Acuity Optical Laboratories, LLC v. Davis Vision Inc

Filing 16

OPINION: The Motion to Strike Affirmative Defenses 10 is GRANTED IN PART and DENIED IN PART. The Court strikes Affirmative Defenses No. 1, 2, 4, 7, 11, and 12 without prejudice. If Respondent chooses to amend any of the affirmative defenses, Respondent shall do so on or before November 26, 2014. The Court sua sponte strikes Affirmative Defense No. 15 with prejudice. Entered by Judge Sue E. Myerscough on 11/13/2014. See Written Order. (ME, ilcd)

E-FILED

Thursday, 13 November, 2014 04:45:10 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
ACUITY OPTICAL
LABORATORIES, INC.,
Petitioner,
v.
DAVIS VISION, INC.,
Respondent.

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No. 14-3231

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on the Motion to Strike
Affirmative Defenses (d/e 10) filed by Petitioner Acuity Optical
Laboratories, Inc. The Motion is GRANTED IN PART and DENIED
IN PART. The Court strikes Affirmative Defenses No. 1, 2, 4, 7, 11,
and 12 without prejudice and with leave to amend. The Court sua
sponte strikes Affirmative Defense No. 15 with prejudice. The
Court does not strike Affirmative Defenses No. 5, 8, 9, 10, 13, and
14.

I. BACKGROUND
Petitioner manufactures ophthalmic goods, including digitally
manufactured freeform ophthalmic lenses. In July 2014,
Petitioner filed a Verified Petition for Preliminary Injunction,
Declaratory Judgment, Damages, and Permanent Injunctive Relief
against Respondent, Davis Vision, Inc., an administrator of vision
benefit plans.1 Petitioner alleges that Respondent’s requirement
that providers in its network send any eyeglass manufacturing
orders to an ophthalmic lens laboratory affiliated with Respondent
constitutes: the illegal restraint of trade in violation of Section 1 of
the Sherman Antitrust Act (Count 1); the illegal monopolizing of
trade in violation of Section 2 of the Sherman Antitrust Act (Count
2); the illegal tying agreements in violation of Sections 1 and 2 of
the Sherman Antitrust Act (Count 3); an agreed boycott in violation
of Section 3 of the Clayton Antitrust Act (Count 4); violations of the
Illinois Antitrust Act (Counts 5 through 8); violations of the Illinois
Insurance Code (Counts 9 and 10); and a tortious interference with
Petitioner’s prospective business advantage (Count 11). Petitioner
Although Petitioner seeks preliminary relief in the complaint, Petitioner has
not filed a Motion for Preliminary Injunction. See CDIL-LR 7.1 (providing the
rules for filing motions).
1

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alleges that the Court has subject matter jurisdiction over this
action by way of both federal question jurisdiction and diversity
jurisdiction. See Petition ¶ 17, citing 28 U.S.C. § 1331, 1332.
In September 2014, Respondent filed its Answer and
Affirmative Defenses (d/e 9). Respondent raises 15 affirmative
defenses. Petitioner has moved to strike Affirmative Defenses No.
1, 2, 4, 5, and 7 through 14.
II. LEGAL STANDARD
When a defendant responds to a pleading, the defendant
must affirmatively state any avoidance or affirmative defense.
Fed.R.Civ.P. 8(c).2 Rule 8(c)(1) lists several affirmative defenses,
including estoppel, laches, statute of limitations, and waiver.
Fed.R.Civ.P. 8(c)(1). However, the list is not exhaustive. See
Native Am. Arts, Inc. v. Waldron Corp., 254 F.Supp.2d 1041, 1045
(N.D. Ill. 2003); 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE

§ 1271 (3d ed. 2004).

In the Motion to Strike, Petitioner several times refers to an inability to
respond to the affirmative defense given the lack of information contained
therein. However, the Federal Rules do not provide for a response to
affirmative defenses. See Fed.R.Civ.P. 7(a); Williams v. Jader Fuel Co., 944
F.3d 1388, 1399 (7th Cir. 1991).
2

