Argentum Medical, LLC et al v. Fuchs et al

Filing 44

WRITTEN Opinion entered by the Honorable Sharon Johnson Coleman on 9/28/2012: In summary, Rockey, Depke's 12(b)(7) motion is denied without prejudice. Rockey, Depke's 12(b)(6) motion regarding the failure to assert limitations defenses is denied. Rockey, Depke's 12(b)(6) motion regarding the failure to assert an advice of counsel defense in converted to a Rule 56 motion for summary judgment. Argentum is directed to file a transcript of the February 10, 2011 proceeding described above in a form sufficiently complete to establish the extent of the presentation of the advice of counsel issue, along with any other evidentiary material relevant to that issue, by October 5, 2012. Following that submission, the court will advise the parties of the any further briefing requirements and deadlines by minute order.Mailed notice(rth, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Sharon J. Coleman

CASE NUMBER

11 C 8594

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

9/28/2012

Argentum Medical, LLC, et al. Vs. Fuchs, et al

DOCKET ENTRY TEXT

In summary, Rockey, Depke's 12(b)(7) motion is denied without prejudice. Rockey, Depke's 12(b)(6)
motion regarding the failure to assert limitations defenses is denied. Rockey, Depke’s 12(b)(6) motion
regarding the failure to assert an advice of counsel defense in converted to a Rule 56 motion for summary
judgment. Argentum is directed to file a transcript of the February 10, 2011 proceeding described above in a
form sufficiently complete to establish the extent of the presentation of the advice of counsel issue, along
with any other evidentiary material relevant to that issue, by October 5, 2012. Following that submission, the
court will advise the parties of the any further briefing requirements and deadlines by minute order.
O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
Plaintiffs Argentum Medical, Thomas Miller and Gregg Silver [collectively, "Argentum"] claim that
they suffered an adverse jury verdict as the result of the professional negligence of defendants Rockey,
Depke & Lyons and Joseph Fuchs [collectively, "Rockey, Depke"], their former attorneys. Defendants
seek dismissal of plaintiffs’ claims. Their motion is denied in part and in part converted to a Rule 56
summary judgment motion.
1. Rockey, Depke moved for dismissal for failure to join Argentum’s additional counsel as
indispensable parties and for failure to state a claim for relief. As a result of Argentum's attempts to
resolve its claims against one of its former firms and its motion for leave to add the other to this action,
Rockey, Depke has not continued to assert indispensable party grounds for dismissal under Rule
12(b)(7). [Docket #34, page 1.] To the extent that its motion seeks dismissal of Argentum's entire claim
under Rule 12(b)(7), that motion is denied without prejudice to Rockey, Depke's right to reassert these
grounds following further developments with Argentum's other counsel.
Rockey, Depke also argues that certain of Argentum's allegations fail to state a claim for relief. The
initial subject of Rockey, Depke's argument is Argentum's allegation that the firm failed to assert the
statute of limitations as an affirmative defense in Argentum's suit against Noble Biomaterials.
Argentum's complaint describes Noble’s claim as a claim for “defamation/libel,” [Complaint, Docket
#1, par. 36], alleges that Noble’s claim was filed in November 2008, and that it was based on events
occurring in or before April 2007. It further alleges that Rockey, Depke failed to assert as a defense the
defamation/libel limitation period of one year, and that assertion of this defense would have defeated
Noble's claims. Rockey, Depke contends that Noble’s judgment against plaintiffs was entered on claims
that were not defamation or libel: violations of the Lanham Act, and state causes of action for product
disparagement and unfair competition. The firm argues that the inaccuracy of the characterization of
11C8594 Argentum Medical, LLC, et al. Vs. Fuchs, et al

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STATEMENT
Noble’s claims makes Argentum's complaint insufficient to state a cause of action.
The court finds that, despite Argentum's inaccurate labeling of Noble’s claims, its complaint advises
Rockey, Depke of the action that it must defend: that the applicable statute of limitations for Noble’s
claims had expired, and that the assertion of this fact as an affirmative defense would have prevented
the verdicts and judgments against Argentum. These allegations inform Rockey, Depke that it will be
obliged to contest the applicable statute of limitations and the accrual of Noble’s causes of action on
each of the claims that resulted in judgments against Argentum. The court also finds that this assertion
and plaintiffs’ allegation that Noble’s cause of action accrued on or before April 2007 state claims for
recovery that are more than merely speculative. The court concludes that Argentum’s allegations of
negligent failure to assert limitations defenses state a sufficient claim for relief. Rockey, Depke's
motion to dismiss these claims is therefore denied.
The second subject of Rockey, Depke's Rule 12(b)(6) motion is the claim that the firm was negligent in
failing to assert as an affirmative defense the fact that Argentum's actions against Noble were the
result of good faith reliance upon advice of counsel. Argentum cites no authority for the proposition
that advice of counsel is construed to be a mandatory affirmative defense that is waived if not asserted
in an initial response to a claim, and courts in other districts have held that presentation of the advice
of counsel issue is not waived if not included in the answer. Brown v. Tuscano, 630 F. Supp. 2d 1342,
1350 (S.D. Fla. 2008); LG Philips LCD Co. v. Tatung Co., 243 F.R.D. 133, 137 (D. Del. 2007).
The court further notes that in a partial transcript of the Argentum-Noble proceeding, the presiding
judge appears to begin to instruct the jury on the advice of counsel principle. This instruction suggests
that the issue was not waived and was in fact raised on Argentum’s behalf. [Transcript of February 10,
2011 proceeding, Docket #29, p. 18] Since that partial transcript is a document outside the original
pleadings, Rule 12(d) dictates that Argentum be provided with an opportunity to provide further
evidence regarding its significance in accordance with Rule 56 procedure.
In summary, Rockey, Depke's 12(b)(7) motion is denied without prejudice. Rockey, Depke's 12(b)(6)
motion regarding the failure to assert limitations defenses is denied. Rockey, Depke’s 12(b)(6) motion
regarding the failure to assert an advice of counsel defense in converted to a Rule 56 motion for
summary judgment. Argentum is directed to file a transcript of the February 10, 2011 proceeding
described above in a form sufficiently complete to establish the extent of the presentation of the advice
of counsel issue, along with any other evidentiary material relevant to that issue, by October 5, 2012.
Following that submission, the court will advise the parties of the any further briefing requirements
and deadlines by minute order.

11C8594 Argentum Medical, LLC, et al. Vs. Fuchs, et al

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