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IBM v. COMDISCO

September 15, 1993

International Business Machines Corporation, Plaintiff,
v.
Comdisco, Inc., Defendant.



The opinion of the court was delivered by: JOHN A. NORDBERG

 Before the Court is Plaintiff's Motion to Strike the Defendant's First Affirmative Defense.

 FACTS

 In its Complaint, Plaintiff International Business Machines ("IBM") alleges that Defendant Comdisco, Inc. ("Comdisco") has made certain misrepresentations to its customers concerning modified IBM 3090 memory. According to IBM, Comdisco's misrepresentations include claims that modified IBM 3090 memory is "IBM" memory, which IBM has maintained in the past and which is eligible for continued IBM maintenance service. In the first affirmative defense of its First Amended Answer, Comdisco asserts that IBM's allegations in its complaint are barred by the provisions of the Consent Decree entered in United States v. International Business Machines Corp., 1956 Trade Cas. (CCH) P 68,245 (S.D.N.Y. 1956).

 Comdisco argues that through the policies and practices which IBM seeks to enforce in this lawsuit, IBM has attempted to avoid its obligations under the Consent Decree. Specifically, Comdisco cites four sections of the Consent Decree which IBM has violated (Defendant's First Amended Answer, p.26-27).

 Second, Comdisco argues that IBM has not fulfilled its obligation under the Consent Decree "to maintain and repair at reasonable and nondiscriminatory prices and terms" IBM manufactured computers and parts for their owners. IBM's duty to maintain and repair alterations exists only if such maintenance and repair is not "impractical for IBM personnel having had standard training and instruction provided by IBM to such maintenance and repair personnel." (Consent Decree § VI(b), p. 71,124.)

 Third, Comdisco claims IBM violated its duty under the Consent Decree to sell to owners of IBM manufactured computers and parts and to persons engaged in the business of maintaining and repairing IBM manufactured computers and parts "repair and replacement parts and subassemblies" at "reasonable and nondiscriminatory terms." (Consent Decree § VI(c), p. 71,124.)

 Finally, Comdisco asserts that despite the directives of the Consent Decree, IBM has not "made full and fair disclosure" of the "prices and terms" for sale and lease of IBM manufactured computers and parts. (Consent Decree § IV(b) 5.)

 ANALYSIS

 In its Motion to Strike, IBM does not seek any ruling regarding the proper interpretation of the Consent Decree. (IBM's Memorandum in Support of Its Cross-Motion to Strike Comdisco's First Affirmative Defense at 3.) Rather, IBM argues that the affirmative defense should be stricken as a matter of law because (1) Comdisco, as a non-party to the Consent Decree, cannot seek to enforce the Consent Decree and (2) Comdisco has not alleged a proper equitable estoppel defense based on the Consent Decree.

 Motions to strike under Rule 12(f) of the Federal Rules of Civil Procedure are generally disfavored because they are often interposed to create a delay. Van Schouwen v. Connaught Corporation 782 F. Supp. 1240, 1245 (N.D. Ill. 1991) citing United States v. 416.81 Acres of Land, 514 F.2d 627 (7th Cir.1975). According to the court in Van Schouwen,

 
Motions to strike can be nothing other than distractions. If a defense is clearly irrelevant, then it will likely never be raised again by the defendant and can safely be ignored. If a defense may be relevant, then there are other contexts in which the sufficiency of the defense can be more thoroughly tested with the benefit of a fuller record - such as on a motion for summary judgement. Accordingly, Courts are typically reluctant to decide disputed or substantial issues of law on a motion to strike.

 782 F. Supp. at 1245. However, the Van Schouwen court also recognized that, "when the insufficiency of a defense is clearly apparent, a motion to strike can help the litigants ...


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