United States District Court, N.D. Illinois, Eastern Division
DAVID J. KUDISH, Plaintiff and Counterdefendant
HOWARD FREEDLAND, individually and d/b/a "Lido Capital" and KEITH PINTER, individually, and d/b/a "Lido Capital," Defendants and Counterplaintiffs.
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
Howard Freedland and Keith Pinter (collectively
"Freedland-Pinter") have filed their Answer, Affirmative Defenses
("ADs") and Counterclaim in opposition to the Amended Complaint
("AC") brought against them by David Kudish ("Kudish"). This
memorandum order is issued sua sponte to require the correction
of some obvious deficiencies in that responsive pleading.
To begin with, Answer ¶¶ 5 and 6 improperly fail to answer the
corresponding allegations in the AC because Freedland-Pinter
characterize those allegations as legal conclusions. In that
respect, see App. ¶ 2 to State Farm Mut. Auto. Ins. Co. v.
Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001). Indeed, the
purported denial of "all factual allegations" in Answer ¶ 6 is
totally inconsistent (for example) with the admissions set out in
Answer ¶ 9. Answer ¶¶ 5 and 6 are therefore stricken.
Next, how can Freedland-Pinter claim in good faith that they lack information to form a belief as to when Freedland
admittedly sent a document to Kudish (see Answer ¶ 11)? Answer ¶
11 is also stricken.
Answer ¶ 17 is doubly flawed. As to the notion that any
document "speaks for itself," see App. ¶ 3 to State Farm. And a
purported denial of allegations that are said to be "contrary to,
or inconsistent with," the contents of such a written document
impermissibly calls for Kudish and this Court to read the minds
of Freedland-Pinter and their counsel as to the scope of such
denial. Hence Answer ¶ 17 is also stricken.
Although there may be other aspects of the Answer that are
problematic, this Court will not essay a complete runthrough of
its provisions, preferring instead to leave that to Kudish's
counsel. But the ADs are problematic in several respects:
1. To the extent that Freedland-Pinter charge the
insufficiency of Kudish's securities laws claims as a
matter of law rather than fact, their counsel must
bring that contention on promptly by filing an early
motion and supporting memorandum (such claimed
insufficiency should obviously be addressed as a
threshold matter). Counsel's failure to do so will be
treated as a waiver more accurately a forfeiture
of that defense.
2. AD 2 is stricken. Its challenge to Kudish's breach
of contract claim fails to accept, as Fed.R.Civ.P.
("Rule") 8(c) and the case law require, Kudish's
allegations as gospel. In that respect, see also App.
¶ 5 to State Farm.
3. ADs ¶¶ 3 and 4 suffer from the same flaw. They
call for crediting the Freedland-Pinter allegations
in their counterclaim, rather than Kudish's AC
allegations that are at odds with their version. ADs ¶¶ 3 and 4 are also stricken (Freedland-Pinter
suffer no prejudice as a result, for their
counterclaim stands on its own).
4. AD ¶ 5 also contradicts Kudish's allegations,
contradictions that have already been expressed by
the Freedland-Pinter denials of Kudish's
corresponding allegations. That AD is stricken as
Lease is granted to Freedland-Pinter's counsel to submit an
appropriate amendment to their Answer (but not to the stricken
ADs) by a filing in this Court's chambers (with a copy to be sent
contemporaneously to Kudish's counsel) on or before September 20,
2004. In the meantime, Kudish's response to the Counterclaim will
be due in accordance with the regular schedule for such reply
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