IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DR. NICHOLAS ANGELOPOULOS,

Plaintiff,

v.

KEYSTONE ORTHOPEDIC 

SPECIALISTS, S.C., WACHN, LLC, 

and MARTIN R. HALL, M.D.,

Defendants.

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Case No. 12-cv-5836

Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Currently before the Court is Plaintiff’s motion in limine No. 6 [326, at 10] to bar 

reference to Defendants’ affirmative defenses. For the reasons set forth below, the Court 

reserves ruling on Plaintiff’s motion in limine No. 6 [326, at 10] as to the affirmative defenses of 

unclean hands and laches. However, Plaintiff’s motion No. 6 is denied as to the affirmative 

defense of failure to mitigate.

I. Discussion

Plaintiff moves to bar reference to Defendants’ three affirmative defenses of unclean 

hands, laches, and mitigation. Defendants raised these affirmative defenses in their answer, but 

they did so in a very cursory and conclusory manner.1 [232, at 35 (“Plaintiff is barred from 

obtaining any recovery on his allegations on the basis of the doctrine of unclean hands. * * * 

 

1 The Court further notes that there is no reference to these affirmative defenses in the proposed final 

pretrial order [316], which alone could be enough to bar Defendants from raising these affirmative 

defenses at trial. See Strauch v. Am. Coll. of Surgeons, 2004 WL 524442, at *2–3 (N.D. Ill. Feb. 19, 

2004) (granting plaintiff’s motion in limine to bar reference to affirmative defense where proposed final 

pretrial order did not make any reference to the affirmative defense in setting out the issues to be resolved 

at trial, noting that this omission would alone call for a ruling barring the attempted introduction of such 

evidence, and also explaining that the proffered evidence was insufficient to support the affirmative 

defense). 
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Plaintiff is barred from obtaining any recovery on his allegations on the basis of the doctrine of 

laches. * * * Plaintiff is barred from obtaining any recovery on the basis that he failed to mitigate 

his damages.”).] A motion to strike the affirmative defenses would have been appropriate. See 

Top Tobacco, L.P. v. Good Times USA, LLC, 2017 WL 395698, at *2 (N.D. Ill. Jan. 30, 2017) 

(explaining that “affirmative defenses are pleadings and, as such, remain subject to the pleading 

requirements of the Federal Rules of Civil Procedure” and that “[a] pleading that offers labels 

and conclusions or a formulaic recitation of the elements” will not do (citation and internal 

quotation marks omitted)). However, Plaintiff did not file a motion to strike the affirmative 

defenses. 

Nevertheless, the Court may rule on whether or not an affirmative defense is available to 

a defendant in ruling on a motion in limine. See United States v. Tokash, 282 F.3d 962, 967 (7th 

Cir. 2002). Where a court rules on the availability of an affirmative defense in a motion in 

limine, the court must accept as true the evidence proffered by the defendants. Id.; see also 

United States v. Santiago-Godinez, 12 F.3d 722, 727 (7th Cir. 1993). However, “where the 

evidence proffered in response to the motion in limine is insufficient as a matter of law to 

support the affirmative defense a pre-trial ruling precluding the presentation of the defense is 

appropriate.” Id. Before he can present his affirmative defense to a jury, the defendant must 

meet the minimum standard as to each element of the defense so that if a jury finds it to be true, 

it would support the defense. Id. In doing so, the defendant must present “more than a scintilla 

of evidence” that demonstrates that he can satisfy the legal requirements for asserting the 

proposed defense.” Id. (quoting United States v. Blassingame, 197 F.3d 271, 279 (7th Cir.

1999)).
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As an initial matter, the affirmative defenses of unclean hands and laches are equitable in 

nature, and thus cannot be applied to bar claims for damages. Petrella v. Metro-Goldwyn-Mayer, 

Inc., 134 S. Ct. 1962, 1973-74 (2014) (holding that “laches cannot be invoked to bar legal relief” 

and observing that “the dissent has come up with no case in which this Court has approved the 

application of laches to bar a claim for damages brought within the time allowed by a federal 

statute of limitations”); Scheiber v. Dolby Laboratories, Inc., 293 F.3d 1014, 1021 (7th Cir. 

2002) (explaining that the doctrine of unclean hands “nowadays just means that equitable relief 

will be refused if it would give the plaintiff a wrongful gain”). Any requests for equitable relief 

in this case will be addressed to the Court after the jury phase of the trial is complete. 

Accordingly, the Court reserves ruling on the motion insofar as it seeks to bar the equitable 

affirmative defenses of unclean hands and laches.

The affirmative defense of failure to mitigate damages, however, is different. “Failure to 

mitigate is an affirmative defense that must be proven by the defendant and decided by a jury.” 

Tomao v. Abbott Laboratories, Inc., 2007 WL 141909, at *3 (N.D. Ill. Jan. 16, 2007) (citing 

Sheehan v. Donlen Corp., 173 F.3d 1039, 1048-49 (7th Cir. 1999)). “Illinois law imposes a 

general duty upon parties suffering a breach of contract or tort to make a reasonable effort to 

mitigate avoidable damages.” Alper v. Altheimer & Gray, 2002 WL 31133287, at *42 (N.D. Ill. 

Sept. 26, 2002). Here, Defendants assert that Plaintiff failed to seek input or assistance from 

Defendants to resolve the 1099-MISC issue and that Plaintiff continued to practice at Keystone 

for four years and thus “failed to cut off any of his supposed losses.” Accepting these allegations

as true, as the Court must as this juncture because Plaintiff did not move to strike on Rule 8 

grounds, the Court cannot say that a fully developed failure to mitigate defense could not 

succeed as a matter of law. It will be incumbent on Defendants, of course, to produce sufficient 
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evidence at trial to justify presenting the issue to the jury for its determination. In denying 

Plaintiff’s motion in limine as to the affirmative defense of failure to mitigate, the Court keeps 

open the question of whether that defense can survive a Rule 50 motion at the close of the 

evidence.

II. Conclusion

For the foregoing reasons, the Court reserves ruling on Plaintiff’s motion in limine No. 6 

[326, at 10] as to the affirmative defenses of unclean hands and laches. However, Plaintiff’s 

motion No. 6 is denied as to the affirmative defense of failure to mitigate.

Dated: May 19, 2017

____________________________

Robert M. Dow, Jr.

United States District Judge