United States District Court, N.D. Illinois, Eastern Division
October 14, 2004.
CARMEN ROSS, Plaintiff,
OFFICER W. GARCIA, et al., Defendants.
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
Two of the defendants in this 42 U.S.C. § 1983 ("Section 1983")
action Heidi Martin ("Martin") and her employer Chicago
Veterinary Emergency Services Associated Ltd. ("Veterinary
Services") have filed their Answer, including three affirmative
defenses ("ADs"), to the Complaint brought against them and two
Chicago police officers by Carmen Ross ("Ross").*fn1 Because
the ADs are at odds with the fundamental concept embraced in
Fed.R. Civ. P. ("Rule") 8(c) and in the applicable caselaw (see App.
¶ 5 to State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276,
278 (N.D. Ill. 2001)), this memorandum order is issued sua sponte
to strike all three ADs.
For Rule 8(c) purposes, just as is true under Rule 12(b) (6), a
plaintiff's complaint allegations, together with all reasonable
favorable inferences therefrom, are treated as gospel. That being so, AD 1 ¶¶ 2 and 4 impermissibly contravene Complaint ¶
11, AD 2 ¶¶ 2 and 3 impermissibly contravene Complaint ¶ 28 and
AD 3 partakes of all of the same flaws as ADs 1 and 2, in
addition to which AD 3 ¶ 9 impermissibly contradicts Complaint ¶
It should of course be understood that nothing is lost to
Martin and Veterinary Services by such elimination of the ADs,
because the same potential defenses remain available to them as a
result of the Answer's having placed the Complaint's allegations
in issue. But their counsel's errors are not limited to the ADs
look as well at the "Want of Knowledge Affidavit" appended to the
Answer. Quite apart from the fact that federal practice (unlike
state court practice) contains no requirement that any such
affidavit be filed, it is of course totally irrelevant whether a
lawyer (rather than the client) lacks knowledge and information
sufficient to form a belief nor is a lawyer in a position to
swear that a client's denials to that effect "are true." That
affidavit is stricken as well.