Greene et al v. C & K Landscaping et al

Filing 22

ORDERED: (1) that on or before 12/30/2008 Dfts shall file an amended answer that complies with ALL FRCP and ALL Local Rules, including Rules 8 and 11 and Local Rule 15.1; or in the alternative, (2) if Dfts, in good faith and after due investigation, contend that this Court lacks subject matter jurisdiction or that the MDAL is an improper venue, that on or before 12/30/2008 Dfts shall file a Motion to Dismiss for Lack of Subject Matter Jurisdiction and Improper Venue and briefs in support; and (3 ) that irrespective of which option Dfts elect, all counsel of record for Dfts are to read the Local Rules for the USDC MDAL and the FRCP and to file on or before 12/30/2008 a certification indicating that they have read these rules; (4) Failure to f ile an answer that is fully compliant with all FRCP, this Court's Local Rules, and this Order will result in appropriate sanctions, which may include striking the Answer; and (5) Failure to comply with the other dictates of this Order will likewise result in appropriate sanctions. Signed by Hon. Chief Judge Mark E. Fuller on 12/23/2008. (wcl, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION T E N N IE S. GREENE, et al., P la in tif f s , v. C & K LANDSCAPING, et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) )

C A S E NO. 3:08-cv-529-MEF (WO­Do Not Publish)

ORDER D e sp ite the Court's repeated attempts to elicit an answer that complies with the F e d e ra l Rules of Civil Procedure and this Court's Local Rules, the Court finds that the S e c o n d Amended Answer to Complaint (Doc. # 20), filed on December 3, 2008 by D e f e n d a n ts C & K Landscaping and Kenneth Newman, III, does not meet the requirements s e t by those rules. Plaintiff Tennie S. Greene filed the complaint in this case on July 3, 2007 (Doc. # 1.) D e f e n d a n ts answered on July 29, 2008 in a manner that was not compliant with Federal R u le s of Civil Procedure 8(b)(2) and 8(b)(3), which govern admissions and denials, and F e d e ra l Rule of Civil Procedure 11, which governs representations to the Court and s a n c tio n s . Specifically, the Answer "denie[d] all material averments of the plaintiffs' C o m p l ain t and demand[ed] strict proof thereof." The Answer also contained eighteen a f f irm a tiv e defenses, and, somewhat mysteriously, a plea of not guilty. This Answer failed to comply with the requirements of Rule 8, which states in part:

(2) A denial must fairly respond to the substance of the allegation. (3) A party that intends in good faith to deny all the allegations of a p le a d in g -- in c lu d in g the jurisdictional grounds--may do so by a general d e n ia l. A party that does not intend to deny all the allegations must either s p e c ific a l ly deny designated allegations or generally deny all except those s p e c ific a lly admitted.

Fed. R. Civ. P. 8(b)(2)-(3) (emphasis added). Consequently, the effect of the general d e n ia l in the Answer was to deny all allegations in the complaint, including those regarding (1 ) this Court's jurisdiction over the case, (2) the propriety of venue in this District, (3) the n a m e s of the Plaintiffs and Defendants, and (4) one defendant's form of business o rg a n iz a tio n . The general denial also probably violated the requirement of Rule 11(b)(4) that " t h e denials of factual contentions are warranted on the evidence or, if specifically so id e n tifie d , are reasonably based on belief or a lack of information." Moreover, the Court is sk e p tica l that all eighteen affirmative defenses satisfied the requirements of Rule 11(b) that: (2 ) the claims, defenses, and other legal contentions are warranted by existing la w or by a nonfrivolous argument for extending, modifying, or reversing e x is tin g law or for establishing new law; ( 3 ) the factual contentions have evidentiary support or, if specifically so id e n tifie d , will likely have evidentiary support after a reasonable opportunity f o r further investigation or discovery; and

