United States District Court, N.D. Illinois
January 28, 2004.
SOMPO JAPAN INSURANCE COMPANY OF AMERICA, Plaintiff, V. M/V COMMANDER et al., Defendants
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
Jack Gray Transport, Inc. and Chicago Stevedoring Company
(collectively "Jack Gray," treated as a singular noun) have filed their
Answer, including affirmative defenses ("ADs"), to the admiralty
Complaint brought against Jack Gray and other defendants by Sompo Japan
Insurance Company of America ("Sompo"), with the Complaint including
supplemental jurisdiction claims as well. This memorandum order is issued
sua sponte because the Answer includes some patent violations of federal
pleading principles that need to be corrected.
In the main those violations involve a repeated disregard of the clear
roadmap that the second sentence of Fed.R.Civ.P. ("Rule") 8(b) marks
out for any party that can qualify for a deemed denial in those terms
see App. ¶ to State Farm Mut. Auto. Ins. Co. v.
Riley, 199 F.R.D. 276, 279 (N.D. Ill. 2001). Here each of Answer
¶¶ 2 through 6, 8, 9, 12, 15 and 18 reads in these terms:
JACK GRAY lacks sufficient information to either
or deny the allegations of Paragraph
and, therefore denies said allegations.
That locution omits the essential reference to a lack of
belief, which the drafters of the Rule inserted deliberately to
create a substantial hurdle for those who seek to assert the required
disclaimer to obtain a deemed denial.
Moreover, it is of course a contradiction in terms to follow even a
defective disclaimer (one that states an inability "to either admit or
deny") with an outright denial ("and, therefore denies said
allegations"). That language must be omitted when Jack Gray's counsel
returns to the drawing board to restate any answers that can qualify for
a deemed denial in the objective good faith required of every litigant
and every lawyer.
As for the two ADs, each of them is also problematic. Here are their
1. A.D. 1 asserts in generic terms that any relief
against Jack Gray is "governed and limited by the
terms and conditions of the relevant tariffs and
shipping documents. . . ." Even under the notice
pleading regime that exists in the federal courts,
that type of assertion provides inadequate
information to plaintiff and this Court. If Jack
Gray wishes to assert any such limitations, it must
do so in more particular form.
2. A.D. 2, which is the essential equivalent of a
Rule 12(b)(6) motion and must thus accept all of
allegations as true, is flat-out wrong. If
Jack Gray's Answer were to have admitted all of the
allegations of the Complaint, a judgment against it
on the pleadings would have been in order.
To avoid the patchwork type of pleading that would result if the errors
here were to be addressed via an amendment to the Answer, the entire
Answer is stricken. Jack Gray is of course granted leave to file a
self-contained Amended Answer but with A.D. 1 recast and A.D. 2
omitted in this Court's chambers (with a copy of course to be
delivered contemporaneously to plaintiff's counsel) on or before February
9, 2004, failing which (1) all of the allegations in the Complaint
paragraphs that correspond to the Answer's earlier-mentioned paragraphs
will be deemed to have been admitted and (2) the two ADs will remain
Finally, no charge is to be made to Jack Gray by its counsel for the
added work and expense incurred in correcting counsel's errors. Counsel
are ordered to apprise Jack Gray to that effect by letter, with a copy to
be transmitted to this Court's chambers as an informational matter (not
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