and a chance to rebut it. See Servpro Indus. Inc. v. Schmidt, 905 F. Supp. 475, 483 (N.D. IIL.
1995) (collecting authorities). Rule 8(c) provides that a party must set forth affirmative defenses
in a responsive pleading. These pleadings are subject to all pleading requirements of the Federal
Rules of Civil Procedure. See Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294
(7th Cir. 1989). The Court may strike from any pleading any insufficient defense. See Fed. R.
Civ. P. 12(f). Affirmative defenses must set forth a “short and plain statement”of the basis for
the defense. Fed. R. Civ. P. 8(a); accord Heller, 883 F.2d at 1294. However, an allegation must
include either direct or inferential allegations respecting all material elements of the defense
asserted. See, ¢.g., Renalds v. S.R.G. Rest. Group, 119 F, Supp. 2d 800, 802 (N.D. ll. 2000)
(collecting authorities), Simply naming a legal theory without indicating how it is connected to
the case at hand is not sufficicnt to withstand a motion to strike. Jd, at 803.

Courts generally disfavor motions (o strike affirmative defenses because they potentially
serve only to cause delay. See //eller, 883 I'.2d at 1294. However, the courts should strike
affirmative defenses where they are mistitled, or redundant—see, e.g., Renalds, 119 F. Supp. 24
at 802-—-or where they create unnecessary clutter. See, e.g., Heller, 883 F.2d at 1294. This
district has followed a three-part test in cxamining affirmative defenses subject to a motion to
strike, requiring that: (1) the matter must be properly pleaded as an affirmative defense; (2) the
matter must be adequately pleaded under the requirements of Federal Rules of Civil Procedure 8

and 9; and (3) the matter must withstand a Rule 12(b)(6) challenge. See, ¢.g., Renalds, 119 F,

Supp, 2d at 802-3 (collecting authorities).



inappropriate because the assertion is alrcady put into issue by the denial in Shah’s answer. See,
e.g., Renalds, 119 F. Supp. 2d. at 804 (collecting cases). Affirmative defense thirteen, alleging
an unspecified violation of Rule 11, is improper and does not qualify as an affirmative defense.
Rule 11 requires that this allegation be brought as a separate motion at the appropriate lime. See
Ted. R. Civ. P. 11(1)(A). The Court grants the motion to strike affirmative defenses two and
thirteen with prejudice.

E. Seventh and Twelfth Affirmative Defenses

Affirmative defense seven, failure to mitigate damages, may be a partial defense pled
affirmatively. See generally 5 Charles Alan Wright and Arthur R. Miller, Federal Practice and
Procedure § 1273 (2d ed.1990). The pleading sufficiently informs Bansal of the issue raised and
it would be unreasonable to expect Shah to have detailed information about mitigation at this
early stage of litigation. See Cohen v, Taco Bell, No. 92-5852, 1995 WL 247996, at *5 (N.D. IH.
Apr. 24, 1995). Shah may be able to prove facts to support this defense. Likewise, affirmative
defensc twelve, set off, withstands the motion to strike. Shah may be able to prove facts to
support this defense but, at this point in the litigation, Shah does not have access to information
that would enable Shah to state such a defense with more particularity. In addition, set off raises
an issue not raised in Shah’s answer and places Bansal on notice of the potential defense. The

Court denies the motion to strike affirmative defenses seven and twelve.


into Illinois law as 810 ILCS 5/2-313. (éd.) Bansal further alleges that pursuant to sections 312

and 313 of article two of the U.C.C., Shah has a duty to defend and indemnify Bansal against
some or all of the claims of Plaintiff. (/d. 4] 12.)

Shah generally denics the allegations of the ‘Third-Party Complaint and sels forth thirteen
affirmative defenses. (D.E. 19.) Shah asserts failure to state a cause of action, declaratory relief,
ratification, waiver, estoppel, laches, failure to mitigate damages, unclean hands, statute of
limitations, intentional conduct, apportionment of fault, set off, and Fed. R.Civ. P. 11 (“Rule
11”) as affirmative defenses, respectively. (Jd. at 3-7.)

DISCUSSION

Bansal objects to affirmative defenses one and three through twelve (failure to slate a
claim, ratification, waiver, estoppel, laches, failure to mitigate damages, unclean hands, statute of
limitations, intentional conduct, apportionment of fault, and set off) based on a contention that
they are conclusory allegations that fail to provide fair notice of the defense. (D.E. 22, { 8-43.)
Bansal objects to affirmative defenses two, declaratory relief, and thirteen, Rule 11, based on the
contention that they are not matters which constitute an avoidance or affirmative defense as set
forth in Rule 8(c). (Ud. 411, 45.) Bansal further objects to affirmative defense thittecn
(generically asserting an undefined Fed. R. Civ. P. 11 violation), contending that it does not
comply with Rule 11(c)(1)(A) in that it is not presented in a separate motion and does not
describe the specific conduct alleged to violate Rule 11(b). (/d. 46.) The Court agrees that

affirmative defenses one through six, eight through eleven, and thirteen are inadequate, as further

explained below.

