Advanced Tactical Ordnance Systems LLC v. Real Action Paintball Inc et al

Filing 93

OPINION AND ORDER GRANTING Pla leave to file another amended complaint instanter deleting the the sentence in paragraph 10. Pla's 86 Motion to Strike this reference is therefore deemed MOOT. Signed by Magistrate Judge Roger B Cosbey on 10/31/2012. (lns)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ADVANCED TACTICAL ORDNANCE
SYSTEMS, LLC, an Indiana Limited
Liability Company d/b/a PepperBall
Technologies,
Plaintiff,
vs.
REAL ACTION PAINTBALL, INC., a
California Corporation, APON INDUSTRIES
CORP., a California Corporation, APON
INTERNATIONAL GROUP, INC., a
California Corporation, K.T. TRAN,
individually, CONRAD SUN, individually,
and JOHN DOES 1-5,
Defendants.

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Cause No. 1:12-CV-296

OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion to Strike an Erroneous Legal
Conclusion from the Amended Complaint. (Docket # 86.) On October 31, 2012, a hearing was
held on the motion. (Docket # 92.) Argument was heard and concluded.
Because the Court concluded that the statement in rhetorical paragraph 10 of the
Amended Complaint (Docket # 76) (“Further there is no district in which all of the Defendants
are subject to a district court’s jurisdiction.”) amounts to a legal conclusion, it therefore does not
constitute a binding judicial admission. See Eli Lilly & Co. v. Valeant Pharm. Int’l, No. 1:08-cv01720-TWP-TAB, 2011 WL 573761, at *3 (S.D. Ind. Feb. 15, 2011) (“Judicial admissions apply
only to admission of fact, not to theories of law . . . .”); Sulkoff v. United States, No. IP 01-1341C-T/L, 2003 WL 1903349, at *5 (S.D. Ind. Jan. 29, 2003) (“Factual admissions can be binding
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as judicial admissions; admissions of legal conclusions cannot.”); Dabertin v. HCR Manor Care,
Inc., 68 F. Supp. 2d 998, 1000 (N.D. Ill. 1999) (“Counsel’s legal conclusions . . . are not binding
as judicial admissions.”). Accordingly, since the statement is not binding, and because no
meaningful prejudice will result to any party if it is removed, the Court GRANTS Plaintiff leave
to file another amended complaint instanter deleting the following sentence in paragraph 10:
“Further there is no district in which all of the Defendants are subject to a district court’s
jurisdiction.” Plaintiff’s motion to strike this reference (Docket # 86) is therefore deemed
MOOT.
SO ORDERED.
Enter for this 31st day of October, 2012.
S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge

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