The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge Page 2
MEMORANDUM OPINION AND.ORDER
Luxury Bath Liners, Inc. and Luxury Franchise Corp. (collectively
"Luxury"), two of the defendants in this action brought by Liners Direct,
Inc. ("Liners Direct"), have filed their Answer to Liners Direct's
Amended Complaint ("AC"). Because various aspects of the Answer,
including its laundry list of purported affirmative defenses ("ADs"), are
problematic for one reason or another, this memorandum opinion and order
is issued sua sponte to require Luxury's counsel to cure the flaws
To begin with, Luxury's counsel have failed to comply with this
District Court's L.R. 10.1, which is obviously aimed at obviating the
task that has just been imposed on this Court: having to lay two
pleadings side by side, and to shift constantly from one to the other, to
see just what has and has not been placed in issue (and relatedly to
identify any problems in that respect). To avoid further damage to the
environment by requiring the cutting down of more trees, this Court is
not requiring Luxury's counsel to conform to L.R. 10.1 in the amended
response that is required by this opinion but counsel should be
aware of that rule's requirement for future.
As for the substantive aspects of Luxury's responsive pleading dealt
with here, this Court has not attempted to be exhaustive in pointing out
its flaws (particularly given the length of the pleadings). Instead it
has selected some obvious problems, without prejudice of course to the
right of Liners Direct's counsel to target matters not addressed here.
First, Answer ¶¶ 25 to 27 advance what must be viewed as frivolous
objections to "the vagueness and characterization of Plaintiff's use of
the term `identical.'" This Court has had no difficulty in understanding
the corresponding allegations of the AC, and Luxury is accordingly
ordered to respond directly to those allegations, rather than simply
denying them on such specious grounds.
That same flaw invalidates Answer ¶ 33. If Liners Direct and Luxury
have in fact engaged in litigation in the past, Luxury must admit AC
¶ 33, If not, that allegation may be denied.
Next, Answer ¶ 34 cannot in good faith invoke the deemed denial
that is provided by the second sentence of Fed.R.Civ.P. ("Rule") 8(b). In
light of AC Ex. F, Luxury certainly has information sufficient to form a
belief as to at least part of AC ¶ 34.
Next, Answer ¶¶ 57 and 65 refer to each of two Illinois statutes as a
"document [that] speaks for itself." Not so see App. 3 to State Farm
Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 279 (N.D. Ill, 2001),
Moreover, it is totally uninformative for Luxury's counsel to deny
allegations based on statutory language "insofar as they may be
inconsistent with the language of that statute." Instead Luxury must
answer the allegations of AC ¶¶ 57 and 65 in a straightforward fashion.
Finally, many of Luxury's set of 14 ADS are directly at odds with the
fundamental nature of that concept as exemplified in Rule 8(c) and the
case law applying that Rule (in that respect, see also App, ¶ 5 to State
Farm). Here are a number of the troublesome aspects of those ADs:
1. A.D. 1 is the essential equivalent of a Rule
12(b)(6) motion. Because both Rule 8(c) and
Rule 12(b)(S) require the acceptance of all of
the AC's well-pleaded allegations as true, and
because Liners Direct is
entitled to remain in court on that basis, A.D. 1
2. A.D. 2 appears to depend on an extraordinarily
strained use of the English language, But because
this Court is not now addressing the substantive
viability of Luxury's legal position (a position
that is also embodied in its Counterclaim, which
follows the ADs in its present pleading), no
modification of that AD will be required at this
3. A.D. 3 is directly at odds with such portions of
Liners Direct's pleading as AC ¶¶ 30, 43 and 52,
A.D. 3 is accordingly stricken.
4. That same problem is faced by A.D. 6 see, e.g.,
AC ¶¶ 59 and 66. A.D. 6 is also stricken,
5. A.D. 7 is also flawed because it is at odds with AC
¶ 18, which ascribes registration of the domain
name to Luxury's "agents." A.D. 7 is stricken as
6. A.D. 9 contradicts AC ¶¶ 29 and 36 (and perhaps
other provisions of the AC as well). It too is
7. A.D. 10 is simply wrong as a matter of law. It
too is stricken.
8. A.D. 11 is impermissible even under the undemanding
notice pleading regime that applies to federal
litigation. If Luxury claims that any of the ADs
listed there applies, it has a duty to be more
particular, rather than simply mouthing them in
conclusory fashion. A.D. 11 is stricken as well.
9. A.D. 13 is also inconsistent with Liners Direct's
allegations, this time with AC ¶¶ 18 and 39 (and
perhaps others). Accordingly A.D. 13 is also
10. A.D. 14 suffers from the same flaw see AC ¶¶ 18
and 39. It too is stricken.
It is plain that Luxury's counsel must return to the drawing board to
address whatever defects identified in this opinion appear to be curable.
That must be done by an amendment to the Answer, to be filed in this
Court's chambers (with a copy contemporaneously delivered to Liners
Direct's counsel) on or before March 8, 2004.
Because clients should not be required to pay twice for work that must
be redone because of counsel's errors, no charge is to be made to Luxury
for the time and expenses involved in the preparation of the amendment
that is required here. Luxury's counsel are directed to advise their
clients to that effect and to transmit a copy of the letter ...