Green et al v. Scurto Cement Construction et al

Filing 69

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 11/14/2011:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RONALD GREEN SR., et al.,
Plaintiffs,
v.
SCURTO CEMENT CONSTRUCTION,
LTD., et al.,
Defendants.

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No.

10 C 4562

MEMORANDUM ORDER
Operative Plasterers’ and Cement Masons’, Local 11, Area 161
(“Local 11”) has filed its Answer, supplemented by three
affirmative defenses (“ADs”), to the Amended Complaint that has
been limited in scope based on this Court’s earlier rulings.

For

the most part the Answer carries out the notice pleading
responsibilities that are incumbent on defendants as well as
plaintiffs more thoroughly than is normally the case, and so this
brief memorandum order addresses only the few problematic aspects
noted by this Court.
First, Answer ¶¶13, 18 and 19 follow appropriate Fed. R.
Civ. P. (“Rule”) 8(b)(5) disclaimers of the corresponding
allegations of the Amended Complaint by adding the phrase “and
therefore denies them.”

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 accordance with Rule 11(b)?
Accordingly the quoted phrase is stricken from each of those

paragraphs of the Answer.
As for the ADs, AD 3 sets out the equivalent of a Rule
12(b)(6) motion, but that is at odds with the requirement that
such motions must accept the allegations of a complaint as
gospel.

In this instance plaintiffs Ronald and Donald Green

(“Greens”) may have failed to state a claim if Local 11’s
different version of the facts turns out to be correct, but that
is not true when the facts are viewed in accordance with Greens’
scenario.
What has been said here has not sought to be exhaustive.

If

Greens’ counsel were to consider other aspects of the responsive
pleading to be wanting, they are free to raise any such matters
by appropriate motion.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

November 14, 2011

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