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ATKINSON v. GENERAL RESEARCH OF ELECS.

November 17, 1998

NOEL ATKINSON, et al., Plaintiffs,
v.
GENERAL RESEARCH OF ELECTRONICS, INC., et al., Defendants.



The opinion of the court was delivered by: SHADUR

MEMORANDUM OPINION AND ORDER

 In late May 1998, at the time of this Court's approval of the proposed final pretrial order ("FPTO") that had been jointly tendered by the litigants in this action brought by Noel Atkinson and Compass Communications, Inc. against General Research of Electronics, Inc. ("GRE") and Tandy Corporation ("Tandy"), defendants proffered four "Motions in Limine/Rule 16 Motions" (Dkt. No. 40). That filing was followed a month later by defendants' memorandum in support of the motions (both defendants are represented by the same counsel), and the motions became ready for decision upon the later receipt of plaintiffs' responsive memoranda. For the reasons stated in this memorandum opinion and order, all but one of defendants' motions are denied and the remaining motion is granted.

 Choice of Law - Statute of Limitations

 Both GRE (which urges the application of Indiana law) and Tandy (which plumps for either Texas or Delaware law, but agrees to the application of Indiana law instead) resist the application of Illinois law to plaintiffs' breach of contract and unjust enrichment claims against GRE and to their trade secret misappropriation claims against both GRE and Tandy. But defendants' memorandum in support of their motion makes it plain that their real goal is to bar substantially all of those claims on statute of limitations grounds, for that is the only aspect of Indiana and Texas law that defendants seek to call into play. Because defendants have waived (or, more precisely, have forfeited *fn1" ) that statute of limitations defense, their motion is denied.

 This lawsuit was fully 2-1/2 years old before it arrived at the FPTO stage of trial readiness. Yet despite their awareness all along of the nature of plaintiffs' claims:

 1. Both GRE and Tandy initially filed Answers that included multiple affirmative defenses, one of which asserted a partial limitations bar under 17 U.S.C. § 507 of the Complaint's copyright claims. That assertion leaves no room for any argument that defendants were unaware of the potential for cutting off one or more of plaintiffs' claims by raising statutes of limitations as a defense. Yet neither GRE's nor Tandy's original responsive pleading even hinted at such a statute of limitations affirmative defense as to any of the several state law claims that are now at issue.

 2. In September 1997, with the lawsuit then nearly two years old, GRE filed an Amended Answer, again containing the same affirmative defenses (including the one referred to in the preceding numbered paragraph)--but once again the new pleading contained no whisper of the statute of limitations defense that is now sought to be inserted into the case. As for Tandy, in December 1997 it sought leave to file an amended pleading that in part would have added still another affirmative defense to those it had previously advanced--and that proposed pleading was also totally silent as to the presently-pushed statute of limitations defense to the state law claims.

 Under the circumstances, then, this Court follows the lead of such cases as Coleman v. Ramada Hotel Operating Co., 933 F.2d 470, 474-75 (7th Cir. 1991), Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 235 (7th Cir. 1991) and Johnson v. Heckler, 769 F.2d 1202, 1209 (7th Cir. 1985), reconfirmed on remand sub nom. Johnson v. Sullivan, 922 F.2d 346, 355 (7th Cir. 1990)(per curiam) and holds that the newly-advanced affirmative defense is itself untimely under Fed. R. Civ. P. ("Rule") 8(c) and 12(b)--rules that require such affirmative defenses to be advanced at the first opportunity, not late in the day--and that the statute of limitations issue has therefore been forfeited (or, if one prefers, waived). To the same effect, see the multitude of cases cited in 5 Charles Wright & Arthur Miller, Federal Practice and Procedure: Civil 2d § 1278, at 477 & n.1 (2d ed. 1990 and 1998 pocket part); id. at 484 & n.11.

 To be sure, there are circumstances where other equitable considerations (such as the recent discovery of facts supporting such a defense) may call for a different response (see, e.g., Siwik, 945 F. Supp. at 1166). But this is not one of those cases. Defendants' motions (Dkt. No. 40-1 and 40-2) are denied.

 Defendants' Counsel as Witness

 Raiford Blackstone, Jr. ("Blackstone") is lead counsel for both GRE and Tandy. After plaintiffs had included Blackstone in their potential witness list in the FPTO, defendants moved to preclude plaintiffs from calling him to the stand at trial. That motion fails for three independent reasons.

 To begin with, defendants point to what they say would be Blackstone's required disqualification under this District Court's Rule of Professional Conduct ("Conduct Rule") 3.7(a). *fn2" What neither side appears to have noted, though, is that the prohibition in Conduct Rule 3.7(a) reads this way (emphasis added):

 
A lawyer shall not act as an advocate in a trial or evidentiary proceeding if the lawyer knows or reasonably should know that the lawyer may be called as a witness therein on behalf of the client, except that....

 In this case, however, Blackstone is not proposed to be called as a witness on behalf of his clients but rather by plaintiffs--so that the ...


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