Taylor v. City Of Berwyn Illinois et al

Filing 51

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 6/9/2011:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MESHELL TAYLOR,
Plaintiff,
v.
CITY OF BERWYN, et al.,
Defendants.

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No.

11 C 2167

MEMORANDUM ORDER
Each of five police officer defendants in this 42 U.S.C.
§1983 (“Section 1983”) action brought by Meshell Taylor
(“Taylor”)--Anthony Gennett (“Gennett”), Ramon Ortiz, Robert
Sepe, James Kenny and John O’Halloran--has filed a separate 30plus page Answer to Taylor’s 104-paragraph First Amended
Complaint (“Complaint”).

This memorandum order is prompted by a

few problematic aspects of those responsive pleadings.
To begin with, all five of those defendants are represented
by the same law firm--indeed, their interests are substantially
parallel (though, as explained later, not entirely so).

And that

being so, the preparation of separate Answers rather than one
combined Answer (differentiating, of course, the responses to
Complaint paragraphs that call for separate treatment) was
insufficiently thoughtful as to the impact on the readers-Taylor’s counsel and this Court.

In that respect, when this

Court reviews a responsive pleading paragraph by paragraph (as it
always does), it is terribly inconvenient to have to repeat that

task separately as to each defendant.
Accordingly this Court strikes all five of the current
Answers, without prejudice of course to the filing of a single
combined Amended Answer on or before June 24, 2011.

In that

regard, defense counsel should be ingenious enough to produce a
workable joint pleading even where the clients differ in their
responses.

For example, Gennett’s Answer ¶20 (this Court looked

at that pleading first, simply because he was the first-listed
among the five defendants) is an extended narrative, to which the
other defendants can simply add their Fed. R. Civ. P. (“Rule”)
8(b)(5) disclaimers.
Meanwhile, some aspects of all eight Affirmative Defenses
(“ADs”) appended to each Answer also need attention.

Here are

those aspects:1
1.

AD 1, included in each response, is an

inappropriate boilerplate repetition of a principle that
certainly does not call for such a one-size-fits-all
treatment.

When Taylor’s allegations are taken as true, as

they must be for Rule 8(c) purposes (see, e.g., App’x ¶5 to
State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 279
(N.D. Ill. 2001)), at least the officers whom Taylor charges

1

As the ensuing discussion reflects, the fact that the
officers were involved in different ways at different times in
the events alleged by Taylor should have made it obvious to
defense counsel that advancing the identical ADs as to each of
them was unwarranted.
2

with having joined codefendant Langley Productions, Inc. in
allegedly seeking to extort a television release from Taylor
in exchange for a dismissal of ungrounded criminal charges
against her, cannot invoke qualified immunity in good
faith.2
2.

AD 2 poses the same problem just discussed as to

AD 1 and its n.1.

Counsel must be selective among the

officer defendants, mindful of the fact (as indicated in
AD 3) that the Illinois Tort Immunity Act is unavailable to
a party charged with wilful and wanton conduct.
3.

AD 3 should not be repeated in generic terms as to

all five officers, as it has been here, because at least
certain of the officers are clearly charged in the Complaint
with wilful and wanton conduct.
4.

Although AD 4 may be a fair statement of the law in

certain circumstances, it is again necessary for counsel to
differentiate among the officer defendants to conform to the
different allegations advanced against each of them.
5.

AD 5 is insufficiently informative under the

2

This Court is mindful of the consideration set out by
defense counsel in n.1 to AD 1. Even though the position stated
there as to the possible waiver of a bona fide qualified immunity
defense fails to take into account the more recent qualified
immunity jurisprudence emanating from the United States Supreme
Court, under which a threshold qualified immunity defense may be
unavailable where a factual hearing is needed to determine
whether such a defense is or is not viable, this Court is not
striking an invocation of qualified immunity as such.
3

principles of notice pleading that are applicable to
plaintiffs and defendants alike.

If the claim there is to

be advanced as to any defendant, it must be fleshed out (for
at least in facial terms, the Complaint appears to seek
liability against each defendant based on his own conduct).
6.

What has just been said as to AD 5 applies to AD 6

as well.
7.

Any claim of failure to mitigate damages is totally

speculative at this time.

It does not represent a currently

assertable affirmative defense.
8.

Finally, AD 8 is also entirely speculative and

premature.

It too should be omitted in counsel’s rewrite.

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

June 9, 2011

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