The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
Although carefully drafted in principal part, the August 25
Answer of Avaya, Inc. ("Avaya") to the charges of antitrust and
common law violations brought against it by United Asset
Coverage, Inc. ("United Asset") contains several departures from
sound federal pleading principles. This memorandum order is
issued sua sponte to send Avaya's counsel back to the drawing
board to correct those flaws.
To begin with, counsel have inexplicably departed from the
clear standard deliberately marked out by the second sentence of
Fed.R.Civ.P. ("Rule") 8(b) as the prerequisite to obtaining
the benefit of a deemed denial of United Asset's allegations.
Those departures, which omit the vital component of "belief" that
makes a good faith disclaimer more difficult, are pervasive (see
Answer ¶¶ 4, 12, 24, 25, 30-33, 35-41, 44, 45, 50, 56, 63, 66,
69, 70, 72 and 74). In that regard see App. ¶ 1 to State Farm
Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill.
2001). All of the defective disclaimers identified here are
therefore stricken, albeit with leave granted to replead.
Next, Avaya's counsel have taken the mistaken position that
allegations of law require no answer see the first sentence of
Rule 8(b) and App. ¶ 2 to State Farm. Hence Answer ¶¶ 14, 15,
87 and 101 are also stricken, once more with leave granted to
Next, "to the extent" assertions in a responsive pleading are a
sure tipoff to the statement of an uninformative position that
defeats the purposes of notice pleading. They impermissibly leave
the reader to guess what the pleader claims to be incorrect or
improper and what the pleader intends to leave unchallenged.
Those allegations in Answer ¶¶ 51, 52 and 65 and in Affirmative
Defense ("AD") 6 are stricken as well.
Finally the ADs present a mixed bag in terms of their
compliance or noncompliance with the principles of Rule 8(c) and
its implementing caselaw (see App. ¶ 5 to State Farm). Although
Avaya's counsel will not be required to engage in a total
revamping, at a minimum AD 5 is stricken as insufficiently
informative in notice pleading terms, without prejudice to the
possible reassertion of one or more of the listed defenses if
properly fleshed out.
In terms of curative measures when such a responsive pleading
is addressed, this Court's normal procedure is to strike the
entire answer so that a self-contained Amended Answer can be filed for more convenient reference. In this instance the length
of such a self-contained pleading would require the felling of
more trees to the detriment of the environment, so that Avaya's
counsel are granted leave to file an appropriate amendment to the
Answer in this Court's chambers (with a copy being transmitted
contemporaneously to United Asset's counsel) on or before
September 12, 2005. And in the interest of economy, that
amendment can contain a single assertion that follows faithfully
the roadmap in Rule 8(b)'s second sentence and refers to all
paragraphs of the present Answer that can properly contain such
disclaimers in objective good faith.
Finally, even though this is a very minor item in a case of
this magnitude, there is no reason that Avaya should pay twice
for the correction of counsel-generated errors. No charge is to
be made to Avaya by its counsel for the added work and expense
incurred in correcting those errors. Avaya's counsel are ordered
to apprise their client to that effect by letter, with a copy to
be transmitted to this Court's chambers as an informational
matter (not for filing).
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