MEMORANDUM OPINION AND ORDER
This is a diversity action governed by Illinois law in which Plaintiff Reis Robotics USA, Inc. (“Reis”) filed a complaint against Defendant Concept Industries, Inc. (“Concept”), seeking redress for breach of contract. Concept has answered the complaint, asserted six affirmative defenses, and brought seven counterclaims against Reis. Reis now moves to strike and dismiss Concept’s affirmative defenses (R. 13); strike portions of Concept’s answer (R. 17); and dismiss Concept’s counterclaims (R. 21). For the reasons set forth below, Reis’s motions are granted in part and denied in part.
BACKGROUND
1. Reis’s Allegations
The following facts are taken from Reis’s complaint. Reis, an Illinois eorpo-ration, manufactures and supplies industrial robotics equipment. (R 1, Compl. ¶ 1.) Concept, a Michigan corporation, manufactures and supplies automotive parts. {Id. ¶ 2.) On or about February 24, 2005, the parties еntered into a contractual arrangement for Concept to purchase from Reis a robotic laser cutting machine (the “Laser”) and associated fixtures for trimming three separate automotive parts: the Hush Panel, JS Dash Silencer, and JS Dash Close Out Panel. {Id. ¶¶ 5, 9.) The pertinent contract documents are an “Order Acknowledgment” executed by Reis (R. 1, Compl. ¶ 6 & Ex. 1 (Order Acknowledgment)) and an “Amended Purchase Order” executed by Concept (R. 1, Ex. 2 (Purchase Order)). 1 For ease of reference, we refer to these documents collectively as “the Agreement.”
While Reis was in the process of manufacturing the Laser and fixtures pursuant to the Agreement, Concept informed Reis that Concept had terminated the Hush Panel program and that the associated fixtures were no longer needed. {Id. ¶ 10.) The parties agreed to аmend the purchase price of the Agreement to reflect the cancellation of the Hush Panel fixtures but to include payment for work performed. {Id. ¶ 11.) Following the cancellation of the Hush Panel fixtures, the amended purchase price of the Agreement was $911,000. {Id. ¶ 8.)
In July 2005, Reis presented and demonstrated the Laser to Concept.
{Id.
¶ 14.) In August 2005, Concept informed Reis of changes to the JS Dash Silencer part.
{Id.
¶ 16.) Concept’s changes to the JS Dash Silencer part required Reis to redesign the associated fixtures.
{Id.
¶ 16.) Reis alleges that Concept ordered these modifications under the Agreement, but Concept denies this allegation.
{Id.
In October 2005, Reis again presented and dеmonstrated the Laser to Concept. (Id. ¶ 14.) On October 3, 2005, Concept acknowledged receipt of the Laser at its Michigan facility by executing an Acceptance Test Certificate. (Id. ¶ 15.)
In November 2005, Concept informed Reis that Concept had terminated the JS Dash Close Out Panel program and that the associated fixtures, which Reis was still working on, were no longer needed. (Id. ¶ 12.) Reis alleges that it was entitled to payment for work already performed on the JS Dash Close Out Panel fixtures prior to cancellation, a total of $6,900. (Id. ¶ 13.) Concept denies that Reis is entitled to payment of this amount. (R. 11, Answer ¶ 13.)
The parties agree that Concept has paid Reis $588,600 to date. (R. 1, Compl. ¶ 21; R. 11, Answer ¶ 21.) Reis asserts that Concept has breached the Agreement by failing to pay a remaining balance of $264,300 plus interest. (R. 1, Compl. ¶¶ 22-24.) Concept denies that it owes Reis any additional money . under the Agreement. (R. 11, Answer ¶¶ 22-24.)
2. Concept’s Allegations
The following additional facts are gleaned from Concept’s “Answer, Affirmative Defenses and Counterclaim.” (R. 11.) Concept alleges that prior to entering the Agreement, the parties engaged in extensive negotiations regarding the specifications of the Laser, particularly the Laser’s cutting speed, also called “cycle time,” meaning the time required to complete one part. (R. 11, Countercl^ 1.) Throughout the negotiations, Reis, through its sales manager Dino Chece, allegedly made various oral and written promises to Concept indicating that the Laser would trim the JS Dash Silencer parts at a cycle time of 60-70 seconds per part or faster. (Id. ¶¶ 1, 5-10.) Relying on these promises by Reis, Concept entered into the Agreement. (Id. ¶ 11.)