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Pursuant to Rule 12(f) of the Rules of Civil Procedure, the
Court may strike from a pleading “an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.”
Fed.R.Civ.P. 12(f). Motions to strike are generally disfavored
because such motions often only delay the proceedings. See Heller
Fin., Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th
Cir. 1989). However, if a motion to strike removes unnecessary
clutter from the case, then the motion serves to expedite, not
delay, the proceedings. Id.
Generally, a court will strike an affirmative defense only if the
defense is insufficient on its face. Heller, 883 F.2d at 1294 (also
providing that a court will ordinarily not strike an affirmative
defense if it is sufficient as a matter of law or presents questions of
law or fact). Because affirmative defenses are pleadings, they are
subject to the pleading requirements of the Federal Rules of Civil
Procedure and must set forth a “short and plain statement” of that
defense. Id., citing Fed.R.Civ.P. 8(a).
Although the Seventh Circuit has not addressed whether the
heightened pleading standard set forth in Bell Atl. Corp. v.
Twombly, 530 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662
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(2009) applies to affirmative defenses, several courts in this Circuit
have found that the heightened pleading standard does apply to
affirmative defenses. See Sarkis’ Café, Inc. v. Sarks in the Park,
LLC, --- F. Supp. 2d ---, No. 12 C 9686, 2014 WL 3018002, at *4
(N.D. Ill. July 3, 2014) (citing cases). These courts examine
whether the defendant states an “affirmative defense to relief that
is plausible on its face.” SEC v. Sachdeva, No. 10-C-747, 2011 WL
933967 at *1 (E.D. Wisc. Mar. 16, 2011). However, whether the
heightened pleading standard applies likely makes little difference.
Factual allegations that were sufficient before Twombly and Iqbal
will likely still be sufficient, and “bare bones” affirmative defenses
have always been insufficient. See Shield Techs. Corp. v. Paradigm
Positioning, LLC, No. 11 C 6183, 2012 WL 4120440 at *8 (N.D. Ill.
Sept. 19, 2012). In any event, if an affirmative defense is defective,
leave to amend should be freely granted as justice requires under
Federal Rule of Civil Procedure 15(a). See Heller, 883 F.2d at
1294.
III. ANALYSIS
Petitioner moves to strike Affirmative Defenses No. 1, 2, 4, 5,
and 7 through 14. Respondent asserts that the defenses are
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properly pleaded or were pleaded in an abundance of caution.
Respondent requests leave to amend any defenses the Court
strikes.
A.

The Court Strikes Affirmative Defense No. 1 as
Insufficiently Pleaded
Respondent’s Affirmative Defense No. 1 alleges that:
Plaintiff’s Complaint fails to state a claim upon which
relief can be granted.

Petitioner moves to strike this affirmative defense on the grounds
that it fails the federal pleading standard and does not give
Petitioner fair notice of the grounds upon which the defense rests.
Respondent recognizes that courts have not always agreed
whether “failure to state a claim upon which relief can be granted”
is a proper affirmative defense. Resp. p. 5 (d/e 11) (citing cases).
Respondent asserts that it included the defense in an abundance of
caution and because Respondent believes discovery will reveal that
Petitioner failed to state a claim upon which relief can be granted.
Respondent asks that if the Court determines that failure to state a
claim is not a proper defense, that Respondent be granted leave to
amend the defense in accordance with the Court’s directive.

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As Respondent notes, courts are divided on whether a party
may properly plead a failure to state a claim as an affirmative
defense. See Jackson v. Methodist Med. Ctr. of Ill., No. 06-1235,
2007 WL 128001, at *2 (C.D. Ill. Jan. 11, 2007) (collecting cases).
However, even those courts that allow the defense to be raised
require more than a “bare recitation of the legal standard.” Id.
In this case, Respondent has done no more than recite the
legal standard, which is insufficient. Therefore, the Court strikes
Affirmative Defense No. 1.
B.

The Court Strikes Affirmative Defenses No. 2 and No. 4
Because the Defenses are Not Affirmative Defenses
Petitioner moves to strike Affirmative Defense No. 2 and No. 4

