United States District Court, N.D. Illinois, Eastern Division
SU-MIN HSIEH, Plaintiff,
R.R. DONNELLEY & SONS COMPANY, etc., et al., Defendants.
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
R.R. Donnelley & Sons Company and Moore Wallace U.S.A., Inc.
have filed their joint Answer to the Complaint of Su-Min Hsieh
("Hsieh") in this employment discrimination action. Because
several of the affirmative defenses ("ADs") in the Answer are
troublesome, this memorandum order is issued sua sponte to
address those flaws.
First, however, another commonly committed error in pleading
should be mentioned (but is not required to be corrected by
counsel). Answer ¶¶ 12, 15 and 24 include an accurate employment
of the type of disclaimer required under the second sentence of
Fed.R. Civ. P. ("Rule") 8(b) to obtain the benefit of a deemed
denial, but counsel then go on to say that their clients
"therefore deny" the disclaimed allegations. That of course is an
oxymoron, for the absence of knowledge or information sufficient
to form a belief as to the truth of an allegation necessarily
precludes a good faith denial of that allegation. This is
simply a word to the wise for counsel's future pleading practice, for this Court sees no harm flowing from the
That does not apply to certain of the ADs, whose problematic
nature requires correction. Here they are:
1. AD 2 reads this way:
Plaintiff's claims are barred to the extent they are
not like or reasonably related to the allegations
contained in the underlying EEOC charge.
That use of "to the extent" is of course wholly
uninformative. If defendants indeed view any portion
of Hsieh's claims set forth in the Complaint as
barred for that reason, they must expressly identify
those assertedly nonviable claims by a prompt filing
for this Court's and Hsieh's information (and in the
latter respect, to trigger a possible response).
Absent such a filing, AD 2 will be stricken and any
such defense will be forfeited.
2. AD 3 does nothing more than to restate one aspect
of the employment discrimination statutes, without
expressly relating it to Hsieh's claims. Indeed,
because Complaint ¶¶ 19-22 identify the alleged
discriminatory conduct as having begun in October
2003, less than six months before Hsieh filed her
EEOC charge, AD 3's boilerplate assertion must be
viewed as frivolous and is accordingly stricken.
3. AD 4 violates the basic concept embodied in Rule
8(c) and the caselaw applying it see App. ¶ 5 to
State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278
(N.D. Ill. 2001). What is asserted there expressly
controverts the allegations in Complaint ¶¶ 28, 35
and 42 (as well as in other related Complaint
paragraphs), all of which must be accepted as gospel
for AD purposes. AD 4 is stricken as well.
4. That is equally true of AD 5 (see, for example,
Complaint ¶¶ 32, 39 and 46). Hence AD 5 is also
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