated personal beliefs couched in scientific terminology.” (See Townsend v. Pierre (2015) 221 N.J. 36, 54 n.5.)

It is also well settled that that “Chapter 151 of the laws of 1928 ( Pamph. L. 1928, p. 306) ordains that any frivolous or sham complaint or counter-claim, or any part thereof, may be struck out; or, if it ‘appear probable’ that the complaint or counter-claim is frivolous or sham, the plaintiff or counter-claimant ‘may be allowed to proceed therewith on terms.’ This power to strike out, on the ground that the pleading is false or sham, is inherent in the court. The statute merely confers a power that was exercised at common law.” (See Jaeger v. Naef (1934) 112 N.J.L. 417, 420.)

Documents for Motion to Strike in New Jersey

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Mazie Slater Katz & Freeman, Vs Rudderow Sharo document preview

MOTION TO STRIKE ANSWER AND ENTER DEFAULT submitted by DICKSON, TREVOR, D …

90 pages

ESX-L-006226-22 03/18/2024 2:52:03 PM Pg 1 of 76 Trans ID: LCV2024702679 David A. Mazie | NJ Atty. No. 017941986 MAZIE SLATER KATZ & FREEMAN, LLC 103 Eisenhower Parkway Roseland, New Jersey 07068 (973) 228-9898 Attorneys for Plaintiff SUPERIOR COURT OF NEW JERSEY MAZIE SLATER KATZ & FREEMAN, LAW DIVISION: ESSEX COUNTY LLC, DOCKET NO.: ESX-L-6226-22 Plainti…