Simonian v. Merck & Co., Inc. et al

Filing 41

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 7/16/2010:Mailed notice(srn, )

Simonian v. Merck & Co., Inc. et al

Doc. 41

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION THOMAS A. SIMONIAN, Plaintiff, v. MERCK & CO., INC., et al., Defendants. ) ) ) ) ) ) ) ) )

No.

10 C 1297

MEMORANDUM ORDER Defendants Merck & Co., Inc. and Schering-Plough Healthcare Products Incorporated have filed their joint Answer, including some affirmative defenses ("ADs"), to the First Amended Complaint ("FAC") brought against them by Thomas Simonian ("Simonian") for asserted false patent marking under 35 U.S.C. §292. This

memorandum order is issued sua sponte because of some problematic aspects of that responsive pleading. To begin with, Answer ¶4 follows an appropriate invocation of the disclaimer formula prescribed by Fed. R. Civ. P. ("Rule") 8(b)(5) by stating "and on that basis Defendants deny those allegations, leaving Relator to its proofs." That is of course

oxymoronic--how can parties that assert (presumably in good faith) that they lack even enough information to form a belief as to the truth of an allegation then proceed to deny it in accordance with Rule 11(b)? stricken from Answer ¶4. That minor item would not of itself have occasioned the Accordingly the quoted phrase is

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issuance of this memorandum order, but the flawed nature of several purported ADs also calls for their correction. are: 1. Both AD 1 and AD 2 are at odds with the fundamental Here they

nature of an AD as prescribed by Rule 8(c) and the caselaw applying it--and see App'x ¶5 to State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 279 (N.D. Ill. 2001). those ADs expressly contradict FAC ¶17, and they are therefore stricken.1 2. That is equally true of AD 3, which expressly AD 3 is also stricken. Both of

contradicts FAC ¶7. 3.

AD 4 is framed as the equivalent of a Rule 12(b)(6)

motion, but it merely expresses a conclusion without any stated support. It too is stricken, but this time without

prejudice to the prompt submission of a properly supported motion, failing which that contention will be deemed to have been forfeited.

________________________________________ Milton I. Shadur Senior United States District Judge Date: July 16, 2010

Defendants lose nothing by that action, for they have already placed Simonian's allegations in issue by their Answer ¶17 denial. 2

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