United States District Court, N.D. Illinois, Eastern Division
September 12, 2005.
BONESTROO, ROSENE, ANDERLIK & ASSOCIATES, INC., Plaintiff,
ROBERT J. DEVERY, Defendant.
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
Robert Devery ("Devery") has just filed his Answer to the First
Amended Complaint ("FAC") filed against him by Bonestroo, Rosene,
Anderlik & Associates, Inc. ("Bonestroo"). This memorandum order
is issued sua sponte to require Devery's counsel to cure one
pervasive flaw in that responsive pleading.
Even though Answer ¶ 9 accurately reflects the awareness of
Devery's counsel as to the demands of the second sentence of
Fed.R.Civ.P. ("Rule") 8(b) as the predicate for getting the benefit
of a deemed denial (see App. ¶ 1 to State Farm Mut. Auto. Ins.
Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001)), the rest of
the responsive pleading inexplicably departs from that proper
usage: Answer ¶¶ 18, 19, 26, 35, 40, 46, 51, 56 and 57 disclaim
only knowledge, rather than information, sufficient to form a
belief as to the truth of Bonestroo's corresponding allegations.
By definition knowledge is harder to come by than information, so
that one could well have enough information to form a belief even
in the absence of outright knowledge. Accordingly all of those paragraphs of Devery's Answer are
stricken, but with leave granted to replead to those paragraphs
of the FAC by a filing in this Court's chambers on or before
September 23, 2005 (with a copy to be transmitted
contemporaneously to Bonestroo's counsel), including proper Rule
8(b) disclaimers only where that can be done in the objective
good faith demanded by Rule 11(b). In all events, however, the
oxymoronic "and therefore denies same" must be omitted from that
repleading how can an inability to plead to an allegation
because of lack of information sufficient to form a belief as to
its truth be coupled with a denial of the same allegation?
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