F e d . R. Civ. P. 11(b). In the event an answer does violate Rule 11(b), the Court is within its power to impose an appropriate sanction on any attorney or law firm. Fed. R. Civ. P. 1 1 (c). A f te r the filing of the original Answer in this case and the Parties' 26(f) report (Doc. # 9), the Court entered a Uniform Scheduling Order (Doc. # 10), which set the amended p le a d in g s deadline as November 17, 2008. On November 18, 2008, the day after the

deadline, Defendants filed their Amended Answer (Doc. #16), which purported to add a n in e te e n th affirmative defense and incorporated the first Answer "by reference." This A m e n d e d Answer was in contravention to the dictate of Local Rule 15.1, which requires that an "amendment to a pleading, . . . must, except by leave of court, reproduce the entire p le a d in g as amended, and may not incorporate any prior pleading by reference." The Court th e re a fte r notified Counsel for the Defendants via electronic mail that the Amended Answer w a s neither filed in time nor compliant with the Local Rules. Thereafter, Defendants filed a Motion for Leave to File and Motion to Extend (Doc. # 17), which the Court in its discretion granted (Doc. # 18). Defendants then filed a First A m e n d e d Answer to Complaint (Doc. # 19), which again incorporated the first Answer "by ref ere n ce ." Therefore, the First Amended Answer, like the Amended Answer, was contrary to Local Rule 15.1. The Court then notified Counsel for the Defendants of the repeated n o n co m p lian ce . Defendants then filed a Second Amended Answer to Complaint (Doc. # 20), w h ic h remedied the violation of Local Rule 15.1, but re-committed the violations of Rules 8 and 11 present in the original Answer, specifically the general denial, guilty plea, and now n in e te e n affirmative defenses. The Court is understandably concerned that the Rules of Civil Procedure have been f la u n te d by these pleadings. Therefore, it is hereby ORDERED: (1 ) that on or before December 30, 2008 Defendants shall file an amended answer that c o m p lie s with ALL Federal Rules of Civil Procedure and ALL Local Rules, including Rules

8 and 11 and Local Rule 15.1;1 or, in the alternative, (2) if Defendants, in good faith and after due investigation, contend that this Court la c k s subject matter jurisdiction or that the Middle District of Alabama is an improper venue, th a t on or before December 30, 2008 Defendants shall file a Motion to Dismiss for Lack of S u b je c t Matter Jurisdiction and Improper Venue and briefs in support; and (3) that irrespective of which option Defendants elect, all counsel of record for D e f e n d a n ts are to read the Local Rules for the United States District Court for the Middle D istrict of Alabama and the Federal Rules of Civil Procedure and to file on or before D e c e m b e r 30, 2008 a certification indicating that they have read these rules; (4 ) Failure to file an answer that is fully compliant with all Federal Rules of Civil P r o c e d u r e , this Court's Local Rules, and this Order will result in appropriate sanctions, w h ic h may include striking the Answer; and (5) Failure to comply with the other dictates of this Order will likewise result in a p p ro p ria te sanctions. Done this the 23 rd day of December, 2008. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

Should Defendants choose to amend the Answer, they shall strictly comply with R u le 8 and "fairly respond to the substance" of each allegation, admitting the substance of tho se allegations that are true, denying the substance of those allegations they believe are u n tru e , and, if they lack sufficient information to either admit or deny an allegation, they sh a ll so state. Moreover, should they choose to amend the Answer, Defendants are to s tric tly comply with the requirement of Rule 11 that all denials, all claims of insufficient in f o rm a tio n , and all claimed defenses be, to the best of their knowledge, information, and b e lie f , formed after an inquiry into the facts reasonable under these circumstances, supported by existing law or a good faith argument for the extension or modification of e x is tin g law. The Defendants are further admonished that should the Court determine th a t their pleadings are in violation of Rule 11, it will consider appropriate sanctions. Finally, any amendment to the Answer may not incorporate any prior pleading by re f e re n c e and must instead comport with Local Rule 15.1

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