Hornady Manufacturing Company v. Heizer Firearms, LLC et al

Filing 54

MEMORANDUM AND ORDER denying 44 Motion to Strike counterclaim. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HORNADY MANUFACTURING
COMPANY, a Nebraska Corporation;
4:12CV3117
Plaintiff,
vs.

MEMORANDUM AND ORDER

HEIZER FIREARMS, LLC, a Missouri
limited liability company; and CENTRAL
HOLDING CORP., a Missouri corporation;
Defendants.
Pending before me is the plaintiff's motion to strike, (Filing No. 44), the
defendants' counterclaim. (Filing No. 39). The plaintiff argues the counterclaim must be
stricken because if was filed without leave of the court, and because there is no factual or
legal basis for the defendants' claims. For the reasons described below, the motion to
strike will be denied.

The court’s progression order set a November 9, 2012 deadline for moving to
amend pleadings. Instead of moving to amend, the defendants filed a counterclaim
without leave of court on November 9, 2012. (Filing No. 39). The counterclaim restates
the allegations of defendant’s previously pleaded affirmative defenses, but seeks as
affirmative relief: (i) a declaratory judgment of noninfringement; and (ii) cancellation of
the plaintiff’s trademark registrations. Over a month after the counterclaim was filed, the
plaintiff requested additional time “to file its Answer to the Defendants’ Counterclaim.”
(Filing No. 41). But instead of an Answer, the plaintiff filed a motion to strike the
counterclaim in its entirety. (Filing No. 44).

The defendant filed the counterclaim on the deadline for moving to amend
pleadings.

And by filing a motion to strike, the plaintiff has asserted the same

substantive arguments it would have raised had the defendant moved to file the

counterclaim instead. Thus the plaintiff received timely notice of the allegations within
the defendant’s counterclaim and an opportunity to be heard regarding the filing of those
claims. Under such circumstances, summarily striking the counterclaim for procedural
reasons would elevate form over substance.

The plaintiff’s motion to strike the

counterclaim for failure to obtain prior leave of the court will be denied.

The plaintiff further moves to strike the counterclaim as substantively and
factually baseless in violation of Rule 11. The plaintiff argues:
There can be no doubt that Heizer filed its Counterclaim in violation of
Rule 11(b). Its counterclaim for cancellation of Hornady’s TAP Marks is
not warranted by existing law nor supported by any factual evidence or
allegations. Heizer does not and cannot provide evidentiary support for its
conclusory contentions.
(Filing No. 45, at CM/ECF p. 9).

Rule 11 of the Federal Rules of Civil Procedure provides a mechanism whereby
the court may sanction a party or attorney for, among other reasons, asserting “claims . . .
and other legal contentions” unwarranted by “existing law” and raising factual allegations
without evidentiary support. Fed. R. Civ. P. 11(b)(1) & (2). “If the Court finds that
plaintiffs have filed frivolous pleadings or pleadings that are ‘legally unreasonable, or
without factual foundation,’ then sanctions should be imposed.” Nichols v. Firestone Tire
& Rubber Co., 127 F.R.D. 525 (D. Neb. 1989)(internal citations omitted).

After reviewing the arguments and cases cited in the parties’ briefs, the court is
not convinced the defendant is pursuing a “legally unreasonable” theory of recovery.
Although the plaintiff states there is no legal basis for defendant’s counterclaim, it is
actually asserting there are insufficient facts to support the defendant’s legal arguments
and thus counterclaim is “factually unsupported.” Such fact-specific arguments are more

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properly raised as a motion to dismiss or a motion for summary judgment, not as a
motion to strike a pleading. If the plaintiff later files and prevails on a motion to dismiss
the counterclaim or on a motion for summary judgment, and the plaintiff can show the
counterclaim was frivolous, the plaintiff may request sanctions. However, at this stage of
the case, the plaintiff’s motion to strike the counterclaim as filed in violation of Rule 11
is denied.

Accordingly,

IT IS ORDERED:

1)

The plaintiff's motion to strike (Filing No. 44) is denied.

2)

The defendant’s counterclaim (Filing No. 39) is deemed properly and
timely filed.

3)

On or before February 1, 2013, the plaintiff shall file its answer or response
to the defendant’s counterclaim.

January 18, 2013
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites.
The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a
hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.

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