Javier Montes, a minor by his mother, Martha Montes v. Deputy Sheriff John Doe
Filing
24
MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 8/28/2013. Mailed notice by judge's staff. (srb,)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAVIER MONTES, etc.,
Plaintiff,
v.
DEPUTY SHERIFF DOUGLAS PASTIRIK,
individually, et al.,
Defendant.
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No.
13 C 3182
MEMORANDUM ORDER
On August 26, 2013 this Court received a courtesy copy of
the Answer and Affirmative Defenses (“ADs”) filed on August 15 on
behalf of Deputy Sheriff Douglas Pastirik (“Pastirik”) and the
County of LaSalle (“County”).
That transmittal crossed in the
mails this Court’s August 22 memorandum order (“Order”) that
called for the delivery of the chambers copy of that pleading,
plus a $100 payment because the non-delivery violated this
District Court’s LR 5.2(f).
Because defense counsel’s transmittal reflected tardiness
rather than his ignoring LR 5.2(f) altogether, this Court was
originally inclined to waive the $100 obligation mandated by its
Order.
But examination of the responsive pleading discloses
defense counsel’s violation of still another ground rule, this
time LR 10.1--and that violation calls for a do-over of the
responsive pleading plus the payment of the previously levied
$100.
LR 10.1 calls for a responsive pleader to state the
substance of each paragraph of a complaint immediately before
stating the response to that allegation (a requirement most
commonly addressed by starting with a verbatim copying of the
complaint’s allegation).
That requirement serves the obvious
purpose of allowing a reader -- opposing counsel, the assigned
judge or anyone else -- to see just what is and what is not being
placed in issue, without having to flip back and forth between
the complaint and the responsive pleading.
In this instance the
Answer has not complied with that sensible requirement, so that
defense counsel must go back to the drawing board.
There are also a few specific aspects of the Answer and its
annexed ADs that require comment.
1.
Here they are:
Answer ¶3 departs from the clear roadmap charted by
Fed. R. Civ. P. (“Rule”) 8(b)(5) for disclaimers that enable
a responding party to avoid either admitting or denying an
allegation where that is appropriate.
In addition, that
paragraph’s demand for “strict proof” is meaningless.
In
both those respects, see App’x ¶1 to State Farm Mut. Auto.
Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001).
Of
course, where as here the gravamen of a federal law suit
looks to federal-question jurisdiction rather than diversity
of citizenship, issues of citizenship or residence are
really irrelevant.
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2.
AD 1, which asserts a qualified immunity defense
for Pastirik, is directly at odds with the allegations of
First Amended Complaint (“FAC”) ¶¶10 and 11.
That being so,
the purported AD must be stricken as violative of Rule 8(c)
and its caselaw--see also App’x ¶5 of State Farm.
Hence
AD 1 is stricken.
3.
AD 2 cites to a provision of the Illinois Tort
Immunity Act.
That AD of course provides no insulation
against the FAC’s invocation of 42 U.S.C. §1983.
Whether it
bears on County’s duty of indemnification (Complaint
Count II) remains for the future, so for the present AD 2
will be permitted to stand.
Because the matters dealt with in this memorandum order are
all-pervasive, the entire Answer and ADs are stricken, with leave
granted to file a self-contained proper responsive pleading on or
before September 9, 2013.
No charge is to be made to either
defendant for the time and expense involved in correcting
counsel’s errors in that manner.
_________________________________
Milton I. Shadur
Senior United States District Judge
Dated:
August 28, 2013
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