Notice that one of Defendants’ affirmative defenses is Plaintiff's failure to mitigate damages.
Therefore, Plaintiff's motion is denied as to these defenses. See Tome Engenharia E.
Transportes v. Malki, 1996 WL 172286 (N.D. Ill. April 11, 1996) (finding affirmative defense
that “[p]laintiff has failed to mitigate its damages” was sufficiently pled).

Defendants’ sixth, ninth, and tenth affirmative defense alleges estoppel, statute of
limitations, and laches, respectively. These defenses are proper affirmative defenses pursuant to
Rule 8(c) and sufficiently place Plaintiff on notice of the defenses. Accordingly, Plaintiff's
Motion to Strike these affirmative defenses is denied. See Wausau Ins. Co. v. Woods Equip.
Co., 2002 WL 398542 (N.D. Ill. March 14, 2002).

Defendants’ seventh affirmative defense alleges lack of damages. Defendants have
agreed to withdraw this affirmative defense. Accordingly, Defendants’ seventh affirmative
defense is withdrawn.

Defendants’ eighth affirmative defense alleges that “If Plaintiff suffered any damage,
which is denied, then any such alleged damage resulted solely from his own acts or omissions
and/or other acts or omissions of other third persons for whom Fidelity is not responsible.” In its
response, Defendants label this defense as contributory/comparative negligence. Plaintiff’s
complaint does not allege negligence. Accordingly, Defendants are improperly pleading
contributory/comparative negligence. Therefore, Defendants’ eighth affirmative defense is

stricken.



va

allegedly stole the checks for the funds at issue.

A “setoff’ is a “counterdemand against the plaintiff, arising out of a transaction
independent of the plaintiff's claim”. Blacks’ Law Dict. 1376 (7th ed. 1999). A “recoupment” is
a “[rJeduction of a plaintiff's damages because of a demand by the defendant arising out of the
same transaction”. Blacks’ Law Dict. 1280 (7th ed. 1999). Neither the introductory paragraph
nor the second affirmative defense alleges, directly or inferentially, that Defendants have a
counterdemand against the Plaintiff. Accordingly, the second affirmative defense fails to
sufficiently plead either a set-off or recoupment and is stricken.

Defendants’ third affirmative defense alleges satisfaction. The introductory paragraph
and third affirmative defense sufficiently place the Plaintiff on notice of this defense.
Accordingly, the third affirmative defense is not stricken.

Defendants’ fourth affirmative defense alleges unjust enrichment. Unjust enrichment is
not an affirmative defense. See Warrior Ins. Group, Inc. v. Insureon.com, Inc., 2000 WL
1898867 (N.D. Ill. Dec. 29, 2000). However, if a party mistakenly designates a counterclaim as a
defense, the court can treat the pleading as if it had been properly designated. Fed. R. Civ. P.
8(c). Accordingly, the affirmative defense can be treated as a counterclaim. While Defendants
cannot ultimately prevail on an unjust enrichment claim if the relationship is entirely guided by a
written contract, as in the present case, see F.H. Prince & Co. v. Towers Fin. Corp., 275 Ill. App.
3d 792, 804 (1995), Defendants can allege unjust enrichment as an alternate pleading.
Accordingly, the fourth affirmative defense/counterclaim is not stricken.

Defendants’ fifth affirmative defense alleges that Plaintiff failed to mitigate damages.

This affirmative defense, in addition to the introductory paragraph, sufficiently puts Plaintiff on



For the foregoing reasons, Plaintiff's Motion to Strike and Dismiss Defendants’
Affirmative Defenses is granted in part and denied in part. Defendants’ first, second, and eighth

affirmative defenses are stricken. Defendants’ seventh affirmative defense is withdrawn.

mbobaseom Wha

dud w. DARRAH
UNed States District Judge



Minute Of Form (067)

United States District Court, Northern District of Illinois

Ramet Annet ites | John W. Darrah Sin Soa cer

CASE NUMBER 01C 4173 DATE 11/13/2002
CASE MARK MINALGA vs, FIDELITY INVESTMENTS
TITLE

[ln the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]

DOCKET ENTRY:

(1) im Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

3) a Answer brief to motion due___. Reply to answer briefdue___.

