Young-Smith v. RMS - Recovery Management Services, Inc. et al
MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 4/18/2012:Mailed notice(srn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
RECOVERY MANAGEMENT SERVICES,
INC., et al.,
12 C 2028
MEMORANDUM OPINION AND ORDER
Recovery Management Services, Inc. (“RMS,” as its counsel
styles it) and Travis Hasom have filed what purports to be an
Answer, supplemented by Affirmative Defenses (“ADs”), to the Fair
Debt Collection Practices Act (“Act”) Complaint brought against
them by Luradean Young-Smith (“Young-Smith”).
But that filing
reflects defense counsel’s flouting of the mandates of Fed. R.
Civ. P. (“Rule”) 8 and 11(b)(the latter of which requires
objective good faith on the part of parties and their counsel),
and so it is stricken sua sponte.1
First, Answer ¶¶2 and 12, Answer Count I ¶14 and Answer
Count III ¶19 betray a failure to read and follow the plain
Instead of seeking to rank counsel’s several errors in
any order of importance, this opinion addresses them sequentially
in the order in which they appear. It should be added that the
matters referred to here are not necessarily exhaustive--it is
after all the lawyer’s obligation to comply with the applicable
standards in the first instance, rather than waiting for the
Court (or opposing counsel) to catch violations of those
standards. What are spoken of here are flaws exposed by a brief
threshold examination of defense counsel’s work product.
roadmap marked out by Rule 8(b)(5) as the basis for a disclaimer
of the need to comply with Rule 8(b)(1)(B)--see App’x ¶1 to State
Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill.
Counsel then compounds his Rule 8(b)(5) violation by
going on “and therefore deny the same.”
That is of course
oxymoronic--how can a party that asserts (presumably in good
faith) that it “lack[s] sufficient knowledge to admit or deny” an
allegation, or even (as Rule 8(b)(1)(B) specifies) “enough
information to form a belief as to the truth” of an allegation,
then proceed to deny it in accordance with Rule 11(b)?
Accordingly the quoted “and therefore...” phrase is stricken
wherever it appears in the Answer.
Next, a group of responses (Answer ¶¶2, 3, 4 and 8, Answer
Count I ¶16 and Answer Count III ¶19)--or perhaps more accurately
nonresponses--display counsel’s mindset that what he can label as
a legal conclusion or a nonfactual allegation excuses any need to
answer, as Rule 8(b)(1)(B) expressly dictates.
nonsense--see, e.g., App’x ¶2 to State Farm.
That is of course
Just to pick an
obvious instance, how can RMS fail to admit or to deny
unconditionally what it necessarily knows:
whether it is a “debt
collector” within the meaning of the Act?
Relatedly, counsel seeks self-justification for those same
attempted circumventions by claiming “an abundance of caution.”
That too is bad pleading, for it defeats the basic purpose of
notice pleading (which is incumbent on defendants as well as
plaintiffs) to identify just what is and just what is not at
issue between the litigants.2
As for the ADs, they too are problematic.
On that score,
defense counsel would do well to read App’x ¶5 to State Farm as
well as the uniform caselaw applying Rule 8(c).
In particular, AD 1 seeks to advance what amounts to a Rule
12(b)(6) motion--a doubtful subject under Rule 8(c).
apart from that general problem, this purported AD flouts the
obligation to accept the Complaint’s allegations as true for Rule
It is stricken without leave to replead.
Next, although AD 2 facially seems to be a potentially
viable defense, at least two aspects of AD 3 appear questionable:
Counsel’s assertion that purported violations of
the Act were “technical” totally ignores the purposefully
technical nature of the Act, intended to curb what Congress
has determined are harassing and abusive collection efforts.
Any contention that claimed violations are “de
minimis in nature” similarly ignores the congressional
decision--for the same reasons--to provide for statutory
damages even absent a showing of actual damages.
In summary, the entire pleading is stricken, with leave
In that regard, are defendants really in a position to
deny various of the factual allegations advanced by Young-Smith?
See, e.g., Answer ¶¶6, 7 and 9.
granted to file an Amended Answer and Affirmative Defenses on or
before May 2, 2012.
Regrettably, the wholesale violation of
fundamental principles of federal pleading identified here
appears to reflect the misperception that pleading (if not
lawyering in general) is a sort of word game in which the prize
goes to the lawyer who obfuscates the issues most.
has long mulled over the appropriate judicial response in such
situations--for example, a modest monetary sanction would clearly
not serve as a deterrent, and any heavier financial imposition
would seem inappropriate.
What appears preferable here, and what
this Court now orders, is this:
Defense counsel is not to charge his clients for
the time and any expense involved in the preparation and
filing of the curative pleading required here.
Counsel is also required to provide the clients
with a copy of this opinion, coupled with a confirmation of
what has been stated in paragraph 1, and to transmit a copy
of the forwarding letter to this Court (purely for
informational purposes, not for filing).
Milton I. Shadur
Senior United States District Judge
April 18, 2012
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