which allege:
The City of Chicago is not a relevant geographic market
Davis Vision members are not a relevant market.
Petitioner essentially argues that Respondent does not give
Petitioner fair notice of the grounds upon which the defense rests.
In response, Respondent argues that Affirmative Defenses No.
2 and No. 4 assert matters that, if proved, would avoid some or all
liability.
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Affirmative Defenses No. 2 and No. 4 are not affirmative
defenses. A defense is an affirmative defense if the defendant
bears the burden of proof under state law or the defense does not
controvert the plaintiff’s proof. Winforge, Inc. v. Coachman Indus.,
Inc., 691 F.3d 856, 872 (7th Cir. 2012) (diversity case); see also
ADT Sec. Servs., Inc. v. Lisle-Woodridge Fire Prot. Dist., 973 F.
Supp.2d 842, 847 (N.D. Ill. 2014) (an appropriate affirmative
defense is one that accepts the allegations of the complaint as true
and then provides reasons why the defendant is not fully liable).
“Moreover, an affirmative defense cannot merely repeat a
defendant’s denial of the allegations contained in the complaint.”
Sarkis’ Café, Inc., --- F.Supp.2d ---, 2014 WL 3018002, at * 4
(federal question jurisdiction).
Petitioner bears the burden of proving the relevant market
under Sections 1 and 2 of the Sherman Act. See Omnicare, Inc. v.
UnitedHealth Group, Inc., 629 F.3d 697, 705 (7th Cir. 2011)
(setting forth the elements of a Section 1 claim under the Sherman
Act, including that, as a result of the defendant’s contract,
combination, or conspiracy, trade in the relevant market was
unreasonably restrained); United States v. Grinnell Corp., 384 U.S.
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563, 570 (1966) (setting forth the elements of a Section 2 claim
under the Sherman Act, including “the possession of monopoly
power in the relevant market”); Mullis v. Arco Petroleum Corp., 502
F.2d 290, 295 n. 14 (7th Cir. 1974) (“the burden of proof as to the
relevant market rests upon the claimant”), citing Acme Precision
Products, Inc. v. Am. Alloys Corp., 484 F.2d 1237, 1242 (8th Cir.
1973); see also A & A Disposal & Recycling, Inc. v. Browning-Ferris
Indust. of Ill., 279 Ill. App. 3d 337, 341 (1996) (holding, under
section 3 of the Illinois Antitrust Act, that the “plaintiff has the
burden of describing a well-defined relevant market, both
geographically and by product, which the defendant monopolized”).
Moreover, Affirmative Defenses No. 2 and No. 4 do not accept the
allegations of the complaint as true. Instead, Respondent denies
an element of Petitioner’s claim. Therefore, neither
Affirmative Defense No. 2 nor No. 4 are affirmative defenses.
Further, Respondent already put these matters at issue in its
Answer when Respondent denied that Chicago was the relevant
geographic market and that the Respondent members’ market for
ophthalmic lenses was the relevant product market. See Answer
¶¶ 20, 21, 28 (d/e 9). Therefore, the Court also strikes the
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defenses as redundant. See Sarkis’ Café, Inc., --- F.Supp.2d ---,
2014 WL 3018002, at * 4 (“an affirmative defense cannot merely
repeat a defendant’s denial of the allegations contained in the
complaint”).
C.

The Court Does Not Strike Affirmative Defense No. 5
Petitioner moves to strike Affirmative Defense No. 5, which

asserts:
Plaintiff’s claims fail for lack of antitrust standing in that
Plaintiff is not a buyer, user, competitor, or supplier of
the services Davis Vision sells.
Petitioner essentially argues that the defense does not give
Petitioner fair notice of the grounds upon which the defense rests.
Respondent argues that, while some federal courts have
found that standing is not an affirmative defense, others have
found that it is. See Resp. (d/e 11), citing Native Am. Arts, Inc. v.
Waldron Corp., 253 F.Supp.2d 1041, 1045 (N.D. Ill. 2003) (holding
that “[s]tanding is not an affirmative defense” and the defendant
did not waive the argument that the plaintiff lacked standing
under the Indian Arts and Crafts Act by failing to list lack of
standing as an affirmative defense); Green v. Monarch Recovery
Mgmt., Inc., No. 1:13-cv-00418, 2014 WL 4955268, at *4 (S.D. Ind.
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Oct. 1, 2004) (a defendant should challenge lack of standing by
way of a motion to dismiss); Achievement & Rehabilitation Ctrs.,
Inc. v. City of Lauderhill, No. 12-61628, 2012 WL 6061762, at *1
(S.D. Fla. Dec. 6, 2012) (finding no basis to strike affirmative
defense asserting a lack of standing); Guididas v. Cmty. Nat’l Bank
Corp., No. 8:11-cv-2545-T-30TBM, 2013 WL 230243, at *2 (M.D.
Fla. Jan. 22, 2013) (refusing to strike affirmative defense asserting
a lack of standing). Respondent asserts it erred on the side of
caution and included the defense. Respondent further notes that
some of Petitioner’s claims are Illinois state law claims and that
Illinois law would have required that standing be raised as an
affirmative defense.
The Court will not strike Affirmative Defense No. 5. Given the
varying views on whether standing must be raised as an
affirmative defense, Respondent’s cautious approach is
understandable. Moreover, Petitioner asserted that the Court had
subject matter jurisdiction over the case both under § 1331
(federal question jurisdiction) and under § 1332 (diversity
jurisdiction). See Petition ¶ 17. When a claim is founded on
diversity jurisdiction, the legal and factual sufficiency of the
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defense is determined under state law. Williams, 944 F.2d at 1400
(7th Cir. 1991); LaSalle Bank Nat’l Ass’n v. Paramount Props., 588
F.Supp.2d 840, 860 (N.D. Ill. 2008). “Under Illinois law, lack of
standing is an affirmative defense, which is the defendant’s burden
to plead and prove.” Lebron v. Gottlieb Mem’l Hosp., 237 Ill. 2d
217 252 (2010). Therefore, the Court will not strike Affirmative
Defense No. 5.
D.

