Clark v. Enterprise Recovery Systems, Inc.

Filing 18

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 2/21/2013. Mailed notice by judge's staff. (srb,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANGELA CLARK,
Plaintiff,
v.
ENTERPRISE RECOVERY SYSTEMS,
INC.,
Defendant.

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No.

12 C 9989

MEMORANDUM ORDER
Counsel for Enterprise Recovery Systems, Inc. (“Enterprise”)
has tendered its Unopposed Motion To Vacate Order of Default and
To Grant Defendant Leave To File Its Answer to Plaintiff’s
Complaint, designated for presentment on February 22.

Although

the first portion of that motion (vacating the order of default)
is granted, the rest is not, for Enterprise’s counsel has shown
himself to be unaware of a number of the principles of federal
pleading marked out by this Court’s Appendix to State Farm Mut.
Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001).1
This Court will make no effort to rank counsel’s
deficiencies in that respect in any order of importance.

Instead

they will be addressed here in the order in which they appear in
the Answer.

1

State Farm’s Appendix did not of course purport to
announce new rule, but rather intended to serve as a useful guide
to the avoidance of common types of pleading errors. That being
so, it is disappointing to see the numbers of practitioners who
continue to commit such errors.

To begin with, Enterprise’s counsel attempts to substitute
his notion that a statute or judicial opinion “speaks for itself”
(Answer ¶¶2, 21, 26 and 31) for the express response called for
by Fed. R. Civ. P. (“Rule”) 8(b)(1)(B).

On that score, counsel

should read App’x ¶3 to State Farm.
Next, instead of actually tracking the specific language of
the disclaimer marked out in Rule 8(b)(5), counsel inexplicably
coins some impermissible departures from that language (and, more
importantly, from its meaning)(Answer ¶¶4, 5, 10 and 11)--see
App’x ¶1 to State Farm.

And those errors are compounded by

counsel’s impermissible addition of the phrase “and accordingly
denies the same.”

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 quoted phrase must be omitted from each of those
paragraphs of the Answer the next time around.
Next, counsel has somewhere acquired the mistaken notion
that an allegation that may be characterized as a legal
conclusion requires no answer (Answer ¶¶20, 23-25, 28-30 and 33).
On that score, see App’x ¶2 to State Farm.
So much for the Answer.

As for the affirmative defenses

(“ADs”) that follow the Answer proper, most are problematic as
well (see App’x ¶5 to State Farm).

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For example, too many of them

flout the notion that an AD must accept a Complaint’s allegations
as gospel, so that the proper way to challenge an allegation is
simply to deny it in the answer.

When Enterprise’s counsel

returns to the drawing board, as he must, he should take a hard
look to see which of his proposed ADs really qualifies for that
status.
Because it would make no sense to have a patchwork
responsive pleading, the entire Answer with its ADs is stricken,
but with leave of course granted to file a self-contained
responsive pleading on or before March 11, 2013.

No charge is to

be made to Enterprise by its counsel for the added work and
expense incurred in correcting counsel’s errors.

Enterprise’s

counsel are ordered to apprise their client to that effect by
letter, with a copy to be transmitted to this Court’s chambers as
an informational matter (not for filing).
Finally, when plaintiff’s counsel obtained the order of
default that has been vacated here, this Court set March 19, 2013
as a prove-up date.

Instead of striking that date, it will be

retained as a date for a status hearing.

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

February 21, 2013

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