Bank of America, N.A. v. Hilton Trading Corp.
Filing
29
MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 11/1/2012:Mailed notice(srn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BANK OF AMERICA, N.A.,
Plaintiff,
)
)
)
)
)
)
)
)
)
v.
HILTON TRADING CORP., etc.,
Defendant.
No. 11 C 4559
MEMORANDUM OPINION AND ORDER
This sua sponte memorandum opinion and order has been
prompted by the Answer and Affirmative Defenses (“ADs”) filed by
Hilton Trading Corp. d/b/a Accubanker USA (“Hilton”) to the
Complaint brought against it by Bank of America, N.A. (the
“Bank”).
It will treat with the issues in the order in which
they appear in the responsive pleading, rather than their order
of importance.
That is more than amply demonstrated by the opening subject,
which relates to the Answer’s frequent use of the Fed. R. Civ. P.
(“Rule”) 8(b)(5) disclaimer (see Answer ¶¶6, 11-24, 26, 27 29,
34, 35, 42-44 and 51-53).
Although Hilton’s counsel have been
faithful to the formulation prescribed by that Rule (something
that all too many lawyers fail to do), each recitation of that
formula is followed by the meaningless phrase “but demands strict
proof thereof”--see App’x ¶1 to State Farm Mut. Auto. Ins. Co. v.
Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001).
stricken wherever it appears in the Answer.
That phrase is
More substantively, Answer ¶¶58 and 59 fail to meet the
requirements of notice pleading that federal practice imposes on
defendants as well as plaintiffs.
It will not do, in dealing
with allegations as to a defendant’s duty to a plaintiff, to say
simply:
This Defendant denies that Paragraph -- properly sets
forth the duties imposed upon it by law and states
affirmatively that it fully met and performed any such
duties.
That is really nonresponsive to the Bank’s allegations, and it
does not satisfy the real-world requirement of Rule 8(b)(1)(B).
Defense counsel must return to the drawing board to provide a
more informative response.
Finally, several of Hilton’s ADs are potentially dispositive
of this action--AD I’s statute of repose contention and the
contentions of ADs III, IV and V as to the requirement of privity
and as to other assertedly applicable statutes of limitations.
Both parties are directed to focus their initial discovery
efforts primarily on ascertaining the underlying facts that might
or might not trigger those defenses.
________________________________________
Milton I. Shadur
Senior United States District Judge
Date:
November 1, 2012
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?