United States District Court, N.D. Illinois, Eastern Division
July 8, 2004.
AWESOME TOYS, LLC, Plaintiff,
SPIN MASTER LTD., Defendant.
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
MEMORANDUM OPINION AND ORDER
Spin Master Ltd. ("Spin Master") has filed its Answer to the
three-count Complaint brought against it by Awesome Toys, LLC
("Awesome Toys"). This memorandum order is issued to require Spin
Master's counsel to cure the flaws in the affirmative defenses
("ADs") included within its Answer.
Before those deficiencies are addressed, however, the attention
of Spin Master's counsel is called to the Answer's noncompliance
with this District Court's LR 10.1. Were it not for the AD
problems, this Court would not have required a refiling of the
Answer itself but because such noncompliance defeats the
salutary purpose for which LR 10.1 was adopted, the recast
pleading called for by this memorandum order will be required to
conform to that LR.
As for the ADs, Spin Master's counsel's attention is drawn to
the requirements of Fed.R.Civ.P. ("Rule") 8(c) and to the
caselaw dealing with ADs and see also App. ¶ 5 to State Farm
Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 279 (N.D. Ill.
2001). In particular:
1. Although there may be some question whether A.D. 1's
statement of the equivalent of a Rule 12(b)(6) motion
is appropriate, that AD may be retained pending a
possible challenge by Awesome Toys.
2. ADs 2 through 5 cannot pass muster even under the
generous standards of notice pleading that apply in
the federal courts. It simply will not do to parrot
one of the examples listed in Rule 8(c) or to set out
some other generalized conclusion (such as
"acquiescence"), for such skeletal listing informs
neither the opposing party nor this Court of the
asserted predicates for the various contentions. If
Spin Master expects to renew one or more of those ADs
the next time around, it must couple those conclusory
characterizations with at least some minimal
explanation of how each of them assertedly applies.
3. Although A.D. 7 is a bit more informative, it too
must be fleshed out appropriately if Spin Master
expects it to stand
Accordingly the entire Answer is stricken, but with leave being
granted to file a proper Amended Answer (including any
appropriate ADs) in this Court's chambers (with a copy of course
being transmitted contemporaneously to Awesome Toys' counsel) on
or before July 20, 2004. In the absence of such a timely filing, all of the ADs save A.D. 1 and A.D. 6 will remain stricken.*fn1