IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
October 5, 2006
FELLOWES, INC., AN ILLINOIS CORPORATION, PLAINTIFF,
CONTINENTAL DATALABEL, INC., AN ILLINOIS CORPORATION, MAXELL CORPORATION OF AMERICA, A NEW JERSEY CORPORATION, AND MICROVISION DEVELOPMENT, INC., A CALIFORNIA CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
Maxell Corporation of American ("Maxell"), one of the defendants in this patent infringement case, has filed its Answer and Cross-Claims in response to the Complaint brought against it by Fellowes, Inc. ("Fellowes"). This memorandum order is issued sua sponte to address two types of flaws in that responsive pleading that require correction.
First, although Maxell is properly faithful to the form of disclaimer prescribed by the second sentence of Fed. R. Civ. P. ("Rule")8(b) to allow a defendant to get the benefit of a deemed denial, in each instance Maxwell then goes on to say "and, therefore, the allegations are denied" (Answer ¶¶ 2, 6-12 and 18-20). That of course is an oxymoron: If a party really lacks enough information even to form a belief as to the truth of an allegation, by definition the party is not in a position to deny that allegation in the objective good faith required by Rule 11. Accordingly, the above-quoted phrase is stricken from each paragraph where it appears.
Second, Maxell's affirmative defenses ("ADs")are at odds with the concept of an AD as embodied in Rule 8(c) and in the caselaw interpreting and applying that Rule. In that respect see App. 5 to State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001). Thus:
1. AD 1 does not, as Rule 8(c) requirs, accept the allegation of Complaint ¶ 14 (charging it with patent infringement) as true. AD 1 is therefore stricken.*fn1
2. AD 3 is similarly at odds with Complaint ¶ 15. It too is stricken (again see n.1).
3. AD 4, which asserts laches, is problematic. Although it will not now be stricken, it will be necessary to address the legal question whether Fellowes' asserted inaction since 2002 can constitute laches in this type of action.