Trustees of the Chicago Regional Council of Carpenters Pension Fund et al v. Otis Construction Company et al
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 12/27/2013:Mailed notice(air, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Trustees of the Chicago Regional
Council of Carpenters Pension
Fund, et al.,
Plaintiffs,
v.
Otis Construction Company and
Glenn Otis, Jr.,
Defendants.
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No. 13 C 7560
MEMORANDUM OPINION AND ORDER
J. Glen Otis, Jr. (“Otis”), one of the two defendants in
this ERISA action brought by several employee benefit funds
(collectively “Funds”),1 has filed what he labels as an “Answer
and Affirmative Defenses to Complaint.”
After this Court had
received that filing and had dictated the original version of
this opinion, it received a virtually identical pleading filed by
counsel representing co-defendant Otis Construction Company, Inc.
(“Company”) -- a pleading that cleared up the mystery as to what
document Otis had tapped into as the source of all of the errors
that this Court had previously ascribed to him individually.
Because both of those purported responsive pleadings are a near
disaster, this memorandum opinion and order is issued sua sponte
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It would appear most likely that Otis has an (or
perhaps the) ownership interest in Company, although the absence
of any allegation to that effect in Funds’ Complaint has made it
unnecessary for Otis to speak to that issue.
to strike the pleadings in their entirety and to call for
suitable substitutes.
In crafting what follows, this Court -- then aware of only
Otis’ personal filing -- originally thought of beginning with
Alexander Pope’s famous aphorism in Part II of his Essay on
Criticism:
A little learning is a dangerous thing.
But it now seems the Pope aphorism might more appropriately be
applied to Company’s counsel, while its application to Otis
himself should perhaps be expanded by adding “No knowledge is
even more dangerous” -- or perhaps Oscar Levant’s
autobiographical title A Smattering of Ignorance would provide
the best description.
Labels aside, however, it is time to turn to specifics.
To
begin with nonlawyer Otis’ filing, he cannot also represent
Company, though he can of course act pro se -- solely for
himself.
That calls for striking the portion of his existing
pleading that he advances on behalf of Company, and this Court so
orders.
All of the remaining matters dealt with in this opinion are
deficiencies both on Otis’ part as a pro se pleader and on the
part of Company’s counsel.
This opinion will deal with them in
the sequence in which those flaws first appear in the pleadings.
To begin with, Company’s counsel and Otis have somehow
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acquired the notion that what they choose to label as
“conclusions of law” require no response (see each Answer’s ¶¶ 1,
6, 7 and 9 through 13).
That is flat-out-wrong (see App’x ¶ 2 to
this Court’s opinion in State Farm Mut. Auto. Ins. Co. v. Riley,
199 F.R.D. 276, 278 (N.D. Ill. 2001)).
Even worse, both pleaders
have totally misused (perhaps “abused” would be a better term)
even that mistaken view -- there is no legitimate reason for
their failure to comply with Fed.R.Civ.P. (“Rule”) 8(b)(1)(B) by
providing a forthright answer to each of the unanswered
allegations (their failures to do so as to Complaint ¶¶ 1, 6, 7
and 11 through 13 are particularly egregious).
Next, both pleaders are obviously aware of the disclaimer
that is made available under appropriate circumstances by Rule
8(b)(5) (see each Answer’s ¶¶ 1, 2, 7, 12 and 13), but in their
attempt to invoke that provision they have failed to follow the
path that it clearly marks out by substituting their own
inaccurate paraphrase (see App’x ¶1 to State Farm v. Riley).
And
they then compound that error by adding to that revised
disclaimer the phrase “and therefore denies the same.”
Even when a pleader sets out a properly-stated disclaimer
pursuant to Rule 8(b)(5) to get the benefit of a deemed denial,
such a denial is oxymoronic.
And where as here the disclaimer
omits the key term “belief” and asserts instead that the pleader
“is without knowledge or information sufficient to admit or deny
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the allegation of paragraph --“ of a complaint, the phrase “and
therefore denies the same” is just as oxymoronic.
clearly flouts Rule 11(b).
Such a denial
Accordingly the last-quoted phrase is
stricken wherever it appears in either Answer.
Next, each Answer ¶3 responds to an allegation about
agreements that both Otis and Company acknowledge that the latter
entered into with the Chicago Regional Council of Carpenters by
stating “that the terms and conditions of any such agreements
speak for themselves.”
Riley.
Not so -- see App’x ¶ 3 to State Farm v.
And with both pleaders having acknowledged the execution
of Trust Agreements as alleged in the Complaint, each Answer’s ¶
13 is in direct contradiction of the “speaks for itself”
assertion.
Finally, neither pleader fares any better with his or its
purported ADs.
As for the operative standards that govern ADs,
see App’x ¶ 5 to State Farm v. Riley.
1.
And in particular:
AD 1 is simply bunk in light of the allegations in
Funds’ Complaint, which the law teaches have to be credited
for that purpose.
2.
Otis’ AD 2 violates the fundamental principles of
notice pleading that apply to federal plaintiffs and
defendants alike.
If Otis really believes that Funds have
failed to meet any conditions precedent, he must flesh that
out rather than advancing a vague generic position.
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Everything that has been said up to here points to the
striking of both Answers and their ADs, and this Court so orders.
Both Otis and Company are granted until January 13, 2014 to
fashion and file self-contained Answers in proper form, failing
which they will be treated as having defaulted.
Lastly, each
pleader’s entire effort plainly appears to have violated Rule
11(b).
Accordingly this Court exercises its prerogative to order
both Otis and Company’s counsel to show cause why the matters
described here have not violated that Rule, after which this
Court will consider what if any sanctions are appropriate.
_________________________________
Milton I. Shadur
Senior United States District Judge
Dated:
December 27, 2013
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