Sansone v. Donahue

Filing 16

ENTER MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 7/30/2013. 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. DONAHOE, POSTMASTER
GENERAL, et al.,
Defendants

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No.

13 C 3415

MEMORANDUM ORDER
This Court’s July 24, 2013 memorandum order (“Order”) began
with what was intended as a jocular reference to the possible
source of too-often-encountered bad pleading by lawyers on the
defense side of the “v.” symbol in federal practice.

Whether out

of resentment at that effort or simply as a matter of bad
lawyering, the just received Amendment to the Answer has really
compounded a couple of the problematic aspects of the earlier
responsive pleading.
For one thing, the current Amendment begins with this
paragraph:
1. The phrase “; accordingly, they are denied” is
substituted for the phrase “and therefore denies them”
in defendant’s responses to paragraphs 7 and 8 of the
complaint.
That substitution is quite astonishing, for anyone with a basic
command of the English language has to recognize that the
proposed substitution is just as oxymoronic as the original
locution.

Moreover, the defense counsel (an Assistant United

States Attorney, no less) has failed entirely to correct his
original impermissible departure from the plain path marked out
for Fed. R. Civ. P. (“Rule”) 8(b)(5) disclaimers.
Twice is more than enough.

Both the first sentence of

Answer ¶7 and the third sentence of Answer ¶8 are stricken, so
that the first two sentences of Complaint ¶7 and the second
sentence of Complaint ¶8 are deemed admitted.
As for the second paragraph of the Amendment, the error is a
more subtle one and calls for a bit of elaboration.

As Order at

2 explained, the fundamental principle in invoking Rule 8(c) is
that an affirmative defense (“AD”) must accept the complaint’s
allegations as correct (see App’x ¶5 to the State Farm opinion
referred to in the Order).

Here Complaint ¶4 alleges that

plaintiff Anthony Sansone (“Sansone”) “was terminated by USPS”
(the word “terminated” was also used in Complaint ¶11), while
Complaint ¶10 similarly stated that Sansone “was forced to leave
his job involuntarily.”
Interestingly, Answer ¶4 has admitted the Complaint ¶4
allegation that Sansone was terminated, although each of Answer
¶¶10 and 11 has denied the comparable allegations in the
Complaint.

But the important thing for pleading purposes is that

a current failure-to-mitigate-damages AD cannot be predicated on
the notion that Sansone resigned his employment voluntarily, when
he has alleged exactly the opposite.

2

Because the Answer has put

that matter into issue properly by its denials of Sansone’s
allegations, the claimed AD in Amendment ¶2 is stricken without
prejudicing defendant in any way.

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

July 30, 2013

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