Denial by Spelling Error: "Argument Only a Patent Lawyer Could Love"

Posted on April 17, 2008 by R. David Donoghue

Biopolymer Eng'ing, Inc. v. Biorigin, No. O7 C 4234, 2008 WL 927984 (N.D. Ill. Apr. 4, 2008) (Shadur, J.).

Judge Shadur, on the Court's own motion, struck the portions of defendant Biorigin's Answer that denied plaintiff's claims because plaintiff misspelled Biorigin – spelling it “Biorgin” instead of “Biorigin.” The Court noted that a denial based upon misspelling was an argument “only a patent lawyer could love.” And the Court explained that, despite plaintiff's misspelling, Biorigin understood that it was the intended target of plaintiff's complaint.

The Court also struck Biorigin's lack of personal jurisdiction, insufficient service and insufficient process affirmative defenses. The Court held that by filing a counterclaim, Biorigin affirmatively invoked the Court's jurisdiction, forfeiting these affirmative defenses.

As to Biorigin's lack of standing affirmative defense, the Court noted that it was pled on information and belief and required that Biorigin, should it find facts to support its defense, file a motion with such facts as quickly as possible because standing should be addressed as early as possible.

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Court to Counsel: Do Not Hide Behind FRCP 8(b) Denials

Posted on May 25, 2007 by R. David Donoghue

Playboy Enters. Int'l., Inc. v. 3E Trading, LLC, No. 07 C 1111, Slip Op. (N.D. Ill. Apr. 30, 2007) (Shadur, J.).*

Judge Shadur struck defendant's answer sua sponte, with leave to file an amended answer.  Plaintiff Playboy Enterprises International ("Playboy") alleged in its Complaint that the parties entered a series of agreements (the "Agreements") pursuant to which defendant 3E Trading ("3E") was licensed to use various Playboy trademarks in connection with the sale of specifically defined categories of products -- for example money clips, lamps, glassware and bar accessories.  But Playboy contended that 3E continued selling the previously licensed products after the Agreements expired.  3E answered the Complaint (here is a copy of the Answer), as many defendants do, with numerous blanket denials and Fed. R. Civ. P 8(b) statements that 3E lacked sufficient knowledge or information to admit or deny the allegations.  The Court identified numerous paragraphs that it did not believe could be denied for lack of information with the good faith required by Fed. R. Civ. P. 11(b).  For example, the Court held that 3E must have had some knowledge by virtue of its entry into the Agreements as to at least some of the statements made in paragraphs 6 and 7 identifying certain marks allegedly owned by Playboy and the fact that the marks were valuable.  The Court did not identify all of the deficiencies it found, but warned that answers such as this one "tend to defeat the entire purpose of notice pleading."  The Court required, as noted above, that 3E amend its answer and required that 3E's counsel:  1) not charge 3E for amending the Answer; and 2) copy the Court on a letter to 3E explaining that they will not be charged for the amended Answer.

This may not be a stiff penalty, but it is both exceedingly rare and embarrassing for counsel.  It presents an important practice tip:  answer complaints thoroughly, parsing your admissions and denials with extreme care.  While you must be careful not to admit things improperly, it is also risky to make blanket denials regarding facts that should be in your possession.

*Because this opinion is not on Westlaw yet, you can read a copy here.

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