McGee et al v. Federal National Mortgage Association et al

Filing 39

MEMORANDUM Order regarding the Answer filed by defendant Pierce & Associates, P.C. ("Pierce"). Pierce's counsel follows each Rule 8(b)(5) invocation with the statement "and therefore denies them on that basis." Because such a denial is at odds with the pleader's obligations under Rule 11(b), the quoted language is stricken from each of those paragraphs of the Answer. Signed by the Honorable Milton I. Shadur on 11/17/2016:Mailed notice(clw, )

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

PATRICK A. MCGEE and LISA MCGEE,
Plaintiffs,
v.
FEDERAL NATIONAL MORGAGE
ASSOCIATION, et al.,
Defendants.

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Case No. 16 C 7435

MEMORANDUM ORDER
Pierce & Associates, P.C. ("Pierce"), one of the defendants in this Fair Debt Collection
Practices Act action brought by Patrick and Lisa McGee (collectively the "McGees"), has filed
its Answer and Affirmative Defenses to their First Amended Complaint ("FAC"). Although that
responsive pleading is unexceptionable in most respects by making it clear as to what matters are
or are not in issue as between the McGees and Pierce in accordance with the notice pleading
principles applicable to federal litigation, one pervasive error prompts this sua sponte
memorandum order.
Nearly two-thirds of the Answer's paragraphs (Answer ¶¶ 5, 7, 9, 11, 12, 16, 17, 21-29, 1
32, 33, 35, 38, 42, 45-55 and 58-66) invoke the disclaimer provision embodied in Fed. R. Civ. P.
("Rule") 8(b)(5) to provide for situations in which no straightforward admission or denial is

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1
Because McGees' FAC has inadvertently included two paragraphs bearing the number
29, it should be made clear that the text refers to the first of those two paragraphs.

appropriate as called for by Rule 8(b)(1)(B). 2 But having done so, Pierce's counsel follows each
Rule 8(b)(5) invocation with the statement "and therefore denies them on that basis." But 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 is
stricken from each of those paragraphs of the Answer.

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Milton I. Shadur
Senior United States District Judge
Date: November 17, 2016

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2
This Court expresses no view as to the appropriateness or inappropriateness of any
denial or any Rule 8(b)(5) invocation on Pierce's part. Any possible problems in that respect will
be left to McGees' counsel to raise.

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