United States District Court, N.D. Illinois
April 21, 2004.
DEBRA D, LATHOM, Plaintiff,
CITY OF DES PLAINES, et al., Defendants
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
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
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.