495 F.3d 1378 (Fed. Cir. 2007), 2006-1569, General Mills, Inc. v. Kraft Foods Global, Inc.

Docket Nº:2006-1569, 2006-1606.
Citation:495 F.3d 1378, 83 U.S.P.Q.2d 1606
Party Name:GENERAL MILLS, INC., Plaintiff-Appellant, v. KRAFT FOODS GLOBAL, INC., Defendant-Cross Appellant.
Case Date:July 31, 2007
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

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495 F.3d 1378 (Fed. Cir. 2007)

83 U.S.P.Q.2d 1606

GENERAL MILLS, INC., Plaintiff-Appellant,


KRAFT FOODS GLOBAL, INC., Defendant-Cross Appellant.

Nos. 2006-1569, 2006-1606.

United States Court of Appeals, Federal Circuit.

July 31, 2007

Appealed from: United States District Court for the District of Minnesota Judge Joan N. Ericksen.

Ronald J. Schutz, Robins, Kaplan, Miller & Ciresi L.L.P., of Minneapolis, MN, argued for plaintiff-appellant. With him on the brief was, David P. Swenson, Sang Young A. Brodie, and David B. Zucco.

Holly A. Harrison, Sidley Austin LLP, of Chicago, IL, argued for defendant cross-appellant. With her on the brief was Julie K. Potter. Of counsel on the brief was Tara C. Norgard, Carlson Caspers Vandenburg & Lindquist P.A., of Minneapolis, MN.

Before BRYSON, Circuit Judge, CLEVENGER, Senior Circuit Judge, and LINN, Circuit Judge.


LINN, Circuit Judge.

In our initial opinion in this case, we affirmed the district court's decision that Kraft Foods Global, Inc. ("Kraft") did not have a counterclaim pending at the time judgment was entered. General Mills, Inc. v. Kraft Foods Global, Inc., 487 F.3d 1368 (Fed. Cir. 2007). Although Kraft asserted

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a counterclaim against General Mills, Inc. ("General Mills") in response to the original complaint in this case, General Mills subsequently filed an amended complaint, which Kraft successfully moved to dismiss. We held that under these circumstances, Kraft's filing of its motion to dismiss did not toll its deadline to answer the amended complaint and reassert its counterclaim. Accordingly, we concluded that the district court did not abuse its discretion in refusing to permit Kraft to reassert the counterclaim after the motion to dismiss was granted. Kraft now petitions for rehearing, arguing that we have misapprehended Rule 12 of the Federal Rules of Civil Procedure. For the reasons that follow, we reaffirm our original holding, with certain clarifications.

Kraft argues in its petition that our decision undermines the "clearly expressed intent" of Rule 12-to permit certain defenses, including failure to state a claim upon which relief can be granted, to be raised by motion instead of in a responsive pleading. However, "[t]he Federal Rules should be given their plain meaning." Walker v. Armco...

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