Hyatt v. Experian Information Solutions Inc.

Filing 13

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 10/14/2010:Mailed notice(srn, )

Hyatt v. Experian Information Systems

Doc. 13

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION DAN HYATT, Plaintiff, v. EXPERIAN INFORMATION SYSTEMS, Defendant. ) ) ) ) ) ) ) ) )

No.

10 C 5602

MEMORANDUM ORDER Experian Information Solutions, Inc. ("Experian," mistakenly sued as "Experian Information Systems") has filed its Answer and Affirmative Defenses ("ADs") to the Fair Credit Reporting Act action brought against it by Dan Hyatt ("Hyatt"). This

memorandum order is issued sua sponte because that responsive pleading is troublesome in several respects. First, both Complaint ¶¶2 (alleging subject matter jurisdiction) and 3 (alleging venue) are responded to by Experian's statements "that this is a legal conclusion which is not subject to denial or admission." That could not be more

wrong1--see, e.g., App'x 2 to State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001). 3 are stricken. Both Answer ¶¶2 and

Among other reasons, a federal court's initial responsibility (and an ongoing one) is of course the determination that it has subject matter jurisdiction. And though the absence of such jurisdiction cannot be cured by consent, parties have a special obligation to alert the court to any possible problems they perceive in that regard.

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Next, Experian's counsel is so imbued with the desire to assert, as often as possible, the Fed. R. Civ. P. ("Rule") 8(b)(5) disclaimer that serves as the permissible predicate for a deemed denial that counsel blithely disavows (1) matters that are readily answerable (see, e.g., Answer ¶9) and (2) matters that are necessarily within Experian's knowledge (see, e.g., Answer ¶¶13 and 15-18). Indeed, how can Experian's counsel advance the

client's lack of knowledge and information sufficient to form a belief as to those paragraphs and still, in the objective good faith required by Rule 11(b), deny the allegations in Complaint ¶19? Finally, Experian's ADs leave a good deal to be desired in light of the concept embodied in Rule 8(c) and the caselaw interpreting it--and see, e.g., App'x ¶5 to State Farm. the problems: 1. AD 1 claims qualified immunity under 15 U.S.C. Here are

§1681h(e), but that is totally at odds with the principle that an AD admits the allegations of the complaint that it addresses. Thus Complaint ¶23 ascribes malice and

wilfullness to Experian, while Complaint ¶24 also invokes 15 U.S.C. §§1681n and 1681o, each of which paragraphs takes 15 U.S.C. §1681h(e) out of play. 2. AD 2, which claims Experian's communications to

others were true, directly contradicts Complaint ¶¶11

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through 14. Accordingly ADs 1 and 2 are both stricken. Experian's counsel are therefore sent back to the drawing board to correct the errors identified here by filing a selfcontained amended responsive pleading on or before October 25, 2010. No charge is to be made to Experian by its counsel for the

added work and expense incurred in correcting counsel's errors. Experian's counsel are ordered to apprise their client to that effect via a letter accompanied by a copy of this opinion, with a copy of counsel's letter to be transmitted to this Court's chambers purely as an informational matter (not for filing).

________________________________________ Milton I. Shadur Senior United States District Judge Date: October 14, 2010

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