Benitez v. A&R Janitoral Services et al

Filing 29

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 3/17/2009:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION Fernando Benitez, Plaintiff, v. A & R Janitorial Service, Inc., Defendant. ) ) ) ) ) ) ) ) )

08 C 5174

MEMORANDUM ORDER A & R Janitorial Service, Inc. ("A&R") has filed its Answer to the Second Amended Complaint ("SAC") filed against it by its ex-employee Fernando Benitez ("Benitez"). This memorandum order

is issueD sua sponte to address some problematic aspects of that responsive pleading. To begin with, Answer ¶ 3 challenges Benitez's invocation of supplemental jurisdiction under 28 U.S.C. § 1367. But the

express allegations of the SAC confirm that Benitez's Count II claim, advanced under state law, does indeed arise out of the same operative facts and circumstances as Benitez's federal claim of age discrimination (see SAC ¶ 27). Accordingly Answer ¶ 3 is

stricken, and unless A&R's counsel submits a filing on or before March 27, 2009 that supports a denial of the SAC ¶ 3 allegation, that allegation will be deemed to have been admitted. One other aspect of the Answer requires correction: persistent recital of the phrase "and therefore denies the allegations" or the like after A&R's counsel has set out a proper its

disclaimer that complies with Fed.R.Civ.P. 8(b)(5) and thus establishes a deemed (not an actual) denial. That practice is of

course oxymoronic, for a party cannot deny an allegation in good faith if it really lacks enough knowledge or information to support a belief about its truthfulness. Accordingly that phrase

is stricken from Answer ¶¶ 15, 16, 20, 25 and 26.

____________________________________ Milton I. Shadur Senior United States District Judge March 17, 2009