Wastequip Manufacturing Company, LLC v. Precision Sewing, Inc. et al

Filing 24

ENTER MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 2/13/2014. Mailed notice by judge's staff. (srb,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WASTEQUIP MANUFACTURING
COMPANY, LLC,
Plaintiff,
v.
PRECISION SEWING, INC., dba
PRECISION TARP, PRECISION TARP,
INC., SISOMBATH PHILAVONG, and
MAY PHILAVONG,
Defendants.

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Case No. 13 C 8726

MEMORANDUM ORDER
It is difficult to imagine a more straightforward formulation than is provided by
Fed. R. Civ. P. ("Rule") 8(b)(5) for a defendant that, unable to comply properly with
Rule 8(b)(1)(B) as to a plaintiff's allegation, can qualify for the Rule 8(b)(5)-specified disclaimer
of that allegation. Yet an astonishingly large number of lawyers, whether impelled by a desire to
be inventive or for some other reason, depart from that plain roadmap by employing locutions
that do not comply with the Rule 8(b)(5) conditions -- in that respect, see App'x ¶ 1 to State Farm
Mutual Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 279 (N.D. Ill. 2001).
Now counsel for defendants in this patent infringement case have joined that
nonexclusive club, for their Answer ¶¶ 1, 12, 13, 19 and 20 stray from the yellow brick road so
plainly marked out by Rule 8(b)(5). It must be said that defense counsel's locution comes a good
deal closer than most aberrations from the Rule's formulation, but there seems to be no good
reason to leave any doubts open on that score when any such doubts can be so easily eliminated.
Accordingly this Court strikes the disclaimers in those paragraphs of the Answer, with leave

granted to defense counsel to substitute a Rule-conforming version of each by filing an
amendment to the Answer on or before February 24, 2014. Although this Court most frequently
requires a complete do-over of an answer in such situations, thus avoiding the need to flip from
one pleading to another to see just what is and what is not in issue between the parties, it sees no
reason here to impose that added burden on defense counsel.
Another of the common errors of defense counsel dealt with in the State Farm Appendix
is identified in its Paragraph 5, which addresses the frequently encountered misuse or abuse of
the concept of affirmative defenses ("ADs") as contemplated by Rule 8(c) and the caselaw
construing and applying that Rule. In this instance defendants' AD 1 is unexceptionable, for it
asserts the claimed invalidity of the patent sued upon in the Complaint -- a subject as to which
none of the Complaint's allegations are framed in a fashion so that their simple denial would
make such an AD superfluous. By contrast, AD 2 is directly contradictory to the allegations in
Complaint ¶¶ 14, 15, 17, 18 and 20. Hence, as called for by the State Farm Appendix, AD 2 is
stricken without leave to replead.

__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: February 13, 2014

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