The Court Strikes Affirmative Defenses No. 7 as
Redundant
Petitioner moves to strike Affirmative Defense No. 7, which

alleges:
Any alleged injury sustained by Plaintiff was not directly
or proximately caused by the conduct alleged in the
Complaint.
Petitioner argues that Respondent does not address how
Petitioner’s injuries were not proximately caused by Respondent or
which third parties and by what acts such third parties constitute
intervening or superseding causes.
Respondent argues that Affirmative Defense No. 7 asserts
matters that, if proved, would avoid some or all liability.
Respondent further claims that Affirmative Defense No. 7 put
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Petitioner and the Court on notice that the matters asserted
therein will be at issue throughout discovery and the summary
judgment stage of this litigation.
Petitioner has alleged that it, and others, have experienced
significant financial damages as a result of Respondent’s conduct.
Petition ¶ 80; see also Agnew v. Nat'l Collegiate Athletic Ass'n, 683
F.3d 328, 335 (7th Cir. 2012) (noting that a plaintiff bringing a
claim under § 1 of the Sherman act must prove: “(1) a contract,
combination, or conspiracy; (2) a resultant unreasonable restraint
of trade in [a] relevant market; and (3) an accompanying injury”).
Respondent has denied this allegation. Therefore,
Respondent has already put this matter at issue in its Answer.
Consequently, the Court strikes Affirmative Defense No. 7 defense
as redundant. See Sarkis’ Café, Inc., --- F.Supp.2d ---, 2014 WL
3018002, at * 4 (“an affirmative defense cannot merely repeat a
defendant’s denial of the allegations contained in the complaint”).
E.

The Court Does Not Strike Affirmative Defense No. 8
Petitioner next seeks to strike Affirmative Defense No. 8,

which provides that:

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Plaintiff’s claims are barred, in whole or in part, because
of its failure to mitigate any damages allegedly suffered.
Petitioner argues that Respondent has given no indication as
to what Petitioner should have done, or could have done, to
mitigate its damages. In response, Respondent asserts that, given
the fact that discovery has not yet begun, it would be unreasonable
expect Respondent to have detailed information about mitigation at
this early stage in the litigation.
The Court will not strike this affirmative defense at this time.
The facts supporting this claim are likely in the possession of
Petitioner, discovery has not yet begun, and the defense is likely
relevant to damages. See, e.g., Ivanov v. Nyhus, No. 14-cf-382-jdp,
2014 WL 5307936 at *3 (W.D. Wis. Oct. 16, 2014); Jackson, No.
06-1235, 2007 WL 128001, at *4 (noting that while some courts
hold that a conclusory “failure to mitigate” affirmative defense is
insufficient, others have held that the defense is sufficient, without
additional facts, if discovery has barely begun); Rao v. Covansys
Corp., No. 06 C 5451, 2007 WL 141892 at *2 (N.D. Ill. Jan. 17,
2007) (refusing to strike affirmative defense where failure to
mitigate was an affirmative defense under Illinois law, the duty to
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mitigate damages was applicable in a variety of situations, and
given the early stage of the litigation, the defendant pleaded the
affirmative defense with adequate specificity).
F.