The Agreement stated that the “Application” of the Laser was for the cutting of parts “described as Hush Panel/Panels Close/Silencer.” (Id. ¶ 11; Ex. B (Order Acknowledgment) at 3.) The Agreement did not mention the 60-70 seconds cycle time, but did provide as follows:
Necessary cycle time per component is indicated from Concept Industries with 23.7 sec per part including loading/ unloading and inspection. During our test in Chicago we were able to cut the parts in 17-20 sec. The table rotating time is 3 sec. The loading/unloading as well as inspection is done during [sic] the robot is cutting the part, therefore this time does not need to be added to the overall cycle. Reis Robotics is NOT responsible for the Operator related cycle times.
(Id. ¶ 11; Ex. B at 6.) The Agreement also contained an express warranty that the Laser would be free from defects in material and workmanship. (Id. ¶ 12; Ex. B at 31.)
Acсording to Concept, at a demonstration of the Laser conducted by Reis on May 26, 2005, Concept personnel questioned Mr. Chece and Dr. Wenzel, Reis’s general manager, about the Laser’s apparent slow cutting speed of JS Dash Silencer parts during the demonstration.
(Id.
¶ 13.) In response to Concept’s concerns, Mr. Chece and Dr. Wenzel responded that the Laser was not yet optimized and that Concept had “nothing to worry about.”
(Id.
¶ 13.) When Concept accepted possession of the Laser at its facility, the certificate of acceptance indicated that cycle times “[c]annot be checked without the production fixture.”
(Id.
¶ 16.) Following
On January 6, 2006, Reis informed Concept in writing that the Laser’s cycle time for the JS Dash Silencer would be between 150-195 seconds per part, far longer than what was originally promised. (Id. ¶ 26.) According to Concept, to date the Laser has failed to come close to achieving the initially promised cycle time of 60-70 seconds per part, a defect that was “fatal” to Concept’s ability to manufacture parts in the volumes required by its customers. (Id. ¶¶ 1, 26-27.)
As for the JS Dash Silencer fixtures, Concept alleges that it only authorized Reis to design the JS Dash Silencer fixtures and never authorized Reis to begin manufacturing the fixtures. (Id. ¶¶ 28AÍ5.) According to Concept, between April and October 2005, the parties exchanged numerous communications through which both parties indicated that Reis would wait for Concept’s final design approval prior to initiating any production of the JS Dash Silencer fixtures. (Id. ¶¶ 29-33.) Concept alleges that it never gave Reis final design approval and therefore is not responsible for any charges related to the production of the JS Dash Silеncer fixtures. (Id. ¶ 28, 45.)
Concept also raises counterclaims against Reis for: (1) fraudulent inducement; (2) misrepresentation; (3) unjust enrichment; (4) promissory estoppel; (5) breach of contract; (6) breach of express warranty; and (7) overpayment. (Id. ¶¶ 46-81.) All of the claims are premised on the Laser’s inability to achieve the cycle time allegedly discussed by the parties. (See id.)
MOTION TO STRIKE AND DISMISS AFFIRMATIVE DEFENSES
We turn first to Reis’s motion to strike and dismiss various portions of Concept’s affirmative defenses.
I. Legal Standard
Federal Rule of Civil Procedure 12(f) permits the Court to strike “any insufficient defense or any redundant, immaterial, impertinent or scandalous matter.” Fed.R.Civ.P. 12(f). Motions to strike are generally disfavored because of their potential to delay proceedings.
Heller Fin., Inc. v. Midwhey Powder Co., Inc.,
Affirmative defenses are pleadings and, as such, are subject to all the same pleading requirements applicable to complaints.
Id.
Thus, affirmative defenses must set forth a “short and plain statement” of the basis for the defense. Fed. R.Civ.P. 8(a);
Heller,
This Court applies a three-part test for examining the sufficiency of an affirmative defense.
Surface Shields,
II. Analysis
For its first affirmative defense Concept asserts: “The complaint fails to state a claim upon which relief can be granted.” (R. 11, Aff.DeO 1.) Reis argues that this is not a proper affirmative defense. (R. 14-1, Mem. In Supp. of Mot. to Strike at 2-3.) There is some debate in this District regarding whether “failure to state a claim” may be raised as an affirmative defense or instead must be raised by separate motion.
Compare, e.g., Institute Nacional de Comercializacion Agricola v. Cont’l Ill. Nat’l Bank & Trust Co.,
Nonetheless, Concept has failed to adequately plead the defense in accordance with Rule 8. Concept’s first affirmative defense is nothing more than a recitation of the standard for a motion to dismiss under Rule 12(b)(6). As alleged, the defense provides no explanation as to how and in what portion of the complaint Reis has failed to state a claim.
