Sansone v. Donahue

Filing 14

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 7/24/2013. Mailed notice by judge's staff. (srb,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANTHONY SANSONE,
Plaintiff,
v.
PATRICK R. DONAHUE, POSTMASTER
GENERAL, et al.,
Defendants

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No.

13 C 3415

MEMORANDUM ORDER
Sometimes this Court suspects that one of the law book
publishers has put out a bad form book as a joke, only to find
that it turned out to be a bestseller, with too many defense
lawyers regarding it as a serious effort and following its
dictates.

That suspicion led a dozen years ago to this Court’s

issuance of the Appendix in State Farm Mut. Auto. Ins. Co. v.
Riley, 199 F.R.D. 276 (N.D. Ill. 2001), but the flood of
unacceptable defendants’ pleadings seems to continue unabated.
In this instance the government’s Answer provides still
another instance of that phenomenon, and this memorandum order is
issued sua sponte to address some problematic aspects of that
responsive pleading.

And because defense counsel has formulated

the pleading by placing ten claimed affirmative defenses (“ADs,”
labeled as “First Defense,” “Second Defense” and so on) at the
very beginning, this memorandum order will speak to those first:
1.

AD 1 contains “to the extent” to qualifications, a

sure tipoff that it advances a speculative or hypothetical

possibility that does not satisfy the notice-pleading
principle that informs federal practice.

Moreover, in

violation of the fundamental principle that an AD must
accept the complaint’s allegations as correct (see App’x ¶5
to State Farm), it contradicts the allegations in Complaint
¶4.

Accordingly AD 1 is stricken, without prejudice to its

possible reassertion if plaintiff Anthony Sansone
(“Sansone”) proves not to have exhausted his administrative
remedies or to have pursued a claim outside the scope of his
administrative charges.
2.

AD 2 is directly at odds with the allegations of

Complaint ¶7.
3.

It too is stricken.

ADs 3 through 6 are inconsistent with the

allegations in Complaint ¶9, and those ADs are stricken too.
4.

AD 9 is at odds with the allegations of Complaint

¶¶4 and 9, so it is stricken as well.
5.

How do government counsel and his clients know that

Sansone “has failed in his duty to mitigate his damages, if
any” (AD 10)?

Because of the absence of some good faith

basis for asserting that proposition (at least the
government has not suggested any), AD 10 is stricken too.
To return to State Farm, its App’x ¶1 (199 F.R.D. at 278)
deals with the all-too-common distortion of the Fed. R. Civ. P.
(“Rule”) 8(b)(5) disclaimer, a truly puzzling error because all

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that a pleader needs to do is to track the plain language of that
Rule.

Moreover, here counsel compounds that error by following

the inaccurate tracking of Rule 8(b)(5) with the phrase “and
therefore denies them.”

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 stricken from Answer ¶¶7
and 8.
At a minimum, government counsel must return to the drawing
board to cure the Answer’s deviations from the appropriate Rule
8(b)(5) disclaimer, and counsel is ordered to do so by filing an
amendment to the Answer (not a self-contained complete do-over of
the Answer) on or before August 7, 2013.

If counsel also wishes

to try again on one or more ADs, those efforts may be included in
the amendment.

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

July 24, 2013

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