The purpose of Rule 8(c) is to give the opposing party notice of the affirmative defense



A. First and Ninth Affirmative Defenses

Affirmative defense one, failure to state a claim, requires a short and plain statement of
the basis for the defense as is set forth in Rule 8(a). Defenses which are bare bones Icgal
conclusions are not sufficient to survive a motion to strike. See Heller, 883 F.2d at 1295;
Builder's Bank v. First Bank & Trust Co. of Ill., No.03-4959, 2004 WL 626827, at *3 (N.D. IIL.
Mar. 25, 2004) (collecting cases). Shah’s first affirmative defense is a boilerplate logal
conclusion and does not specify reasons why Bansal failed to state a claim. Similarly,
affirmative defense nine, relating generically to statute of limitations issues, fails to state the
statute of limitation period rclied on or any other information regarding how the statute of
limitations bars the claim, Tl is not even clear what state’s law Shah purports to invoke when he
offers incomplete citations to the “Code of Civil Procedure” in Shah’s otherwise conclusory
averment, These two defenses are impermissible conclusory statements. Ihe Court grants the
motion to strike affirmative defenses one and nine without prejudice.

B. Third through Sixth and Eighth Affirmative Defenses

Affirmative defenses three through six and eight, (ratification, waiver, estoppel, laches,
and unclean hands, respectively) are equitable defenses that must be pled with the specilic
elements required to establish the defense. See, ¢.g., Fluor Corp. v, lll Power Co. 326 F.2d 374,
377-78 (7th Cir. 1964); Bobbitt v, Victorian House, Inc., 532 F. Supp. 734, 738-39 (N.D. ILL.
1982). These defenses require at least some direct or inferential allegations as to each clement of
the defense asserted. See Builder's Bank, 2004 WL 626827, at *5, Courts have set forth specific
pleading standards for the defenses of waiver, estoppel, and laches and have “consistently struck

these defenses where they are insufficiently pled.” /d., at *6. In addition, stringing together a list



CONCLUSION
For the foregoing reasons, the motion to strike affirmative defenses one through six, eight
through eleven and thirteen is granted. Affirmative defenses one, three through six, and eight
through nine are stricken without prejudice. Affirmative defenscs two, ten, eleven, and thirteen

are stricken with prejudice. The motion to strike affirmative defenses scven and twelve is

denied. Hl L .
So Ordered.

Mark Filip
United States District Judge
Northern District of Illinois

Dated: a



Minute Ory Form (0697)

United States District Court, Northern District of Illinois

Name of Assigned Judge , ai Sitting Judge if Other
or Magistrate Judge Mark Filip than Assigned Judge
CASE NUMBER 03 C 7069 DATE 5/27/2004
CASE Yash Raj Films (USA) Ine vs. Atlantic Video, et al
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g,, plaintiff, defendant, 3rd party plaintift, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
q) o Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
@) Oo Answer brief to motion due. . Reply to answer brief duc.
(4) oO Ruling/Flearing on set for at.
(5) a Status hearing[held/continued to] [sct for/re-set for] on ____ set for at
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) Oo ‘Trial[set for/re-set for] on at
(8) QO [Bench/Jury trial] [Hearing] held/continued to _ at
(9) oOo ‘This case is dismissed {with/without] prejudice and without costs[by/agreement/pursuant to}
TIFRCP4(m) CLocal Rule 41.1 OFRCP41(a(1) OO FRCP41(a)(2).
ao off [Other docket entry] ENTER MEMORANDUM OPINION GRANTING IN PART AND
DENYING IN PART DEFENDANT-THIRD PARTY PLAINTIFF’S MOTION TO STRIKE.
dl) @f [For further detail sce order attached to the original minute order.]
‘No notices required, udvised in open court, Document
, Number
No notives required. unr of noioge
Notices muiled by judge’s staff,
oni way 28 2008
tified counsel by telephone. dave docketed
wv | Docketing to mail notices. '
Mail AO 430 form. ivan fopay sins t a7 “|
Copy to judge/mugistrate judge. i
courtroom Sis we
TBK deputy’s
initials

Date/time recived in
central Clerk's Office

imiling deputy initials



of legal defenses is not sufficient to satisfy Rule 8(a). /d. Shah has not provided the sufficient
elements or allegations to establish these affirmative defenses. ‘The Court grants the motion to
strike affirmative defenses three through six and eight without prejudice.