See Renalds,
As its second affirmative defense Concept states: “Reis breached the contract on which it purports to rely, and that contract may be void for fraud and/or failure of consideration.” (R.ll, Aff. Def.t2.) Breach of contract, fraud, and failure of consideration are all matters that may be pled аs affirmative defenses.
See
Fed.R.Civ.P. 8(c). However, the Court agrees with Reis that Concept’s defenses, as pled, do not satisfy the pleading requirements of Rule 8(a). The breach of contract defense fails to make reference to any of the elements of a breach of contract claim, and additionally, Concept fails to plead with heightened particularity the alleged circumstances constituting fraud as required by Rule 9(b).
See Fidelity Nat. Title Ins. Co. of New York v. Intercounty Nat. Title Ins.,
As its third affirmative defense, Concept alleges: “Reis’s payment claims for the silencer fixture are barred because Concept never authorized Reis to begin manufacturing the fixture, as Reis itself has acknowledged.” (R. 11, Aff. Def-¶ 3.) Reis argues that this affirmative defense is legally inadequate. (R. 14-1, Mem. in Supp. of Mot. to Strike at 7-8.) The concept of an affirmative defense under Rule 8(c) “requires a responding party to
admit
a complaint’s allegations but then permits the responding party to assert that for some legal reason it is nonetheless excused from liability (or perhaps from full liability).”
Menchaca v. Am. Med. Resp. of Ill.,
As its fourth affirmative defense, Concept alleges: “Reis’s claims are subsumed by Concept’s right of set-off and/or recoupment. Alternatively, the amount of Concept’s claims against Reis exceeds the amount of Reis’s claim against Concept.” (R. 11, Aff.DefJ 4.) Reis argues that the affirmative defense is nothing more than a recapitulation of Concept’s denial of the amount of damages claimed to be owed in the complaint. (R. 14-1, Mem. in Supp. of Mot. to Strike at 9.) In its response brief, Concept fails to offer any analysis refuting Reis’s argument.
(See
R. 27, Concept Industries’ Consolidated Resp. To Reis Robotics’ Mots. Tо Strike Portions of the Answer and Aff. Defenses, and To Dismiss (“Consolid.Resp.”) at 5-6.) The Court agrees that this affirmative defense appears to be simply a restatement of the denials contained in Concept’s answer, which is improper.
See Renalds,
Concept’s fifth affirmative defense states: “Reis’s claims are barred or limited by laches, waiver, estoppel, unclean hands, or similar legal or equitable doctrines.” (R. 11, Aff.Def.¶ 5.) Laches, waiver, estoppel, and unclean hands are equitable defenses that must be pled with the specific elements required to establish the defense.
See State Farm Mut. Auto. Ins. Co. v. Riley,
Concept’s sixth affirmative defense states: “Concept reserves the right to add additional affirmative defenses as they become known through discovery.” (R. 11, AffiDef.t 6.) This is not a proper affirmative defense. If at some later point in the litigation Concept believes that the addition of another affirmative defense is warranted, it may seek leave to amend its pleadings pursuant to Rule 15(a); such a request will be judged by the appropriate standards, including the limitations set forth in Rule 12(b) and (h). Accordingly, Concept’s sixth affirmative defense is stricken with prejudice.
MOTION TO STRIKE PORTIONS OF DEFENDANT’S ANSWER
Reis next moves to strike various portions of Concept’s answer for failing to comply with Rule 8. (R. 18, Mem. in Supp. of R. 12(f) Mot. at 2-5.) Rule 8 provides in relevant part:
A party shall state in short and plain terms the party’s defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder.
Fed.R.Civ.P. 8(b). Reis argues that Concept has violated Rule 8 by including improper qualifying language in Paragraphs 5, 6, and 7. Specifically, Reis objects to the following language, which is contained in each of the aforementioned Paragraphs: “To the extent the alleged ‘contract’ created by issuance of this purchase order failed to warrant the trim speed and cycle time that Concept required, it was procured by fraud and was of no validity; accordingly, the remaining allegations in this paragraph are denied as true.” (R. 11, Answer ¶¶ 5-7.) Upon review, the Court concludes that the above language does not constitute an admission or denial of Reis’s allegations as required by Rule 8; instead the language is equivocal and serves to confuse the issues that are in dispute.
Similarly, Reis argues that Paragraphs 15, 16, 20 each contain language that does
Reis also seeks to strike Concept’s prayer for attorneys fees and costs. (R. 18, Mem. in Supp. of Rule 12(f) Mot. at 4-5.) As a general matter, Illinois follows the “American rule,” such that attorneys fees and costs are ordinarily not awarded to the prevailing party unless authorized by statute or provided for by contract.
