Bell v. City of Harvey, Illinois

Filing 21

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 6/16/2011:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANDREW BELL,
Plaintiff,
v.
CITY OF HARVEY, ILLINOIS,
Defendant.

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No.

11 C 686

MEMORANDUM ORDER
On June 7 this Court issued a brief memorandum order
(“Order”) that rejected a proposed motion to dismiss that had
been tendered by City of Harvey, Illinois (“City”) in response to
the Amended Complaint (“AC”) that had been brought against it by
Andrew Bell (“Bell”).

Because the Order found that City’s

proposed dismissal for failure to state a claim was without
merit, this Court ordered City to file an answer to the AC on or
before June 14, 2011 (a date chosen because it immediately
preceded a previously-scheduled June 15 status hearing--indeed,
City’s counsel had a set a June 15 presentment date for its
proposed motion to dismiss).
City timely filed its Answer, including no fewer than nine
affirmative defenses (“ADs”).

But because City’s counsel offices

out in the suburbs, he understandably transmitted the required
chambers copy of the Answer by FedEx rather than by personal
delivery.

As a result, this Court did not receive its chambers

copy of the Answer until after the status hearing, so that it had

no opportunity to identify orally for counsel the problematic
aspects of that pleading that have occasioned the issuance of
this memorandum order.
No aspects of the Answer itself appear to pose a problem,
although defense counsel would probably have been better advised
to admit the actions ascribed to City in AC ¶5(a) through 5(d),
while at the same time retaining City’s denial that its adverse
employment actions were retaliatory.

Where the responsive

pleading runs into trouble, though, is in the attached set of
purported ADs:
1.

AD 1 impermissibly repeats the mistaken view that

City’s counsel had previously manifested in moving to
dismiss both Bell’s original Complaint and the AC.

Quite

apart from counsel’s dubious inclusion of the equivalent of
a Fed. R. Civ. P. (“Rule”) 12(b)(6) motion as though it were
a proper AD, City’s need to accept Bell’s allegations as
true (as Rule 12(b)(6) requires) is fatal to City’s
challenge of the AC.

Accordingly AD 1 is stricken as

insufficient in law.
2.

AD 2 calls upon “the applicable statute of

limitations” as a ground for barring Bell’s claims in whole
or in part.

That, however, misses the point that the AC’s

allegations as to employer conduct that may have taken place
outside of the time frame for a Title VII retaliation claim

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may nonetheless be appropriate to evidence City’s allegedly
retaliatory motives.

Moreover, AD 2 is insufficiently

informative under the principles of federal notice pleading
applicable to plaintiffs and defendants alike.

So AD 2 is

also stricken, but without prejudice to its possible
reassertion in fleshed-out terms if City has an objective
good faith basis for doing so (on that score, see Rule
11(b)).
3.

AD 3 is framed in purely speculative terms and is

thus inappropriate for one of the reasons stated above as to
AD 2.

In addition, it is difficult to conceptualize just

how an employer can have taken “prompt and effective action
reasonably calculated to remedy” retaliatory actions--except
perhaps by rescinding those actions (and nothing in the AC
suggests any such backtracking on City’s part).

Hence AD 3

is stricken as well.
4.

Although AD 4 is also framed in speculative terms,

it does state a potentially viable defense.

It will be

permitted to stand.
5.

AD 5 simply sets out a proposition of law without

providing any connection to Bell’s allegations.

And what

was said earlier about AD 2 applies here as well.
Accordingly AD 5 is also stricken.
6.

AD 6 is partly hypothetical and, alternatively, is

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a meaningless assertion of a principle of law--again a
principle unrelated to Bell’s allegations as such.

Once

more dismissal is called for (an action that does not
prejudice City in any way, for the AD can be advanced later
if, as and when the factual development in the case
justifies it and the revised AD provides an appropriate
explanation.
7.

AD 7 is totally meritless in its presently

generalized form.

It will not do for City’s counsel to pick

an item or items out of the laundry list set out in Rule
8(c) without backing it or them up in factual terms
sufficient to meet the notice pleading requirement.
8.

That is true as to AD 8 as well.

It is simply bad

practice for counsel to throw in everything but the kitchen
sink (an approach that contributes nothing to the
advancement of the litigation), rather than being attentive
to the particulars of the case under consideration.
9.
as well.

AD 9 also contributes nothing, and it is stricken
If future developments were indeed to uncover any

appropriate AD, City (whether with or without the purported
reserved right) would have to move for leave to file a
further pleading, at which time this Court would consider
the propriety of such action.
As indicated, all of the present ADs except for AD 4 have

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been stricken.

Because this memorandum order has been issued sua

sponte, so that no work by Bell’s counsel was required, City’s
counsel will not be subjected to any sanction for the
inappropriate pleading (except of course for an admonition to
avoid such bad habits in the future).

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

June 16, 2011

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