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Maurice Sporting Goods, Inc. v. BB Holdings, Inc.

United States District Court, N.D. Illinois, Eastern Division

August 23, 2016

MAURICE SPORTING GOODS, INC., Plaintiff,
v.
BB HOLDINGS, INC. d/b/a BUCK BOMB, Defendant.

          MEMORANDUM OPINION AND ORDER

          AMY J. ST. EVE UNITED STATES DISTRICT COURT JUDGE

         Plaintiff Maurice Sporting Goods, Inc. (“Maurice”) has moved the Court to strike the affirmative defenses of Defendant BB Holdings, Inc., d/b/a Buck Bomb (“Buck Bomb”). (R.33). For the following reasons, the Court grants in part and denies in part Maurice’s renewed motion. The Court denies Maurice’s motion to strike the First Affirmative Defense. The Court grants the balance of Maurice’s motion and dismisses, with prejudice, the Second, Third, and Fourth Affirmative Defenses.

         PROCEDURAL HISTORY

         On May 11, 2016, the Court issued a Memorandum Opinion and Order (the “Order”) on Maurice’s initial motion to strike and dismiss Buck Bomb’s affirmative defenses. (R.31). In relevant part, the Order struck without prejudice Buck Bomb’s First, Second, Third, Fifth, Sixth, Seventh, and Eighth Affirmative Defenses. On May 25, 2016, Buck Bomb filed a Second Amended Answer, reasserting five affirmative defenses: (1) prior material breach; (2) contribution; (3) unclean hands; (4) equitable estoppel; and (5) statute of frauds.[1] Maurice now moves to strike Affirmative Defense Nos. 1-4. (R.33). In considering this motion, the Court presumes familiarity with the background of this action-as set forth in the Order-and does not recite it here.

         LEGAL STANDARD

         Pursuant to Rule 12(f), the Court can strike “any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f); Delta Consulting Grp., Inc. v. R. Randle Constr., Inc., 554 F.3d 1133, 1141 (7th Cir. 2009). “Affirmative defenses will be stricken ‘only when they are insufficient on the face of the pleadings.’” Williams v. Jader Fuel Co., 944 F.2d 1388, 1400 (7th Cir. 1991) (quoting Heller Fin. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989)). “Motions to strike are not favored and will not be granted unless it appears to a certainty that plaintiffs would succeed despite any state of the facts which could be proved in support of the defense, and are inferable from the pleadings.” Id. (citations and quotations omitted).

         It is appropriate, however, “for the court to strike affirmative defenses that add unnecessary clutter to a case.” Davis v. Elite Mortgage Servs., 592 F.Supp.2d 1052, 1058 (N.D. Ill. 2009) (citing Heller, 883 F.2d at 1295). “It is also true that because affirmative defenses are subject to the pleading requirements of the Federal Rules of Civil Procedure, they must set forth a ‘short and plain statement’ of all the material elements of the defense asserted; bare legal conclusions are not sufficient.” Id. (citing Heller, 883 F.2d at 1294; Fed.R.Civ.P. 8(a); Renalds v. S.R. G. Rest. Grp., 119 F.Supp.2d 800, 802 (N.D. Ill. 2000)). The Court-along with many others in this District-examines affirmative defenses by reference to Twombly’s “plausibility” pleading standard. See, e.g., State Farm Fire & Cas. Co. v. Electrolux Home Products, Inc., No. 10 C 7651, 2011 WL 133014 (N.D. Ill. Jan. 14, 2011) (citing Bell Atlantic v. Twombly, 550 U.S.544, 555 (2007)); see also Edwards v. Mack Trucks, Inc., 310 F.R.D. 382, 386 (N.D. Ill. 2015) (“While the Seventh Circuit has not addressed whether the Twombly-Iqbal standard applies to affirmative defenses, judges in this district have generally found these requirements to apply”). District courts have considerable discretion under Rule 12(f). See Delta, 554 F.3d at 1141-42.