McCormick v. McCormick,
MOTION TO DISMISS COUNTERCLAIMS
I. Legal Standard
Reis next movеs to dismiss each of Concept’s seven counterclaims pursuant to Rule 12(b)(6). (R. 22-1, Mem. in Supp. of Mot. to Dismiss) This Court will only dismiss a claim if it appears “beyond doubt that the plaintiff cannot prove any set of facts that would entitle it to relief.”
Tobin for Governor v. Ill. State Bd. of Elections,
Additionally, in deciding a Rule 12(b)(6) motion, the Court is bound by the allegations within the complaint. However, a copy of a written instrument attached as an exhibit to a complaint, such as the operative contract documents in this case, may be considered. Fed.R.Civ.P. 10(c);
Moranski v. Gen. Motors Corp.,
II. Analysis
As an initial matter, Reis argues that much of Concept’s counterclaim pleading is “highly verbose” and “argumentative,” and should be stricken for failing to comport with Rule 8(e)’s directive that “[e]ach averment of a pleading shall
A. Whether Concept’s Fraud-Based Claims Are Barred By The Seventh Circuit’s Opinion In Riss-man.
Reis first argues that Concept’s claims for fraudulent inducement, misrepresentation and promissory estoppel do not state valid causes of action. (R. 22-1, Mem. in Supp. of Mot. to Dismiss at 4-5.) All three of these claims are premised on alleged misrepresentations by Mr. Chece regarding the Laser’s cutting speed. Reis points to a non-reliance clause contained in the Agreement, which states:
AUTHORITY: No agent, employee or representative of [Reis] has any authority to bind [Reis] to any affirmation, agreement, representation or warranty concerning, and Buyer represents that it is not relying on any such affirmation, agreement, representation or warranty concerning, the Goods unless it is specifically stated on this written agreement and is executed in advance by two managers or officers of [Reis].
(Countercl., Ex. B at 32.) Reis argues that the Seventh Circuit’s opinion in
Rissman v. Rissman,
In
Rissman,
the plaintiff sold his' shares of a business to the defendant, who was a co-owner in the business, in alleged reliance on the defendant’s oral representation that he would never sell the business to a third-party.
Rissman,
Contrary to Reis’s argument, the Seventh Circuit’s rejection of the fraud claim in
Rissman
was based, not on the mere presence of the non-reliance clause, but on the presence of the non-reliance clause in conjunction with a provision that clearly contradicted the plaintiffs prior statement.
Id.
at 383 (“Having signed an agreement providing for acceleration as a consequence of sale, [plaintiff] is no position to contend that he relied on the impossibility of sale.”). Accordingly, at least one District Court in this Circuit has read
Riss-
Moreover, under Illinois law, whether a plaintiffs reliance on false statements was justified is a question of fact.
Cozzi Iron & Metal, Inc. v. U.S. Office Equip.,
B. Whether The Fraud-Based Claims Are Barred Because Reis’s Statements Regarding Cycle Time Were Not Promises.
Reis next argues that Concept’s claims for fraudulent inducement, misrepresentation, warranty, and promissory estoppel are barred because the alleged misrepresentations regarding cycle time constituted statements of opinion that were “ambiguous and not prоmises.” (R. 22-1, Memo, in Supp. of Mot. to Dismiss at 5-6.) Under Illinois law, statements of opinion will not support a fraud claim; instead, a misrepresentation must be considered a statement of fact to be actionable.
Prime Leasing, Inc. v. Kendig,
Moreover, under Illinois law, statements of opinion are treated as statements of fact when, under the circumstances, the plaintiff justifiably relied on the opinion as though it were a statement of fact.
West v. W. Cas. & Sur. Co.,
Additionally, Concept argues, and we agree, that its breach of warranty claim is premised on specific provisions of the contract, not on pre-purchase statements made by Mr. Chece. (See R. 27, Consolid. Resp. at 13-14; R. 11, Countercl. ¶ 11.) Thus, any ambiguity in the statements made by Mr. Chece would be irrelevant to the breach of warranty claim. We therefore decline to dismiss this claim as well.
C. Whether Illinois’ “Mend The Hold” Doctrine Bars Concept’s Fraudulent Inducement Claim.
Next Reis argues that Concept’s fraudulent inducement claim is barred because the “mend the hold” doctrine precludes Concept from chаnging the grounds on which it refused to perform the contract. (R. 22-1, Mem. in Supp. of Mot. to Dismiss at 8-9.) The mend the hold doctrine is a rule of Illinois contract law providing .that, under certain circumstances, a party may not change the grounds for refusing to perform a contract once he has asserted a defense.