The Court Does Not Strike Affirmative Defense No. 9
Petitioner moves to strike Affirmative Defense No. 9, which

alleges that “Plaintiff’s claims should be dismissed because any
action taken by or on behalf of Davis Vision was justified,
constituted bona fide business competition, and was taken in
pursuit of its own legitimate business and economic interests.”
Petitioner argues that the defense is not a recognized affirmative
defense and is not sufficiently pleaded.
In response, Respondent asserts that competition is an
affirmative defense to tortious interference claims, which Petitioner
has alleged as Count XI of its Petition. Respondent further asserts
that it has alleged that Respondent’s actions were justified and
that the actions constituted bona fide business competition, which
is sufficient to put Petitioner on notice of Respondent’s reliance on
the competition privilege.
The Court agrees with Respondent. Under Illinois law,
privileged competition is an affirmative defense to a tortious
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inference with prospective business advantage claim. Speakers of
Sport, Inc. v. ProServ, Inc., 178 F.3d 862, 865 (7th Cir. 1999)
(holding that competition “provides a defense (the ‘competitor’s
privilege’) to the tort of improper interference”); General Motors
Corp. v. State Motor Vehicle Review Bd., 224 Ill. 2d 1, 15 (2007)
(lawful or privileged competition is an “affirmative defense to the
tort of intentional interference with prospective business
advantage”). Moreover, Respondent has put Petitioner on notice of
its affirmative defense. Therefore, the Court will not strike
Affirmative Defense No. 9.
G.

The Court Does Not Strike Affirmative Defense No. 10
Petitioner also moves to strike Affirmative Defense No. 10,

which alleges:
Plaintiff’s claims should be rejected because the
damages alleged by Plaintiff resulted from the acts or
omissions of third parties over whom Respondent had
no control or responsibility. The acts of such third
parties constitutes intervening or superseding causes of
harm (if any) alleged [sic] suffered by Plaintiff.
Petitioner argues that this defense does not give Petitioner fair
notice of the grounds upon which the defense rests because

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Respondent fails to indicate the identity of the third parties or their
actions.
Respondent asserts that Affirmative Defense No. 10 asserts
matters that, if proved by Respondent, would avoid some or all of
its liability.
The Court finds that Respondent has sufficiently apprised
Petitioner of its defense, particularly in light of the stage of the
litigation. Therefore, the Court will not strike Affirmative Defense
No. 10.
H.

The Court Strikes Affirmative Defense No. 11 as
Redundant
Petitioner next argues that the Court should strike

Affirmative Defense No. 11, which alleges:
Plaintiff’s claims should be rejected because
Respondent’s actions did not lessen competition in any
relevant market.
Petitioner argues that Affirmative Defense No. 11 is not a
recognized affirmative defense and appears to be merely an
argument in support of Affirmative Defense No. 1. Petitioner also
argues that Affirmative Defense No. 11 does not give Petitioner fair
notice of the grounds upon which the defense rests.
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Respondent argues that Affirmative Defense No. 11 asserts
matters that, if proved, would avoid some or all liability.
Respondent also claims that the defense puts Petitioner and the
Court on notice that the matters asserted herein will be at issue
throughout discovery and the summary judgment stage of the
litigation.
Petitioner bears the burden of proving an unreasonable
restraint of trade in the relevant market. See Agnew, 683 F.3d at
335 (noting that the plaintiffs must prove a resultant unreasonable
restraint of trade in a relevant market under § 1 of the Sherman
Act and identifying the categories of analysis for determining
whether actions have anticompetitive effects). Moreover, Petitioner
has alleged anticompetitive effect, and Respondent has denied
those allegations. See, e.g., Petition and Answer ¶¶ 44, 79.
Therefore, Respondent already put these matters at issue in its
Answer when Respondent denied that Chicago was the relevant
geographic market and that Respondent members’ market for
ophthalmic lenses was the relevant product market. See Answer
¶¶ 20, 21, 28 (d/e 9). Consequently, the Court strikes the defense
as redundant. See Sarkis’ Café, Inc., --- F.Supp.2d ---, 2014 WL
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3018002, at * 4 (“an affirmative defense cannot merely repeat a
defendant’s denial of the allegations contained in the complaint”).
I.

The Court Strikes Affirmative Defense No. 12 as
Redundant
Petitioner moves to strike Affirmative Defense No. 12, which

alleges that “Plaintiff’s claims for injunctive relief should be
dismissed because Plaintiff does not have a substantial likelihood
of success and has available an adequate remedy at law.”
Petitioner argues that Affirmative Defense No. 12 is not a
recognized affirmative defense, the defense appears to be an
argument in support of Affirmative Defense No. 1, and the defense
does not provide Petitioner with fair notice of the grounds upon
which the defense rests.
In response, Respondent asserts that it included the defense
in an abundance of caution. Respondent requests leave to amend
the defense if the Court strikes Affirmative Defense No. 12.
Petitioner bears the burden of showing a substantial
likelihood of success and no adequate remedy at law in support of
the request for injunctive relief, and the Petition contains such
allegations. See Petition ¶ 133, 135. Respondent denied those
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allegations. Therefore, the Court strikes Affirmative Defense No.
12 as redundant. See Sarkis’ Café, Inc., --- F.Supp.2d ---, 2014
WL 3018002, at * 4 (“an affirmative defense cannot merely repeat a
defendant’s denial of the allegations contained in the complaint”).
J.

