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LATHOM v. CITY OF DES PLAINES

United States District Court, N.D. Illinois


April 21, 2004.

DEBRA D, LATHOM, Plaintiff,
v.
CITY OF DES PLAINES, et al., Defendants

The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge

MEMORANDUM ORDER

City of Des Plaines ("City") and its alderman Thomas Becker ("Becker") have filed their Answer and Affirmative Defenses ("ADs") to the employment discrimination claim brought against them by Debra Lathom ("Lathom") under Title VII and 42 U.S.C. § 1983. This memorandum order is issued sua sponte because of some problematic aspects of that pleading,*fn1

To begin with, Answer ¶ 15 declines to respond to the allegations in Complaint ¶ 15 on the premise that those allegations "attempt[] to state a legal conclusion, which is as a matter of law to be decided by the court." That is just wrong, for legal conclusions are an entirely permissible part of federal pleading — see App. ¶ 2 to State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001). Accordingly Answer ¶ 15 is stricken, and counsel for City and Decker must file an amendment to the Answer responding to Lathom's allegations.

  Several of the ADs are also problematic. Here are their difficulties:

1. A.D. 1 is at odds with the fundamental principle that every affirmative defense (see Fed. R. Civ. P. 8(c)) must admit a plaintiff's allegations but explain why a defendant is nonetheless not liable — see App. ¶ 5 to State Farm. In this instance the AD contradicts Complaint ¶ 16.
2. A.D. 2 poses the same problem, this time because it controverts Complaint ¶¶ 19 and 20.
3. A.D. 4 is absurd. If Lathom's allegations are taken as true, as they must be, there is no way in which Becker could even arguably be entitled to qualified immunity for his behavior as charged in Complaint ¶¶ 6, 7 and 9-12.
Accordingly ADs 1, 2 and 4 are stricken without leave to replead.

  Because the flaw identified earlier as to Answer ¶ 15 is readily curable, counsel for City and Becker is ordered to file a brief amendment to the Answer in this Court's chambers on or before April 29, 2004 (with a copy of course to be delivered contemporaneously to Lathom's counsel) containing an answer to Complaint ¶ 15.


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