Andrades v. Enhanced Recovery Company, LLC

Filing 17

MEMORANDUM Order issued regarding defendant's amended answer and affirmative defenses. Signed by the Honorable Milton I. Shadur on 11/29/2016:Mailed notice(clw, )

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

LUCIANO ANDRADES,
Plaintiff,
v.
ENHANCED RECOVERY COMPANY
LLC,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 16 C 9413

MEMORANDUM ORDER
This Court's November 7 memorandum order (the "Order") addressed a number of
problematic aspects of the Answer and Affirmative Defenses ("ADs") that had been filed by
Enhanced Recovery Company, LLC ("Enhanced") to the First Amended Complaint ("FAC")
brought against by it Luciano Andrades ("Andrades"). To the extent that those problems
stemmed from the fact that Enhanced's counsel who drafted that responsive pleading is a Florida
lawyer and therefore unfamiliar with local practices and requirements (such as this District
Court's LR 10.1), this Court was not of course unduly critical -- instead it simply called attention
to the local requirement and expected it to be cured the next time around.
That however cannot be said of counsel's total failure to heed what the Order had
specifically said about the original Answer's use (or more accurately misuse) of Fed. R. Civ. P.
("Rule") 8(b)(5):
As for the Answer's use of Rule 8(b)(5), defense counsel has impermissibly
followed the invocation of that disclaimer by stating "and therefore, denies the
allegations" (Answer ¶¶ 5, 11, 13 and 14). 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.
Yet counsel has inexplicably repeated the same impermissible language in each of the four
paragraphs referred to in that quotation -- and, indeed, has added one more to boot -- Amended
Answer ¶ 10. This Court again strikes that oxymoronic language wherever it appears, and it
anticipates addressing the question of possible appropriate sanctions at the next status hearing.
That same criticism applies to AD 1, as to which the Order clearly explained the problem
with presenting the equivalent of a Rule 12(b)(6) motion as an unsupported AD. Yet once again
counsel totally ignored the striking of that earlier AD 1 and simply repeated it verbatim in its
current response. It is once again stricken, and here too defense counsel will be expected to
provide some explanation of a total disregard of this Court's plain message.
Finally, defense counsel has responded to FAC 1 -- its assertion of "jurisdiction pursuant
to § 1692k(d) of the FDCPA" -- by denying that Andrades "has standing to bring the claims
alleged," so that this Court assertedly lacks subject matter jurisdiction. That appears to betray a
serious misunderstanding of the fundamental meaning of the legal concept of subject matter
jurisdiction, which speaks of a federal court's power to hear claims of the sort advanced by a
plaintiff, rather than the ability or lack of ability of a plaintiff to advance a successful claim.
There is no question that Congress has conferred power to hear a claim of the type sought
to be advanced by Andrades by enacting 15 U.S.C. § 1692k(d) -- captioned "Jurisdiction," no
less -- so that this Court has jurisdiction to entertain such a claim and to decide whether a
plaintiff has or has not successfully invoked the statute involved. Hence Amended Answer ¶ 1
and its corollary AD 3 will also be stricken unless defense counsel presents a colorable argument

-2-

for lack of subject matter jurisdiction and lack of Andrades' standing at the next status hearing.

__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: November 29, 2016

-3-