Harbor Ins. Co. v. Cont’l Bank Corp.,
Reis argues that Concept is barred from claiming fraud in the inducement because Concept also seeks breach of contract remedies, which effectively concedes the validity of the contract. (R. 22-1, Mem. in Supp. of Mot. to Dismiss at 8.) However, we find this argument unavailing because the Seventh Circuit has held that the mend the hold doctrine does not apply at the pleading stage.
2
See Harbor Ins. Co.,
D. Whether Concept’s Negligent Misrepresentation Claim is Barred Bg The Moorman Doctrine
Reis next argues that Concept’s claim for negligent misrepresentation is barred by the Illinois Supreme Court’s holding in
Moorman Mfg. Co. v. Nat’l Tank Co.,
Illinois cases hold that when information supplied by the defendant is merely ancillary to the sale of a product or service, the defendant is not in the business of supplying information for purposes of
Moorman. 2314 Lincoln Park W. Condo. Ass’n v. Mann, Gin, Ebel & Frazier, Ltd.,
Although Concept is correct that the Court must make a case-specific analysis to determine whether the defendant was in the business of supplying information,
see Tolan,
Reis next argues that the existence of a contract between the parties bars Concept’s counterclaims for unjust enrichment and promissory estoppel. (R. 22-1, Mem. in Supp. of Mot. to Dismiss at 9-12.) To state a claim for unjust enrichment under Illinois law, the plaintiff must establish that the defendant received a benefit to the plaintiffs detriment, and that the defendant’s retention of the benefit would be unjust.
TRW Title Ins. Co. v. Sec. Union Title Ins. Co.,
Reis is correct that both theories presume the absence of a valid contract.
See People ex rel. Hartigan v. E & E Hauling, Inc.,
Reis appears to argue that the unjust enriсhment and promissory estop-pel claims nevertheless fail because Concept’s claim that the contract is void due to fraud lacks merit. (R. 22-1, Mem. in Supp. of Mot. to Dismiss at 10.) Under Illinois law, a contract procured by fraud is merely voidable, as opposed to automatically void, which would require the party alleging fraud to have taken action to rescind the contract.
City of Chicago v. Mich. Beach Hous. Coop.,
F. Whether Concept’s Contract-Based Claims Fail As A Matter Of Law.
Reis next argues that Concept’s counterclaims for breach of contract,
As to the overpayment claim, Concept asserts: “Concept has made payments under the purported contract totally $588,600. The work Reis performed аnd Concept authorized totals approximately $504,300. Reis is liable to Concept for the Concept overpayment.” (Countercl.lffl 79-81.) Reis argues that Concept’s claim for overpayment fails to state a viable claim under state law. (R. 22-1, Mem. in Supp. of Mot. to Dismiss at 14.) In its response brief Concept fails to explain the legal basis for this claim, nor is the legal basis apparent to the Court.
(See
R. 27, Consolid. Resp. at 14.) Concept suggests its recovery for “overpayment” is warranted based on a subsequent oral modification that was made to the Agreement.
(Id.)
However, there are no allegations within Concept’s counterclaim that an oral modification occurred.
See Harrell v. United States,
CONCLUSION
For the reasons set forth above, Reis’s motion to strike affirmative defenses (R. 13), motion to strike portions of Concept’s answer (R. 17), and motion to dismiss Concept’s counterclaim (R. 21) are granted to the extent that:
1. Concept’s first, second, third, fourth, and fifth affirmative defenses are stricken without prejudice;
2. Concept’s sixth affirmative defense is stricken with prejudice;
3. Paragraphs 5, 6, 7, 15, 16, and 20 of Concept’s answer are stricken without prejudice;
4. Concept’s negligent misrepresentation counterclaim is dismissed with prejudice;
5. Concept’s overpayment counterclaim is dismissed without prejudice.
Reis’s motions are denied in all other respects. Concept shall file and serve an amended pleading that conforms to this order within 30 days of the date of this order.
Notes
. The Court notes that both parties have attached copies of these documents to their pleadings. (See R. 1, Ex. 1 & 2; R. 11, Ex. B &C.)
. To the extent Reis is arguing Concept may not raise a fraud claim in light of the claims raised in an earlier filed case in Michigan state court, we do not believe the mend the hold doctrine precludes a party from asserting a position different from that asserted in a separate lawsuit.
See Harbor Ins.,