Imelda Estrada v. J. C. Penney Corporation Inc

Filing 14

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 5/20/2013. Mailed notice by judge's staff. (srb,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

IMELDA ESTRADA,
Plaintiff,
v.
J. C. PENNEY CORPORATION, INC.,
Defendant.

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Case No. 13 C 3361

MEMORANDUM ORDER
J. C. Penney Corporation, Inc. ("J. C. Penney"), which had failed to comply with this
District Court's LR 5.2(f) in the course of removing this personal injury action from the Circuit
Court of Cook County to this District Court, has now cured that deficiency and tendered a $100
check payable to the Clerk of the Court, thus complying with this Court' s May 13 memorandum
order. But problems with J. C. Penney's Answer and Affirmative Defenses to the Complaint
brought against it by Imelda Estrada ("Estrada") have prompted this sua sponte memorandum
order.
Some lawyers regrettably seem to regard pleading as a type of nitpicking game, rather
than as serving the goal of notice pleading -- that is, identifying just what is and what is not at
issue in the litigation -- that should be incumbent on counsel on both sides of a lawsuit. This
Court's review of J. C. Penney's responsive pleading unfortunately leaves it with the sense that
the author fits within that troubling group.1
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This Court should not be misunderstood as disapproving meticulousness in the practice
of law. It is rather that a pleader should be informed by common sense as well as by a desire for
precision. Because it is not this Court's role to draft pleadings, what follows in the text is not

For example, it is frankly unclear just what allegations in Complaint ¶¶ 1 and 2 are said to
be denied in the corresponding answering paragraphs. Is there any reason that a simple
admission is not called for by Fed. R. Civ. P. ("Rule") 8(b)(1)(B) and 8(b)(4)?
Next, just what is intended to be denied as to Complaint ¶¶ 3 through 5? Is there any real
question as to the general public's access to J. C. Penney's stores or as to the permitted presence
there of plaintiff Estrada as a store customer?
As for Answer ¶ 7, that would appear to be a likely candidate for Rule 8(b)(4)
particularized treatment, rather than the present blanket denial. For instance, although J. C.
Penney is certainly within its rights in disclaiming negligence on its part, is it really challenging
the allegation that Estrada was injured when she was lawfully in the store?
By the same token, Answer ¶ 12's total denial of J. C. Penney's duties as alleged in
Complaint ¶ 12 is of course dead wrong. If and to the extent that J. C. Penney's counsel believes
the allegations to be overstated or otherwise inaccurate, that should be made specific -- not by
stating a blunderbuss "Who, me?"
As for J. C. Penney's Affirmative Defenses ("ADs"), its counsel has not been mindful of
the fundamental principle embodied in Rule 8(c) and the caselaw applying it (see also App'x ¶ 5
to State Farm Mutual Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 279 (N.D. Ill. 2001) that the
responsive pleader must -- for that purpose -- treat a complaint's well-pleaded allegations as
gospel. Thus:

intended to be exhaustive -- instead it is only representative of the approach that J. C. Penney's
counsel ought to take throughout the do-over that is later ordered here.
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1.

AD 1 is at odds with Complaint ¶ 6 (even apart from the
boilerplate assertions in AD 1 ¶ 2, which advance contentions that
J. C. Penney cannot know to be accurate at this time). Accordingly
AD 1 is stricken without prejudice.

2.

AD 2 -- particularly its paragraph 3 -- suffers from the same flaw,
and it is wholly speculative as well. That AD is also stricken
without prejudice.

3.

AD 3 cannot possibly be known by J. C. Penney at this point. It
too is stricken, though further factual development may perhaps
justify its revival.

4.

AD 4's omnibus adoption of the Rule 8(c) laundry list is
inexcusable -- indeed, it is really a plain invitation to the
imposition of sanctions under Rule 11(b). Although this Court will
not accept that invitation, for it views the potential invocation of
Rule 11(b) as reserved for more serious substantive violations by
lawyers, J. C. Penney's counsel clearly ought to think twice before
engaging in such impermissible pleading.

In sum, J. C. Penney's Answer and ADs are stricken in their entirety, but with leave of
course granted for the filing of an appropriate self-contained responsive pleading on or before
May 31, 2013. No charge is to be made to J. C. Penney by its counsel for the added work and
expense incurred in correcting counsel's errors. Counsel is ordered (1) to send a copy of this

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order to the client and (2) to transmit a copy of counsel's forwarding letter to this Court (solely
for information, not for filing).

__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: May 20, 2013

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