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Michele F. O'bryan v. Postrack Technologies

December 17, 2012

MICHELE F. O'BRYAN, PLAINTIFF,
v.
POSTRACK TECHNOLOGIES, INC., DONALD HEIDRICH, MARK AUBRY, WILLIAM WASHBURN AND STEVEN GONZALO, DEFENDANTS.
POSTRACK TECHNOLOGIES, INC., COUNTER-PLAINTIFF,
v.
MICHELE F. O'BRYAN AND DOUGLAS SPITZ, COUNTER AND THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM ORDER

Michele O'Bryan ("O'Bryan") has filed her Answer plus an affirmative defense to the Counterclaims brought against her in this action. This memorandum order is issued sua sponte to address one problematic aspect of that responsive pleading. In each of Answer ¶¶3, 13 and 22 O'Bryan's counsel has coupled a denial with a disjunctive disclaimer under Fed. R. Civ. P. ("Rule") 8(b)(5) as to certain allegations of the Counterclaims. Although federal practice does permit some internally inconsistent pleading under appropriate circumstances, what has been attempted here is not one of them. Accordingly each of those hybrid assertions is stricken. O'Bryan is granted until December 27, 2012 to choose which of those two inconsistent alternatives should be asserted in the three paragraphs referred to above, in compliance with the subjective and objective good faith demanded by Rule 11(b).

20121217

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