Flores v. Trans Union, LLC

Filing 16

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
EASTERN DIVISION
MARIA FLORES,
Plaintiff,
v.
TRANS UNION, LLC,
Defendant.

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No.

13 C 6010

MEMORANDUM ORDER
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.

This

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

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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?

If for

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.

That information--particularly

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
records?

Unless such is the case, its Rule 8(b)(5) disclaimer in

Answer ¶13 is difficult to understand.

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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
each other.
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
includes?

Barring such unavailability, it would appear that

nothing other than a straightforward admission should be made in
Answer ¶15.
As to

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
basis.

That hedge is unacceptable.

Answer ¶18 poses a different problem, this time a misuse of
Rule 8(b)(6).

If the statements contained in Complaint ¶18 “do

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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.

Here are

some problems in that area:
1.

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.

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Ill. 2001), as well as Rule 8(c) and the caselaw applying
it.

AD 1 does not do so, and it is stricken.
2.

Just what step or steps does Trans Union say Flores

could or should have taken “to mitigate her damages”?

AD 2

is also stricken.
3.

AD 3 is also at odds with Flores’ Complaint, and it

too is stricken.
4.

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

the dust.
5.

This Court will be receptive to any authority

provided by Trans Union to support its AD 5.

In the

meantime that AD will be permitted to be repeated in the
amended responsive pleading required by this memorandum
order.
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
counsel’s errors.

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

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transmitted to this Court’s chambers as an informational matter
(not for filing).

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

September 17, 2013

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