Coyote Logistics, LLC v. Newton Kennedy Asset Transportation, LLC

Filing 11

MEMORANDUM Order: Defendant's counsel is required to go back to the drawing board to address the flaws identified in this opinion on or before April 10, 2015. This Court leaves to counsel the decision whether to do so through a self-contained Amended Answer or by an amendment to the present Answer. Signed by the Honorable Milton I. Shadur on 3/25/2015:Mailed notice(clw, )

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

COYOTE LOGISTICS, LLC, on its own
behalf and assignee and subrogee of
Driscoll Strawberry Assoc., Inc.,
Plaintiff,
v.
NEWTON KENNEDY ASSET
TRANSPORTATION, LLC,
Defendant.

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Case No. 15 C 1134

MEMORANDUM ORDER
When this Court spotted a reference to an "initial status report" in a recent review of ECF
filings (no copy of that document had been delivered to this Court's chambers as is required by
LR 5.2(f)), it had a copy of the document printed out by its secretary. 1 Although that status
report reflects that an Answer had been filed by defendant Newton Kennedy Asset
Transportation, LLC ("Newton") on March 3, 2015, Newton's counsel had also violated LR
5.2(f) by their failure to have delivered a judge's copy of that pleading to this Court's chambers.
This Court has printed out a copy of that Answer, and this memorandum order is issued sua
sponte because of some problematic aspects of that pleading.
To begin with, in their responses to Complaint ¶¶ 1, 2 and 8 Newton's counsel have
inexplicably (and impermissibly) departed from the plain roadmap marked out by Rule 8(b)(5)

1

Incidentally, this Court's initial scheduling order in cases on its calendar does not call
for such reports, which experience teaches have little or no value when issued early in a case's
life (despite the provisions of Fed. R. Civ. P. ("Rule") 16(b)(3)(A)) to the contrary).

for a disclaimer in situations where a defendant is unable to admit or deny a plaintiff's allegation
as called for by Rule 8(b)(1)(B). Moreover, Newton's departure from the Rule 8(b)(5)
formulation is accompanied by a demand for "strict proof" -- whatever that may mean. In both
of those respects, see App'x ¶ 1 to State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278
(N.D. Ill. 2001).
Next, Newton's counsel -- again both inexplicably and impermissibly -- have responded
to the straightforward jurisdictional allegation of Complaint ¶ 5 by characterizing it as a legal
conclusion to which no response is called for. In that respect, see App'x ¶ 2 to State Farm
(whatever happened to a simple admission?).
In still another inappropriate response, Newton's counsel's Answer ¶ 9 asserts as to
Complaint ¶ 9:
Defendant states that the bill of lading speaks for itself and is the best evidence of
its contents. To the extent the allegations in paragraph 9 conflict with the bill of
lading, Defendant denies those allegations.
That locution offends in two ways. For one thing, a statement that a document "speaks for itself"
is an unacceptable response -- a subject addressed in App'x ¶ 3 to State Farm. And as for the
denial of the allegations in Complaint ¶ 9 "[t]o the extent [that they] conflict with the bill of
lading," that improperly expects opposing counsel, this Court and any other reader to divine what
defense counsel may consider to be such a conflict -- instead, if defense counsel believe that such
a conflict does exist, they must flesh out their position in that respect.
Finally, several of Newton's asserted affirmative defenses ("ADs'') leave something to be
desired. Here are the problems that this Court has noted:
1.

AD 1 is essentially the equivalent of a Rule 12(b)(6) motion, but it ignores
the fundamental principle that an AD must accept a complaint's
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well-pleaded allegations as gospel -- see App'x ¶ 5 to State Farm.
Moreover, if Newton's counsel believe that the Complaint is deficient in
that respect, that issue must be brought on by a fleshed-out motion rather
than letting it sit there like a ticking time bomb that could explode the
Complaint -- and perhaps this action itself -- after the parties have devoted
time and effort to discovery.
2.

AD 2, which asserts a failure "to exercise reasonable diligence in
mitigating [Coyote's] damages," is totally hypothetical. Future discovery
may reveal that to be a viable AD, but for the present it is stricken without
prejudice.

3.

That appears to be true as well as to ADs 3 (asserting the absence of
proximate cause) and 4 (asserting the shipper's or owner's fault to be the
sole cause of loss). Here too those ADs are stricken without prejudice,
with the potential of reassertion if discovery reveals either or both of those
contentions to have any purchase.

In sum, Newton's counsel is required to go back to the drawing board to address the flaws
identified in this opinion on or before April 10, 2015. This Court leaves to counsel the decision
whether to do so through a self-contained Amended Answer or by an amendment to the present
Answer.

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Milton I. Shadur
Senior United States District Judge
Date: March 25, 2015
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