C. Tenth and Eleventh Affirmative Defenses

Affirmative defense ten, intentional conduct, and eleven, apportionment of fault, in
addition to being legal conclusions, are defenses which need not be plead to be proved. Under
federal law, affirmative defenses generally admit the matters in a complaint but nevertheless
assert facts that would defeat recovery. See, ¢e.g., Bobbitt, 532 F. Supp. at 736. Affirmative
delense ten, intentional conduct, operates to reduce liability on a comparative fault basis or
operates as a denial of liability altogether, and as such, docs not qualify as an affirmative defense.
See Fed. Deposit Ins. Corp. v. Haines, 3 F. Supp. 2d 155, 166 (D. Conn. 1997). Causation is
necessarily an element of the Plaintiff's case in chief. 7d. Likewise, affirmative defense eleven,
apportionment of fault, is a denial and claim that others are responsible, Matters that clearly are
not affirmative defenses should be stricken, See, e.g., Bobbitt, 532 F. Supp. at 737. If the matter
is put into issue by a denial, therc is no need to insert a putative affirmative defense. Jd. The
Court grants the motion to strike affirmative defenses ten and eleven with prejudice.

D. Second and Thirteenth Affirmative Defenses

Affirmative defense two, declaratory relicf, and thirteen, Rule 11, do not qualify as
affirmative defenses. Affirmative defense two is a denial of responsibility and request for relief
without details or allegations explaining why declaratory relief for Shah is warranted. A

declaratory request for declaratory relief is not a matter which constitutes an avoidance or

affirmative defense as set forth by Rule 8(c). This affirmative defense is both unnecessary and



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
YASH RAJ FILMS (USA) INC.,
Plaintiff, Case No. 03 C 7069
v. Judge Mark Filip
ATLANTIC VIDEO, ct al.,

Defendants.

RAJESH BANSAL,
Defendant-Third Party Plaintiff,

Vv.

gaerere

INDIA EMPORIUM, INC., AND ,
MN 26 2004

SHARAD SHAH,

Third-Party Defendants.

eS SS SS SS SS

MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART
DEFENDANT-THIRD PARTY PLAINTIFFS MOTION TO STRIKE

Before the Court is Defendant-Third Party Plaintiff Rajesh Bansal’s (“Bansal”) motion to
strike all of Third-Party Defendant Sharad Shah’s (“Shah”) affirmative defenses. Bansal
variously alleges that the affirmative defenses do not meet the pleading requirements of I'ed. R.
Civ. P, 8(a) (“Rule 8(a)”), that they are conclusory allegations, and that they arc not affirmative

defenses under Fed. R. Civ. P. 8(c) (“Rule 8(c)”).! As explained below, the Court grants the

' It appears that Bansal’s motion to strike may not have been timely under ed. R. Civ. P.

12(f) (“Rule 12(f)”). However, “Rule 12(f) ‘gives unrestricted authority to the district court to
strike insufficient defenses.’” (Go-Tane Serv. Stations, Inc. v. Ashland Oil, Inc., 508 F. Supp.



motion to strike affirmative defenses one through six, eight through eleven, and thirteen. The
Court denies the motion to strike affirmative defenses seven and twelve.
BACKGROUND

Plaintiff, Yash Raj Films (USA), Inc., alleges in its first amended complaint that it is the
owner of the copyrights and/or exclusive license rights of certain Indian films? (D.E. 9, 9/49.)
Plaintiff alleges that Defendant-Third Party Plaintiff, Bansal, has made, copied, purchased, sold,
rented and/or distributed unauthorized “pirate” copies of Plaintiff's films, in some cases using
Plaintiff's name or logo on the package. (Jd. 65.) The complaint further alleges that Bansal has
not obtained any assignment, license, authorization, permission or consent to any rights to
Plaintiff's films. (/d. 71.)

Bansal alleges in the Third Party Complaint that Shah is in the business of sclling DVDs
of Indian films and music and that Bansal has purchased DVDs of Indian films and music from
Shah. (D.E. 17,9 8,9.) Bansal purchased from Shah items which Plaintiff, Yash Raj Films,
alleges infringe its copyrights and trademarks. (/d. 4 9). Bansal alleges that every sale by Shah
contained an implied warranty of non-infringement under section 312 of article two of the
Uniform Commercial Code (“U.C.C.”), which is incorporated into Illinois law as 810 ILCS 5/2-
312. (Id. 10.) In addition, Bansal alleges that, upon specific inquiry, Shah represented that the
goods sold by Shah were non-infringing. (/d. 11.) Bansal contends that this constituted an

express Warranty by Shah under section 313 of article two of the U.C.C., which is incorporated

200, 201-02 (N.D. Ill. 1981) (quoting United States v. 416.81 Acres of Land, 514 F.2d 627, 630
n.3 (7th Cir. 1975)).

2 Yash Raj filed a second amended complaint after the motion addressed in this decision;
however, the amended complaint does not impact the analysis of the Court.

2