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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 well.
  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 pleadings.


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