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O'CONNOR v. CARAHER
December 6, 2005.
COZEN O'CONNOR, P.C., Plaintiff,
ASPERGER CARAHER LLC, Defendant.
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
After having struck out on two unsuccessful (because meritless)
motions to dismiss the Complaint brought against it by Cozen
O'Connor, P.C. ("Cozen O'Connor"), Asperger Caraher LLC
("Company") has filed its Answer and Affirmative Defenses ("ADs")
to the Complaint. This sua sponte memorandum opinion and order is
triggered by some problematic aspects of that responsive pleading
that require correction.
To begin with, the Answer is shot through (Answer ¶¶ 3, 12, 19,
21, 28, 29, 36 and 44) with denials of Cozen O'Connor's
corresponding allegations on the ground that each "states a legal
conclusion to which no response is required." Even apart from the
facial inconsistency that is posed by any denial on that premise,
the premise itself is dead wrong see App. ¶ 2 to State Farm
Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill.
2001). Accordingly all those paragraphs of the Answer are
stricken, and Company is ordered to provide substantive answers
to the corresponding allegations in the amended pleading hereafter called for.
Next, even though (unlike all too many lawyers) defense counsel
is meticulous in tracking the disclaimer set out in the second
sentence of Fed.R.Civ.P. ("Rule") 8(b) as the basis for
getting the benefit of a deemed denial of many of Cozen
O'Connor's allegations (see App. ¶ 1 to State Farm), counsel
inexplicably follows each such disclaimer (Answer ¶¶ 6, 7, 8, 16,
43 and 58) with the phrase "and, therefore, denies same." Any
such denial if Company is indeed "without sufficient knowledge or
information to form a belief as to the truth of the allegations"
is oxymoronic. That phrase is stricken from each of the
paragraphs where it appears.
Finally as to the Answer, its Paragraph 42 satisfies neither
the first nor the second sentence of Rule 8(b). If Company cannot
assert the necessary disclaimer to the allegation in Complaint ¶
42 in objective good faith, it must answer that allegation on the
As for the ADs:
1. AD 1 fails to satisfy the federal requirement of
notice pleading, which applies with equal force to
defendants as well as to plaintiffs. It will not do
for Company to set out one of the legal concepts that
are included in Rule 8(c) without fleshing out its
assertion sufficiently to apprise opposing counsel
and this Court of the basis for such assertion. Company will be
expected to do so in its Amended Answer.
2. AD 3 advances a needless (and really meaningless)
reservation as to the possibility of its advancing
future ADs. If that were indeed to occur, this Court
would of course have the obligation to determine the
timeliness and propriety of any such later assertion,
so that an attempted reservation at this time is
Because the number of aspects of the current pleading that need
correction would, if handled by an amendment to the existing
Answer (as contrasted with a self-contained Amended Answer),
create a patchwork pleading, Company's counsel is ordered to file
such a self-contained Amended Answer on or before December 16,
2005. No charge is to be made to Company by its counsel for the
added work and expense incurred in correcting counsel's errors
identified here. Company'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
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