Opinion
Case No. 11 C 6306
03-18-2013
FLAVA WORKS, INC., Plaintiff, v. LEE A. MOMIENT, JR. a/k/a Lee Moment, Defendant.
MEMORANDUM ORDER
During last week's status hearing in this case, both sides -- plaintiff-counterdefendant Flava Works, Inc. ("Flava") through its counsel and defendant-counterclaimant Lee Momient ("Momient") acting pro se -- joined in asking that this Court resolve the pending motion by Flava to dismiss Momient's Amended Counterclaim ("ACc"). In response to that joint request this Court denies Flava's motion and orders that it file an answer to the ACc.
This action has gone forward (or more accurately has not gone forward) in fits and starts, often attributable to Momient's periodic failure to appear for scheduled status hearings. Momient is cautioned that such inattention could prove costly if repeated.
There is no question that ACc Exs. 5 through 7, photographs drawn from Flava's DVD titled "Dorm Life 5," are identical copies of ACc Exs. 2 through 4 respectively, which are part of Momient's registered copyright referred to in ACc ¶¶ 7 and 8. Flava's motion does not challenge that identity (and hence does not dispute its direct infringement). Instead Flava's motion contends that Momient has not alleged the date or dates of infringement, nor has he included certain other evidentiary matters in the ACc.
But statutes of limitations are of course are an affirmative defense (see Fed. R. Civ. P. ("Rule") 8(c)(1)) and hence need not be anticipated or negated in a complaint or counterclaim. And Flava's other contentions might perhaps have force in a system of fact pleading, but they are not properly a basis for a Rule 12(b)(6) motion under the federal system of notice pleading.
Accordingly none of Flava's challenges to the ACc carries weight, so that the motion to dismiss is denied and Flava is ordered to answer the ACc on or before March 29, 2013. This action will go forward on both sides' claims.
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Milton I. Shadur
Senior United States District Judge