Rademacher v. MENARD, INC.,
Filing
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MEMORANDUM Opinion and Order, Defendant Menard, Inc.'s counsel is ordered to replace the current Answer with a self-contained Amended Answer on or before June 3, 2015, and this action is set for a status hearing at 9 a.m. June 19, 2015. Signed by the Honorable Milton I. Shadur on 5/21/2015:Mailed notice(clw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GERTRUD RADEMACHER,
Plaintiff,
v.
MENARD, INC.,
Defendant.
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Case No. 15 C 2626
MEMORANDUM OPINION AND ORDER
Counsel for defendant Menard, Inc. ("Menard") has just filed its Answer to the Amended
Complaint filed against it by Gertrud Rademacher ("Rademacher"), who alleges that she was
injured in a Menard's store in Shererville, Indiana when an inclined moving walkway
malfunctioned. As this memorandum opinion and order will explain, if the current filing by
Menard's counsel were to be taken at face value, the incident carefully spelled out in detail in the
original Complaint and elaborated on in the Amended Complaint never took place -- it must have
been the product of an overactive imagination or, even worse, the product of a deliberate effort to
perpetrate a fraud on the court.
Of course that is not so at all. Instead the ongoing pattern of filings on Menard's behalf in
this action displays a disturbing level of obstructionism, wholly at odds with the openness to be
expected on the part of responsible federal practitioners. Lest what has been to this point might
mistakenly be viewed as unfairly judgmental, a review of the total bidding in this litigation
should dispel any such concern.
This action originated in the Circuit Court of Cook County, but it was timely removed to
this District Court on March 27 of this year under the diversity-of-citizenship branch of federal
subject matter jurisdiction. Because Menard's counsel had failed to comply with the LR 5.2(f)
requirement that a hard copy of the Notice of Removal must be delivered to this District Court
for transmittal to the judge assigned to the case, this Court waited almost a week, then ordered
such delivery (coupled with the payment of a $100 fine) -- and on receipt of the Notice and
related papers this Court issued its customary initial scheduling order on April 6.
Meanwhile Menard's counsel filed both an Answer and multiple affirmative defenses
("ADs") to Rademacher's brief one-count, ten-paragraph Complaint. That responsive pleading
was so flawed as to trigger a sua sponte memorandum order by this Court calling for a total
do-over:
1.
Each of the ten answering paragraphs drafted by Menard's counsel took
this form, a hybrid of (a) an impermissibly distorted substitute for a
Fed. R. Civ. P. ("Rule") 8(b)(5) disclaimer coupled with (b) an
oxymoronic denial of the very same allegations that Menard had
disavowed having enough information to admit or deny:
The defendant lacks sufficient information to admit or
deny the allegations contained within paragraph -- and,
therefore denies the same.
2.
Menard's Answer itself was followed by a "bushel-full of purported
affirmative defenses ("ADs")" (19 in all) that violated some of the most
fundamental principles of federal pleading.
With the Answer and Affirmative Defenses therefore having been stricken in their
entirety by this Court, the next stage in the litigation came when Rademacher's counsel filed an
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Amended Complaint, comprising (1) two counts rather than one naming Menard as a defendant
and (2) eight new counts targeting members of the ThyssenKrupp corporate family (as will be
seen, Menard itself had disclosed in one of its earlier filings that a ThyssenKrupp company had
manufactured and installed the moving walkway responsible for Rademacher's injuries). So the
return of Menard's counsel to the drawing board took the form of a response to that Amended
Complaint, rather than a rewrite of the Answer to the original Complaint.
This time Menard's counsel managed to provide no useful information at all, for he
(1) flat-out denied every one of the 23 paragraphs now advanced against Menard (a repeat of the
10-paragraph Count I plus a 13-paragraph Count II asserting a res ipsa loquitur theory) and then
(2) responded to every paragraph of the ThyssenKrupp-targeting counts with a Rule 8(b)(5)
disclaimer formula. Only a moment's thought is needed to recognize just how uninformative
those combined approaches are.
