US Foods, Inc. v. Scripps Networks Interactive, Inc. et al
Filing
78
MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 12/5/2013. Mailed notice by judge's staff. (srb,)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
US FOODS, INC.,
v.
SCRIPPS NETWORKS INTERACTIVE,
INC., et al., etc.,
Defendants.
)
)
)
)
)
)
)
)
)
No.
13 C 6279
MEMORANDUM OPINION AND ORDER
When counsel for the litigants appeared for the previously
set November 26 status hearing, this Court was aware that
defendants Scripps Networks Interactive, Inc. and Scripps
Networks, LLC (collectively “Scripps Networks”) had abandoned any
use of the trademark “Food Fanatics,” the alleged infringement of
which had been the gravamen of the Complaint brought against them
by US Foods, Inc. (“US Foods”).
Accordingly this Court had
anticipated the prospect that the controversy between the parties
had been resolved.
Although defense counsel orally expressed a
like mindset during the November 26 hearing, US Foods’ counsel
voiced a different view, so that the case was set over for a next
status hearing on January 10, 2014.
In the interim Scripps Networks have filed a lengthy Answer,
Affirmative Defenses (“ADs”) and Counterclaims in response to US
Foods’ Complaint.
Because their responsive pleading is
problematic in several respects (no view is expressed here as to
the Counterclaims, a subject that will be left for US Foods to
address), this memorandum opinion and order is issued sua sponte
to treat with some aspects of the Answer and ADs.
To begin with, Scripps Networks’ counsel have engaged in an
impermissible use of the disclaimer that is available under Fed.
R. Civ. P. (“Rule”) 8(b)(5) to excuse a party’s noncompliance
with the obligations imposed by Rule 8(b)(1)(B) where that is
appropriate.
Although the Answer tracks the language of Rule
8(b)(5) faithfully, it impermissibly follows each invocation of
that provision with the clause “and therefore deny this
allegation.”
That is of course oxymoronic--how 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)?
Hence the quoted phrase is stricken wherever it appears in
the Answer (although this Court’s review of the pleading may have
missed some instances of the improper usage, it has noted the
presence of the offending language in Answer ¶¶1, 2, 9, 11, 14
(and in its subparagraphs), 15, 16, 17, 18’s subparagraphs, 19,
22, 31 (in certain of its subparagraphs), 34, 35 and 36).
There
appears to be no need to file an amendment to the Answer (let
alone an Amended Answer) to cure the problem--striking the clause
will suffice.
Next, although this Court has admittedly not scoured the
Answer to find all the instances of still another flaw found
2
there, Answer ¶¶4 and 5 (for example) conclude in this fashion:
Defendants deny all remaining allegations in
paragraph--.
But the problem with that locution is that there don’t appear to
be any “remaining allegations” in those paragraphs, because the
admissions already contained in the Answer’s corresponding
paragraphs cover the entire waterfront.1
This problem is one
that defense counsel ought to review to see whether there are
other instances of such a meaningless denial--and if so, that
should serve as the basis for an amendment to the existing
Answer.
Next, Answer ¶¶6 and 7 reflect a mistaken view of the basic
concept of subject matter jurisdiction and mootness where a
defendant has abandoned conduct that allegedly infringes a
plaintiff’s intellectual property interests.
Caselaw has
sometimes applied mootness principles where a governmental agency
represents that it has ceased activity that violates a
plaintiff’s rights, but that is done on the premise that
government actors are to be trusted not to resume the offending
activity in the future.
Where as here Scripps Networks are
private litigants, a plaintiff such as US Foods is entitled to
seek and obtain injunctive relief against such a future
1
There is certainly no occasion to return to the era when
an excess of caution sometimes led to wearing both a belt and
suspenders.
3
resumption.2
Finally this Court turns to a few of Scripps Networks’ ADs
(most of which appear to pose no problems).
Here are ADs that
this Court views as problematic:
1.
AD 1 asserts claimed mootness, a subject already
It is stricken.3
dealt with in this opinion.
2.
AD 6 reflects an overexpansive view of “the
equitable doctrine of unclean hands.”
Although some other
label or labels may be suitable to describe possible issues
addressed in that paragraph, a rewrite is called for.
In summary, Scripps Networks’ counsel need to return to the
drawing board to deal with some of the flaws that have been
identified here.
Their amendment to the Answer and ADs to
address those matters is ordered to be filed on or before
December 19, 2013.
________________________________________
Milton I. Shadur
Senior United States District Judge
Date:
December 5, 2013
2
It should be emphasized that what has been said in the
text is not intended to express any substantive view on the
merits of the dispute between the parties.
3
As with Scripps Networks’ Counterclaims, no view is
expressed here as to the substantive merit or lack of merit in
the ADs not addressed in the ensuing text.
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?