Andrades v. Enhanced Recovery Company, LLC

Filing 18

MEMORANDUM Order issued directing defendant's counsel to file a self-contained Second Amended Answer with any appropriate Affirmative Defenses on or before December 21, 2016. Signed by the Honorable Milton I. Shadur on 11/30/2016: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.

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Case No. 16 C 9413

MEMORANDUM ORDER
This memorandum order is occasioned by an apparent breakdown in the administration of
opinions and memorandum orders issued by this Court -- in this instance counsel for defendant
Enhanced Recovery Company, LLC ("Enhanced") report that they never received this Court's
November 7 memorandum order ("Order I," a copy of which is attached). 1 Because counsel's
subsequent November 18 filing of an Amended Answer and Affirmative Defenses ("ADs") to
the First Amended Complaint brought against Enhanced by Luciano Andrades ("Andrades")
complied with this District Court's LR 10.1, which was the first matter referred to in Order I, this
Court naturally assumed that counsel had received a copy of that order.
Because counsel's November 18 responsive pleading did not address all of the flaws
identified in Order I, this Court issued a November 29 memorandum order ("Order II") that
Enhanced's counsel did receive in the ordinary course -- a receipt that triggered counsel's
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1
That reported nonreceipt is confirmed by the fact that Order I mysteriously never found
its way into the court docket.

communication with this Court's staff to report the nonreceipt of Order I. Under the
circumstances described here, this Court simply orders that Enhanced's counsel comply with the
directives contained in both Order I and Order II by filing a self-contained Second Amended
Answer with any appropriate ADs on or before December 21, 2016. Although this Court will
not have received the paper Judge's Copy of that pleading by the previously scheduled
December 14 status hearing date, no change is ordered in that hearing date.

__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: November 30, 2016

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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 sua sponte October 5 memorandum order was prompted by what it
perceived as substantial deficiencies in the putative Class Complaint brought by Luciano
Andrades (“Andrades”) against Enhanced Recovery Company, LLC (“Enhanced”). Andrades’
counsel then responded by filing a First Amended Complaint (“FAC”) that dropped any potential
class treatment and sought to cure other problems posed by the initial pleading. Now Enhanced
has come forward with an Answer and Affirmative Defenses (“ADs”) that, if the original
Complaint and the FAC were to be assigned a grade in the C to D range in Federal Practice and
Procedure 101, could well earn a failing or near-failing grade in the same course.
Before this memorandum order turns to material issues, brief mention may be made of
the responsive pleading’s failure to comply with this District Court’s LR10.1, which requires a
respondent defendant to set out a “concise summary” of each of a complaint’s allegations,
followed then by the pleader’s response . In that respect the drafter of the current Answer’s
responsive pleading -- a Jacksonville, Florida lawyer -- is advised that defense counsel in this
district typically follow the easier practice of copying a complaint’s allegations verbatim, rather

ATTACHMENT

than having to spend time composing “concise summaries.” But Enhanced’s Florida lawyer can
hardly be blamed for his unawareness of LR10.1 -- instead, where as here Chicago counsel have
also appeared in the case, it should be that firm’s responsibility to apprise the out-of-state lawyer
of local practices and procedures that apply to handling a case in this district.
That however does not excuse the commission by Enhanced’s Florida counsel of other
violations exhibited by the current Answer and ADs – usages that are at odds with universally
applicable federal practices and procedures. This order goes on to identify those departures.
First among them is counsel’s pervasive repetition of labeling many of Andrades
allegations as “a legal conclusion and therefore ERC [Enhanced] is not required to respond.”
(see, e.g., Answer ¶¶ 1, 3, 4, 5, 9, 10, 16, 21 and 25). That is of course dead wrong -- see App’x
¶ 2 to State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001). All of those
assertions are therefore stricken, and Enhanced’s counsel must comply with Fed. R. Civ. P.
(“Rule”) 8(b)(1)(B) or, where appropriate, Rule 8(b)(5) in responding to all of the allegations in
the FAC.
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.
This memorandum now turns to the ADs that follow the Answer itself. Several are
problematic:

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1.

AD 1 is the equivalent of a Rule 12(b)(6) motion, and it

does not belong in the AD category. If it were left where it is, it
would be much like a bomb that Enhanced could set off at any
later time, even after both sides had already expended a good deal
of time and resources in preparing the case for disposition. If
Enhanced’s counsel really believes that Andrades has failed to
state a viable claim, that must be addressed up front by a properly
supported motion. So in the form that it has been presented, AD 1
is stricken.

2.

AD 5, which simply draws on part of the laundry list set

out in Rule 8(c)(1), suffers from the same defect. Moreover, it is
totally uninformative in terms of the notice pleading concept that
underlies proper federal pleading. Hence it too is stricken, but this
time without prejudice to the possible reassertion of one or more of
the current ADs if and when coupled with an appropriately
supported showing. If that is not done promptly as to any matter
now known to Enhanced, that AD will be forfeited.

In sum, Enhanced’s current responsive pleading (Dkt. No. 13) is stricken, but leave is
granted to file an Amended Answer and ADs on before November 21, 2016. Enhanced’s
counsel may not charge the client for any fees and expenses attributable to that repleading, and

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counsel is ordered to apprise Enhanced to that effect by letter, with a copy to be transmitted to
this Court (solely for informational purposes and not for filing).

Date: November 7, 2016

__________________________________________
Milton I. Shadur
Senior United States District Judge

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