Mrdak v. Sood et al

Filing 36

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 6/20/2011:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
STAR MRDAK, etc.,
Plaintiff,
v.
KUL BIR SOOD, M.D., et al.,
Defendants.

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No.

11 C 1745

MEMORANDUM ORDER
When counsel for two of the five defendants in this action
timely complied with this Court’s sua sponte order that called
for the replacement of two separate answers with a single
combined responsive pleading, this Court’s minute clerk printed
out the case docket so that this Court could be fully informed as
to the total posture of the litigation.

That printout revealed

that counsel for the other three defendants--Drs. Kul Bir Sood
and Dean Rieger and Correct Care Solutions, LLC--had filed an
Answer for those defendants back on June 1 but had violated this
District Court’s LR 5.2(f)(an LR that, because too many counsel
are not aware of--or have ignored--their obligation to deliver
hard copies of filings to the chambers of the presiding judge,
this Court has reinforced by the strong emphasis set out in the
opening boldface paragraph on its website).
As foreshadowed in the website, this Court then imposed a
$100 fine on counsel for that rule violation and directed the
immediate delivery of the required judge’s copy to its chambers.

That delivery has been made, and regrettably it has triggered
this sua sponte memorandum order to address a problematic aspect
of that responsive pleading.
Before this order turns to that problem, however, a comment
should be made about the Answer’s pervasive use of the disclaimer
prescribed by Fed. R. Civ. P. (“Rule”) 8(b)(5) to avoid the need
to admit or deny (see Rule 8(b)(1)(B)) an allegation about which
the pleader lacks a basis for conforming to either of those
alternatives in the good faith mandated by Rule 11(b).

Although

each invocation of the Rule 8(b)(5) formula tracks that Rule
faithfully, it seems quite doubtful that the demanding standard
of insufficient information to form even a belief about an
allegation accurately describes the pleader’s mindset as to each
place where the disclaimer is made.

Nothing more will be said or

done here on that score, but defense counsel ought to take a hard
look at the Complaint’s allegations to see whether a different
response is not called for in at least some places.
But no even arguable justification can be found for
counsel’s pervasive use of a response--or more accurately a
nonresponse--that asserts this or a close variant in addressing
some of the Complaint’s allegations:
These defendants admit only those obligations imposed
by law and deny the remaining allegations contained in
this paragraph.
That usage is really meaningless (precisely because it is

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nonresponsive) when employed in Answer ¶¶9 and 10.

But far worse

it is totally uninformative, and it also violates the federal
principle of notice pleading that applies to plaintiffs and
defendants alike, when it is advanced in Answer ¶¶28-30, 32, 9294, 146-48, 201 and 202.

So all of those paragraphs of the

Answer are stricken.
Hence defense counsel must go back to the drawing board to
do a proper job.

Because presenting the revised responses via an

amendment to the Answer, rather than by a self-contained full
Amended Answer, would force the reader to flip back and forth
between two pleadings to see what is and what is not being placed
in issue and how the issues have been posed, counsel is ordered
to prepare and file a full-blown response in substitution for the
present Answer.
Finally, no charge is to be made to these three defendants
by their counsel for the added work and expense incurred in
correcting counsel’s errors.

Counsel are ordered to apprise

their clients to that effect by 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:

June 20, 2011

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