Tripicchio et al v. Bank of America, N.A.

Filing 12

MEMORANDUM Order:Defendant's responsive pleading is stricken in its entirety, with leave granted of course to file a self-contained substitute on or before May 5, 2016. Signed by the Honorable Milton I. Shadur on 4/19/2016:Mailed notice(clw, )

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

THOMAS A. TRIPICCHIO and
DENISE TRIPICCHIO,
Plaintiffs,
v.
BANK OF AMERICA, N.A.,
Defendant.

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Case No. 16 C 1768

MEMORANDUM ORDER
Counsel for defendant Bank of America, N.A. ("BANA," the acronym employed in the
responsive pleading that is the subject matter of this memorandum order) has filed what passes
for an Answer to the Complaint brought against BANA by Thomas and Denise Tripicchio
(collectively "Tripicchios"). This sua sponte memorandum order is regrettably occasioned by an
apparent need for some in-house training in federal pleading at counsel's law firm (one of
Chicago's leading firms).
Ordinarily this Court deals with pleadings that contain the types of errors that initially
triggered its issuance and application of the Appendix to its opinion in State Farm Mut. Auto.
Ins. Co. v. Riley, 199 F.R.D. 276 (N.D. Ill. 2001), or that present other too-frequentlyencountered flaws, through the issuance of memorandum orders or opinions that specify those
defects to facilitate a pleader's correction of those defects. But here BANA's Answer and
accompanying purported affirmative defenses ("ADs") are far too lengthy, and the errors are too
pervasive, to justify this Court's expenditure of time in providing a chapter-and-verse
compilation rather than leaving it to counsel to do the correction.

Accordingly what follows here will simply identify the categories of errors that need
correction, with counsel bearing the responsibility for curing those defects in a self-contained
amended pleading:
1.

All too many of BANA's responses incorrectly assert that what defense
counsel views as "legal conclusions" therefore "do not require a
response" -- see App'x ¶ 2 to State Farm. Accordingly the rewritten
Amended Answer ordered hereunder must delete this repeated locution
wherever it appears:
Paragraph -- contains legal conclusions which do not require a
response. To the extent any response is required,
That elimination should of course leave in place the direct responses to
Trippichios' allegations.

2.

In the many places that defense counsel invokes the disclaimer provision
of Fed. R. Civ. P. ("Rule") 8(b)(5), 1 it is followed by the locution "and
therefore denies them." 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 must be stricken from each of those paragraphs in the
Amended Answer.

1

This Court expresses no view as to the substantive appropriateness or inappropriateness
of any such disclaimer. If Tripicchios' counsel perceives some claimed defect in any of those
disclaimers, that issue may be raised by an appropriate motion.

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3.

Next the Answer repeatedly characterizes some regulation or other
document by stating that it "speaks for itself," sometimes adding that it "is
the best evidence of its contents." That usage too is unacceptable -- see
App'x ¶ 3 to State Farm. All those statements are therefore stricken, and
the Amended Answer will be expected to respond to the corresponding
allegations in the Complaint in a substantively informative way -- one that
carries out the notice pleading purpose of the federal pleading regime. 2

4.

Finally, this memorandum order turns to the ADs -- no fewer than 10 in
number -- that follow the Answer itself. Many are unsuitable -- in that
regard defense counsel would do well to read and comply with App'x ¶ 5
to State Farm. In addition, if defense counsel is serious about advancing
AD 1 (which is the equivalent of a Rule 12(b)(6) motion), that contention
must be raised up front by a properly supported motion, else that
contention will be waived.

In sum, the existing responsive pleading is stricken in its entirety, with leave granted of
course to file a self-contained substitute on or before May 5, 2016. No charge may be made to
BANA by its counsel for the added work and expense incurred in correcting counsel's errors.
BANA's counsel is ordered to apprise his client to that effect by letter, with a copy to be

2

As already indicated in the text, this Court has made no effort to do defense counsel's
work for him by a thorough vetting of the Answer. If then it contains any other flaws identified
in the State Farm Appendix, defense counsel will be expected to address and correct those in
reworking the present Answer.

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transmitted to this Court's chambers as an informational matter (not for filing).

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Milton I. Shadur
Senior United States District Judge
Date: April 19, 2016

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