Taylor v. City Of Berwyn Illinois et al
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
CITY OF BERWYN, et al.,
11 C 2167
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
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).
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.
regard, defense counsel should be ingenious enough to produce a
workable joint pleading even where the clients differ in their
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”)
Meanwhile, some aspects of all eight Affirmative Defenses
(“ADs”) appended to each Answer also need attention.
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
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
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.
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
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.
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.
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.
AD 5 is insufficiently informative under the
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.
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).
What has just been said as to AD 5 applies to AD 6
Any claim of failure to mitigate damages is totally
speculative at this time.
It does not represent a currently
assertable affirmative defense.
Finally, AD 8 is also entirely speculative and
It too should be omitted in counsel’s rewrite.
Milton I. Shadur
Senior United States District Judge
June 9, 2011
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