Nelson v. J.D. Byrider

Filing 38

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 2/27/2017. Mailed notice(mjc, )

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

MELISSA NELSON,
Plaintiff,
v.
DIRKSEN AUTO SALES, INC. d/b/a
J.D. BYRIDER-SPRINGFIELD, et al.,
Defendant.

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Case No. 16 C 3490

MEMORANDUM ORDER
This action has been reassigned from the calendar of this Court's colleague Honorable
John Darrah to this Court, and the limited group of prior filings in the case that has been
delivered to this Court's chambers includes the attached brief January 19, 2017 order entered by
another of its colleagues, Honorable Amy St. Eve. This Court will adhere to the schedule set by
Judge St. Eve's order, but this sua sponte memorandum order is called for by some problematic
aspects of the Answer and Affirmative Defenses (Dkt. No. 25) filed back in July of last year by
defendant Dirksen Auto Sales, Inc. ("Dirksen").
Dirksen's counsel are among the unfortunately sizeable group of lawyers who fail to
make proper use of the Fed. R. Civ. P. ("Rule") 8(b)(5) disclaimer that may be called into play
when neither an admission nor an outright denial is appropriate in responding to an allegation in
a complaint. There is simply no warrant for departing from the straightforward path marked out
by Rule 8(b)(5), as Dirksen's counsel have done in Answer ¶¶ 5, 7, 8, 19-22 and 29 (see App'x
¶ 5 to State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 279 (N.D. Ill. 2001)). Moreover,

Dirksen's counsel compound that error by impermissibly following their variant on that Rule
with the assertion "and therefor denies the 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 in a complaint, 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 sua sponte from each of the cited paragraphs of the
Answer. Leave is granted, however, to file an amendment to the Answer in proper form on or
before March 15, 2017.

__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: February 27, 2017

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

Melissa Nelson
v.
J.D. Byrider

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Case No: 16 C 3490
Judge: Amy J. St. Eve

ORDER
Status hearing held. Parties to exchange the information required by Rule 26(a)(1) by 2/15/17.
All written discovery to be issued by 3/1/17. Fact discovery ordered closed on 8/1/17. Dispositive
motions to be filed by 10/15/17. Status hearing set for 4/12/17 at 9:30 a.m. before Judge Darrah.

(T:) 00:05
Date: 1/19/17

/s/ Judge Amy J. St. Eve