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U.S. v. JIMENEZ LANDSCAPING CORPORATION

United States District Court, N.D. Illinois, Eastern Division


September 27, 2004.

UNITED STATES OF AMERICA, Plaintiff,
v.
JIMENEZ LANDSCAPING CORPORATION, et al., Defendants.

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

MEMORANDUM ORDER

Jimenez Landscaping Corporation, Pedro Jimenez and Pedro Jimenez, Jr. have just filed their collective Answer and Affirmative Defenses ("ADs") to the Complaint brought against them by the United States under the auspices of the Clean Water Act. Because more than two-thirds of the paragraphs in that responsive pleading (apart from the ADs, of which more later) violate some fundamental principles of federal pleading, this Court sua sponte strikes the entire response — but with leave being granted to file a self-contained Amended Answer and ADs in this Court's chambers (with a copy to be delivered contemporaneously to government counsel) on or before October 12, 2004. Here in brief are the flawed provisions:

1. Answer ¶¶ 1, 12-14, 18, 19, 24-27, 29, 31 and 32 must be redone — see App. ¶ 2 to State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001).*fn1 2. Answer ¶¶ 2 through 11 must also be recast — see App. ¶ 3 to State Farm.
As for the ADs, for the most part this Court will await any challenge that the United States may choose to advance. But certain of the ADs do call for comment at this time:

 

1. It is inappropriate to state as a claimed AD the equivalent of a Fed.R. Civ. P. 12(b) (6) motion, as ADs 1 and 6 seek to do. If defendants wish to challenge the legal sufficiency of the Complaint, they must do so — and must do so promptly — by an appropriate motion.
2. Because AD 3 asserts a purported subject matter jurisdictional defect, it must of course be addressed at the outset of the case. That contention too should be advanced by a promptly filed motion, coupled with a supporting memorandum.
3. ADs 7 and 8 do not suffice even under the generous notice pleading principles that are operative in the federal courts. Instead of such conclusory statements, if defendants want to assert any such defenses they must flesh them out so that government counsel and this Court may see and evaluate what is being asserted.
4. Defendants' "reservation of rights" simply does not belong in their responsive pleading. If, as and when any other matters may come to defendants' attention that suggest the need for an amendment to their response, that can be asserted by a motion for leave to file at that time, and this Court will then evaluate the claim.
  Finally, defense counsel are ordered to comply with App. ¶ 5 to State Farm. In accordance with the directive there, a copy of their letter of transmittal to defendants should be provided to this Court contemporaneously with the self-contained amended pleading.


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