Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

ROSS v. GARCIA

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


October 14, 2004.

CARMEN ROSS, Plaintiff,
v.
OFFICER W. GARCIA, et al., Defendants.

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

MEMORANDUM ORDER

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 ¶ 24.

  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.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.