FirstMerit Bank, N.A. v. Teets et al

Filing 97

MEMORANDUM Opinion and Order: This memorandum opinion and order is issued sua sponte because of some pervasive problematic aspects of defendants' answers to the amended complaint which includes affirmative defenses. Defense counsel is to return to court on or before August 7, 2015 with the filing of a self-contained replacement pleading that cures the flaws identified in this opinion. No charge may be made to defendants by their counsel for the added work and expense incurred in correcting counsel's errors. Defense counsel are ordered to apprise their clients to that effect by letter, with a copy to be transmitted to this Court's chambers as an informational matter (not for filing). Signed by the Honorable Milton I. Shadur on 7/24/2015:Mailed notice(clw, )

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

FIRST MERIT BANK, N.A.,
Plaintiff,
v.
THE TEETS FAMILY PARTNERSHIP,
et al.,
Defendants.

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Case No. 15 C 1573

MEMORANDUM OPINION AND ORDER
Defendants have just filed their bulky collective Answers (94 pages!) to the First
Amended Complaint ("FAC") initially brought against them by First Merit Bank, N.A. ("First
Merit") and now taken over in part by the trustee for the bankruptcy estate of defendant Earl
Teets Jr. This Court has waded through that responsive pleading (which also includes
affirmative defenses ("ADs")), and this memorandum opinion and order is issued sua sponte
because of some pervasive problematic aspects of that filing.
Before those aspects of the pleading are dealt with, however, a few words should be said
about the commendable manner in which the pleading is presented. Unlike all too many lawyers
who are heedless of the inconvenience (or worse) suffered by any required reader (opposing
counsel or the judge to whom a case is assigned) who must perforce go through multiple separate
answers in multidefendant cases to learn the respects in which the defendants share common
cause and the respects in which they may part company, defense counsel here have put together a
single document that facilitates the notice-pleading function that should underpin federal

pleading. In that respect defense counsel's delivery to this Court's chambers of what is termed a
"courtesy copy" is literally as well as figuratively accurate.
To shift to less pleasant topics, however, three aspects of defense counsel's crafting call
for negative comment. They tend to prove again that all defense counsel engaged in the federal
practice might generally do well to familiarize themselves with the principles exemplified by the
Appendix to this Court's opinion in State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276
(N.D. Ill. 2001), which was originally published to spare this Court's then secretary the chore of
having to repeat the same points in multiple opinions.
First, defense counsel here have inexplicably failed to follow the roadmap clearly marked
out in Fed. R. Civ. P. ("Rule") 8(b)(5) for use in situations in which defense counsel cannot
comply literally with the mandate of Rule 8(b)(1)(B) as to some allegations in a complaint. Most
particularly, the locution that defense counsel have adopted here omits the critical component of
"belief," which by definition makes it more difficult for a party to disclaim a plaintiff's allegation
in the objective and subjective good faith demanded by Rule 11.
Even more troublesome, in the multitude of responses that contain such disclaimers
(Answer ¶ 6, 7, 15-20, 27, 33-37, 83, 87, 93, 94, 96, 97, 99-102, 104-11, 114-22, 124-26, 132,
146 and 147) 1 defense counsel impermissibly follow each disclaimer with "and therefore deny
same." 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 (as Rule 8(b)(5)
requires), then proceed to deny it. Because such a denial is at odds with the pleader's obligations

1

If this laundry list or either of the other two laundry lists later set out in this opinion has
or have missed or misnumbered any of the Answer's paragraphs, this Court apologizes for any
such unintended errors.
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under Rule 11(b), the quoted language must be stricken from each of those paragraphs of the
Answer the next time around. 2
Next, still another laundry list of responses (Answer ¶¶ 70, 169, 176, 187, 196, 207, 216,
217, 224, 253, 254, 260 and 261) share the repeated assertion that a statute or document "speaks
for itself." On that score, see App'x ¶ 3 to State Farm. When defense counsel return to the
drawing board, as they must, that language must be omitted and the FAC's allegations in those
areas must be responded to as Rule 8(b)(1)(B) requires.
Lastly as to the Answers themselves, there are a whole flock of responses (Answer
¶¶ 135, 145, 152, 153, 156, 157, 167, 168, 173, 174, 184, 185, 193, 194, 204, 213, 214, 222, 223,
229, 230, 236, 237, 243, 244, 251, 252, 258 and 259) in which defense counsel take it on
themselves to decline to answer the corresponding allegations of the FAC on an asserted
predicate that is simply not authorized by the selfsame Rule 8(b)(1)(B). Even worse, defense
counsel then thoughtlessly proceed to deny all of those allegations to which they say no answer
is required, while anyone reading the FAC's allegations in those paragraphs would find it
obvious that a great many of them should be admitted rather than denied.
All of what has been said here requires defense counsel to return to court on or before
August 7, 2015 with the filing of a self-contained replacement pleading that cures the flaws
identified in this opinion. No charge may be made to defendants by their counsel for the added
work and expense incurred in correcting counsel's errors. Defense counsel are ordered to apprise

2

It should be emphasized that defense counsel's do-over called for by this opinion must
not just automatically convert each current flawed disclaimer to one that is faithful to Rule
8(b)(5)'s language. Instead each proposed disclaimer must be re-evaluated with the concept of
"belief" added to determine whether a good faith disclaimer is permitted.
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their clients to that effect by letter, with a copy to be transmitted to this Court's chambers as an
informational matter (not for filing). 3

__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: July 24, 2015

3

This opinion has deliberately avoided expressing any substantive views as to the
propriety of the outright denials that are contained in defendants' pleading, nor is any view
articulated here as to the ADs that follow the Answers, even though a number of them are plainly
problematic in nature. Instead all such matters will be left to plaintiffs' counsel for possible
motion practice.
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