IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Infiniti Group International, Inc. )

an Illinois corporation, )

)

Plaintiff, )

)

v. ) No. 11 C 7735

)

Elk Lighting, Inc. )

a Pennsylvania corporation, d/b/a )

Sterling Industries, Inc., )

)

Defendant. )

MEMORANDUM ORDER

Elk Lighting, Inc. (“Elk”) has filed its Answer and Defenses

(“ADs”) to the intellectual property action brought against it by

Infiniti Group International, Inc. (“Infiniti”). This sua sponte

memorandum order is triggered by both (1) some problematic

aspects of the Answer and (2) the two ADs advanced by Elk. 1

To begin with the Answer, a number of its paragraphs (Answer

¶¶ 1, 2, 7-9, 11-13 and 15) follow a meticulous invocation of the

disclaimer permitted by Fed.R.Civ.P. (“Rule”) 8(b)(5) with the

language “and therefore denies them.” That is of course

oxymoronic -- how can a party that asserts (presumably in good

faith) that it lacks even enough information to form a belief as

to the truth of an allegation then proceed to deny it in

accordance with Rule 11(b)? Accordingly the quoted phrase is

At the risk of being charged with applying a double 1

standard, this Court views errors of the type hereafter set out

in the text as particularly disturbing when they are committed by

a member of a major law firm.

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stricken wherever it appears in the Answer.

Next, though this Court has made no effort to analyze the

propriety of the host of flat-out denials contained in the

Answer, a couple of them have figuratively jumped off the page

and caught this reader’s eye. Thus Answer ¶¶ 16 and 24 would

appear to call for denial only of the “improperly”

characterization contained in Infiniti’s allegations, while going

on to admit the allegations except for that term. Even more 2

directly problematic, this Court is mystified by the unequivocal

denial set out in Answer ¶ 17.

Given those examples, this Court will leave it to Elk’s

counsel to take a fresh look at all of the denials in the Answer

to make certain that they past muster under objective good faith

standard prescribed by Rule 11(b). In the meantime, however, two

more substantive issues call for current handling.

First, AD 1 (like Answer ¶ 4) asserts the absence of in

personam jurisdiction over Elk. If Elk’s counsel are serious in

that contention, they should promptly bring the issue on by an

appropriately supported motion so that the case can be dispatched

at the outset if that is called for (failing such a prompt

submission, this Court will treat that defense as having been

waived -- no litigant can properly keep such an issue in reserve,

Elk’s total-denial usage seems to carry overtones 2

somewhat similar to the form of common-law pleading that carried

the label “negative pregnant.”

2

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to be brought to the forefront if the case is lost (or appears to

be lost) on the merits.

What has just been said is equally true of AD 2, which echos

Answer ¶¶ 5 and 6. Once again, Elk must “use it or lose it” --

it must bring the venue issue on forthwith or forgo it.

__________________________________

Milton I. Shadur

Senior United States District Judge

Dated: January 3, 20123

This memorandum order was completed on December 27, but 3

this Court’s minute clerk will be away until January 3, 2012.

3

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