Flores v. Trans Union, LLC
MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 9/17/2013. Mailed notice by judge's staff. (srb,)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
TRANS UNION, LLC,
13 C 6010
Trans Union, LLC (“Trans Union”) has filed its Answer and
Affirmative Defenses (“ADs”) to the Complaint brought against it
by Maria Flores (“Flores”) that charges it with violation of the
Fair Credit Reporting Act, 15 U.S.C. §1681 et seq.
memorandum order is issued sua sponte because of the
extraordinarily problematic nature of Trans Union’s responsive
pleading--indeed, “problematic” is a euphemistic understatement,
because various aspects of that pleading are clearly at odds with
the objective good faith required of any pleader under Fed. R.
Civ. P. (“Rule”) 11(d) and, indeed, might perhaps trigger the
responsibility of Trans Union’s counsel under 28 U.S.C. §1927.1
Because so much of Trans Union’s pleading is troublesome,
this memorandum order has sought to be reasonably exhaustive--but
it is not this Court’s responsibility or role to police counsel’s
filing, so Flores’ attorneys are of course free to identify any
All further references to Title 28’s provisions will
simply take the form “Section--.”
defects not mentioned here.
Moreover, no effort will be made
here to rank the pleading defects in any order of
importance--instead the matters referred to in this memorandum
order will simply follow the sequence in which they appear in
Trans Union’s pleading.
First, just how does the Complaint ¶3 allegation about venue
give rise to a Rule 8(b)(5) disclaimer in light of Trans Union’s
admission in the second sentence of its Answer ¶5?
example Trans Union’s counsel believe that a combination of
Section 1391(b)(1) and 1391(c)(2), or perhaps Section 1391(b)(2)
alone, are somehow inapplicable to support venue in this judicial
district, counsel should explain just how such is the case.
Next, Trans Union’s Rule 8(b)(5) disclaimers in Answer ¶¶11
and 12 can hardly be justified in light of the specific
information that Flores’ Complaint
has provided about the
California and Illinois bankruptcies in the corresponding
paragraphs of her Complaint.
given Trans Union’s investigatory resources--were clearly
sufficient to give rise to a belief on its part calling for such
investigation, rather than its playing ostrich by availing itself
of such dubious Rule 8(b)(5) disclaimer assertions.
Next, does Trans Union fail to keep records about its own
Unless such is the case, its Rule 8(b)(5) disclaimer in
Answer ¶13 is difficult to understand.
Answer ¶14 appears to be another instance of a cop-out on
the part of Trans Union.
Relatedly, this Court is uncertain as
to the reason that Trans Union hedges its disclaimer here by
inserting the phrase “at this time.”
Once again it would appear
that minimal investigation would call for a less amorphous
response that would better serve the pleading purpose of
disclosing just whether the parties are or are not at issue with
As for Answer ¶15, is Trans Union asserting that it has no
access to the information whether the other two major credit
bureaus, Experian and Equifax, are or are not reporting the same
bankruptcy filing as to Flores that the Trans Union report
Barring such unavailability, it would appear that
nothing other than a straightforward admission should be made in
Answer ¶16, does Trans Union once again indicate that
it does not retain records of its own activity?
At least in part
(if not entirely) Answer ¶16 would appear to call for an answer
rather than a disclaimer.
Next, Answer ¶17 is an impermissible hedge--it is not at all
clear what portion of Complaint ¶17 is disclaimed, and on what
That hedge is unacceptable.
Answer ¶18 poses a different problem, this time a misuse of
If the statements contained in Complaint ¶18 “do
not constitute allegations asserted against” Trans Union as it
contends, just whom do those statements target?
Answer ¶19 is bizarre.
Again the hedge “at this time”
inexplicably appears, while Trans Union’s credit report on Flores
is assuredly within its own knowledge--hence it is difficult to
understand how anything but a flat-out admission is called for
“at this time.”
In a turnaround of sorts, Complaint ¶20 gets a flat-out
denial from Trans Union.
It would seem instead that Trans Union
could appropriately deny the opening clause in Complaint ¶20,
then having done so it could this time properly assert a Rule
8(b)(5) disclaimer as to Flores’ recital of her claimed damages.
Answer ¶¶21 and 22 contain the same flaw identified earlier
as to Answer ¶18.
Again Trans Union’s counsel should be more
careful when, as is required by this memorandum order, a
substitute pleading is provided.
Finally, this Court turns to Trans Union’s ADs.
some problems in that area:
AD 1 violates the fundamental principle that an AD
must accept the allegations of the complaint to which a
response is being made as gospel, while at the same time
stating that some other reason negates or lessens the
responding party’s responsibility--see App’x ¶5 to State
Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 279 (N.D.
Ill. 2001), as well as Rule 8(c) and the caselaw applying
AD 1 does not do so, and it is stricken.
Just what step or steps does Trans Union say Flores
could or should have taken “to mitigate her damages”?
is also stricken.
AD 3 is also at odds with Flores’ Complaint, and it
too is stricken.
Just how are the matters about which Flores
complains assertedly “the result of acts or omissions
committed by non-parties to this action over whom Trans
Union has no responsibility or control”?
This AD also bites
This Court will be receptive to any authority
provided by Trans Union to support its AD 5.
meantime that AD will be permitted to be repeated in the
amended responsive pleading required by this memorandum
In sum, the entire Answer and ADs are stricken, with leave
granted to file a self-contained responsive pleading on or before
September 27, 2013.
No charge is to be made to Trans Union by
its counsel for the added work and expense incurred in correcting
Trans Union’s counsel are ordered to apprise
their client to that effect by a letter accompanied by a copy of
this memorandum order, with a copy of the forwarding letter to be
transmitted to this Court’s chambers as an informational matter
(not for filing).
Milton I. Shadur
Senior United States District Judge
September 17, 2013
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