United States District Court, N.D. Illinois, Eastern Division
January 4, 2005.
Canadian National Railway Company, Inc., Plaintiff,
GE Capital Rail Services, Defendant.
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
This order is being entered shortly after the filing of the
Complaint. Counsel for plaintiff(s) are ordered to cause a copy
of this order to be delivered forthwith to each defendant in the
same manner that process has been or is being served on such
There will be a status hearing a "scheduling conference," as
that term is used in attached Fed.R.Civ.P. ("Rule") 16(b) at
8:45 a.m. on February 4, 2005 (the "Status Hearing Date").
Counsel for plaintiff(s) and for each defendant that has been
served with process or has appeared at least 28 days before that
Status Hearing Date are ordered to meet not later than 14 days
before the Status Hearing Date*fn1 to comply with the
provisions of attached Rule 26(f) and this District Court's LR
26.1 (also attached). Counsel for the parties are urged to
undertake serious settlement efforts before the scheduled Status
Hearing when no major investment in counsel's time (and clients'
money) has yet taken place. If such efforts are unsuccessful,
counsel should be prepared at the Status Hearing to discuss
briefly their proposed discovery plan and other subjects
appropriate for inclusion in the scheduling order as referred to
in Rule 16(b).
Instead of the scope of mandatory initial disclosure prescribed
by Rule 26(a) (1) as amended effective December 1, 2000, each
party is ordered to provide to other parties the broader
categories of information that were prescribed in Rules 26(a) (1)
(A) and (B) before such amendment (see copies attached). MEMORANDUM OPINION AND ORDER
Canadian National Railway Company, Inc. ("Canadian National")
originally filed this action in the United States District Court
for the District of New Jersey, invoking federal jurisdiction on
federal-question grounds. After the parties had filed memoranda
responding to District Judge Mary Cooper's order to show cause as
to why the action should not be transferred either to Delaware or
Illinois, Judge Cooper entered an order transferring the action
to this District Court, where it was assigned at random to this
This memorandum opinion and order is issued sua sponte to
direct counsel for defendant General Electric Rail Services
Corporation ("GE Railcar," mistakenly designated as "GE Rail Services in the Complaint) to return to the drawing board, in
part because the Answer that they prepared does not conform to a
local rule ("LR") of this District Court*fn3 and in part
because some aspects of the Answer do not comply with fundamental
principles of federal pleading.
To begin with the former matter, here is LR 10.1:
Responsive Pleadings: Responsive pleadings shall be
made in numbered paragraphs each corresponding to and
stating a concise summary of the paragraphs to which
it is directed.
That LR has as its obvious purpose a reader's ability to see just
what is and what is not placed in issue by the responding party
by looking at a single document, rather than having to go back
and forth between a complaint and its answer. For counsel's
information, LR 10.1 is most frequently satisfied by a
defendant's simply copying paragraphs in the complaint, rather
than attempting to paraphrase them to provide the required
To turn to the more substantive problem of the Answer's
noncompliance with pleading standards, Answer Count I ¶¶ 2, 3 and
7 fail to follow the plainly-marked roadmap that is prescribed by
the second sentence of Fed.R.Civ.P. ("Rule") 8(b) as the
condition for a responding party's entitlement to the benefit of a deemed denial of a plaintiff's allegations. In that respect,
see App. ¶ 1 to State Farm Mut. Auto. Ins. Co. v. Riley,
199 F.R.D. 276, 278 (N.D. Ill. 2001). Those paragraphs of the Answer
are accordingly stricken, but leave is of course granted to
replead them albeit with careful attention being paid to the
demanding standard set by Rule 8(b)'s second sentence.
Next, Answer Count I ¶ 5 is at odds with the requirement of the
first sentence of Rule 8(a) that a response is required to every
allegation in a complaint see App. ¶ 4 to State Farm. That
Answer paragraph is also stricken, again with leave being granted
Lastly, several of GE Railcar's affirmative defenses ("ADs")
are flawed in that respect, see App. ¶ 5 to State Farm as
well as Rule 8(c) itself. Here are the problems:
1. AD 1, which is essentially the equivalent of a
Rule 12(b) (6) motion, is simply wrong. When Canadian
National's allegations are taken as gospel (as an AD
must do), the Complaint surely states viable claims.
AD 1 is stricken, this time without leave to replead.
2. AD 2 is too general to be understood, even under
the notice pleading regime that is in effect in the
federal courts. If GE Railcar intends to reassert
that AD, it must do so in a more particularized
manner that will inform both Canadian National and
this Court of the predicate for its defense. In that regard, both
parties should pay heed to identifying (not
necessarily now, but rather down the road when the
issue must be addressed) what law federal or state,
and if the latter which state provides the rules of
decision (if state law applies, Van Dusen v.
Barrack, 376 U.S. 612 (1964) teaches that New Jersey
choice of law rules must be looked to for that
3. AD 3 is also stricken, for it impermissibly
controverts the allegations in Complaint Count I ¶¶ 6
and 7. GE Railcar is not prejudiced by this ruling,
of course, for its denial of Canadian National's
allegations in the Amended Answer will suffice to put
those matters at issue.
4. AD 4 is stricken for obvious reasons. If some
added AD does become properly assertable at a future
date, no reservation of rights is needed, while an
inappropriate future attempt to assert an AD is not
saved by a current reservation of rights.
As indicated earlier, GE Railcar is granted leave to file a
self-contained Amended Answer in this Court's chambers (with a
copy being transmitted contemporaneously to Canadian National's
counsel) on or before January 18, 2005. This Court is also
simultaneously issuing an initial scheduling order, which it should be noted does not require counsel for the parties to
file a proposed schedule but which sets an initial status hearing
to discuss such matters.
Because both parties have been represented by New Jersey
counsel to this point, this Court also calls their attention to
two additional LRs that apply in this District Court. Here they
1. LR 83.15 requires out-of-state counsel (who may of
course be admitted to practice here pro hac vice) to
designate local counsel not to carry the laboring
oar, but rather for notice purposes.
2. That requirement had its origin in what is now LR
5.3(a), which sets a longer time requirement for
serving the advance notice of presentment of motions
by mail than is applicable to personal service. In
that respect, however, LR 5.3(a) has been brought
into the current century by now allowing electronic
transmittal by consent of the litigants to be equated
with personal service.
Finally, this Court will leave it to the litigants to determine
whether either or both sides may choose to have the original
counsel continue to have primary responsibility for the case. In any event it has set the initial status hearing at 8:45
a.m. to allow the out-of-state counsel to participate
telephonically if they so choose but if that is done, it will
be counsel's responsibility to initiate the call after having
apprised the Court's minute clerk to that effect. Any such call
is to be made to (312) 435-5766 and is to be placed as a
conference call if more than one lawyer is involved.