American Family Mutual Insurance Company v. Electrolux Home Products, Inc.
MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 2/26/2013. Mailed notice by judge's staff. (srb,)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
AMERICAN FAMILY MUTUAL
Case No. 12 C 9309
On February 1, 2013 this Court denied the motion of Electrolux Home Products, Inc.
("Electrolux") asking that it be allowed to hold off on answering a portion of the claims brought
against it by American Family Mutual Insurance Company ("American Family") during the time
that Electrolux's partial motion to dismiss the balance of those claims was under consideration.
When Electrolux then filed its Partial Answer and Affirmative Defenses ("ADs") on February 15
as this Court had ordered, that pleading failed to comply with this District Court's LR 5.2(f) that
mandates delivery of a paper copy of every electronically filed document to this Court's
chambers. In turn a followup request by this Court's courtroom deputy resulted in the belated
delivery of two copies of the responsive pleading by Electrolux's counsel, and this memorandum
order is issued sua sponte because of some problematic aspects of that pleading.
For one thing, Electrolux's frequent use of the disclaimer permitted by Fed. R. Civ. P.
("Rule") 8(b)(5) (see Answer ¶¶ 1-3, 6-12, 14, 18 and 25) is invariably accompanied by the
phrase "and, therefore, denies the same." But it is of course oxymoronic for a party to assert
(presumably in good faith) that it lacks even enough information to form a belief as to the truth
of an allegation, then proceed to deny it. Because such a denial is at odds with the pleader's
obligations under Rule 11(b), the quoted language is stricken from each of those paragraphs of
Next, Answer ¶¶ 19 and 26 mistakenly fail to answer American Family's corresponding
allegations on the ground that they "state[ ] a legal conclusion to which no response is required."
In that respect see App'x ¶ 2 to State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278
(N.D. Ill. 2001). Rule 8(b)(1)(B) requires an answer, and Electrolux must provide one.
Relatedly, Answer ¶¶ 21 and 47 fail to apprise American Family's counsel and this Court
of Electrolux's version of its "duties imposed by law," which it asserts that American Family has
stated incorrectly. If federal pleading is to serve its proper function, defendants' counsel as well
as plaintiffs' lawyers ought to adhere to the principles of notice pleading.
Finally, Electrolux's ADs certainly need reworking. Here are problems that this Court has
1. ADs 1 through 3 improperly assert, as purported facts, matters that Electrolux
assuredly does not know -- faults ascribed to every one of American Family's
insureds. Such assertions can scarcely be advanced in the subjective and objective
good faith demanded by Rule 11(b).
2. In somewhat like manner, Electrolux's AD 4 charges American Family with a
failure to mitigate its damages -- more specifically, by overpaying its insureds in
excess of the amounts properly payable under their respective insurance policies.
Although that assertion is hedged by being stated "[u]pon information and belief,"
both American Family and this Court are entitled to some explanation of the
claimed information on which Electrolux relies.
3. AD 10 is totally uninformative -- it asserts that American Family was
somehow a volunteer, paying its insured when its policy barred such payment.
Again such an ipse dixit is inappropriate -- if that is the case, Electrolux must
flesh out that AD with an explanation of why that is so.
4. When Electrolux's delivered copies omitted a copy of page 17 of its 18-page
response, an attempted resort to obtain the missing page through a printout from
the docket revealed that the filed and docketed original also lacked the same page.
Accordingly this Court can do nothing other than to strike all of the remaining
ADs without prejudice, with Electrolux's counsel ordered to comply with the
principles exemplified by the preceding three paragraphs and other principles
implicit in Rule 8(c) and its interpretive caselaw (see also App'x ¶ 5 to State
Farm) in any ADs that they can properly reassert.
If the first error described in this memorandum order had been the only flaw in
Electrolux's responsive pleading, that could have been corrected by simply striking the
inappropriate phrase and leaving the rest of the pleading intact. But because that is not at all the
case, this Court will (in addition to such corrective action) strike the other paragraphs of the
Answer referred to here as well as all of the ADs, but with leave granted to file on or before
March 18, 2013 a fully self-contained Amended Answer that contains corrected versions of the
offending paragraphs together with any properly advanced ADs.
No charge may be made to Electrolux by its counsel for the added work and expense
incurred in correcting counsel's errors. Electrolux's counsel are ordered to apprise their client to
that effect by letter, with a copy of that letter to be transmitted to this Court's chambers as an
informational matter (not for filing).
Milton I. Shadur
Senior United States District Judge
Date: February 26, 2013