The Court Does Not Strike Affirmative Defense No. 13
Petitioner moves to strike Affirmative Defense No. 13, which

alleges:
Plaintiff has been aware of the terms of the relevant
Davis Vision network provider contracts for more than
four years before the date of the Complaint.
Accordingly, Plaintiff’s claims are barred by the statute
of limitations.
Petitioner argues that Respondent has not given Petitioner
fair notice of the grounds upon which this defense rests.
Respondent asserts that the statute of limitations affirmative
defense is based on knowledge and good faith belief at this stage of
the litigation that Petitioner has been aware of the terms of the
relevant contracts for more than four years and failed to take
action until now.
The Court agrees with Respondent that Respondent has
sufficiently pleaded this defense. Therefore, the Court will not
strike Affirmative Defense No. 13.
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K.

The Court Does Not Strike Affirmative Defense No. 14
Petitioner also moves to strike Affirmative Defense No. 14,

which alleges:
Plaintiff has been aware of the terms of relevant Davis
Vision network provider contracts for many years.
Accordingly, Plaintiff’s claims are barred, in whole or in
part, by the doctrine of laches, waiver, estoppel, unclean
hands, course of dealing, and/or ratification.
Petitioner argues that Respondent has not given Petitioner fair
notice of the grounds upon which the defenses rest. Petitioner also
argues that Respondent has pleaded six separate equitable
defenses within one paragraph but failed to “indicate how alleged
knowledge of said contracts exposes Petitioner to said equitable
defenses.” Motion, p. 8 (d/e 10).
In response, Respondent asserts its defenses are based on
knowledge and good faith belief at this stage of the litigation that
Petitioner has been aware of the terms of the relevant contracts for
more than four years and failed to take action until now.
Respondent also asserts that Respondent pleaded these defenses
in an abundance of caution and that the defense puts Petitioner on
notice of the matters Respondent intends to assert following
discovery.
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Generally, merely stringing a list of legal defenses together is
insufficient to satisfy Rule 8(a). Yash Raj Films (USA) Inc. v.
Atlantic Video, No. 03 C 7069, 2004 WL 1200184, at *3 (N.D. Ill.
May 28, 2004). However, Respondent has, in addition to stringing
a list of legal defenses together, also provided a short, plain
statement of the defenses. Respondent has sufficiently put
Petitioner on notice of these affirmative defenses. Therefore, the
Court will not strike Affirmative Defense No. 14.
L.

The Court Sua Sponte Strikes Affirmative Defense No. 15
Petitioner did not move to strike Affirmative Defense No. 15,

which alleges:
Davis Vision hereby gives notice that it intends to rely
upon such other and further defenses as may become
available or apparent during pre-trial proceedings in this
case and hereby reserves all rights to assert such
defenses.
Nonetheless, Respondent asserts that its intention in making this
assertion was to put Petitioner and the Court on notice that
Respondent believes discovery will result in additional affirmative
defenses that Respondent intends to raise at the appropriate time.
However, as Respondent recognizes, a defendant cannot
reserve the right to amend its pleadings and only the Court can
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grant leave to amend. Resp. p. 13-14 (d/e 11), citing Cent.
Laborers’ Pension, Welfare & Annuity Funds v. Parkland Envtl.
Group, Inc., No. 2011 WL 4381429, at *2 (C.D. Ill. Sept. 20, 2011)
(a party cannot reserve a right to amend its pleadings). Therefore,
the Court strikes Affirmative Defense No. 15. Respondent may file
a motion to amend if discovery reveals additional affirmative
defenses.
IV. CONCLUSION
For the reasons stated, the Motion to Strike Affirmative
Defenses (d/e 10) is GRANTED IN PART and DENIED IN PART.
The Court strikes Affirmative Defenses No. 1, 2, 4, 7, 11, and 12
without prejudice. If Respondent chooses to amend any of the
affirmative defenses, Respondent shall do so on or before
November 26, 2014. The Court sua sponte strikes Affirmative
Defense No. 15 with prejudice.
ENTER: November 13, 2014
FOR THE COURT:

s/Sue E Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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