(4) ia Ruling/Hearingon_____ssetfor saat

(5) a Status hearing[held/continued to] [set for/re-set for] on setfor_ at

(6) oOo Pretrial conference[held/continued to] [set for/re-set for]on___—_—ssetfor___—sat__—

(7) Oo Trial[set for/re-set for]on___—at

(8) Oo [Bench/Jury trial} [Hearing] held/continued to at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) CLocal Rule 41.1 OFRCP41{a)(1) © FRCP41(a)(2).

qo [Other docket entry} Status hearing held and continued to December 4, 2002 at 9:00 a.m. Enter
Memorandum Opinion And Order. Plaintiffs motion to strike and dismiss defendants’ affirmative
defenses is granted in part and denied in part. Defendants’ first, second, and eighth affirmative defenses
are stricken. Defendants’ seventh affirmative defense is withdrawn.

(il) [For further detail see order attached to the original minute order.]
No notices required, advised in open cout,

No notices required.

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Notified counsel by telephone,

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS POCKETFO

EASTERN DIVISION Nov 1 4 2002
MARK MINALGA, )
)
Plaintiff, )
) No. 01 C 4173

vy. )
)

FIDELITY INVESTMENTS INSTITUTIONAL ) Judge John W. Darrah
OPERATIONS COMPANY, INC., a )
Massachusetts Corporation; and FIDELITY )
MANAGEMENT TRUST COMPANY, a )
Corporation, as trustee of NCR Savings Plan andof  )
the AT&T Long Term Savings Plan for )
Management Employees, )
)
Defendants. y

MORANDUM OPINION AND ORDER

Plaintiff, Mark Minalga (‘Minalga”), brought suit against Defendants, Fidelity
Investments Institutional Operations Company, Inc. and Fidelity Management Trust Company,
alleging that Defendants failed to properly distribute Plaintiff's vested interest in certain
retirement plans. Defendants filed an answer, including ten affirmative defenses. Presently
before this Court is Plaintiff's Motion to Strike and Dismiss Defendants’ Affirmative Defenses.

Federal Rules of Civil Procedure 8(c) requires a party to set forth affirmative defenses in
a responsive pleading. Fed. R. Civ. P. 8(c). Under Rule 12(f), “the court may order stricken
from any pleading any insufficient defense.” Fed. R. Civ. P. 12(f). Generally, motions to strike
affirmative defenses are disfavored because they potentially serve only to cause delay. See
Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989) (Heller). Such

motions are generally granted only when the affirmative defenses are “patently defective and

(ob



could not succeed under any circumstances.” Mobey v. Kelly Kean Nissan, Inc., 864 F. Supp.
726, 732 (N.D. Il. 1993).

Affirmative defenses, as pleadings, are subject to the pleading requirements of the Federal
Rules of Civil Procedure. See Heller, 883 F.2d at 1294. Therefore, affirmative defenses must set
forth a “short and plain statement”. Fed. R. Civ. Proc. 8(a). The allegations must include either
direct or inferential allegations respecting all material elements of the defense asserted. Narrated
facts with bare legal conclusions are not sufficient. Renalds v. S.R.G. Restaurant Group, 119
F.Supp.2d 800, 802 (N.D. Ill. 2000) (Renalds).

Defendants’ first affirmative defense states, “Plaintiff has failed to state a cause of action
against Fidelity upon which relief may be granted.” This first defense is a recitation of the
standard for a motion to dismiss under Federal Rules of Civil Procedure 12(b)(6). The defense
identifies the legal theory without indicating how it is connected to the present case. While the
Federal Rules of Civil Procedure allow liberal pleadings, they do not allow a claimant to merely
recite the standard for a motion to dismiss under Rule 12(b)(6). See Murphy v. White Hen Pantry
Co., 691 F.2d 350, 353 (7th Cir. 1982); Renalds, 119 F.Supp.2d at 803-04. Accordingly,
Defendants’ first affirmative defense is stricken.

Defendants’ second affirmative defense claims that Defendants are entitled to
“recoupment and/or setoff’ for the amount of money Plaintiff has received from Defendants. The
introductory paragraph to Defendants’ affirmative defenses alleges that the funds at issue were
deposited in Plaintiff's bank account and that most of the funds were used to pay Plaintiffs
debts. Further, Defendants allege that a Kane County divorce court compensated Plaintiff for his

alleged losses when dividing marital assets between the Plaintiff and his former wife, who