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NAZARENUS v. J. F. DALEY INTL.

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


May 31, 1989

ALTHEA B. NAZARENUS and OLIVER A. NAZARENUS, Plaintiffs,
v.
J. F. DALEY INTERNATIONAL, LTD. and PIKES BROTHERS, INC., Defendants

James B. Zagel, United States District Judge.

The opinion of the court was delivered by: ZAGEL

MEMORANDUM ORDER

JAMES B. ZAGEL, UNITED STATES DISTRICT JUDGE

 On September 28, 1988, we dismissed the plaintiffs' amended complaint against J. F. Daley with prejudice and sanctions. Pikes Brothers, although it had answered the amended complaint, saw the light and also moved to dismiss the complaint on November 4; the plaintiffs responded on November 21. Several weeks later, on December 12, the plaintiffs filed a document styled "MOTION TO VACATE" requesting that we reconsider and vacate our September 28 order. It is a run-of-the-mill motion for reconsideration; but we mistook the motion as a request to dismiss the entire lawsuit voluntarily on the condition that we vacate our September 28 order. See Fed. R. Civ. P. 41(a)(2). We agreed to do so on the condition that the plaintiffs dismiss the entire action (against both defendants) with prejudice.

 We now recognize our miscue and deny the plaintiffs' motion to reconsider.

 We shall not revisit in detail the infirmities that plagued the plaintiffs' complaints (copies of our previous opinions are attached as appendices). But we will take time out to discuss the doctrine of "notice pleading", codified in the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 8 and Appendix of Forms.

 In their memorandum in opposition to Pikes Brothers' motion to dismiss (which is attached to the plaintiffs' reconsideration motion), the plaintiffs make much ado about the fact that Pikes Brothers filed answers to the original and amended complaints: "This is an indication that there were sufficient facts in both complaints to enable Pikes Brothers to answer." As framed by the plaintiffs the proposition is true (possibly even tautologous); but the fact that one has pleaded allegations which can be answered does not entail the conclusion that those allegations state a claim upon which relief can be granted. A vague and conclusory complaint invites a vague and conclusory answer. Papers are filed but issues are not joined.

 The plaintiffs sought cover under the protective umbrella of "notice pleading", as if to say: "We have pleaded the essential elements of the cause of action, and there's nothing to be done about it." Unfortunately, the plaintiffs did not allege the essential elements of a claim for strict product liability or negligence under Illinois law. The only allegation in the amended complaint regarding the defective condition of the wax (which also constituted the negligence) was that it "was so composed that it had an inherent capacity to produce or cause bodily injury when used during customary handling by the ultimate user." Amended Complaint, para. 10. Even assuming this allegation would have been sufficient if it had been pleaded in the original complaint (though we believe it would not have been), it came to us in the wake of the plaintiffs' original complaint, which contained the following gem: the wax was defective because the manufacturer "omitted to include [in it] all necessary and essential ingredients." This allegation is absurd. To say that the wax lacked every one of its essential ingredients is to say that whatever it might have been, it was not wax.

 This is not to say that it is beyond the realm of possibility that Daley manufactured a substance which was not floor wax, and yet sold it as floor wax. (Under this complaint it might be motor oil, or some other lubricant, assuming none of the "essential" ingredients of floor wax are used in them.) But it is to say that the sheer incredibility of this allegation, upon which the plaintiffs' claims rested, justified the demand for more detailed pleading, which the plaintiffs stubbornly refused to provide. Notice pleading does not require the suspension of common sense. This allegation was preposterous, and in our view it presents either an attempt to use the liberal Federal pleading requirements to effect a transfer of wealth via the nuisance suit, or a situation in which the plaintiffs and their lawyers had too little faith in the case to justify the cost of some pre-suit investigation to determine whether the suit was justified. In either case it could not survive a motion to dismiss.

 Many complaints avoid the fate suffered here because they do not contain allegations that are so transparently inadequate. The plaintiffs' mistake was that they were too pointed. Better (tactically but perhaps not ethically) to couch one's claim in vague, conclusory terms; avoid being specific for it might provide your opponent (or the court) with the basis by which to make short work of the suit; fleshing out vague allegations requires discovery; and discovery requires money, often more money than the bottom line of the entire lawsuit will justify. Thus, a lawyer knows that settlement (cash) often lies at the end of the nebulous complaint. Notice pleading makes this possible, and thus carries with it the inevitable consequence that defendants will be forced to litigate and settle cases that have little or no merit.

 None of this necessarily means the Federal Rules or their philosophical foundation are somehow wrong or should be reconsidered. No system of rules can be drawn so precisely that it will reflect perfectly the interests to be protected on both sides in every case. In a world of imperfect knowledge, all rules are over- or underinclusive to some extent. Notice pleading is overinclusive in the sense that it permits at least some dubious claims to survive the initial gauntlet of motions under Rule 12. The alternative, common law or code pleading, was underinclusive in that it enabled defendants to avoid liability by extinguishing some meritorious claims. See generally C. Wright & A. Miller, Federal Practice and Procedure Sec. 1202 (1969 & 1988 Supp.). Rule makers have, at least for the present, opted for the former, in the belief that on balance it is better (for society) that all individuals injured in a legally cognizable manner be compensated, even if it means compensating others who have suffered no injury (or at least no legally cognizable injury) and penalizing those without fault. There is a basis to doubt the wisdom of this approach, see Coase, The Problem of Social Cost, 3 J.L.& Econ. 1 (1960), but it need not detain us here. It is enough to recognize that the doctrine of notice pleading provides plaintiffs with an incentive to seek compensation for injuries for which defendants are not legally responsible. This recognition, in turn, justifies enhanced judicial scrutiny of certain pleadings, see, e.g., Strauss v. City of Chicago, 760 F.2d 765 (7th Cir. 1985); Patton v. Przybylski, 822 F.2d 697 (7th Cir. 1987), including those which carry telltale signs (evidenced, for example, by patently ridiculous allegations) that an abuse is in progress.

 This is such a case. To allow these plaintiffs (and their lawyers) to escape the consequences of their risible allegations with a breezy invocation of "notice pleading" would mock the system we are charged to protect. We will not force defendants to endure the costly ordeal of litigation when a plaintiff has made allegations that obviously are without sense. Notice pleading was intended to simplify litigation and alleviate the Draconian results spawned by common law pleading; it was not meant to insulate baseless lawsuits from dismissal during the pleading stages. The defect in this case smacks of far more than a typographical mistake or other innocent drafting error; it leaves the unmistakable impression that this complaint was filed without reasonable inquiry into its factual basis, and perhaps for a questionable purpose (to coerce settlement) as well. As Rule 11 illustrates, there is no room in the Federal courts for either of these practices.

 The plaintiffs' motion for reconsideration is denied. In addition, the plaintiffs' claims against Pikes Brothers are dismissed for the reasons stated in our May 20, 1988 order (see p. 5) dismissing the plaintiffs' original complaint. The clerk is directed to enter an order pursuant to Fed. R. Civ. P. 58 dismissing the entire case.

 Date: 31 May 1989

19890531

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