Redbox and DVDXpress both operate DVD rental services through automated vending machines called kiosks. In setting forth those facts, the court does not vouch for their accuracy. As required on Rule 12(b)(6) and 12(f) motions, the facts are set forth as favorably to DVDXpress as those materials allow.

2013) (internal quotation marks omitted). The court must also consider 'documents attached to the, documents that are critical to the and referred to in, and information that is subject to proper judicial notice,' along with additional facts set forth in DVDXpress's brief opposing dismissal, so long as those facts 'are consistent with the pleadings.' Phillips v.

In considering Redbox's Rule 12(b)(6) and 12(f) motions, the court assumes the truth of the counterclaim's and affirmative defenses' factual allegations, though not their legal conclusions, and draws all reasonable inferences in DVDXpress's favor. The motion to dismiss is denied, and the motion to strike is granted in part and denied in part. Redbox moves to dismiss that counterclaim under Federal Rule of Civil Procedure 12(b)(6) and to strike five of the affirmative defenses under Rule 12(f). DVDXpress answered, asserted nine affirmative defenses, and brought two counterclaims, including one under Illinois law for tortious interference with contract. Redbox Automated Retail, LLC brought this suit against Xpress Retail LLC ('DVDXpress'), alleging trademark infringement and false advertising in violation of the Lanham Act, 15 U.S.C. Judge Gary Feinerman MEMORANDUM OPINION AND ORDER

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