Shtapova et al v. United Airlines et al

Filing 16

MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 1/7/2010:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION Vera Shtapova and Vladimir Shtapov, Plaintiffs, v. United Airlines and Lufthanza German Airlines, Defendants. ) ) ) ) ) ) ) ) ) ) )

No. 09 C 6698

MEMORANDUM OPINION AND ORDER Each of the two defendants in this action brought by plaintiffs Vera Shtapova and Vladimir Shtapov under Article 19 of the Montreal Convention dealing with international air transportation--United Airlines ("United") and Lufthansa ("Lufthansa," misspelled in the Complaint as "Lufthanza")--is represented by the same law firm. Defense counsel have

nevertheless seen fit to file two separate 20 page Answers on behalf of their clients, even though the consequent painstaking effort that is required for a comparative review of those responsive pleadings has unsurprisingly disclosed that the Answers simply mirror each other.1 It should have taken no more

than a moment's thought for counsel to realize that such dual filings were both thoughtless and inconsiderate of the added

If we were still functioning in the ancient era of the typewriter (perhaps including carbon copies) rather than in the computer age, a wise secretary would probably have rebelled at having to do the needless extra work--to everyone's benefit.

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burden thrust on the reader. Meanwhile this Court has engaged in the necessary (or, perhaps more accurately, unnecessary) extra effort, and this memorandum order has triggered by an examination of the pleadings. Two problematic aspects of both Answers and of their

accompanying affirmative defenses ("ADs") require correction. To begin with, a host of paragraphs in each Answer (Paragraphs 6, 7, 11, 12, 15, 30, 32-39, 41, 42 and 44-47 in both Answers, Paragraphs 9 and 19 in United's Answer and Paragraphs 20 and 21 in Lufthansa's Answer) properly invoke the disclaimer prescribed by Fed.R.Civ.P. ("Rule") 8(b)(5) as the basis for a deemed denial, but they then follow those invocations with assertions that the pleader "therefore denies same." That is of

course oxymoronic--how can a party that asserts (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 in the face of Rule 11(b)'s requirements? Hence the quoted

phrase is stricken from all of those paragraphs of the Answers. As for the ADs, some of them do not conform to the concept implicit in Rule 8(c)(1) and the caselaw applying that Rule (see, as well, App'x 5 to this Court's opinion in State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 279 (N.D. Ill. 2001)), all of which require a defendant to accept a plaintiff's allegations as gospel but allow the defendant to explain why it should

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nonetheless be insulated from liability, or perhaps should be liable for less than plaintiff claims. ADs noted by this Court:2 1. AD 2 is stricken from each responsive Here are the troublesome

pleading as inconsistent with the allegations of the Complaint. 2. reason. 3. United's AD 8 and Lufthansa's AD 6, both of United's AD 7 is stricken for the same

which speak of the possibility of obtaining indemnity or contribution from third parties, do not bear on either airline's potential liability vis-a-vis plaintiffs. stricken. Because of the pervasiveness of the errors described here and to ease future burdens on plaintiffs' counsel and this Court, both of the present pleadings are stricken in their entirety, but with leave of course granted to file a single coordinated amended responsive pleading on or before January 20, 2010. No charge is As such, both of those ADs are also

to be made to either airline by counsel for the added work and expense incurred in correcting counsel's own errors. Defense

counsel are ordered to apprise their clients to that effect by

What is said here is not necessarily exhaustive. Plaintiffs' counsel are free to target other ADS via appropriate motion. 3

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letter, with a copy to be transmitted to this Court's chambers as an informational matter (not for filing).

_________________________________ Milton I. Shadur Senior United States District Judge Date: January 7, 2010

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