Motion to Dismiss

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Malibu Media, LLC v. Doe, No. 13 C 3648, Slip Op. (N.D. Ill. Jun. 9, 2014) (Kennelly, J.).

Judge Kennelly granted in part plaintiff Malibu Media’s motion to dismiss Doe defendant’s counterclaim and certain of its nineteen affirmative defenses in this BitTorrent copyright infringement case.

 Doe’s counterclaim was not appropriate because it sought no …

Snap-On Inc. v. Robert Bosch, LLC, No. 09 C 06914, Slip Op. (N.D. Ill. Sept. 26, 2013) (Kocoras, J.).

Judge Kocoras denied defendant Beissbarth’s Fed. R. Civ. P. 12(b)(2) motion to dismiss for lack of personal jurisdiction in this patent infringement case involving patents relating to an optical wheel alignment system.  Plaintiff asserted jurisdiction …

Albecker v. Contour Prods., Inc., No. 09 C 00631, Slip Op. (N.D. Ill. Sept. 27, 2013) (Chang, J.).

Judge Chang decided the parties’ respective Fed. R. Civ. P. 60(b) motions for reconsideration: (1) plaintiff’s motion for reconsideration of the Court’s previous claim construction order; and (2) defendant’s motion for reconsideration of the Court’s previous …

S&A Futures, LLC — Series 2 v. Sysco Chicago, Inc., No. 11 C 7629, Slip Op. (N.D. Ill. Mar. 13, 2012) (Kennelly, J.).

 Judge Kennelly granted in part defendants’ (collectively “L&P”) motions to dismiss the plaintiffs’ claims in this Lanham Act case in this dispute regarding trademarked bratwurst:

  •  The Court denied L&P’s motion seeking

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SCI Ill. Servs., Inc. v. Mitzvah Memorial Funerals, Inc., No. 10 C 6111, Slip Op. (N.D. Ill. Apr. 27, 2011) (Holderman, C.J.).
Judge Holderman denied defendants’ Fed. R. Civ. P. 12(b)(6) motion to dismiss plaintiff’s Lanham Act false designation of original claim in this trademark dispute involving funeral home trademarks – Lloyd Mandel Levayah Funerals (plaintiff) and Lloyd Mandel Mitzvah Memorial Funerals (defendant). Plaintiff properly pled that it had a protectable mark and that there was a likelihood of confusion as to defendants’ funeral services. The Court could not find the marks so dissimilar that plaintiff could not demonstrate a likelihood of confusion between the marks as a matter of law. The Court refused to consider defendants’ motion as to other claims because defendant did not argue or support its motion as to the other claims in its briefing.
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Continue Reading Funeral Home False Designation of Origin Case Survives

Trading Techs., Intl., Inc. v. BGC Partners, Inc., No. 10 C 715, Slip Op. (N.D. Ill. Aug. 17, 2010) (Kendall, J.).
Judge Kendall denied defendant BGC Partners’ (“BGC”) motion to dismiss as moot because of plaintiff Trading Technologies’ (“TT’s”) subsequently filed amended complaint. Courts routinely deny without prejudice motions to dismiss when an amended complaint is filed, but this case was unique because TT opposed dismissal. TT argued that BGC’s improper service argument should be dismissed with prejudice and the remaining arguments should be heard to avoid delay because TT continued asserting similar claims in the amended complaint. The service arguments were, however, moot because BGC did not make the service arguments in response to the amended complaint.
The Court also denied the motion to dismiss without prejudice as to the remaining arguments. While the claims may have remained factually similar, BGC’s arguments went to jurisdiction, not the sufficiency of the facts. Furthermore, the amended complaint added several new defendants. BGC and the other defendants would have been prejudiced if they were not given the opportunity to review the amended complaint and to collectively decide how to address any jurisdiction or venue issues.
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Continue Reading Motion to Dismiss Denied as Moot Over Plaintiff’s Objection

Simonian v. Merck & Co., Inc., No. 10 C 1297, Slip Op. (N.D. Ill. Jul. 16, 2010) (Shadur, Sen. J.).
Judge Shadur sua sponte struck portions of defendants’ answer to plaintiff’s false patent marking case. First, the Court struck denials that followed defendants’ statements that they lacked information and belief. While a lack of information and belief acts as a denial, denying allegations as to which you cannot form a belief is “oxymoronic.”
Second, the Court struck defendants’ improper affirmative defenses. Several of defendants’ affirmative defenses were improper because they had already been brought into issue by denying allegations in the complaint. The Court also struck defendants’ Fed. R. Civ. P. 12(b)(6) affirmative defense with leave to promptly file a “properly supported” motion to dismiss.
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Continue Reading Court Sua Sponte Dismissed Affirmative Defense

UTStarcom, Inc. v. Starent Networks, Corp., No. 07 C 2582, Slip Op. (N.D. Ill. Jan. 22, 2009) (Bobrick, Ret. J. & Special Master).
Special Master Bobrick, a retired judge, denied defendant Starent’s motion to dismiss plaintiff UTSI’s trade secret misappropriation claim for repeatedly deficient interrogatory responses related to the claim. Over the course of a year, UTSI served six responses to the interrogatories at issue based upon various requests by Starent and orders by the Special Master. After the sixth set of responses, Starent agreed that the answers were sufficient. Starent, however, requested dismissal of the claim based upon UTStarcom’s repeated failure to provide a substantive answer. UTStarcom responded that dismissal was a drastic remedy that was not warranted because had provided substantive answers and because Starent had not been prejudiced by the delay. UTStarcom even suggested other remedies like exclusion of late produced evidence. The Special Master held that it was a close case and that either outcome would be defensible. The Court however, denied Starent’s motion to dismiss but did award attorney’s fees for the filing of Starent’s motion.
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Continue Reading Court Barely Denies Motion to Dismiss for Delayed Interrogatory Answers

Nova Design Build, Inc. v. Grace Hotels, LLC., No. 08 C 2855, Slip Op. (N.D. Ill. Mar. 25, 2009) (Der-Yeghiayan, J.).
Judge Der-Yeghiayan granted in part and denied in part plaintiffs’ Fed. R. Civ. P. 12(b)(6) motion to dismiss defendants’ counterclaim copyright infringement case. Plaintiffs claimed that they developed plans for a Holiday Inn Express hotel defendants planned to build, and that defendants infringed the copyrights in plaintiffs’ plans by revising them with another firm and using them without plaintiffs’ permission. The Court previously held that plaintiffs’ copyright claim was sufficiently pled — click here for more on that opinion and the case generally in the Blog’s archives. After that opinion, defendants answered the complaint and filed a counterclaim seeking among other things declaratory relief. The Court dismissed the counterclaim as to plaintiff Annex whom defendants agreed should be dismissed. And the Court struck defendants’ request that plaintiffs’ complaint be struck because the Court already denied defendants’ Rule 12(b)(6) motion to dismiss.
But the Court denied to dismiss defendants’ counterclaim. Plaintiffs argued that the counterclaim should be dismissed because it was not clearly pled, the legal basis was not specifically identified and it lacked factual detail. But the Court held that notice pleading did not require good grammar or organization, nor were specific facts required. Because defendants’ counterclaim put plaintiffs on notice that their copyright was allegedly a derivative works to which defendants maintained certain rights. To the extent plaintiffs believed additional information, the appropriate remedy was a Rule 12(e) motion for a more definite statement. But the Court noted that a more definite statement was not required in this case because defendants’ counterclaim put plaintiffs on notice.
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Continue Reading Notice Pleading Does Not Require a Claim be Well Written