Angelopoulos v. Keystone Orthopedic Specialists, S.C. et al

Filing 379

MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 5/19/2017. Mailed notice(cdh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DR. NICHOLAS ANGELOPOULOS,
Plaintiff,
v.
KEYSTONE ORTHOPEDIC
SPECIALISTS, S.C., WACHN, LLC,
and MARTIN R. HALL, M.D.,
Defendants.

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Case No. 12-cv-5836
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
Currently before the Court is Plaintiff’s motion in limine No. 6 [326, at 10] to bar
reference to Defendants’ affirmative defenses.

For the reasons set forth below, the Court

reserves ruling on Plaintiff’s motion in limine No. 6 [326, at 10] as to the affirmative defenses of
unclean hands and laches. However, Plaintiff’s motion No. 6 is denied as to the affirmative
defense of failure to mitigate.
I.

Discussion
Plaintiff moves to bar reference to Defendants’ three affirmative defenses of unclean

hands, laches, and mitigation. Defendants raised these affirmative defenses in their answer, but
they did so in a very cursory and conclusory manner.1 [232, at 35 (“Plaintiff is barred from
obtaining any recovery on his allegations on the basis of the doctrine of unclean hands. * * *
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The Court further notes that there is no reference to these affirmative defenses in the proposed final
pretrial order [316], which alone could be enough to bar Defendants from raising these affirmative
defenses at trial. See Strauch v. Am. Coll. of Surgeons, 2004 WL 524442, at *2–3 (N.D. Ill. Feb. 19,
2004) (granting plaintiff’s motion in limine to bar reference to affirmative defense where proposed final
pretrial order did not make any reference to the affirmative defense in setting out the issues to be resolved
at trial, noting that this omission would alone call for a ruling barring the attempted introduction of such
evidence, and also explaining that the proffered evidence was insufficient to support the affirmative
defense).

Plaintiff is barred from obtaining any recovery on his allegations on the basis of the doctrine of
laches. * * * Plaintiff is barred from obtaining any recovery on the basis that he failed to mitigate
his damages.”).] A motion to strike the affirmative defenses would have been appropriate. See
Top Tobacco, L.P. v. Good Times USA, LLC, 2017 WL 395698, at *2 (N.D. Ill. Jan. 30, 2017)
(explaining that “affirmative defenses are pleadings and, as such, remain subject to the pleading
requirements of the Federal Rules of Civil Procedure” and that “[a] pleading that offers labels
and conclusions or a formulaic recitation of the elements” will not do (citation and internal
quotation marks omitted)). However, Plaintiff did not file a motion to strike the affirmative
defenses.
Nevertheless, the Court may rule on whether or not an affirmative defense is available to
a defendant in ruling on a motion in limine. See United States v. Tokash, 282 F.3d 962, 967 (7th
Cir. 2002). Where a court rules on the availability of an affirmative defense in a motion in
limine, the court must accept as true the evidence proffered by the defendants. Id.; see also
United States v. Santiago-Godinez, 12 F.3d 722, 727 (7th Cir. 1993). However, “where the
evidence proffered in response to the motion in limine is insufficient as a matter of law to
support the affirmative defense a pre-trial ruling precluding the presentation of the defense is
appropriate.” Id. Before he can present his affirmative defense to a jury, the defendant must
meet the minimum standard as to each element of the defense so that if a jury finds it to be true,
it would support the defense. Id. In doing so, the defendant must present “more than a scintilla
of evidence” that demonstrates that he can satisfy the legal requirements for asserting the
proposed defense.” Id. (quoting United States v. Blassingame, 197 F.3d 271, 279 (7th Cir.
1999)).

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As an initial matter, the affirmative defenses of unclean hands and laches are equitable in
nature, and thus cannot be applied to bar claims for damages. Petrella v. Metro-Goldwyn-Mayer,
Inc., 134 S. Ct. 1962, 1973-74 (2014) (holding that “laches cannot be invoked to bar legal relief”
and observing that “the dissent has come up with no case in which this Court has approved the
application of laches to bar a claim for damages brought within the time allowed by a federal
statute of limitations”); Scheiber v. Dolby Laboratories, Inc., 293 F.3d 1014, 1021 (7th Cir.
2002) (explaining that the doctrine of unclean hands “nowadays just means that equitable relief
will be refused if it would give the plaintiff a wrongful gain”). Any requests for equitable relief
in this case will be addressed to the Court after the jury phase of the trial is complete.
Accordingly, the Court reserves ruling on the motion insofar as it seeks to bar the equitable
affirmative defenses of unclean hands and laches.
The affirmative defense of failure to mitigate damages, however, is different. “Failure to
mitigate is an affirmative defense that must be proven by the defendant and decided by a jury.”
Tomao v. Abbott Laboratories, Inc., 2007 WL 141909, at *3 (N.D. Ill. Jan. 16, 2007) (citing
Sheehan v. Donlen Corp., 173 F.3d 1039, 1048-49 (7th Cir. 1999)). “Illinois law imposes a
general duty upon parties suffering a breach of contract or tort to make a reasonable effort to
mitigate avoidable damages.” Alper v. Altheimer & Gray, 2002 WL 31133287, at *42 (N.D. Ill.
Sept. 26, 2002). Here, Defendants assert that Plaintiff failed to seek input or assistance from
Defendants to resolve the 1099-MISC issue and that Plaintiff continued to practice at Keystone
for four years and thus “failed to cut off any of his supposed losses.” Accepting these allegations
as true, as the Court must as this juncture because Plaintiff did not move to strike on Rule 8
grounds, the Court cannot say that a fully developed failure to mitigate defense could not
succeed as a matter of law. It will be incumbent on Defendants, of course, to produce sufficient

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evidence at trial to justify presenting the issue to the jury for its determination. In denying
Plaintiff’s motion in limine as to the affirmative defense of failure to mitigate, the Court keeps
open the question of whether that defense can survive a Rule 50 motion at the close of the
evidence.
II.

Conclusion
For the foregoing reasons, the Court reserves ruling on Plaintiff’s motion in limine No. 6

[326, at 10] as to the affirmative defenses of unclean hands and laches. However, Plaintiff’s
motion No. 6 is denied as to the affirmative defense of failure to mitigate.

Dated: May 19, 2017
____________________________
Robert M. Dow, Jr.
United States District Judge

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