Tang v. Southeast Directional Drilling, LLC

Filing 20

MEMORANDUM Order issued sua sponte regarding the Answers and Affirmative Defenses. Signed by the Honorable Milton I. Shadur on 2/22/2017:Mailed notice(clw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID TANG,
Plaintiff,
v.
SOUTHEAST DIRECTIONAL
DRILLING, LLC, a PLH GROUP
COMPANY and ZACHARY DAHL,
Defendants.

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Case No. 16 C 11102

MEMORANDUM ORDER
Each of the two defendants in this personal injury action based on a motor vehicle
collision has filed a separate Answer to the Complaint filed against them by David Tang
("Tang"). That method of proceeding is entirely understandable, because the defendants are
named in separate counts of Tang's Complaint -- Count I as to Southeast Directional Drilling,
LLC ("Southeast") and Count II as to Southeast employee Zachary Dahl ("Dahl"), who at the
time of the accident was driving a Chevy Pick-up owned by Southeast. This memorandum order
is issued sua sponte because both Answers, filed by the same law firm, contain purported
Affirmative Defenses ("ADs") that clearly evidence a lack of thought, appearing instead to parrot
some boilerplate assertions that should have been left on that firm's pre-programmed software for
another day. Here are the two problematic ADs:
1.

AD 1 of each Answer is the functional equivalent of a Fed. R. Civ. P.
("Rule") 12(b)(6) motion. Even apart from the fact that the invocation of
Rule 12(b)(6) in this case is dead wrong -- remember that an AD must
accept the well-pleaded allegations of a complaint as gospel, while

explaining some other reason for a defendant's nonliability or lesser
liability (see App'x ¶ 5 to State Farm Mut. Auto. Ins. Co. v. Riley, 199
F.R.D. 276, 279 (N.D. Ill. 2001)) -- a serious motion to dismiss should be
addressed up front (and buttressed by an appropriate showing) rather than
being left for potential future consideration at some indeterminate date
while the lawsuit has gone on in the regular course of discovery and
preparation for ultimate resolution via trial or summary judgment.
Accordingly each AD 1 is stricken sua sponte.
2.

Although each AD 2, an assertion of contributory negligence on Tang's
part, is entirely proper and remains for future substantive determination,
the same cannot be said about AD 3. What is described in the Complaint
and both Answers is a two-vehicle collision stemming from Dahl's
attempted left hand turn off of Elmhurst Road in Elk Grove, Illinois into a
private road or driveway while Tang was also on Elmhurst Road, driving
in the opposite direction (northbound). Nothing suggests any involvement
by any third party, so that each defendant's AD 3 is stricken sua sponte as
well.

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Milton I. Shadur
Senior United States District Judge
Date: February 22, 2017

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