Carolina Casualty Insurance Company v. ABS Freight Transportation, Inc. et al
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 10/4/2012:Mailed notice(srn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CAROLINA CASUALTY INSURANCE
COMPANY,
Plaintiff,
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v.
ABS FREIGHT TRANSPORTATION,
INC., et al.,
Defendants.
No.
12 C 6838
MEMORANDUM OPINION AND ORDER
This Court has received, and has waded part way through, the
needlessly bulky responsive pleading filed by Great American
Insurance Group (“Great American”) to the Complaint for
Declaratory Judgment filed by Carolina Casualty Insurance Company
(“Carolina Casualty”) against Great American and four other
defendants.
Great American’s pleading comprises an Answer to the
Complaint plus a Counterclaim and Crossclaim for declaratory
judgment.
Its problematic nature, much of which has the
appearance of a document drafted by someone who charges by the
word, has occasioned this sua sponte memorandum order.
As suggested by the preceding paragraph, this Court has
decided that the prolix nature of Great American’s pleading does
not justify the expenditure of time needed to provide a chapterand-verse identification of matters that need correction
throughout that pleading.
Accordingly what follows should
suffice to provide enough examples so that Great American’s
counsel can do a complete overhaul on returning to the drawing
board.
First, when the labored responses to such allegations as
those in Complaint ¶¶1, 2 and 3 are reviewed, it seems clear that
each of Carolina Casualty’s assertions there could and should
have been met with a single simple sentence admitting those
allegation.
And that same criticism applies later as well (see,
e.g., the responses to Complaint ¶¶11 and 14).1
Other aspects of the response to Complaint ¶11 are
troublesome as well.
First, in the notice pleading regime that
is incumbent on defendants as well as plaintiffs in federal
practice, it is just wrong to say that a legal conclusion does
not require a response--see, e.g., App’x ¶2 to State Farm Mut.
Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001).
And in the same response paragraph, for counsel to characterize a
statute or any other document by saying that it “speaks for
itself,” rather than answering the allegation as to the content
of that statute or document, is really unsatisfactory--see App’x
¶3 to State Farm.
This memorandum order’s n.1 has already referred to the
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Indeed, it is difficult to reconcile the acknowledgment
in the response to Complaint ¶15 that admits the existence of
subject matter jurisdiction with all of the hedging language in
the responses to earlier paragraphs. Even in that respect, the
notion that the admission just mentioned should be stated “on
information and belief”--another hedge--seems absurd.
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response to Complaint ¶15.
But there is another aspect of that
response that calls for comment.
It ends with another kind of
hedge:
Except as expressly admitted, all other allegations set
forth in paragraph 15 are denied.
That type of hedge should really be avoided, given the purpose of
notice pleading to apprise a reader (certainly including opposing
counsel and the judge assigned to the case) as to just what is
being denied--this Court views a fair reading of Fed. R. Civ. P.
(“Rule”) 8(b)(4) as calling for more precision.
Even worse, in
this specific instance there are no other allegations in
Complaint ¶15, so that the purported denial is totally
meaningless.
Great American’s counsel is also among the lawyers who
purport to advance Rule 8(b)(5) disclaimers but seem not to have
understood that Rule--as the responses to Complaint ¶¶16 and 17
reveal, the invocation of that provision (which gives the pleader
the benefit of a deemed denial of an allegation) is followed by
an outright denial.
That is of course oxymoronic--how can a
party that asserts (presumably in good faith) that it lacks even
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 purported denial would have to be stricken
wherever it appears in the Answer.
Enough said, not because that is the end of the story but
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rather because the burden should be on the pleader to clean up
his act, rather than requiring this Court to cull through a
turgid document such as that involved here.
Great American’s
counsel will be expected to go through task of repleading in a
more responsible fashion (in that respect, counsel might want to
look at the entire Appendix to State Farm to see whether any of
its other aspects apply to his Answer).
This Court eschews any comment as to Great American’s
Counterclaim and Crossclaim, a subject for consideration by its
adversaries in that pleading.
Instead only the existing Answer
is stricken, but with leave granted of course to file a selfcontained Amended Answer on or before October 15, 2012.
One item remains.
When this Court has occasion to address
responsive pleadings sua sponte in a manner that calls for
repleading, it most frequently orders that no charge be made to
the client for the time and expense involved in the do-over.
In
this instance, however, the appropriate modest sanction appears
to call for no charge being made for the original work product,
because less time and effort should presumably be involved in
doing the job the second time around.
Lastly, Great American’s
counsel are ordered to apprise their client to that effect by a
letter accompanied by a copy of this opinion, with a copy of that
letter to be transmitted to this Court’s chambers as an
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informational matter (not for filing).
________________________________________
Milton I. Shadur
Senior United States District Judge
Date:
October 4, 2012
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