As for the Menard-related paragraphs, we are left to guess just what information could
have come to counsel during the bit over a month that had elapsed between Menard's two
responsive pleading efforts that purportedly enabled Menard to shift from an absence of
"sufficient information to admit or deny [Rademacher's] allegations" to an outright denial of
those selfsame allegations. Quite to the contrary, Menard's Notice of Removal had itself
expressly reflected Menard's knowledge of the occurrence sued on by Rademacher. Here is
Notice of Removal ¶ 8 in part:
The defendant has received medical records of the plaintiff prior to the initiation
of litigation. Said medical records reveal claims and allegations of severe pain,
7/10, radicular symptoms into the lower extremities, "severe radiation pain" into
her lower extremities and claims of injury to the plaintiff's shoulder, knees,
lumbar spine and cervical spine. The plaintiff also claims difficulty ambulating;
indicative of a claim for a permanent disabling condition. Based on these
allegations, it is anticipated that the plaintiff will continue to seek treatment for
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her alleged injuries and that surgical intervention might be recommended. The
full extent of the plaintiff's allegations are unknown, as well as the total for any
medical expense the plaintiff might be alleging. The defendant is aware, though,
at this time, of claimed medical specials totaling thousands of dollars.
And there is more to refute the baseless assertion that Menard was lacking in information from
the beginning: AD 9 among Menard's original host of ADs had specifically identified one of the
ThyssenKrupp companies, ThyssenKrupp Elevator Company, as "the manufacturer or installer
of the subject walkway."
Quite apart from the level of hypocrisy thus manifested by Menard's unexplained change
in its pleading stance, this Court's best guess from the current Answer's Count I ¶ 1 downright
denial of the allegation that "the Defendant, MENARD, INC., owned operated, managed,
maintained, controlled and/or possessed the premises located at 1000 US Highway 41, in the
City of Shererville, County of Lake and State of Indiana" is that Menard, Inc. may be the
company at the top of the corporate heap, with the actual operations of the store where
Rademacher was injured being conducted by a subsidiary or perhaps a franchisee of the parent
company. 1 But if such is the case, that still does not justify the current simplistic approach that
Menard's counsel takes to his professional responsibility.
Why is that so? For starters, any responsible federal litigator has to be well aware that
the advanced disclosures mandated by Rule 26(a), buttressed by the specific terms of this Court's
initial scheduling order (although any such buttressing is hardly necessary), would necessarily
1
That hypothesis would appear to be entirely consistent with the ubiquitous advertising
in the "Menards" name (a registered mark -- neither "Menard" nor "Menard's") both on television
and in the weekend inserts in newspapers such as the Sunday Chicago Tribune, for those
materials never carry a specific location of the store or stores involved -- instead all are
institutional in nature.
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provide that information to Rademacher's counsel up front, enabling that counsel to file a swift
amended pleading that would smoke out the real predicate for Menard's across-the-board denials.
As for the allegations in the ThyssenKrupp-related counts, counsel's across-the-board
Section 8(b)(5) disclaimers are, to be blunt, false in many respects, for without question Menard
has had enough information from the very outset to form a belief as to many of Rademacher's
allegations in those counts. It must never be forgotten that Rule 11(b)(1) requires every lawyer
to have a good faith predicate, both subjectively and objectively, for what the lawyer says in his
or her pleadings. On that score this Court obviously has no informational yardstick for
differentiating among Menard's disclaimers in terms of their legitimacy (or lack of it), but what
is clear is that Menard's counsel must return to the drawing board once again to correct the many
defects that have been identified in this opinion.
Conclusion
It is always a source of keen regret when a federal court, which can most profitably
devote its opinions to the resolution of disputes between the litigants before it, finds it necessary
instead to take a lawyer to task for major and pervasive pleading errors that have blocked the
meaningful development of those disputes through conduct that has the effect of obfuscatory
stonewalling. To be sure, the Twombly-Iqbal dichotomy casts the underlying federal principle
of notice pleading in terms of the federal plaintiff -- but it ought to be clear that notice pleading
is not a one-way street.
Here this straightforward personal injury case, brought to this District Court by removal
from its state court place of origin, has been on the federal docket for just short of two months,
yet not a word has been forthcoming from defendant Menard that provides even a hint of where
the litigants part company -- or, perhaps even more importantly, where they are on the same
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page -- in substantive terms. That is simply intolerable, and this Court would have been remiss if
it simply left the action in its current totally uninformative stage.
Hence all of the flaws spoken of here have triggered this sua sponte opinion in an effort
to get the case moving forward. Menard's counsel is ordered to replace the current Answer with
a self-contained Amended Answer on or before June 3, 2015, and this action is set for a status
hearing at 9 a.m. June 19, 2015. 2
__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: May 21, 2015
2
Finally, no charge may be made to Menard by its lead counsel for the added work and
expense incurred in correcting counsel's errors. Menard's lead counsel is ordered to apprise his
client to that effect by letter, with a copy to be transmitted to this Court's chambers as an
informational matter (not for filing).
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