         ANALYSIS

         I. Affirmative Defense No. 1 (Material Breach - Excuse)

         Affirmative Defense No. 1 states that Plaintiff cannot recover “because Plaintiff first materially breached the parties’ long-standing distribution agreement.” (R.32, Affirmative Defense No. 1). In the Order, the Court struck this affirmative defense because Buck Bomb had failed to allege facts (i) plausibly suggesting the existence of a broader “distribution agreement” related to the Buy-Back Agreement at issue in this case, and (ii) giving Maurice fair notice of its material breach allegations. (R.31, Order at 5-7).

         In its amended pleading, Buck Bomb alleges that around 2006, Plaintiff offered to distribute Buck Bomb’s products to retailers such as Walmart, Kmart, and Blain’s. (R.32, Affirmative Defense No. 1, ¶ a). Plaintiff “agreed to use its best efforts to distribute the [p]roducts and to fulfill all sales forecasts issued by retailers” in exchange for “Buck Bomb selling its products to Plaintiff at below-retail rates[.]” (Id.). Buck Bomb accepted these terms and began selling its products to Plaintiff for distribution. (Id.). This agreement continued for “nearly eight years, with Plaintiff regularly submitting written purchase orders to Buck Bomb to fulfill retailers’ sales forecasts.” (Id.). In 2014, however, Plaintiff materially breached the distribution agreement, “including by failing to pay the full amount due under purchase orders and failing to use its best efforts to fulfill sales forecasts from retailers, including Walmart.” (Id., ¶ c). This prior material breach, Buck Bomb reasons, excused its own non-performance under the concluding part of their longstanding distribution agreement - that is, under the 2015 Buy-Back Agreement. (Id., ¶ b). Maurice now challenges the sufficiency of these allegations.

         Under Illinois law, “[a] contract, to be valid, must contain offer, acceptance, and consideration; to be enforceable, the agreement must also be sufficiently definite so that its terms are reasonably certain and able to be determined.” Halloran v. Dickerson, 287 Ill.App.3d 857, 867-68, 679 N.E.2d 774, 782 (5th Dist. 1997); see also Nielsen v. United Servs. Auto. Ass’n, 244 Ill.App.3d 658, 662, 612 N.E.2d 526, 529 (2d Dist. 1993) (the “essential elements” of a breach of contract action are a “valid and enforceable contract, ” performance, breach, and resultant injury). Here, Buck Bomb has adequately alleged offer, acceptance by performance, and consideration. Whether the alleged contract is “sufficiently definite, ” however, is a different issue. See id.; see also Perez v. Abbott Labs., No. 94 C 4127, 1995 WL 86716, at *8 (N.D. Ill. Feb. 27, 1995) (“The requirement of definiteness applies with equal or greater force to oral contracts”) (examining Illinois law); Kraftco Corp. v. Kolbus, 1 Ill.App.3d 635, 638, 274 N.E.2d 153, 155 (4th Dist. 1971) (“It is basic in the formation of a contract that the parties must have entered into an agreement which is sufficiently definite and certain so that the terms are either determined or may be implied”).

         A. Essential Terms

         Maurice first argues that Buck Bomb has failed to plead the contract’s “essential terms, ” including duration, termination terms, geographical reach, retailer details, servicing terms, delivery terms, pricing terms, or performance benchmarks. (R.34, Opening Br. at 5-9; R.38, Reply Br. at 2-10). Buck Bomb, in turn, points to its allegations regarding “purchase orders” and “sales forecasts” as sufficiently definite and certain terms. According to Buck Bomb, “sales forecast” is a term of art in the distribution industry which “identifies the [p]roducts that the distributor is responsible for supplying and the specific quantity that the retailer expects to be stocked and sold in stores for that year.” (R.37, Response Br. at 4-5). After eight years of performance, Buck Bomb alleges, Maurice breached the ...


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