Freeman v. Kaplan, Inc.

Filing 20

MEMORANDUM Opinion and Order based on a preliminary scanning, rather than an in-depth study, of defendant's Answer as a whole. (For further details see Memorandum Opinion and Order) Signed by the Honorable Milton I. Shadur on 3/2/2015:Mailed notice(clw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

SHARON FREEMAN, on behalf of herself
and all similarly situated persons,
Plaintiff,
v.
KAPLAN, INC.,
Defendant.

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Case No. 14 C 10265

MEMORANDUM OPINION AND ORDER
Nearly fully 14 years have elapsed since this Court, prompted in material part by a desire
to relieve its secretary from the burden of repeatedly typing corrective rulings as to a number of
flaws that had pervaded all too many responsive pleadings, published an Appendix to its opinion
in State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276 (N.D. Ill. 2001). 1 Regrettably that
effort has been unsuccessful in eradicating the mistakes identified in that Appendix, whether
lawyers are unaware of the precepts set out there or they mistakenly view those precepts as
nitpicking, or for some other reason.
Nothing daunted, this Court contemplates publishing this memorandum opinion and
order to address some practices employed by responsible lawyers in responsible law firms who
have committed other venial (not mortal) sins that some further thought would have avoided.
Because hope springs eternal, perhaps what is said here may gain some currency.
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1
It was hoped that publication of the Appendix might have two salutary effects:
(1) increasing the general awareness of the flaws described there and (2) enabling this Court's
secretary simply to cite to the Appendix rather than having to spell out the pleading defect each
time.

To begin with, the Answer just filed on behalf of Kaplan, Inc. ("Kaplan") to the putative
class and collective action brought by Sharon Freeman ("Freeman") contains a large number of
proper invocations of the disclaimer permitted by Fed. R. Civ. P. ("Rule") 8(b)(5) where neither
an admission or a denial of a complaint's allegation may conscientiously be advanced under
Rule 8(b)(1)(B) (see Answer ¶¶ 14, 17, 30, 45, 46, 55 and 81). But having invoked that
disclaimer, Kaplan's counsel then impermissibly go on to add "and, therefore, denies the
allegations in Paragraph -- of the Complaint." It is of course oxymoronic for a party to assert
(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. Because such a denial is at odds with the pleader's
obligations under Rule 11(b), the quoted language is stricken from each of those paragraphs of
the Answer.
In another variant on the use of the Rule 8(b)(5) disclaimer, Answer ¶ 79 quite
permissibly disclaims the Complaint ¶ 79 allegation as to what Freeman "reasonably believes."
But having done so, Kaplan's counsel (who of course cannot know what Freeman actually
believes) should simply have gone on to deny the reasonableness of any such belief, rather than
denying all of the Complaint ¶ 79 allegations.
Next on the list are a number of what appear to be some belt-and-suspender statements
that are really not appropriate responses to allegations in the Complaint. Each of Answer ¶¶ 4, 5,
58, 59, 77 and 78 couple an appropriate response to the corresponding Complaint allegations (for
example, as to jurisdiction, venue and the like) with a pious denial of any wrongdoing by
Kaplan. But where a particular allegation is entirely neutral on that score, such as one asserting
the source of subject matter jurisdiction that is admitted by Kaplan, such a gratuitous denial of

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wrongdoing (which has not been asserted at all in the Complaint's allegation) has no proper place
in the pleading.
Finally, on a subject (that of appropriate affirmative defenses ("ADs")) that has already
been addressed in part in State Farm App'x ¶ 5, such amorphous pleadings as ADs 3 and 4 add
nothing to the mix. If and to the extent that further proceedings in this action reveal any of the
defects in Freeman's case that are referred to generically in those ADs, it will be time enough to
bring those on for consideration by appropriately filed motions. ADs 3 and 4, then, are stricken
for now -- but without prejudice.
This memorandum opinion and order should not be thought of as exhaustive or as
excluding Freeman's counsel from raising other issues regarding Kaplan's Answer. What has
been said here has been based on a preliminary scanning, rather than an in-depth study, of the
Answer as a whole.

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Milton I. Shadur
Senior United States District Judge
Date: March 2, 2015

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