Ochsner v. Deutsche Boerse Systems Inc.
MEMORANDUM Order : Defendant's entire responsive pleading is stricken (without prejudice, except for matters that have been stricken here unconditionally). Leave is of course granted to file an Amended Answer and ADs on or before 10/28/2016. Signed by the Honorable Milton I. Shadur on 10/11/2016:Mailed notice(jms, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
DEUTSCHE BOERSE SYSTEMS INC.,
Case No. 16 C 8888
Deutsche Boerse Systems Inc. ("DBS") has filed its Answer to the Complaint of
employment discrimination filed against it by its ex-employee Christian Ochsner ("Ochsner").
This memorandum order is issued sua sponte because DBS' counsel has engaged in the
all-too-common practice of inappropriately overtechnical pleading that tends to defeat the notice
pleading purpose established by the Federal Rules of Civil Procedure ("Rules"). What follows
may not be exhaustive, but it suffices to require a total do-over by DBS' counsel.
For one thing, counsel repeatedly responds to all of the allegations in a paragraph of
Ochsner's Complaint and then concludes the response with a meaningless denial of "the remaining
allegations in Paragraph --." See, for example, Answer ¶¶ 2, 3, 4, 5, 12 and 13 -- and the list goes
on. Because such purposed denials leave the reader in the dark as to what (if anything) is in
dispute, that usage must be abandoned.
Next, counsel on occasion inserts a disclaimer, or perhaps some volunteered assertion, in
purported response to a nonexistent allegation in a Complaint paragraph. For example, Answer
¶ 7 includes this gratuitous statement even though Complaint ¶ 7 says nothing about a claimed
exhaustion of administrative remedies:
DBS denies that plaintiff exhausted administrative remedies for all of the
allegations in the instant Complaint.
Although the matters already referred to are merely examples -- as stated earlier, they are
not intended to be exhaustive -- they should assist in enabling DBS' counsel to take a fresh look at
the responsive pleading and reshape it in a constructive way. In so doing, counsel should also
engage in a comparable reconsideration of some problematic aspects of several of the affirmative
defenses ("ADs") that follow the Answer itself:
AD 1 asserts a statute of limitations bar, but it is predicated on this mistaken
Only allegations based upon events that occurred more than 300
days before August 19, 2016, 1 i.e., October 24, 2015, may be
considered timely and properly brought before this Court.
It is course true that allegations as to such earlier events are not themselves
actionable, but they may certainly be relevant toward proof of DBS'
allegedly discriminatory intent (or perhaps other aspects of Ochsner's
proof). AD 1 is accordingly stricken.
Because AD 2 asserts that Ochsner's allegations that he was subjected to a
hostile work environment "are outside the scope of his EEOC charge of
discrimination," while the Complaint has not attached a copy of that charge,
AD 2 remains in the case. Under the circumstances, of course, no
substantive view is expressed on that issue by this Court.
[Footnote by this Court] That was the date of receipt of EEOC's right-to-sue letter.
AD 3 challenges the Complaint's naming of DBS alone as defendant on the
ground that Ochsner "was not an employee of DBS until June 28, 2016."
But with the allegations of the Complaint taken as true (as is required for
AD purposes), for now it must be assumed U.S. Exchange Holding, Inc.
operated on an integrated basis with DBS. Again that poses a factual issue,
and AD 3 is accordingly left in place as well.
AD 4 asserts in part that Ochsner "voluntarily resigned his employment
with DBS," an untenable assertion in light of the Complaint's allegations.
DBS also alleges alternatively that Ochsner "has waived any claim" for lost
wages and benefits because he has not alleged attempted mitigation -- an
assertion that stands the doctrine of mitigation on its head. Hence AD 4 is
AD 5 asserts a failure on Ochsner's part to take advantage of DBS'
procedures in dealing with claims of discrimination. That AD may remain
for now, once again with no expression on the part of this Court as to its
Finally, AD 6 asserts DBS' good faith and reasonableness, but that is at
odds with Ochsner's allegations -- which, it must be remembered, are taken
as true for AD purposes. Accordingly AD 6 is stricken.
There is more, but the point made earlier is that the fundamental function of federal
pleading is to clarify just what things are and what things are not in issue between the litigants.
Accordingly DBS' counsel are ordered to return to the drawing board to reshape its responsive
pleading in a way that serves that purpose.
Because there are so many matters in DBS' Answer and ADs that require further
consideration and reshaping, and to facilitate the reader's ability to look to a single pleading, DBS'
entire responsive pleading is stricken (without prejudice, except for matters that have been stricken
here unconditionally). Leave is of course granted to file an Amended Answer and ADs on or
before October 28, 2016.
Milton I. Shadur
Senior United States District Judge
Date: October 11, 2016
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