Patent Litigators: Be Careful What You Plead, Part II

We previously reported on a sua sponte Memorandum Order where Senior U.S. District Court Judge Milton I. Shadur of the Northern District of Illinois took counsel to task for the quality of its answer and counterclaim.

In New Paradigm Enterprises, Inc., d/b/a Q101 v. Merlin Media LLC, No. 12 C 5160, Slip Op. (N.D. Ill. Oct. 12, 2012), Judge Shadur again took issue with the pleadings. This time, the Court sua sponte found New Paradigm’s responses to Merlin Media’s answers, counterclaims and affirmative defenses to be “problematic.”

Specifically, the Court determined that New Paradigm’s proposed “answers” to Merlin’s “affirmative defenses” were an impermissible pleading under Fed. R. Civ. P. 7(a), which delineates what pleadings are allowed. Next, pursuant to Fed. R. Civ. B. 8(b)(5) (regarding “lacking knowledge or information”), the Court ruled that New Paradigm’s repeated denials, couched as “based upon a lack of information and belief” was improper, as were New Paradigm’s requests for “strict proof,” which he ordered removed. Finally, the Court ordered that New Paradigm’s “nonresponses” in its answer, 16 and 32, ran afoul of Fed. R. Civ. P. 8(b)(1)(B), which bars “waffling” in nonresponse to the opposing party’s allegations.

Ultimately, the Court struck the offending parts of New Paradigm’s pleading, but granted leave to amend.

Again, and continuing the post-Twombly/Iqbal era trend, the lesson for practitioners is to exercise vigilance as to your pleadings.