Xiamen Lota International Co., Ltd. v. Integrated Sales Solutions LLC et al

Filing 21

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 7/23/2013. Mailed notice by judge's staff. (srb,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
XIAMEN LOTA INTERNATIONAL
CO., LTD.,

)
)
)
Plaintiff,
)
)
v.
)
)
INTEGRATED SALES SOLUTIONS LLC, )
et al.,
)
)
Defendants.
)

No.

13 C 2778

MEMORANDUM ORDER
Integrated Sales Solutions LLC (“Integrated Sales”) has
filed an Answer, Affirmative Defenses (“ADs”) and Counterclaims
to the patent infringement Complaint brought against it and
codefendant Zoje Kitchen & Bath Co. Ltd. by Xiamen Lota
International Co., Ltd. (“Lota”).

Because that responsive

pleading is flawed in numerous respects, this memorandum order is
issued sua sponte (1) to strike the pleading in its entirety and
(2) to direct the filing of an appropriate pleading in its
stead.1
First, the entire group of disclaimers in the Answer that
track the language of Fed. R. Civ. P. (“Rule”) 8(b)(5)(Answer
¶¶3, 5, 8 and 14 through 18) conclude with the phrase “and
therefore denies the same.”

1

That is of course oxymoronic--how

No effort will be made here to rank the problematic
aspects of Integrated Sales’ pleading in their order of
importance. Instead they will be dealt with seriatim in the
sequence in which they appear in the pleading.

can a party that asserts (presumably in good faith) that it lacks
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)?
Accordingly the quoted phrase is stricken from each of those
paragraphs of the Answer.
Next, Answer ¶¶4 and 7 assert that Integrated Sales has no
obligation to respond to the Complaint’s jurisdictional and venue
allegations because they state “legal conclusions.”

That of

course is arrant nonsense--see App’x ¶2 to State Farm Mut. Auto.
Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001).

If

Integrated Sales has some predicate for questioning either
subject matter jurisdiction or venue (a possibility that would be
surprising, given what its counsel have alleged on its own behalf
in its contemporaneously filed Counterclaim ¶3), it has an
obligation to front those issues for threshold determination.
To turn to the ADs, they are problematic in a number of
respects (for starters, Integrated Sales’ counsel should read--if
not commit to memory--App’x ¶5 to State Farm).

Here are some

particulars:
1.

AD 1 asserts a lack of personal jurisdiction over

Integrated Sales.

If that is really a problem, that issue

ought to be broached at the outset--but having said that,
this Court notes that Integrated Sales’ Counterclaim has
itself invoked this Court’s jurisdiction (in addition to

2

which Counterclaim ¶3 asserts that venue for the
Counterclaims “is proper in this district, but would be more
convenient in the Northern District of Georgia.”

Integrated

Sales’ counsel cannot fairly do battle in this territory on
its claims while at the same time keeping a challenge to in
personam jurisdiction over Lota’s claims in its corporate
hip pocket.
2.

AD 2 is the legal equivalent of a Rule 12(b)(6)

motion, which must of course treat Lota’s allegations as
gospel for that purpose.

That being so, it can only be

assumed that defense counsel has not read Complaint ¶¶8
through 12.
3.

Accordingly AD 2 is stricken.

Federal pleading is regularly referred to as a

system of notice pleading, rather than the fact-pleading
practice that prevails in many state court systems.

But

properly thought of, notice pleading is a two-way street,
with a defendant obligated to apprise the plaintiff and the
Court of defendant’s contentions.

In that respect AD 3 is

really uninformative--if Integrated Sales has any specific
complaints about the validity of Lota’s ‘506 Patent, it must
flesh out AD 3 to apprise the reader of the claimed defect
or defects.

In the meantime AD 3 is stricken, but with

leave granted to replace what is said generically there with
the requisite particulars.

3

4.

AD 4 flies directly in the face of Complaint ¶9, so

it is impermissible as an AD.

Answer ¶9 has already denied

infringement, so AD 4 is stricken as well.
5.

AD 6 is an impermissible grab bag.

Once again, any

of the listed asserted flaws must be fleshed out
appropriately.

For the present, then, AD 6 is stricken,

again without prejudice to the possible advancement of the
objections stated there--but with appropriate support.
6.

AD 8 is wholly speculative (something readily

recognizable when a proposed AD is hedged by “to the
extent”).

It too is stricken, without prejudice to its

possible future assertion if discovery reveals a failure to
mark products embodying the claims of the ‘506 Patent.
Conclusion
As indicated at the outset, the flaws in the Answer and ADs
are too numerous to be cured by an amendment that would result in
a patchwork pleading.

Accordingly they are stricken in their

entirety (leaving the Counterclaims intact), and a self-contained
Amended Answer and Affirmative Defenses is ordered to be filed on
or before August 9, 2013.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

July 23, 2013

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