UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS
January 29, 2010
OSF HEALTHCARE SYSTEM, AN ILLINOIS NOT-FOR-PROFIT CORPORATION, D/B/A SAINT FRANCIS MEDICAL CENTER, PLAINTIFF,
DR. JOSEPH J. BANNO, BRYAN ZOWIN, AND PEORIA DAY SURGERY CENTER, LTD. DEFENDANTS.
The opinion of the court was delivered by: Michael M. Mihm United States District Judge
Plaintiff OSF Healthcare System ("SFMC") filed a Motion to Strike Defendants' affirmative defenses of unclean hands and in pari delicto and Motion for Protective Order [#82] on October 19, 2009. On January 5, 2010, a Report & Recommendation [#92] was filed by Magistrate Judge Byron G. Cudmore in the above captioned case. More than fourteen (14) days have elapsed since the filing of the Report & Recommendation, and no objections have been made. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Lockert v. Faulkner, 843 F.2d 1015 (7th Cir. 1988); and Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir. 1986). As the parties failed to present timely objections, any such objections have been waived. Id.
The relevant procedural history is sufficiently set forth in the comprehensive Report & Recommendation of the Magistrate Judge. Plaintiff has brought this litigation pursuing RICO and state law claims based on Defendants' alleged fraudulent billings to Caterpillar, Inc. The Court agrees with the Magistrate Judge that Defendants' factual allegations do provide sufficient notice of factual basis for the defenses, but that those allegations are legally insufficient to state affirmative defenses of unclean hands and in pari delicto. The Court further agrees that in order for the unclean hands or in pari delicto defenses to apply, there would need to be some inference that SFMC acquiesced in, or otherwise participated in or brought about Defendants' fraudulent billings to Caterpillar. Therefore, the Court concurs with the recommendation that the defenses of unclean hands and in pari delicto be stricken and, as a result, that SFMC's request for a protective order be denied as premature.
Accordingly, the Court now adopts the Report & Recommendation [#92] of the Magistrate Judge in its entirety. Plaintiff's Motion to Strike Defendants' Amended Affirmative Defenses of Unclean Hands and In Pari Delicto and Motion for Protective Order [#82] is GRANTED IN PART AND DENIED IN PART. Defendants' affirmative defenses of unclean hands and in pari delicto are hereby stricken, and SFMC's request for a protective order is denied. This matter is referred to the Magistrate Judge for further proceedings.
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