Hicks v. Clark et al

Filing 117

MEMORANDUM Order regarding defendants Westbrooks and Wright's response to the second amended complaint. Signed by the Honorable Milton I. Shadur on 3/31/2015:Mailed notice(clw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHRISTOPHER HICKS,
Plaintiff,
v.
BARRY CLARK, et al.,
Defendants.

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Case No. 13 C 989

MEMORANDUM ORDER
This Court has just received bulky Answers filed on behalf of two of the many
defendants in this action -- Brodie Westbrooks ("Westbrooks") and Elmira Wright ("Wright") -in response to the Second Amended Complaint ("SAC") brought by plaintiff Christopher Hicks
("Hicks"). This sua sponte memorandum order is prompted by two problematic aspects of that
responsive pleading, one reflecting a degree of some thoughtlessness on the part of defense
counsel and the other attributable to a patent misapplication of one of the Federal Rules of Civil
Procedure ("Rules").
As to the first of those items, it is easy in these days of electronic duplication to spit out
lengthy pleadings for different defendants (in this instance, the two Answers to Hicks' 7-count,
86-paragraph SAC) with the aid of electronic reproduction and very little human thought. But to
do so disregards the burden thrust on the reader -- whether a plaintiff's counsel or this Court or
anyone else -- in having to go through some 40 pages rather than 20 pages to see just where the
defendants share common cause or may part company in their response. Just think of how
simple (except for a little added thought) it would have been to provide a single answer for both
Westbrooks and Wright, containing identical responses where appropriate and some responses

that differed in part. This Court candidly acknowledges that defense counsel's very different
usage compelled it to eschew, as it almost never does, a reading and study of the Westbrooks
Answer -- hence the detailed discussion in this memorandum order adverts only to the Wright
Answer. 1
What is more troubling in substantive terms is the distortion caused by counsel's having
responded to nearly all of the SAC's allegations (see Answer ¶¶ 1-6, 9-13, 15-54, 56-62, 64-66,
73-75, 81, 82 and 84-86) with disclaimers permitted by Rule 8(b)(5) where neither an admission
or a denial is appropriate as normally called for by Rule 8(b)(1)(B), 2 then impermissibly
following those multiple disclaimers of the corresponding SAC allegations by adding "and,
therefore, denies them." It is of course oxymoronic for a party to assert (presumably in good
faith) that she lacks even enough information to form a belief as to the truth of an allegation, then
proceed to deny it. Because such a denial is at odds with the pleader's obligations under Rule
11(b), the quoted language is stricken from each paragraph of each Answer that employs that
impermissible locution.
There are also some problematic aspects of the Affirmative Defenses that follow the
Answer itself, but this memorandum order will not essay any views on that score. That task will
be left to Hicks' counsel.

Date: March 31, 2015

__________________________________________
Milton I. Shadur
Senior United States District Judge

1

Although this Court might well send defense counsel back to the drawing board to
produce a more reader-friendly pleading, it has no desire to retaliate in that fashion.
2

No assessment has been attempted here as to the extent to which those disclaimers may
not be permissible under the subjective and objective good faith demanded by Rule 11(b).
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