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United States District Court, Northern District of Illinois

March 28, 2003


The opinion of the court was delivered by: Philip G. Reinhard


Plaintiffs, who are six current or former employees of defendant, Motorola, Inc., have sued Motorola and other individual employees of Motorola in a twenty-count amended complaint for violations of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., and intentional infliction of emotional distress under state law. Jurisdiction and venue are proper based on 28 U.S.C. § 1331, 1367, 1391. Before the court are plaintiffs' motions to strike defendants' affirmative defenses, filed pursuant to Federal Rule of Civil Procedure 12(f), and to disqualify defense counseL

Taking up the motion to strike first, the court finds defendants have adequately pled their affirmative defenses for purposes of notice pleading under Rule 8. Defendants naturally will have to develop facts to support their affirmative defenses but it would be premature to strike them at this time; they are sufficient as a matter of law. Plaintiffs also argue affirmative defenses 2 and 4 should be stricken under the law of the case doctrine. This case was originally removed from an Illinois state court to the Northern District of Illinois, Eastern Division, where it was assigned to Judge Holderman. Before Judge Holderman transferred the case here, he granted in part and denied in part a similar motion to strike that plaintiffs filed when the case was still in the Eastern Division. The part he granted was as to affirmative defenses 2 and 4. As his order makes clear, however, the reason he granted the motion as to those two affirmative defenses was because defendants voluntarily withdrew them. Plaintiffs have since filed an amended complaint with additional allegations that prompted defendants to reassert these two affirmative defenses. For these reasons, the court finds it is not bound by Judge Holderman's decision on plaintiffs' previous motion to strike.

As for the motion to disqualify, the court again finds plaintiffs have jumped the gun. They essentially argue that a potential conflict of interest could arise because defense counsel represents both Motorola and its individual employee-defendants. Plaintiffs believe this presents a potential conflict because Motorola and the individual defendants have antagonistic defenses over whether the individual defendants were acting within the scope of their employment. In response, defense counsel represents that each defendant has signed a "Letter of Joint Representation" that explains the potential conflicts of interest that may arise from a joint representation. Defense counsel has offered to provide these to the court for an in camera inspection, but the court finds this unnecessary at this time. Representations made by defense counsel in defendants' response brief are subject to Rule 11, so the court trusts such waivers have in fact been obtained. In any event, the court sees no reason to disqualify defense counsel at this early stage in the litigation as there is presently no actual conflict of interest. If an actual conflict of interest arises in the future, the court can take up the matter again at that time.

For the reasons stated above, plaintiffs' motions to strike and to disqualify are denied.


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